DOJ warns Supreme Court against ‘overly broad’ Section 230 reading in Google case

The Department of Justice (DOJ) is warning the Supreme Court against using an “overly broad” interpretation of a provision that provides tech companies a legal liability shield over content posted by third parties.

The DOJ issued the warning in a brief about a case relating to Google that could change how digital content is hosted online, with the department effectively undermining the tech giant’s argument in the case.

The dispute centers on whether the liability shield — Section 230 of the Common Decency Act — protects Google in a case alleging the company recommended ISIS recruitment videos to users on its YouTube subsidiary.

A lower appeals court said the liability shield protects Google, a ruling the DOJ is urging the Supreme Court to vacate.

Although Section 230 protects YouTube over liability for hosting or “failing to remove” ISIS-related content, the DOJ asserted Thursday, it does not over claims based on YouTube’s “own conduct in designing and implementing its targeted-recommendation algorithms.” 

“The Court should give Section 230(c)(1) a fair reading, with no thumb on the scale in favor of either a broad or a narrow construction,” the DOJ said in a brief led by acting solicitor general Brian Fletcher.

The DOJ did not take a position on whether Google should ultimately be found liable, but recommended the case be returned to the lower court for further review.

The case is based on allegations against Google raised by the family of Nohemi Gonzalez, a 23-year old U.S. citizen killed in a 2015 Islamic State terror attack in France. Gonzalez’s family alleges YouTube provided a platform for terrorist content and recommended content inciting violence and recruiting potential supporters through its recommendation algorithm. 

Section 230 has been attacked across the political spectrum, albeit for different reasons. Democrats have said it allows for more misinformation and hate speech online by protecting tech companies over allowing such content by third parties, while Republicans have used it to accuse tech companies of censoring content online with an anti-conservative bias. 

Given the partisan deadlock over the issue, court cases like the Gonzalez family’s against Google are broadly expected to be a key factor in potential Section 230 reform — a change that would impact how content is moderated online. 

In response to the DOJ’s brief, Google spokesperson José Castañeda said “undercutting Section 230 would make it harder, not easier, to combat harmful content — making the internet less safe and less helpful for us all.” 

“Through the years, YouTube has invested in technology, teams, and policies to identify and remove extremist content. We regularly work with law enforcement, other platforms, and civil society to share intelligence and best practices,” he said in a statement. 

A separate amicus brief filed earlier this week by a bipartisan group of more than two dozen attorneys general argued in favor of “reining in Section 230 immunity.” The attorneys general said the internet is a “dramatically different place” than it was when the provision was first passed in the 1990s and that social media companies “actively exploit” the protection.

Sen. Josh Hawley (R-Mo.) filed a separate brief this week, as well, arguing that Section 230 has been wrongly interpreted to “shield the Nation’s largest and most powerful technology corporations from any legal consequences.”