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

No. 21-1333

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------REYNALDO GONZALEZ, et al.,

Petitioners,

v.

GOOGLE LLC,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE CHILD USA

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------MARCI A. HAMILTON, ESQ.

Counsel of Record

Founder & CEO

CHILD USA

Professor of Practice in Political Science

UNIVERSITY OF PENNSYLVANIA

3814 Walnut Street

Philadelphia, PA 19104

(215) 539-1906

hamilton.marci@gmail.com

ALICE BOHN, ESQ.

Legal Director

CHILD USA

JESSICA SCHIDLOW, ESQ.

BRIDGET BRAINARD, ESQ.

Staff Attorneys

CHILD USA

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Does the Section 230(c)(1) defense apply to internet

service providers when they design and deploy their

own algorithms to affirmatively surface and make targeted recommendations of third-party content to users

on their platform?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

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

v

INTEREST OF AMICUS CURIAE ......................

1

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

2

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

3

I.

AN OVERLY BROAD CONSTRUCTION

OF SECTION 230 HAS PRODUCED IMMUNITY FROM LIABILITY FAR MORE

SWEEPING THAN THE STATUTE’S

HISTORY AND TEXT SUPPORT .............

3

A. Congress Designed Section 230 As a

Limited Defense to Liability Consistent with Its Policy Goal of Protecting Children from Harmful Materials

by Encouraging Good Faith Content

Monitoring Online ...............................

4

B. The Plain Language of Section 230

Does Not Immunize Online Platforms

for Their Affirmative Conduct .............

9

C. The Immunity Afforded to Online

Platforms Is Now So Broad That It

Undermines Fundamental Public Interests Including Child Protection ...... 13

II. THE PREVAILING INTERPRETATION OF

SECTION 230 IMPROPERLY IMMUNIZES

ONLINE PLATFORMS FOR CONDUCT

BEYOND THE SCOPE OF “TRADITIONAL

EDITORIAL FUNCTIONS”............................ 16

iii

TABLE OF CONTENTS—Continued

Page

A. Courts Have Expanded Section 230

Beyond Congress’s Intent to Protect

Only the Online Provider’s Role as a

Publisher when They Fail to Acknowledge Online Platforms’ Additional Role

as a Manufacturer of Online Products

with Duties to Consumers and the

Public ................................................... 17

B. Courts Should Not Treat Interactive

Computer Service Providers as Publishers Rather than Information Content Providers When Their Product

Manipulates, Alters, or Develops

Third-Party Content to Such a Degree

that Is Clearly Outside the Scope of

Traditional Editorial Functions .......... 23

C. The Creation of Algorithms Designed

to Maximize Company Profit by Exploiting User Vulnerabilities Is Not An

Editorial Decision Within the Meaning of Section 230 ................................ 26

III.

THIS COURT SHOULD INTERPRET

SECTION 230 CONSISTENT WITH ITS

TEXT AND CHILD SAFETY PURPOSE

TO AVOID FURTHER INJUSTICE AND

TO GIVE VICTIMS AN AVENUE FOR

MEANINGFUL REDRESS ........................ 29

A. Broad Construction of Section 230 Facilitates the Spread of CSAM .............. 29

iv

TABLE OF CONTENTS—Continued

Page

B. Victims Have No Leverage to Hold

Online Platforms Accountable and to

Seek Redress for their Harms ............. 32

CONCLUSION..................................................... 35

v

TABLE OF AUTHORITIES

Page

CASES

A.M. v. Omegle.com, LLC, 2022 WL 2713721 (D.

Or. July 13, 2022) ....................................................15

Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir.

2009) ........................................................................11

Bauer v. Armslist, LLC, 572 F. Supp. 3d 641

(E.D. Wis. 2021) ................................................. 21, 22

Carafano v. Metrosplash.com, Inc., 339 F.3d

1119 (9th Cir. 2003) .................................................23

City of Chicago v. Stubhub!, Inc., 624 F.3d 363

(7th Cir. 2010)..........................................................10

CYBERsitter, LLC v. Google, Inc., 905

F. Supp. 2d 1080 (C.D. Cal. 2012) ...........................33

Daniel v. Armslist, LLC, 926 N.W.2d 710 (Wis.

