Amicus Curiae Brief — Reynaldo Gonzalez, et al., Petitioners v. Google LLC

Supreme Court briefDec 6, 2022

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No. 21-1333

IN THE

Supreme Court of the United States

————

REYNALDO GONZALEZ, et al.,

Petitioners,

GOOGLE LLC,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF AMICI CURIAE

COMMON SENSE MEDIA AND

FRANCES HAUGEN

IN SUPPORT OF PETITIONERS

————

JOLINA C. CUARESMA

Counsel of Record

IRENE LY

COMMON SENSE MEDIA

699 8th Street, Suite C150

San Francisco, CA 94103

(415) 863-0600

jcuaresma@commonsense.org

Counsel for Amici Curiae

December 6, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

INTEREST OF AMICI CURIAE ........................

INTRODUCTION ................................................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

Section 230 Does Not Grant Blanket

Immunity ..................................................

A. Google’s Non Publishing Activities .....

B. Section 230 Does Not Grant Immunity for Google’s Non Publishing

Activities ..............................................

The Vulnerabilities of Adolescent Brains

Make Adolescents More Susceptible to

the Harms from Google’s Non Publishing

Activities ...................................................

A. The Adult Brain and the Adolescent

Brain Have Structural Disparities .....

B. The Anatomical Differences Between

the Adult & Adolescent Brains Cause

Adults and Adolescents to Respond to

Stimuli Differently ...............................

C. Google’s Non Publishing Activities

are Particularly Harmful to Adolescents .....................................................

CONCLUSION ....................................................

II.

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Force v. Facebook,

934 F. 3d 53 (2d Circ. 2019)......................

Malwarebytes, Inc. v. Enigma Software

Group USA, LLC,

141 S. Ct. 13 (2020) ...................................

5-6

STATUTES

47 U.S.C. § 230 ............................................passim

47 U.S.C. § 230(c)(1) ..................................... 2, 3, 5

47 U.S.C. § 230(c)(2) .....................................

OTHER AUTHORITIES

Angela Griffin, Adolescent Neurological

Development and Implications for Health

and Well-Being, 5 HEALTHCARE 62

(2017) .....................................................................

B.J. Casey et al., The Adolescent Brain, 28

DEVELOPMENTAL REV. 62 (2008) ...............

7, 9

David R. Roalf et al., 32 NEUROBIOLOGY OF

AGING 1634 (2011) ....................................

Edward E. Smith and John Jonides, Storage

and Executive Processes in the Frontal

Lobes, 283 SCIENCE 1657 (1999) ...............

Fairplay, Designing for Disorder: Instagram’s Pro-eating Disorder Bubble (Apr.

2022), https://fairplayforkids.org/wp-cont

ent/uploads/2022/04/designing_for_disor

der.pdf .......................................................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Google, Privacy Policy, https://policies.goo

gle.com/privacy?hl=en-US (last visited

Dec. 5, 2022) .............................................. 4, 11

JAMES STEYER, WHICH SIDE OF HISTORY?

HOW TECHNOLOGY IS RESHAPING DEMOCRACY AND OUR LIVES 96 (James Steyer

ed. 2020) ....................................................

1-2

Joaquin M. Fuster, The Prefrontal Cortex–

An Update: Time is of the Essence, 30

NEURON 319 (2001) ...................................

John Naughton, Molly Russell was Trapped

by the Cruel Algorithms of Pinterest and

Instagram, THE GUARDIAN (Oct. 1, 2022),

https://www.theguardian.

com/commentisfree/2022/oct/01/molly-ru

ssell-was-trapped-by-the-cruel-algorithm

s-of-pinterest-and-instagram....................

Jomilė Nakutavičiūtė, 10 Best YouTube

Alternatives and Competitors, NordVPN

(Oct. 29, 2021), https://nordvpn.com/blog/

youtube-alternatives/ ................................

Mariam Arain et al., Maturation of the

Adolescent Brain, 9 NEUROPSYCHIATRIC

DISEASE TREATMENT 449 (2013) ...............

8, 9

R. Douglas Fields, Changes in the Brain’s

White Matter, 330 SCIENCE 768 (2010) ....

Ralph Adolphs, The Biology of Fear, 23

CURRENT BIOLOGY 79 (2013).....................

