January 27, 2023
CNN highlighted an amicus brief written by McGuireWoods partner Jonathan Ellis and associate Katie Barber in a Jan. 20, 2023, story on a U.S. Supreme Court case that could reshape the modern internet.
The question in the case, Gonzalez v. Google, is whether victims of a 2015 terrorist attack can hold Google liable for allegedly aiding and abetting terrorism based on YouTube’s algorithmic recommendations of pro-ISIS videos. Section 230 of the Communications Decency Act has long shielded interactive computer service providers like Google from liability for third-party content that appears on their platforms, but the petitioners argue that this liability shield does not apply to “targeted recommendations” of third-party content.
In an amicus brief written on behalf of New York University’s Stern Center for Business and Human Rights, Ellis and Barber argued that any exception to Section 230’s liability shield for “targeted recommendations” would gut the provision, because “recommending” is at the core of what today’s internet platforms do. If Section 230 does not apply to algorithmic recommendations, they observed, massive amounts of valuable speech will be lost or obscured, with outsized impact on historically marginalized groups and those expressing unpopular views.
“Websites use ‘targeted recommendations’ because those recommendations make their platforms usable and useful,” the brief asserted. “Without a liability shield for recommendations, platforms will remove large categories of third-party content, remove all third-party content, or abandon their efforts to make the vast amount of user content on their platforms accessible. In any of these situations, valuable free speech will disappear — either because it is removed or because it is hidden amidst a poorly managed information dump.”
Both McGuireWoods attorneys are members of the firm’s appeals and issues team and former Supreme Court law clerks. Ellis has argued nine cases before the high court.