2019), cert. denied, 140 S. Ct. 562 (2019) ...............15

Doe v. Am. Online, 783 So. 2d 1010 (Fla. 2001) .........14

Doe v. Backpage.com, L.L.C., 817 F.3d 12 (1st Cir.

2016) ........................................................................15

Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003) .........11

Doe v. Internet Brands, Inc., 824 F.3d 846 (9th

Cir. 2016) .................................................................20

Doe v. Myspace, 528 F.3d 413 (5th Cir. 2008) .............18

Does 1-6 v. Reddit, Inc., 51 F.4th 1137 (9th Cir.

2022) ........................................................................15

Dyroff v. Ultimate Software Grp., Inc., 934 F.3d

1093 (9th Cir. 2019) .................................................19

vi

TABLE OF AUTHORITIES—Continued

Page

e-ventures Worldwide, LLC v. Google Inc., 188

F. Supp. 3d 1265 (M.D. Fla. 2016) ..........................11

Fair Hous. Council of San Fernando Valley v.

Roommates.Com, LLC, 521 F.3d 1157 (9th Cir.

2008) .................................................................. 24, 25

Force v. Facebook, Inc., 934 F.3d 53 (2d Cir.

2019) ................................................................ passim

FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir.

2009) .................................................................. 22, 25

FTC v. LeadClick Media, LLC, 838 F.3d 158 (2d

Cir. 2016) .................................................................10

Gibson v. Craigslist, Inc., No. 08 Civ. 7735(RMB),

2009 WL 1704355 (S.D.N.Y. June 15, 2009) ...........11

Goddard v. Google, Inc., 640 F. Supp. 2d 1193

(N.D. Cal. 2009) .......................................................11

Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir.

2021) ............................................................ 25, 26, 29

Herrick v. Grindr, LLC, 306 F. Supp. 3d 579

(S.D.N.Y. 2018), aff ’d, 765 F. App’x 586 (2d Cir.

2019), cert. denied, 140 S. Ct. 221 (2019) ...............19

Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d

12 (1st Cir. 2016) .....................................................19

Javierre v. Cent. Altagracia, 217 U.S. 502 (1910).......10

Jones v. Dirty World Entertainment Recordings

L.L.C., 755 3d 398 (6th Cir. 2014) ...........................24

Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir.

2014) ........................................................................11

vii

TABLE OF AUTHORITIES—Continued

Page

Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir.

2021) .................................................................. 20, 21

M. L. v. Craigslist Inc., 2020 WL 6434845 (W.D.

Wash. Apr. 17, 2020) ................................................15

Malwarebytes, Inc. v. Enigma Software Grp.

USA, LLC, 141 S. Ct. 13 (2020) ...................... passim

Marshall’s Locksmith Serv. Inc. v. Google, LLC,

925 F.3d 1263 (D.C. Cir. 2019) ................................19

Meacham v. Knolls Atomic Power Lab’y, 554 U.S.

84 (2008) ..................................................................10

Nestle Purina Petcare Co. v. Blue Buffalo Co.

Ltd., No. 4:14 CV 859 RWS, 2015 WL 1782661

(E.D. Mo. Apr. 20, 2015) ..........................................11

Perfect 10, Inc. v. Google, Inc., No. CV 04-9484

AHM (SHx), 2008 WL 4217837 (C.D. Cal. July

16, 2008) ..................................................................11

Reno v. A.C.L.U., 521 U.S. 844 (1997) ...........................8

Stokinger v. Armslist, LLC, No. 1884CV03236F,

2020 WL 2617168 (Mass. Super. Apr. 28,

2020) ........................................................................19

Zeran v. America Online, Inc., 129 F.3d 327 (4th

Cir. 1997) ............................................... 13, 14, 16, 23

STATUTES

18 U.S.C. § 2333 .................................................... 22, 29

47 U.S.C. § 223(a) ..........................................................5

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

viii

TABLE OF AUTHORITIES—Continued

Page

Communications Act of 1934, c. 652, Title I, § 1,

48 Stat. 1064 (1934) (codified as amended at

47 U.S.C. § 151 et seq.) ..............................................4

Fight Online Sex Trafficking Act (“FOSTA”),

Pub. L. No. 115–164, 132 Stat. 1253 .......................15

Internet Freedom and Family Empowerment

Act of 1995, H.R. 1978, 104th Cong. (1995) ..............5

Communications Decency Act of 1996, Pub. L.

