• by Wendy Davis  @wendyndavis, October 3, 2022

The Supreme Court has agreed to hear a longstanding dispute over whether tech companies are immune from lawsuits over user-created material that allegedly promoted terrorism.

In an order issued Monday, the court granted review of a mixed decision handed down last year by a panel of the 9th Circuit Court of Appeals, which considered whether Google, Twitter and Meta could be sued over separate incidents -- including a 2015 attack in Paris and a January 2017 nightclub bombing in Istanbul.

The tech companies argued that they were protected by Section 230 of the Communications Decency Act, which generally immunizes web companies over illegal material posted by users.

The 9th Circuit sided with the tech companies. The lawsuit stemmed from the Paris attack, which was brought by family members of a 23-year-old victim, Nohemi Gonzalez, a California State University student who was studying abroad at the time of the incident.

But in the same ruling, the appellate court revived family members' claims stemming from the Istanbul attack.

Gonzalez's family then sought review by the Supreme Court. The tech companies opposed that request, but said that if the Supreme Court granted the request, it should also consider the companies' potential liability in the lawsuits brought by family members of Nawras Alassaf, a Jordanian citizen who was killed in the Istanbul attack. 

The Supreme Court said Monday that it would hear both cases.

Gonzalez's family originally sued Google Facebook and Twitter, claiming that the companies enabled the growth of the terrorist organization ISIS. The family later dropped claims against Facebook and Twitter, but not Google.

In an amended complaint filed in November of 2017, the family alleged that Google not only allowed ISIS to post videos to YouTube, but also “assists ISIS in spreading its message” by recommending its videos to users.

The family argued in the case that it should be able to sue Google over its recommendations, as opposed to merely hosting the videos.

A trial judge and the 9th Circuit rejected that argument and dismissed the complaint. Attorneys for Gonzalez's family then asked the Supreme Court to hear an appeal, arguing that Section 230 shouldn't protect companies from claims stemming from recommendations made to social media users.

“The defendants are alleged to have recommended that users view inflammatory videos created by ISIS, videos which played a key role in recruiting fighters to join ISIS," lawyers for the family wrote in their petition to the Supreme Court.

“Application of section 230 to such recommendations removes all civil liability incentives for interactive computer services to eschew recommending such harmful materials," the petition continued.

Two years ago, the Supreme Court refused to take up a similar dispute involving Facebook.

In that matter, attorneys for victims of terrorist attacks in Israel argued that Facebook's alleged use of algorithms to recommend content perceived as encouraging terrorism should strip the company of immunity.

The 2nd Circuit Court of Appeals in New York sided with Facebook in the dispute, ruling that the company was protected from liability.

The appellate judges said in their opinion that web publishers typically recommend third-party content to users -- such as by prominently featuring it on a homepage, or displaying English-language articles to users who speak English.

The use of algorithms to make those recommendations doesn't make Facebook liable for the posts, Circuit Judge Christopher Droney wrote in an opinion joined by Judge Richard Sullivan.

Since then, however, Supreme Court Justice Clarence Thomas suggested more than once that other judges have interpreted Section 230 too broadly, and has called for the court to rule on the extent of that law.

In the litigation over the Istanbul attack, Alassaf's family alleged that Google, Twitter and Facebook aided and abetted ISIS, in violation of the Anti-Terrorism Act -- a law that enables victims of international terrorism to sue anyone who knowingly assists foreign terrorist organizations.

A trial judge dismissed those claims, but the 9th Circuit said the family could proceed with allegations that the platforms' services were “central to ISIS’s growth and expansion,” and that the companies “allowed ISIS accounts and content to remain public even after receiving complaints.”

Google, Twitter and Facebook unsuccessfully asked the 9th Circuit to reconsider the ruling, arguing that it marked an “unprecedented approach” that contradicts traditional principles of “aiding and abetting.”

“Until now, no court has allowed an [Anti-Terrorism Act] claim to proceed where the defendant provided only standardized services, common to billions of users, that supporters of a terrorist organization allegedly used to benefit that organization,” the companies wrote in papers filed last August.

The U.S. Chamber of Commerce backed that request, arguing that the appellate panel's decision expands the scope of the Anti-Terrorism Act “far beyond anything that Congress intended.”

While the dispute taken up by the Supreme Court deals with terrorist videos, tech companies are facing numerous other lawsuits by people who claim they were harmed after viewing content recommended to them by the companies' algorithms -- including cases by teens who said they developed eating disorders after viewing social media posts.