Partially siding with social media companies, the Biden administration is urging the Supreme Court to rule that web platforms' failure to remove material posted by terrorists doesn't amount to aiding and abetting terrorism.
But the administration also takes the position that Section 230 of the Communications Decency Act, which broadly protects companies regarding material posted by users, doesn't immunize Google for making targeted recommendations of terrorism-related videos.
The administration's arguments come in two related lawsuits brought by terror victims' families.
One of the disputes, Twitter v. Taamneh, centers on whether Google, Meta and Twitter must face lawsuits by family members of Jordanian citizen Nawras Alassaf, who was killed in in a January 2017 terrorist attack by the Islamic State (ISIS) at the Reina nightclub in Istanbul.
The family alleged that the tech companies should face liability under the Anti-Terrorism Act for enabling ISIS to expand by hosting videos by terrorists. The Anti-Terrorism Act empowers victims to bring civil lawsuits against entities that knowingly provide substantial assistance to terrorists.
A trial judge dismissed the family's complaint, but the 9th Circuit Court of Appeals reinstated it.
In that matter, acting U.S. Solicitor General Brian Fletcher backed the tech companies, arguing in a friend-of-the-court brief that offering “generalized support to a terrorist organization through the provision of widely available services” isn't the kind of activity that violates the Anti-Terrorism Act.
“Most of plaintiffs’ allegations suggest only that defendants were aware that some ISIS-affiliated users and ISIS content remained on their platforms, along with millions (or billions) of other users and pieces of content, and that defendants did not search for and remove those users and content,” the government writes.
Those allegations “are insufficient to plausibly allege that defendants knowingly provided substantial support to the Reina attack," the brief continues.
The other matter, Gonzalez v. Google, centers on whether Google can be sued for allegedly recommending terrorist videos to YouTube users.
That battle stems from a lawsuit brought by the family of Nohemi Gonzalez, a California State University student who was studying abroad in France when she was killed in a terrorist attack in Paris. Gonzalez's family sued Google, arguing that the company not only allowed ISIS to post videos to YouTube, but also “assists ISIS in spreading its message” by recommending its videos.
The 9th Circuit Court of Appeals ruled that Google was protected by Section 230 of the Communications Decency Act for hosting the videos as well as recommending them.
Gonzalez's family recently appealed that ruling to the Supreme Court.
The Biden administration is siding against Google in this dispute, arguing in a friend-of-the-court brief filed late Wednesday that Section 230 doesn't protect Google from lawsuits over “targeted recommendations.”
“Even if YouTube plays no role in the videos’ creation or development, it remains potentially liable for its own conduct and its own communications, to the extent those go beyond allowing third-party content to appear on the site,” the administration argues.
At the same time, the administration argued that platforms' potential liability “is subject to important limitations,” adding that Section 230 protects Google from “failing to remove third-party content, including the content it has recommended.”
The legal battles have drawn interest from a wide range of outside groups, including digital rights activists, lawmakers and business associations.
Business groups including the U.S. Chamber of Commerce and Business Roundtable sided with the tech companies in the dispute stemming from the Reina nightclub attack. Those groups argued in a friend-of-the-court brief that large corporations such as banks and pharmaceutical companies are increasingly facing lawsuits accusing them of violating the Anti-Terrorism Act.
“Very few Anti-Terrorism Act cases are brought against the individuals or groups that planned, committed, or directly supported the attacks injuring the plaintiffs,” the Chamber of Commerce and other groups write. “Rather, virtually all of these claims target deep-pocketed, legitimate companies. They virtually always rest on attenuated liability theories asserting that goods or services provided to customers in conflict-ridden areas of the world somehow assisted a terrorist organization and thereby aided and abetted a terrorist act.”