This morning, the Supreme Court granted certiorari in Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021) on the following question presented:  “Does section 230(c)(1) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?”  This is the first opportunity the Court has taken to interpret 47 U.S.C. § 230 (“Section 230”) since the law was enacted in 1996.

In Gonzalez, the estate of Nohemi Gonzalez, a victim of the November 2015 terrorist attacks in Paris, sought to hold Google liable under the Anti-Terrorism Act for recommending videos through its YouTube algorithms that were posted by the terrorist group ISIS.  A court in the Northern District of California found that Section 230(c)(1) protected Google against the claims, and the U.S. Court of Appeals for the Ninth Circuit affirmed.

While the Supreme Court has not analyzed the scope of Section 230 to date, in recent years, Justice Thomas has signaled an interest in the issue.  Notably, in Malwarebytes, Inc. v. Enigma Software Group, LLC, 592 U.S. ___ (2020) Justice Thomas wrote a dissent from denial of certiorari “to explain why, in an appropriate case, [the Court] should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.”    

The Supreme Court may soon consider another case involving online services, as well.  In September, the Florida Attorney General asked the Court to review the Eleventh Circuit’s ruling in NetChoice, L.L.C., v. Moody et al., 34 F.4th 1196 (11th Cir. 2022) that a Florida law prohibiting online services from moderating content by political candidates or “journalistic enterprises” violates the First Amendment.  The Fifth Circuit recently concluded in NetChoice L.L.C. v. Paxton, 2022 WL 4285917 (5th Cir. Sept. 16, 2022) that a similar Texas law restricting online “censorship” does not violate the First Amendment,and, last week, NetChoice filed a motion in the Fifth Circuit to block enforcement of the law while it files a petition for the Supreme Court to review the Fifth Circuit’s decision (see our post on the case here).  The circuit split between Moody and NetChoice increases the likelihood that the Supreme Court will agree to hear one, or both, of the cases.  Several Justices have expressed interest in the application of the First Amendment to online platforms.  In May, NetChoice filed an application to vacate the Fifth Circuit’s stay of the District Court’s preliminary injunction blocking the Texas law in NetChoice, and although the Court denied the application, Justices Alito, Thomas, and Gorsuch filed a dissent stating that these issues “will plainly merit this Court’s review.” NetChoice, L.L.C. v. Paxton, 596 U.S. ___ (2022).

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We will continue to monitor the proceeding of Gonzalez and will keep you updated here on Inside Privacy.

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Photo of Lauren Willard Lauren Willard

Lauren Willard is a partner in Covington’s Antitrust/Competition and Appellate practices. Drawing on her deep substantive antitrust experience in both the government and private practice, Lauren represents and advises clients on a variety of antitrust matters. She defends clients in complex civil litigation…

Lauren Willard is a partner in Covington’s Antitrust/Competition and Appellate practices. Drawing on her deep substantive antitrust experience in both the government and private practice, Lauren represents and advises clients on a variety of antitrust matters. She defends clients in complex civil litigation and class actions, counsels on mergers and acquisitions, and represents clients before federal regulators. She also represents clients in appellate matters before the U.S. Supreme Court and federal courts of appeals.

Lauren rejoined Covington after spending four years at the U.S. Department of Justice (DOJ) working on antitrust and appellate matters, with a particular focus on competition in the digital economy. She served as a Counsel to the Assistant Attorney General of the Antitrust Division, where she worked on a range of merger and conduct matters and served as the Front Office liaison to the International and Appellate sections. She also drafted several amicus briefs and statements of interest and coordinated with the Office of the Solicitor General and Civil Division on appellate matters involving antitrust issues. Lauren accepted a career detail to the Office of the Attorney General to lead the DOJ’s review of market-leading online platforms. In that role, she advised the Attorney General on the application of antitrust to technology platforms, managed antitrust investigations related to technology platforms, and coordinated with the States Attorneys General. Lauren also chaired the DOJ’s working group on Section 230 of the Communications Decency Act and drafted legislation that was cleared through the interagency process and presented to Congress. Following her detail, Lauren returned to the Antitrust Division, where she worked directly on the DOJ’s trial team in US v. Google, one of the biggest government antitrust monopolization litigations in the past 20 years.

After graduating from the University Virginia School of Law, she served as a law clerk to Justice Anthony Kennedy of the U.S. Supreme Court and Chief Judge Alex Kozinski of the Court of Appeals for the Ninth Circuit.

Photo of Nicholas Xenakis Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (C-DA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).

Photo of Alexandra Cooper-Ponte Alexandra Cooper-Ponte

Alexandra (Ali) Cooper-Ponte’s practice focuses on regulatory, enforcement, litigation, and investigations matters involving emerging technologies and national security. She advises clients on compliance with surveillance, cybersecurity, and data privacy laws and on trust and safety issues.

Prior to re-joining the firm, she clerked…

Alexandra (Ali) Cooper-Ponte’s practice focuses on regulatory, enforcement, litigation, and investigations matters involving emerging technologies and national security. She advises clients on compliance with surveillance, cybersecurity, and data privacy laws and on trust and safety issues.

Prior to re-joining the firm, she clerked for Judge José A. Cabranes, United States Circuit Judge of the United States Court of Appeals for the Second Circuit. She also worked on electronic surveillance and law enforcement access issues at a large technology company prior to law school.

Photo of Madeline Salinas Madeline Salinas

Madeline Salinas is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Communications and Media Practice Groups.