No. 104–104, 110 Stat. 133–145 (1996) (codified as amended at 47 U.S.C. § 223 (1934) ..... passim

Telecommunications Act of 1996, Pub. L. No.

104–104, 110 Stat. 56, §§ 502, 509 (1996) (codified as amended at 47 U.S.C. § 151 et seq.

(1934)) ........................................................................8

OTHER AUTHORITIES

141 CONG. REC. H8470 (daily ed. Aug. 4, 1995)

(statement of Rep. Danner) ......................................7

141 CONG. REC. S1954 (daily ed. June 9, 1995)

(comments of Sen. Exon)...........................................5

141 CONG. REC. S8087 (daily ed. June 9, 1995)

(statement of Sen. Exon)...........................................7

141 CONG. REC. S8088 (daily ed. June 9, 1997)

(comments of Sen. Exon)...........................................5

141 CONG. REC. S8332 (daily ed. June 14, 1995)

(comments of Sen. Coats) ..........................................5

141 CONG. REC. S8334, 8337 (statement of Rep.

Cox) ............................................................................8

ix

TABLE OF AUTHORITIES—Continued

Page

142 CONG. REC. 1993 ................................................. 7, 8

142 CONG. REC. 8687 (daily ed. Feb. 1, 1996)

(statement of Sen. Coates) ........................................6

164 CONG. REC. S1827, 1830 (Sen. McCaskill) ..........33

164 CONG. REC. H1290-02 (daily ed. Feb. 27,

2018) (statement of Rep. Lee) .................................15

164 CONG. REC. S1849-09 (daily ed. Mar. 21,

2018) (statement of Sen. Wyden) ............................26

Adam Satariano, British Ruling Pins Blame

on Social Media for Teenager’s Suicide, THE

NEW YORK TIMES (Oct. 1, 2022) https://www.

nytimes.com/2022/10/01/business/instagramsuicide-ruling-britain.html .....................................27

Alina Selyukh, Section 230: A Key Legal Shield

For Facebook, Google Is About To Change,

NPR (Mar. 21, 2018) (statement of Rep. Cox),

https://www.npr.org/sections/alltechconsidered/

2018/03/21/591622450/section-230-a-key-legalshield-for-facebook-google-is-about-to-change .......16

BESSEL VAN DER KOLK, THE BODY KEEPS THE

SCORE: BRAIN, MIND, AND BODY IN THE HEALING

OF TRAUMA (Viking 2014) ........................................31

x

TABLE OF AUTHORITIES—Continued

Page

CENTERS FOR DISEASE CONTROL AND PREVENTION, NATIONAL CENTER FOR INJURY PREVENTION AND CONTROL, DIVISION OF VIOLENCE

PREVENTION, PREVENTING SEXUAL VIOLENCE

(last reviewed by the CDC on Jan. 17, 2020),

available at https://www.cdc.gov/violence

prevention/sexualviolence/fastfact.html?CDC_

AA_refVal=https%3A%2F%2Fwww.cdc.gov%2F

violenceprevention%2Fsexualviolence%2F

consequences.html ..................................................31

Christopher Cox, The Origins and Original Intent of Section 230 of the Communications Decency Act, UNIV. RICH. J.L. & TECH. (2020) ...............6

Craig Timberg, YouTube Says It Bans Preteens

But It’s Still Delivering Troubling Content

to Young Children, THE WASHINGTON POST

(Mar. 14, 2019), available at https://www.

washingtonpost.com/technology/2019/03/14/

youtube-says-it-bans-preteens-its-site-its-stilldelivering-troubling-content-young-children/ ........34

Dan Milmo, Molly Russell inquest must lead

to action on internet dangers, says coroner,

THE GUARDIAN (Sept. 29, 2022) https://www.

theguardian.com/technology/2022/sep/29/mollyrussell-inquest-must-lead-to-action-on-internetdangers-says-coroner ..............................................27

xi

TABLE OF AUTHORITIES—Continued

Page

EUR. PARLIAMENTARY RSCH. SERV., CURBING THE

SURGE IN ONLINE CHILD ABUSE: THE DUAL ROLE

OF DIGITAL TECHNOLOGY IN FIGHTING AND FACILITATING ITS PROLIFERATION 2 (Nov. 2020),

https://www.europarl.europa.eu/RegData/etudes/

BRIE/2020/659360/EPRS_BRI(2020)659360_

EN.pdf ......................................................................30

Faith Ridler, THIRTY Families Blame Social

Media Firms for Their Roles in Children’s Suicides as it Emerges Pinterest Sent a Personalised Email to Molly Russell’s Account with