TABLE OF AUTHORITIES—Continued

Page(s)

Third Amended Complaint, Gonzalez v.

Google LLC, No. 4:16-cv-03282-DMR

(N.D. Cal. Nov. 6, 2017) ............................ 11-12

Velayudhan Rajmohan and Eladath

Mohandas, The Limbic System, 49

INDIAN J. OF PSYCHIATRY 132 (2007) ........

YouTube, Terms of Service, https://www.

youtube.com/static?template=terms (last

visited Dec. 6, 2022) ..................................

INTEREST OF AMICI CURIAE1

Amici are Common Sense Media, the leading national

nonprofit organization committed to helping children

and families navigate the evolving digital world, and

Frances Haugen, an advocate for accountability and

transparency in social media. Amici’s concern stem

from courts’ broad interpretations of the plain text of

section 230 of the Communications Decency Act (CDA)

that have resulted in sweeping immunity for internet

companies’ editorial activities, regardless of whether

the conduct rendered a firm “a publisher.” Now, Google

asks the Court to extend the interpretation further,

well beyond what the text of section 230 can bear:

immunity from liability for any activities regardless of

whether the conduct relates to publishing duties. Such

an outcome would make it harder for parents to

protect kids and teens online.

INTRODUCTION

“Although the United States has protected kids by

establishing strict rules and standards on everything

from dirty air and unsafe foods to dangerous toys

and violence on television, the internet has almost no

rules at all, thanks to Section 230.”2 Specifically, court

rulings have improperly interpreted the plain text

of section 230 of the Communications Decency Act

(CDA), turning the provision into a “get-out-of-jail-free

In accordance with Rule 37, no counsel for any party has

authored this brief in whole or in part, and no person or entity,

other than amicus or its counsel, has made a monetary

contribution to the preparation or submission of this brief, and

all parties have filed a blanket letter of consent.

JAMES STEYER, WHICH SIDE OF HISTORY? HOW TECHNOLOGY

IS RESHAPING DEMOCRACY AND OUR LIVES 96 (James Steyer ed.,

2020).

card” and “a bulletproof shield for social media

platforms.”3

Amici urges the Court to reject Google’s argument

that it is immune from liability under the AntiTerrorism Act by claiming that section 230 constitutes

a broad a safe harbor for internet companies against

liability for users’ posts not covered under the First

Amendment. Google argues that section 230(c)(1),

which provides that internet companies cannot “be

treated as the publisher” of users’ posts, 47 U.S.C.

§ 230(c)(1), protects the tech firm when it displays

users’ content to other potentially interested users on

the platform. The issue, however, is not about users’

content, but about users’ personal information and

what Google does with it.

Aside from stretching the plain language of section

230, Google overlooks the provision’s obvious intent.

Congress enacted the CDA to shield children from

access to offensive material on the internet. Yet,

Google’s activities—creating profiles from the billions

of collected data points about users and amplifying

harmful content by regularly recommending targeted

videos and ads based on user profiles—is simply not

covered by the plain text of section 230. The provision

covers users’ posts, not the use of users’ posts. Congress

could not have envisioned that section 230 would

extend to Google’s activities that steer vulnerable

adolescents toward harmful content.

SUMMARY OF ARGUMENT

This brief focuses on two points not highlighted

in the parties’ submissions: the activities of Google,

through YouTube, that involve the collection and

Ibid at 95.

utilization of users’ personal information; and the

effect the activities have on the adolescent brain. Part

I describes the tech firm’s activities, and explains why

adopting Google’s position would improperly grant

the firm blanket immunity. Part II describes the

structural disparities between the adult and adolescent brains, and explains how Google’s activities

create a receptive and captive audience by knowingly

and persistently recommending and steering adolescents to ISIS videos promoting terrorism and other

harmful content.

ARGUMENT

I. Section 230 Does Not Grant Blanket

Immunity.

Google argues that it cannot be held liable for its

display of third-party content to potentially interested

users because section 230(c)(1) protects publishers and

publishing is essentially “curating and displaying content of interest to users.” Brief in Opposition at 10.

Google, through YouTube, is not just a publisher,

however. Google also monitors and tracks users’ online

activities across websites and computer devices to make

predictions about the content users want to view.4

A. Google’s Non Publishing Activities

Google collects users’ demographic data (age, gender,

location) and maintains a running account of other

personal information. Each time a user logs on, Google

makes a recording of:

There are a number of Google competitors that do not engage

in these activities. See Jomilė Nakutavičiūtė, 10 Best YouTube

Alternatives and Competitors, NordVPN (Oct. 29, 2021), https://

nordvpn.com/blog/youtube-alternatives/.

● the terms the individual typed into in the

search tool;

●

the videos the individual watched and how

often;

●

the videos the individual “liked;”

●

the videos where the individual posted a

comment;

●

the ads the individual “skipped” or clicked on for

more information;

●

any other users the individual shared videos or

communicated with, the videos that were

shared, and the content of the communications;

●

the items the individual purchased or returned;

and

●

the individual’s activities on third-party

websites and apps and web browsing history

under certain conditions.5

Since 2005, Google has collected billions of data points

on users for purposes stated in the tech firm’s privacy

policy:

We use your data for analytics. . . . We

analyze data about your visits. . . . We use

automated systems that analyze your content

to provide you . . . customized search results,

See Google, Privacy Policy, https://policies.google.com/privacy

?hl=en-US (last visited Dec. 5, 2022) (describing what data

Google collects from users and how it analyzes that data to

provide users customized search results and personalized ads).

YouTube’s terms of service statement explains that their privacy

policy lays out how they treat users’ personal data, and links to

Google’s privacy policy. YouTube, Terms of Service, https://www.

youtube.com/static?template=terms (last visited Dec. 6, 2022).

personalized ads…. We also use algorithms to

recognize patterns in data.6

Then, with the use of machine learning algorithms,

Google curates each user’s online experience by recommending videos and ads that the algorithms predicted

would be interesting or relevant based on the user’s

profile. The more accurate the prediction, the more

time a user spends on the platform, which allows

Google to collect ever more data to make additional

assumptions to update the user’s profile to further

curate the user’s online experience. The feedback loop

continues until the user leaves the Google platform.

B. Section 230 does not Grant Immunity

for Google’s Non Publishing Activities.

There are two instances when immunity from liability exists under section 230 of the CDA: when the

internet company (i) permits users to post content not

protected by the First Amendment, 47 U.S.C. § 230(c)(1)

(“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.”); and (ii) in good faith, restricts access to

material the company “considers to be obscene, lewd,

lascivious, filthy, excessively violent, harassing, or

otherwise objectionable, whether or not such material

is constitutionally protected,” § 230(c)(2)(A). In other

words, “if a company unknowingly leaves up illegal

third-party content, it is protected from publisher

liability by § 230(c)(1); and if it takes down certain

third-party content in good faith, it is protected by

§ 230(c)(2)(A).” Malwarebytes, Inc. v. Enigma Software

Id.

Group USA, LLC, 141 S.Ct. 13, 3–4 (2020) (Statement

of Justice Thomas respecting the denial of certiorari).

Under a plain-text reading of section 230, an

internet company may claim immunity from liability

when the wrongful conduct pertains to publishing or

editorial activities. Here, Petitioners’ lawsuit does not

seek to hold Google liable for permitting users to post

unlawful or tortious content or for failing to remove

offensive content pursuant to the tech firm’s content

moderation policy. “[I]t strains the English language

to say that” Google—in collecting billions of data

points about users to make assumptions and create

profiles, making predictions about what videos would

be interesting based on user profiles, and repeatedly

recommending targeted videos—“is acting as ‘the

publisher of . . . information provided by another

information content provider.’” Force v. Facebook, 934

F. 3d 53, 76–77 (2d Cir. 2019) (Katzmann, C.J.,

concurring in part and dissenting in part) (quoting

§ 230(c)(1)) (citation omitted).

II. The Vulnerabilities of Adolescent Brains

Make Adolescents More Susceptible to the

Harms from Google’s Non Publishing

Activities

Reading section 230 beyond its plain text would

expand the law into a question of significant social and

economic policy with severe consequences on all of us,

particularly adolescents. To understand these consequences, amici bring to the Court’s attention important

scientific information on brain development.

A. The Adult Brain and the Adolescent

Brain Have Structural Disparities.

During adolescence, the transition between childhood

and adulthood, the two parts of the brain that regulate

behavior, the limbic system (associated with survival)

and the prefrontal cortex (associated with higher-level

functions), develop simultaneously, but asynchronously7

with the limbic system maturing years before the

prefrontal cortex. The brain’s frontal lobe is last to

fully develop, not maturing until closer to adulthood.8

The limbic system, located mainly in the medial

temporal lobe and responsible for emotion, memory

formation, sexual arousal, and learning, operates subconsciously, continuously processing sensory input

from internal and external stimuli to elicit appropriate

autonomic and behavioral responses.9 Within the

limbic system is the amygdala, which controls certain

emotional responses (fear, anxiety) that activate immediate and instinctive behavior such as the “fight,

flight, or freeze” response to perceived danger.10

Situated in the front-most area, right behind the

forehead, the prefrontal cortex is responsible for executive functioning skills such as planning, problem

solving, reasoning, and impulse control.11 The prefrontal cortex has three substructures: the medial frontal,

which makes it possible to pay attention and concentrate; the orbitofrontal cortex, which helps prevent

reckless behavior or emotional outbursts; and the

B.J. Casey et al., The Adolescent Brain, 28 DEVELOPMENTAL

REV. 62, 63 (2008).

Id.

See Velayudhan Rajmohan and Eladath Mohandas, The

Limbic System, 49 INDIAN J. OF PSYCHIATRY 132–39 (2007)

(providing an overview of the components and functions of the

limbic system).

Ralph Adolphs, The Biology of Fear, 23 CURRENT BIOLOGY

79, 83–85 (2013).

Edward E. Smith and John Jonides, Storage and Executive

Processes in the Frontal Lobes, 283 SCIENCE 1657, 1659–60 (1999).

lateral prefrontal, which processes complex information

and evaluating different courses of actions.12

The limbic system and the prefrontal cortex, when

fully matured, operate in tandem to balance emotion

and cognition. Thus, in the adult brain, the prefrontal

cortex acts as a counterbalance to the limbic system,

making it possible for an adult to consider long term

consequences and control impulses.13

B. The Anatomical Disparities between

the Adult and Adolescent Brains Cause

Adults and Adolescents to Respond to

Stimuli Differently.

The mismatch in growth rates between the prefrontal cortex and the limbic system is responsible for

structural differences between the adult brain and

the adolescent brain. Magnetic resonance imaging

shows that there are far more cellular connections in

a developed prefrontal cortex. For example, the adult

brain’s frontal lobes have more white matter,14 or

myelin, which is composed of millions of bundles of

axons that connect neurons in different brain regions

Joaquin M. Fuster, The Prefrontal Cortex–An Update: Time

is of the Essence, 30 NEURON 319, 320–21 (2001).

See Angela Griffin, Adolescent Neurological Development

and Implications for Health and Well-Being, 5 HEALTHCARE 62,

63 (2017) (describing how the prefrontal cortex is late-evolving

and enables individuals to learn how to manage long term

planning, monitor what is going on, and adjusting smoothly to

surroundings while keeping emotions and behaviors contextappropriate).

Mariam Arain et al., Maturation of the Adolescent Brain, 9

NEUROPSYCHIATRIC DISEASE TREATMENT 449, 453–54 (2013).

into functional circuits. During adolescence, white

matter increases in the corpus callosum, which is the

bundle of nerve fibers that connect the left and right

hemispheres of the brain, increasing myelination.16

The growth of white matter allows the two hemispheres to effectively communicate with each other,

and enables an individual to use a range of analytical

and creative strategies to respond to external stimuli.17

Studies show that adults process information using

the prefrontal cortex whereas adolescents rely on the

limbic system.18 When the prefrontal cortex is active,

there is less activity in the amygdala, making it easier

for adults to make sound decisions faster than adolescents.19 Functional brain imaging also shows that

responses to external stimuli occur in the limbic system

when the prefrontal cortex is not fully developed.20

Without a fully developed prefrontal cortex, adolescents are more likely than adults to be swayed by their

emotions and exhibit more impulsive behavior, rather

than a logical or measured response.21 Until the prefrontal cortex reaches the same level of maturity as

the limbic system, the desire for rewards overpowers

rational thinking.

R. Douglas Fields, Changes in the Brain’s White Matter, 330

SCIENCE 768, 768 (2010).

Arain et al., supra note 14 at 453–54.

Id.

Casey et al., supra note 7, at 63.

David R. Roalf et al., More is Less: Emotion Induced

Prefrontal Cortex Activity Habituates in Aging, 32 NEUROBIOLOGY OF

AGING 1634, 1635 (2011).

Arain et al., supra note 14, at 453.

Id.

C. Google’s Non Publishing Activities are

Particularly Harmful to Adolescents

With the mismatch in maturity between the limbic

system and the prefrontal cortex in the adolescent

brain, Google’s non publishing activities are particularly troubling for adolescents, who are more receptive

to harmful content, such as videos encouraging disordered eating, self-harm—or in this case, terrorism

activity. Without a completely developed prefrontal

cortex to operate in tandem with the limbic system,

the adolescent brain lacks the ability to balance

emotion and cognition, making adolescents susceptible

to harmful content.

When curating an adolescent’s online experience,

Google recommends the videos and ads that the algorithms predict would interest the adolescent. The

more accurate the prediction, the more time the adolescent spends on the platform, allowing Google to

collect ever more data about the adolescent’s interests

to improve the accuracy of the algorithms’ predictions

to further curate the online experience. The feedback

loop displays more of the same content, steering

already vulnerable adolescents down a rabbit hole into

echo chambers that serve as virtual meeting spaces for

any number of groups, including pro-ana (anorexia),

pro-mia (bulimia), and pro-self-harm as well as terrorist and other extremist organizations.22

See, e.g., Fairplay, Designing for Disorder: Instagram’s Proeating Disorder Bubble (Apr. 2022), https://fairplayforkids.org/

wp-content/uploads/2022/04/designing_for_disorder.pdf. This report

showed that Meta knowingly profited from pushing eating

disorder content to children on Instagram with its algorithm

since at least 2019. This pro-eating disorder bubble on Instagram

consists of nearly 90,000 unique accounts that reach 20 million

unique followers, and at least one-third of whom are underage.

The ability to target content and ads to users is not

a traditional publishing function. Google’s platform

includes features that are particularly insidious.

Google, through YouTube, allows users to create

“accounts” and “channels,” which make it easier for

users to meet virtually.23

As Petitioners allege, ISIS uses Google to carry out

essential communication components of ISIS’s terrorist

attacks.24 Google knowingly provides ISIS with use of

its algorithms, and other unique computer architecture,

computer servers, storage, and communication equipment, to facilitate ISIS’s ability to reach and engage

audiences it otherwise could not reach as effectively.25

Advertisers pay Google to place targeted ads on videos,

and Google has approved ISIS videos for “monetization”

through the tech firm’s placement of ads in those

specific videos.26 ISIS uses the platform to indoctrinate

and radicalize potential recruits and followers by

“providing a constant stream of religious teachings,

Girls have developed eating disorders after being subjected to

such content. John Naughton, Molly Russell was Trapped by the

Cruel Algorithms of Pinterest and Instagram, THE GUARDIAN

(Oct. 1, 2022), https://www.theguardian.com/commentisfree/20

22/oct/01/molly-russell-was-trapped-by-the-cruel-algorithms-ofpinterest-and-instagram. In 2017, 14-year-old Molly Russell

killed herself after falling into a dark rabbit hole in the last year

of her life. An inquest into her death concluded that she died from

“an act of self-harm while suffering from depression and the

negative effects of online content.”

Third Amended Compl. ¶ 160.

Third Amended Compl. ¶ 195–196.

Third Amended Compl. ¶ 551.

Third Amended Compl. ¶ 521–533.

mantras, and images showing the ‘truth’ of ISIS’s

doctrine . . .,” and providing training to these recruits.27

Google’s activities go beyond providing the traditional services of a publisher. Congress never intended

section 230 to be defense for all civil and criminal

wrongdoing.

CONCLUSION

For the reasons stated above, amici respectfully

request the Court to apply the plain-text reading to

section 230 of the Communications Decency Act and

deny Google’s claim of immunity. The judgment below

should therefore be vacated and remanded.

Respectfully submitted,

JOLINA C. CUARESMA

Counsel of Record

IRENE LY

COMMON SENSE MEDIA

699 8th Street, Suite C150

San Francisco, CA 94103

(415) 863-0600

jcuaresma@commonsense.org

Counsel for Amici Curiae

December 6, 2022

Third Amended Compl. ¶ 249–250.

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