A federal judge says YouTube isn't liable for terrorists' use of the site. But as Eric Goldman warns us, when it comes to Section 230, every silver lining has its cloud.
As the Stop Enabling Sex Traffickers Act of 2017 (SESTA) wends through Congress, technology-law professor Eric Goldman is the modern-day equivalent of Cassandra warning her fellow Trojans about the wisdom of keeping that big wooden horse around.
In Greek mythology, Cassandra was cursed by Apollo with ability to foretell the future — with the hitch that no matter what she says or how right she is, everyone will be convinced that she’s one nut shy of a PayDay bar.
Granted, plenty of people believe Goldman’s dire warnings — whether on his respected Technology & Marketing Law Blog or in his recent testimony before Congress — about how SESTA will gut Section 230 of the Communications Decency Act of 1996 and make interactive internet platforms responsible for the stuff users post on them.
But it appears that few of these sentient souls are in Congress, where support for SESTA grows.
Federal courts, meanwhile, have consistently ruled that Section 230 shields internet platforms from civil and state criminal liability for third-party content. This principle protects Twitter, Facebook, and Google, for instance, from being sued by the victims of ISIS for videos the terrorist group publishes on social media.
As crazy as that scenario may sound, Goldman notes in a recent post that such suits are common thanks to the law dogs at 1-800-LAW-FIRM. As Goldman details, the courts keep mowing down this lame litigation like Brad Pitt & Co., do zombies in World War Z.
Which is all well and good — as long as Section 230 holds.
In his post, Goldman hails the latest such adverse ruling against 1-800-LAW-FIRM, from U.S. District Judge Donna Ryu in Gonzalez v. Google. In that case, filed in June 2016, the family of a woman who was murdered during an ISIS attack in Paris alleged that Google was responsible for her death because ISIS uses the Google-owned YouTube for recruitment and propaganda purposes.
Numerous lawsuits have been filed claiming social media services “materially support” terrorists because terrorist groups disseminate their content via the services. 1-800-LAW-FIRM (I kid you not) is behind most of these lawsuits. I’ve been baffled by the proliferation of these lawsuits because they seem doomed, yet more cases have been filed even after two courts (in Fields v. Twitter and Cohen v. Facebook) have thoroughly rejected them. Now, a third court has echoed and extended the prior two dismissals, reinforcing why I think all of these lawsuits will fail.This lawsuit involves YouTube. The plaintiffs allege that ISIS posted YouTube videos and these videos proximately caused the plaintiffs’ deaths in a terrorist attack in Paris. YouTube moved to dismiss on Section 230 grounds.
Like the prior cases, the plaintiffs argued that it was suing for YouTube’s provision of accounts to ISIS, not for content published via the accounts. The court restates that the plaintiffs’ argument “essentially tries to divorce ISIS’s offensive content from the ability to post such content.” The court is unpersuaded:
“The [plaintiffs’ complaint] is replete with detailed descriptions of the actual content that ISIS has posted on YouTube in furtherance of its terrorist activity, including over 15 pages of allegations of “ISIS’s extensive use of Google’s services” to disseminate its terrorist message. In this way, Plaintiffs’ claims are inextricably bound up with the content of ISIS’s postings, since their allegations describe a theory of liability based on the “essential” role that YouTube has played “in the rise of ISIS to become the most feared terrorist organization in the world.”…If the court were to apply Plaintiffs’ logic and ignore the content of any ISIS-related YouTube postings in construing Plaintiffs’ claims, it would be impossible to discern a causal basis for Google’s alleged responsibility for the terrorist attacks.”
The court easily concludes: “Plaintiffs seek to treat Google as the publisher of ISIS’s video content.”
Still, Goldman has a sinking feeling that Judge Ryu’s ruling augurs ill.
“Although this is a nice Section 230 ruling,” he writes, “I have a pit in my stomach about how good rulings like this could turn into a long-term strategic loss.”
Why the indigestion? Because in arriving at her ruling, the judge found that the Justice Against Sponsors of Terrorism Act (JASTA), which Congress passed into law last year, doesn’t nullify Section 230 protections. Goldman fears that JASTA — which aimed to pave the way for broader civil claims against those who provide material support to terrorists — may lead to SESTA-like legislation in which “sex trafficking” is swapped out for “terrorism.”
He writes, “To me, the support-to-terrorist laws closely parallel the support-to-sex-traffickers laws. Both statutory schemes have broad criminal provisions, expansive secondary liability doctrines, supporting federal civil claims, tragic and sympathetic victims, and political toxicity for any opposition.”
If Congress passes a law that excludes sex trafficking from Section 230 protection, he goes on, “it will provide a template for similar reform to exclude terrorist victim claims from Section 230. In other words, when courts resoundingly embrace Section 230 as an immunity to wipe away terrorist victim claims, it could have an unfortunate side effect of providing more fuel for statutory reform advocates.”
If you don’t follow Goldman on Twitter, it’s your loss. To read his Gonzalez v. Google post in its entirety, click the link below: