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On October 3, 2022, the Supreme Court granted cert in Gonzalez v. Google, marking the first time that the Court will consider the scope of Section 230.  As discussed previously on this blog, Section 230 has increasingly taken center stage in debates about censorship and content moderation.  Yet, for the most part, courts have continued to interpret it expansively.  The Court faces a delicate balancing act in considering the scope of immunity granted by Section 230.

The instant case arises from the 2015 terrorist attacks in Paris.  Reynaldo Gonzalez’s daughter, Nohemi Gonzalez, was murdered in the terror attacks by ISIS terrorists.  Her family members brought an action against Google, alleging that Google had aided and abetted ISIS by hosting their videos.  Although simply hosting a video would normally be protected by Section 230, the plaintiffs additionally alleged that YouTube had affirmatively recommended ISIS videos, which helped ISIS recruit new terrorists.  The district court, though, disagreed and dismissed the claim.

The district court’s decision was consistent with existing precedent.  However, after the appeal had been briefed, Judge Katzmann in the Second Circuit wrote a dissent in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), arguing that recommendation of content should not be protected by Section 230.  The Ninth Circuit subsequently ruled in Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019) that recommending content does not remove Section 230 protection.  The panel hearing the Gonzalez appeal therefore found itself in an unusual situation.  Dyroff was Ninth Circuit precedent that governed the decision, which led the panel to uphold the dismissal.  Two judges, though, were troubled by this outcome.  One, Judge Berzon, concurred in the opinion but wrote separately to state that she would have held otherwise if not for Dyroff.  The other, Judge Gould, dissented and argued that Judge Katzmann in the Second Circuit had been correct.   After a petition for en banc rehearing was denied, Gonzalez sought cert on the specific issue of whether Section 230(c)(1) immunizes Internet companies for making targeted recommendations provided by other parties or if the liability is limited to only traditional editorial functions.

Despite there being no circuit split or even intra-circuit split, as every court to have considered the issue has agreed that targeted recommendations are protected by Section 230, the Supreme Court granted cert.

Continue Reading The Internet Under Siege: The Future of Section 230?

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In a little over 18 months, Vimeo has three times vindicated its rights under Section 230 to take down objectionable content.  Vimeo’s victory came first in the Southern District of New York; the decision there was affirmed by the Second Circuit.  In a rare procedural twist, the Second Circuit panel vacated its decision, but issued an opinion upholding Vimeo’s right to take down objectionable content the following week.  The cases illustrate that Section 230’s strength is not solely in subsection (c)(1) but also in (c)(2), which protects a website’s ability to “in good faith . . .  restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  47 U.S.C. § 230(c)(2).  The trilogy of cases underscores the continued importance of Section 230 to Internet companies, even as it comes under increasing criticism from the public, politicians, and the judiciary.
Continue Reading Not Once, Not Twice, But Thrice: Vimeo’s Victory in Taking Down Objectionable Content

Recently, an obscure provision of the Communications Act has been thrust into the limelight.  Section 230 is now discussed nearly daily on talk shows and in newspapers, and is gaining increasing criticism from the courts. The result of this attention is that Congress is now working on reforming Section 230, with a bevy of bills proposed that could dramatically affect the free and open Internet, with the consequences difficult to predict.

First, as a bit of background, Section 230 has two main subsections. The first subsection is direct:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 U.S.C. § 230(c)(1). In the words of the Fourth Circuit, Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).

Continue Reading Section 230: Major Legislation and Its Future in 2021

On July 9, 2021, President Biden signed Executive Order 14036 – Promoting Competition in the American Economy.  The wide-ranging Executive Order includes 72 initiatives that aim to increase enforcement of existing antitrust laws and other consumer protection regulations. The Order targeted at least 15 federal departments, offices, and agencies, potentially affecting a wide panoply of American industries. It is designed to restore competition in the American economy and reverse the effects of corporate consolidation. The Biden Administration hopes this will drive down prices for consumers, increase wages for workers, and facilitate innovation.

The Executive Order proposes to address these problems by “enforc[ing] the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony.” The Executive Order also “reaffirms that the United States retains the authority to challenge transactions whose previous consummation was in violation of the [antitrust laws.]”

This Executive Order represents a watershed moment in competition policy in the United States, as the White House has directed the entire U.S. government to more aggressively enforce the antitrust laws. The Executive Order has far-reaching implications for antitrust enforcement and communications law alike as it calls for more rigorous antitrust enforcement by the Department of Justice and the Federal Trade Commission, and seeks new consumer protection regulations through the Federal Communications Commission, the Federal Trade Commission, and the Departments of Transportation and Commerce.

Continue Reading President Biden Signs Sweeping Executive Order Promoting Competition with Far-Reaching Effects on Antitrust Enforcement and Communications Law

What is good for the goose is good for the gander. The saying often finds application in Washington, when a principle formerly benefiting one ideological side suddenly benefits the other due to the vagaries of the ballot box. The filibuster is a classic example. The respect that courts accord to agencies is another. In FCC v. Prometheus Radio Project, the Supreme Court reversed the Third Circuit and unanimously upheld the FCC’s relaxation of its media ownership rules, a significant deregulatory policy of the Trump Administration. But the wide latitude that the Supreme Court gave the Commission’s factual findings has become a valuable tool in the hands of the Biden-era FCC, as the FCC can command the same respect for crucial factual findings needed in support of quite different initiatives, such as new net neutrality rules. Meanwhile, in the proceeding at hand, media ownership, the Commission has subsequently issued a public notice to update the record in the 2018 Quadrennial Review proceeding for its media ownership rules and extended the comment and reply comment deadlines to September 2, 2021 and October 1, 2021, respectively.

Continue Reading Supreme Court Upholds FCC Decision to Abolish Media Ownership Rules

Italian historian Giambattista Vico pioneered the notion of the circles of history. In the history of net neutrality, the circles have been short, predictable and avoidable: the leitmotif has been that of Internet Service Providers (“ISPs”) inflicting injury upon themselves, through a succession of court defeats, half-defeats and half-victories, where the half-victories have been more damaging than the defeats. Even King Pyrrhus would have blanched at the devastation.

The upshot is that today ISPs may not be able to engage in any zero rating—the practice of exempting online video from their customers’ data caps—even though certain zero rating arrangements may have been acceptable under the 2014 net neutrality rules, enacted under the supposedly dreaded Title II—the ISPs’ boogeyman. Suppose you are on your commuter train, and you really want to catch the final moments of Nicole Kidman’s superb acting in The Undoing. If you have reached your data cap, you will miss them, be greeted with a strangely distorted version of Ms. Kidman’s face, or perhaps have to pay extra to upgrade your plan.

Boy, I bet Verizon regrets having taken the net neutrality rules to court. So joked then Chairman Tom Wheeler at the 2015 FCBA Chairman’s dinner. It was a safe bet. Here are the cliff notes of the net neutrality litigation history: in 2010, the FCC enacts a ban on blocking, throttling, and discrimination, without classifying broadband access as a telecommunications service. Verizon appeals, challenging, first and foremost, the Commission’s authority to make any net neutrality rules, and second, the rules themselves. Verizon loses on authority, but wins on the rules—they look too much like telecommunications service rules, the court says. The consequence, unintended by Verizon, is not that unpredictable: in 2015, the FCC uses the authority affirmed by the Court, and also goes ahead and classifies the service as a telecommunications service, leaving it free to impose telecommunications-service-like rules. It enacts bans on blocking, throttling, and pay-to-play, as well as a general conduct rule. Crucially, under the general conduct rule, the practice of zero rating is not per se unlawful. Rather, it is subject to a case-by-case analysis. The ISPs appeal again, and lose resoundingly in 2016.

In comes the Trump administration, with abolition of the substantive net neutrality rules at the top of the new FCC’s agenda. The FCC does so. A wide coalition of pro-net neutrality parties sues, and the DC Circuit rules on October 1, 2019. The ISPs trumpet a win. Well, not quite. The court remands part of the FCC’s action, including on the ground that the FCC failed to do justice to the paramount factor of public safety. As for the rest of the FCC’s action, the court does not like it either: two of the three judges believe it to be wrong, too, but they do not throw it out only because they believe their hands are tied by the Supreme Court’s decision in Brand X.

In comes California, one of a number of states to step into the void left by the federal abolition of net neutrality. California makes its own net neutrality rules. They look like the abolished 2015 rules with one important difference: zero rating is no longer subject to a case-by-case evaluation. It is restricted more heavily.

A federal district court (for the Eastern District of California) denies the ISPs’ motion for a stay. And so we come to AT&T’s decision to end zero rating across the country.

Continue Reading From Supposed Frying Pans to Ever Hotter Fires: AT&T’s Termination of Its Zero Rating Program, and the Many Own-Goals Scored by the Internet Service Providers’ Anti-Net Neutrality Strategy