Facebook could face first Supreme Court challenge to Section 230 immunity

13 Jan 2020 12:48 pm by Mike Swift

Facebook and the wider Internet industry are at risk of having to defend the first challenge before the US Supreme Court to a law that in the view of many created the legal foundation for the modern interactive Internet — Section 230 of the Communications Decency Act.

In a newly filed petition for certiorari, the families of people slain or wounded in attacks by the terrorist group Hamas from 2014 to 2016 asked the Supreme Court to reconsider the broad immunity for content posted to interactive computer services that has been bestowed by a series of appellate court decisions dating back to 1997.

A group led by the estate of Taylor Force, a US military veteran and graduate student who was stabbed to death by a Hamas attacker in Tel Aviv in 2016, asked the Supreme Court to review a 2-1 decision last year by the US Court of Appeals for the Second Circuit that found that Facebook is immunized by Section 230 for content posted by Hamas on Facebook's platform.

"The courts of appeals are divided as to whether (as the Second Circuit held) section 230(c)(1) creates a form of general immunity applicable to all possible civil claims, or only precludes (in certain circumstances) treating interactive computer service providers as 'publishers' with regard to claims that specifically require a plaintiff to establish that the defendant is a publisher," Force and other victims told the high court.

A series of appellate court decisions by the Second, Fourth and Ninth Circuits have resulted in the precedent that Section 230 provides nearly bulletproof immunity for legal liability for content posted to social networks and other interactive computer services.

Force's lawyers argue, however, that the US Court of Appeals for the Seventh Circuit has always held a different view. The Supreme Court should resolve that circuit split, Force's lawyers said in the petition.

"A majority of the courts of appeals hold that section 230(c)(1) creates a species of immunity, which applies to any interactive computer service provider that acts as a 'publisher,' so long as it is publishing content created by another," the Hamas victims told the justices. "The Seventh Circuit, on the other hand, has repeatedly insisted that section 230(c)(1) should be construed very differently. The Seventh Circuit holds that section 230(c)(1) does not create a form of immunity at all, and that the defense provided by section 230(c)(1) is limited to claims which require a plaintiff to show that the defendant was a publisher."

The potential Supreme Court challenge comes as lawmakers and regulators increasingly question whether Section 230 immunity for the likes of Facebook, Twitter, YouTube and other big interactive platforms should be removed or limited. US Attorney General Bill Barr told a group of state attorneys general last month that within the US Department of Justice, "we also have started thinking critically on this issue" of revamping Section 230.

Many experts in Silicon Valley and elsewhere believe that without the unique American legal protections of Section 230, US online platforms such as Instagram, Snapchat, Wikipedia, Amazon, Yelp, Google, YouTube, Twitter and Facebook would not have grown into the global powers they are. Few experts expect Section 230 to be gutted, but the chances it will be amended or limited by Congress or the courts are much greater.

Section 230 was passed by Congress in 1996, at a time when online services such as America Online, CompuServe, Prodigy and the nascent World Wide Web were just beginning to become an important source of information, entertainment and communication. The title of a new book by Jeff Kosseff, a law professor at the US Naval Academy — "The Twenty-Six Words That Created the Internet" — is one measure of the law's importance.

A seminal decision by the Fourth Circuit in 1997 found that Section 230 gave AOL broad immunity from a libel suit for publishing false information that a Seattle filmmaker was selling T-shirts glorifying the terrorist bombing of the Oklahoma City federal building that year.

But the Internet has changed from that time, when only 40 million people in the world had access to it, said Bob Tolchin, a Brooklyn lawyer representing Force. Facebook's online platforms alone now have close to 3 billion users.

"Back then, they were talking about this new thing called e-mail," Tolchin told MLex today. "This is a statute that has been interpreted way beyond anything it actually says. And each court just sort of adds something on it, but where are they getting it from? It's all from this idea that, 'The Internet is good.' "

A Facebook spokesman declined to comment, but referred MLex to a survey done last year by the Internet Association that concluded: "The best of the Internet would disappear without CDA 230."

Force's lawyers want the Supreme Court to consider how the Internet is changing through new technologies such as artificial intelligence, asking the justices to consider the view of the dissenting judge in the Second Circuit. US Circuit Judge Robert Katzmann argued that Facebook is more than a publisher because it is "proactively creating networks of people."

Facebook uses its algorithms "to create and communicate its own message: that it thinks you, the reader — you, specifically — will like this content," Katzmann wrote in his partial dissent.

"Unlike the majority, Judge Katzmann insisted that a court should carefully distinguish between Facebook's action when it merely permitted Hamas to post content on its Facebook page (which was protected by section 230(c)(1)), and Facebook's action when it went further and recommended Hamas (as a 'friend'), and its Facebook page, content to other Facebook users," Force's lawyers told the Supreme Court.

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