Self-Harm Images AFTER She Took Her Own

Life, DAILYMAIL (Jan. 27, 2019, 1:20 PM),

https://www.dailymail.co.uk/news/article-6636807/

Now-30-families-blame-social-media-firms-roleschildrens-suicides.html ...........................................28

H.R. CONF. REP. No. 104–458 .......................................7

K.G. Orphanides, The Paedophile Scandal Shows

YouTube is Broken. Only Radical Change Can

Fix It, WIRED (Feb. 23, 2019), https://www.

wired.co.uk/article/youtube-paedophiles-boycottalgorithm-change ....................................................28

Leonard, M.M., ‘I did what I was directed to do

but he didn’t touch me’: The impact of being a

victim of internet offending, 16 J. OF SEXUAL

AGGRESSION 249 (2010) ............................................32

xii

TABLE OF AUTHORITIES—Continued

Page

Michael H. Keller & Gabriel J.X. Dance, The Internet Is Overrun With Images of Child Sexual

Abuse. What Went Wrong?, NYTIMES.COM (Sep.

2019), available at https://www.nytimes.

com/interactive/2019/09/28/us/child-sex-abuse.

html?msclkid=531b2a24a55511ec9733999ed

45d40bd ...................................................................30

NATIONAL CENTER FOR MISSING & EXPLOITED

CHILDREN, CHILD PORNOGRAPHY POSSESSORS

ARRESTED IN INTERNET-RELATED CRIMES: FINDINGS FROM THE NATIONAL JUVENILE ONLINE VICTIMIZATION STUDY, available at http://us.missing

kids.com/en_US/publications/NC144.pdf ................32

Nicolas Conlon, Freedom To Filter Versus User

Control: Limiting Scope of § 230(C)(2) Immunity, 2014 UNIV. ILL. J. L. TECH. & POL’Y

105 (2014) ..................................................................9

Nicolas Kristof, The Children of Pornhub, NY

TIMES (Dec. 4, 2020), https://www.nytimes.

com/2020/12/04/opinion/sunday/pornhub-rapetrafficking.html .......................................................31

Olivier Sylvain, Intermediary Design Duties, 50

CONN. L. REV. 203 (2018) ........................................26

Protecting Youth Mental Health, U.S. SURGEON

GENERAL’S ADVISORY (2021), https://www.hhs.

gov/sites/default/files/surgeon-general-youthmental-health-advisory.pdf .....................................27

xiii

TABLE OF AUTHORITIES—Continued

Page

Regulation 28 Report to Prevent Future Deaths,

NORTH LONDON CORONER’S SERVICE (Oct. 13,

2022), https://www.judiciary.uk/wp-content/

uploads/2022/10/Molly-Russell-Prevention-offuture-deaths-report-2022-0315_Published.pdf .......27

Robert Cannon, The Legislative History of Senator Exon’s Communications Decency Act:

Regulating Barbarians on the Information

Superhighway, 49 FED. COMM. L. J. 51 (Nov.

1996) ..........................................................................4

Ryan Broderick, YouTube’s Latest Child Exploitation Controversy Has Kick-Started A War

Over How to Fix The Platform, BUZZFEED

NEWS (Feb. 22, 2019, 5:42 PM), https://www.

buzzfeednews.com/article/ryanhatesthis/youtubechild-sexual-exploitation-creators-watson .............28

S. CONF. REP. 104–230 (1996) .......................................6

Shira Ovide, Big Tech Has Outgrown This

Planet, NY TIMES (Oct. 12, 2021), https:/www.

nytimes.com/2021/07/29/technology/big-techprofits.html ..............................................................17

U.S. DEP’T OF JUSTICE, THE NATIONAL STRATEGY

FOR CHILD EXPLOITATION AND PREVENTION AND

INTERDICTION (2010), available at http://

www.justice.gov/psc/docs/natstrategyreport.

pdf ............................................................................32

xiv

TABLE OF AUTHORITIES—Continued

Page

U.S. SENT’G COMM’N, FEDERAL SENTENCING OF

CHILD PORNOGRAPHY: PRODUCTION OFFENSES

(2021), https://www.ussc.gov/sites/default/

files/pdf/research-and-publications/researchpublications/2021/20211013_Production-CP.pdf .......30

Von Weiler, J., Haardt‐Becker, A., & Schulte, S.,

Care and treatment of child victims of child

pornographic exploitation (CPE) in Germany,

16 J. OF SEXUAL AGGRESSION 211 (2010) .................32

Wells, G., Horwitz, J., & Seetharaman, D., Facebook Knows Instagram is Toxic for Teen

Girls, Company Documents Show, THE WALL

STREET JOURNAL (Sep. 14, 2021), available at

https://www.wsj.com/articles/facebook-knowsinstagram-is-toxic-for-teen-girls-companydocuments-show-11631620739?mod=hp_lead_

pos7 ..........................................................................33

1

INTEREST OF AMICUS CURIAE1

CHILD USA is the leading national nonprofit

think tank fighting for the civil rights of children.

CHILD USA engages in in-depth legal analysis and

cutting-edge social science research to determine the

most effective public polices to protect children from

sexual abuse and online exploitation and to ensure access to justice for victims. Distinct from an organization engaged in the direct delivery of services, CHILD

USA produces evidence-based solutions and information needed by policymakers, organizations, courts,

media, and society as a whole to increase child protection and the common good. CHILD USA’s interests in

this case are directly correlated with its mission to increase child protection and to eliminate barriers to justice for victims of sexual abuse and online exploitation.

CHILD USA is an expert on the proximate, immediate,

and persistent harms to child-victims whose imagery

is hosted and trafficked online, the ways in which digital communication platforms exacerbate this abuse

and its attendant harms, and on the measures Congress has taken to address the epidemic of child sexual

exploitation by holding online entities accountable.

1

All parties consent to the submission of this amicus brief.

No counsel for a party has authored this brief in whole or in part,

and no party, party’s counsel, or any other person—other than

amicus curiae and its counsel—has contributed money that was

intended to fund preparing or submitting this brief. There is no

relationship between CHILD USA or its attorneys and petitioners

or petitioners’ counsel.

2

Section 230’s failure to incentivize tech companies

to develop child-protective processes has made child

sexual exploitation and abuse a feature of digital

communication platforms and left victims without recourse, which is inconsistent with Congress’s intent.

This case presents an opportunity to change the incentive calculus by restoring interpretation of Section 230

to its text and congressionally intended purpose in favor of child protection.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Congress passed the Communications Decency

Act (CDA) twenty-six years ago, which included a limited defense for online platforms in Section 230. Over

the years, federal courts have steadily expanded the

boundaries of the Section 230 defense such that online

platforms now enjoy near absolute immunity from suit,

even when they engage in harmful practices that

would be actionable had they been undertaken offline.

This was not Congress’s intent when they set out on a

broad campaign to “clean up the internet.”

As amicus will discuss in this brief, the text and

legislative history of Section 230 “shout to the rafters”

regarding Congress’s intent to restrict children’s access to sexually explicit and otherwise harmful content

and to incentivize development of technologies that

would allow parents and users to filter out such materials. Force v. Facebook, 934 F.3d 53, 88 (2d Cir. 2019)

(Katzmann, J., concurring in part and dissenting in

3

part). In Section 230, lawmakers thought they were

creating a limited defense from civil liability for internet service providers’ good faith efforts to restrict or

enable restriction of objectionable content on their

platforms. Section 230 bars claims that impose liability

on an internet service provider based solely on the improper character of a third-party’s post. 47 U.S.C.

§ 230(c)(1). That is a very circumscribed set of claims.

The categorical immunity asserted by Google and

affirmed by the court below runs afoul of the statutory

text and is antithetical to congressional objectives.

This Court needs to clarify what the text already

makes clear: that the design, development, and deployment of a company’s algorithmic functions reach beyond the traditional editorial activities that Section

230 protects. When a plaintiff ’s claim is based not on

the content of the information shown but rather on the

affirmative conduct of the defendant, Section 230

should leave online platforms accountable for the

harm to children they cause.

---------------------------------♦---------------------------------

ARGUMENT

I.

An Overly Broad Construction Of Section

230 Has Produced Immunity From Liability

Far More Sweeping Than The Statute’s History And Text Support

The Section 230 defense does not immunize online

platforms for their affirmative conduct and its overly

4

broad construction impedes Congress’s goal to protect

children from harmful online material.

A. Congress Designed Section 230 As a Limited Defense to Liability Consistent with

Its Policy Goal of Protecting Children

from Harmful Materials by Encouraging

Good Faith Content Monitoring Online

With the dawn of cable television, digital communication, and the growing advent of the internet, Congress took on the daunting task of modernizing the

regulatory framework of the national telecommunications law, the Communications Act of 1934. Communications Act of 1934, c. 652, Title I, § 1, 48 Stat. 1064

(1934) (codified as amended at 47 U.S.C. § 151 et seq.).

Congress later recognized that the many benefits of a

free and open internet came with potentially serious

costs. Among the many issues that a nascent internet

implicated, Congress sought to tackle only one: the

ease with which children could access sexually explicit

materials. Section 230 was developed as part of the solution to stop the proliferation of such content to keep

the internet safe for its users.

Congress took action on February 1, 1995, when

Senator Exon (D-NE) introduced the Communications

Decency Act (“CDA”) in the Senate as an amendment

to the Telecommunications Act of 1996. Communications Decency Act of 1996, Pub. L. No. 104–104, 110

Stat. 133–145 (1996) (codified as amended at 47 U.S.C.

§ 223 (1934)); Robert Cannon, The Legislative History

5

of Senator Exon’s Communications Decency Act: Regulating Barbarians on the Information Superhighway,

49 FED. COMM. L. J. 51, 52–53 (Nov. 1996). The bill

sought, in part, to impose criminal penalties on those

who knowingly use interactive computer services to

make, solicit, or transmit obscene materials to minors.

47 U.S.C. § 223(a); Communications Decency Act § 502.

Members of the Senate described the CDA’s fundamental purpose as “provid[ing] much needed

protection for children,” not only from explicit content online, but also from child abuse itself. See 141

CONG. REC. S1954 (daily ed. June 9, 1995) (comments

of Sen. Exon); see also 141 CONG. REC. S8332 (daily ed.

June 14, 1995) (comments of Sen. Coats); 141 CONG.

REC. S8088 (daily ed. June 9, 1997) (comments of Sen.

Exon).

In the House, Congressmen Christopher Cox (RCA) and Ron Wyden (D-OR) introduced their own

amendment to the Telecommunications Act—the “Internet Freedom and Family Empowerment Act of

1995” (“IFFEA”)—which offered a slightly different approach to that adopted in the Senate’s CDA to achieve

its policy objective. See Internet Freedom and Family

Empowerment Act of 1995, H.R. 1978, 104th Cong.

(1995). The CDA, though recognizing the value of the

internet, sought to restrict children’s access to explicit

content online and impose barriers to child abuse and

exploitation, whereas the IFFEA, while acknowledging

the concerns behind the CDA, focused on protecting

online service providers from liability for user-generated content on their platforms. See, e.g., 47 U.S.C.

6

§ 230(c), (b)(3), (b)(4). The Senate Conference Report

explained Section 230 as follows:

This section provides “Good Samaritan” protections from civil liability for providers or users of an interactive computer service for

actions to restrict or to enable restriction of access to objectionable online material. One of

the specific purposes of this section is to overrule Stratton-Oakmont v. Prodigy and any

other similar decisions which have treated

such providers and users as publishers or

speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that such

decisions create serious obstacles to the important federal policy of empowering parents

to determine the content of communications

their children receive through interactive

computer services.

S. CONF. REP. 104–230, 194 (1996) (emphasis added).

To achieve its promise of creating a safe online environment for its users—especially children—Congress

prioritized the necessity of liability for entities with

knowledge of illicit conduct on their platforms and others acting in bad faith. See, e.g., 47 U.S.C. § 230(b)(5);

see also 142 CONG. REC. 8687 (daily ed. Feb. 1, 1996)

(statement of Sen. Coates) (“On-line services and access software providers are liable where they are conspirators with, advertise for, are involved in the

creation of or knowing distribution of obscene material or indecent material to minors.”); Christopher

Cox, The Origins and Original Intent of Section 230 of

7

the Communications Decency Act, UNIV. RICH. J.L. &

TECH., 64 (2020).

The House Rules Committee, which considered

Section 230, described the provision as “protecting

from liability those providers and users seeking to

clean up the Internet” by providing a limited defense

for “those who lack knowledge of a violation” and who

have “server and software functions” so that if they attempted to protect children by policing their platforms

for explicit materials, they would not be held liable if,

in some instances, those protections failed. H.R. CONF.

REP. No. 104–458, at 188, 190.

Congress’s intent to protect children was a

preeminent theme during House floor debates. See, e.g.,

141 CONG. REC. S8087 (daily ed. June 9, 1995) (statement of Sen. Exon) (stating that their intent was to

make the internet “a safe place for our children

and our families”) (emphasis added). Making the argument for adoption of the amendment Congressman

Cox stated, “[a]s the parent of two, I want to make sure

that my children have access to this future and that I

do not have to worry about what they might be running

into online.” 142 CONG. REC. 1993, 22, 044–45. Likewise, Congressman Wyden said, “[w]e are all against

smut and pornography, and, as the parents of two

small computer-literate children, my wife and I have

seen our kids find their way into these chat rooms that

make their middle-aged parents cringe.” Id. Not a

single legislator criticized the bill, and the amendment

passed both Houses with near unanimous support. See,

e.g., 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995)

8

(statement of Rep. Danner); (statement of Rep. White);

(statement of Rep. Goodlatte) (“Congress has a responsibility to help encourage the private sector

to protect our children from being exposed to obscene and indecent material on the Internet”)

(emphasis added).

Both the House and Senate having passed their

respective versions of the CDA, the conference committee had before it two approaches to countering children’s access to indecent and obscene materials in

cyberspace. The disagreement that ensued during the

House-Senate debate, however, was not over the CDA’s

purpose of protecting kids, but rather the most effective way to achieve it. 141 CONG. REC. S8334, 8337

(statement of Rep. Cox); (statement of Rep. Wyden); see

also 142 CONG. REC. 1993, 2042 (comments of Sen.

Breaux). Congress ultimately adopted both amendments as part of the final CDA which was attached under Title V to the Telecommunications Act of 1996. See

Telecommunications Act of 1996, Pub. L. No. 104–104,

110 Stat. 56, §§ 502, 509 (1996) (codified as amended

at 47 U.S.C. § 151 et seq. (1934)); see also 141 CONG.

REC. 1993, 2041 (comments of Sen. Exon). Although the

United States Supreme Court quickly struck down the

Senate’s CDA provisions as unconstitutional on adults’

free speech grounds, the purpose of keeping children

safe online remains the central goal of the Act. See

Reno v. A.C.L.U., 521 U.S. 844, 874 (1997).

Notwithstanding the history and plain language

of Section 230, powerful tech companies like Google

have relentlessly advocated for an expansive

9

interpretation of Section 230’s defense and labored to

reframe the law’s purpose from child protection online

to one limited to adult free speech. Nicolas Conlon,

Freedom to Filter Versus User Control: Limiting Scope

of § 230(C)(2) Immunity, 2014 UNIV. ILL. J. L. TECH. &

POL’Y 105, 115 (2014). To be sure, Federal lawmakers

did want a free and open internet, but they also recognized the harm that would come to bear—specifically

upon children—because of that openness. Having carefully designed a limited defense under Section 230,

Congress was able to strike an appropriate balance

that it believed would limit harm without limiting

growth. By expanding immunity beyond that contemplated by Congress, courts have tipped the scales away

from its central purpose.

B. The Plain Language of Section 230

Does Not Immunize Online Platforms

for Their Affirmative Conduct

At the core of Section 230 is subsection (c), “Protection for ‘Good Samaritan’ blocking and screening of

offensive material,” which addresses certain limitations on liability for interactive service providers.

First, subsection (c)(1) states that “[n]o 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). Second, subsection (c)(2)(A) protects

a “provider or user of an interactive computer service”

from liability for “any action voluntarily taken in

good faith to restrict access to or availability of

10

[objectionable] material.” 47 U.S.C. § 230(c)(2)(A). Section 230(c) is “most naturally read” to protect companies when they (1) “unknowingly decline to exercise

editorial functions [over objectionable] third-party content,” § 230(c)(1), or (2) “when they decide to exercise

those editorial functions in good faith, § 230(c)(2)(A).”

Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC,

141 S. Ct. 13, 17 (2020) (Thomas, J., dissenting).

Section 230 does not immunize an internet service

provider from liability for all activities in which it

might engage. That is, Section 230 does not apply

whenever a cause of action would require treating the

defendant as “a publisher” in the abstract. Force v. Facebook, Inc., 934 F.3d 53, 81 (2d Cir. 2019) (Katzmann,

J., concurring in part and dissenting in part). Rather,

it is “ ‘whether the cause of action inherently requires

the court to treat the defendant as the “publisher or

speaker” of content provided by another.’ ” Id. (citing

FTC v. LeadClick Media, LLC, 838 F.3d 158, 175 (2d

Cir. 2016)).

Thus, by its own terms, Section 230 creates an affirmative defense to liability for those defendants who

can establish that they are an internet service provider, that the claim relates to information provided by

another information content provider, and that an element of the claim requires treating them as the original speaker or publisher of that content. See Meacham

v. Knolls Atomic Power Lab’y, 554 U.S. 84, 91 (2008)

(quoting Javierre v. Cent. Altagracia, 217 U.S. 502, 508

(1910)); see also City of Chicago v. Stubhub!, Inc., 624

F.3d 363, 366 (7th Cir. 2010) (holding that § 230(c)(1)

11

does not create an immunity); Barnes v. Yahoo!, Inc.,

570 F.3d 1096, 1100 (9th Cir. 2009) (same); e-ventures

Worldwide, LLC v. Google Inc., 188 F. Supp. 3d 1265,

1273 (M.D. Fla. 2016); Nestle Purina Petcare Co. v. Blue

Buffalo Co. Ltd., No. 4:14 CV 859 RWS, 2015 WL

1782661, at *10 (E.D. Mo. Apr. 20, 2015); Doe v. GTE

Corp., 347 F.3d 655, 657 (7th Cir. 2003); Perfect 10, Inc.

v. Google, Inc., No. CV 04-9484 AHM (SHx), 2008 WL

4217837, *12 (C.D. Cal. July 16, 2008); cf., Klayman v.

Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014);

Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1202

(N.D. Cal. 2009); Gibson v. Craigslist, Inc., No. 08 Civ.

7735(RMB), 2009 WL 1704355, *5 (S.D.N.Y. June 15,

2009).

Moreover, the language of subsection 230(c)(1)

must be understood within the structure of Section 230

as a whole to give it proper effect; most critically the

Section’s unambiguously narrow scope—to enable

blocking and filtering, § 230(c)(2)(A)—and its separately enumerated subsection, § 230(e) et seq., that expressly defines Section 230’s “Effect on other laws.” 47

U.S.C. § 230(e)(1)–(5). Congress intended Section 230

to establish a uniform federal policy, but as the text

makes clear, one that is wholly consistent with robust

enforcement of federal and state criminal and civil law.

See 47 U.S.C. § 230(e)(1)–(5). While Section 230 includes a preemption on inconsistent state law, it was

drafted to ensure that prosecutors and civil litigants

would be able to hold internet companies accountable

for illicit online activities by establishing that they

were at least partially responsible for the creation of

12

the content or for its later development. See 47 U.S.C.

§ 230(f )(3). That intent is expressed in the definition of

“information content provider”: “any person or entity

that is responsible, in whole or in part, for the creation

or development of information provided through the

Internet or any other interactive computer service.” 47

U.S.C. § 230(f )(3) (emphasis added).

By Section 230’s plain terms, an internet service

provider “shall not be treated as the publisher or

speaker of any information provided by another information content provider,” which means that where the

cause of action targets defendant’s affirmative conduct, liability still attaches. 47 U.S.C. § 230(e)(1)–(5).

Section 230 does not immunize defendants from liability based on their own content creation, nor does it immunize them for disseminating, developing, or

otherwise manipulating content provided by another

user. Indeed, according to Justice Clarence Thomas:

“[H]ad Congress wanted to eliminate both

publisher and distributor liability, it could

have simply created a categorical immunity in

§ 230(c)(1): No provider ‘shall be held liable’

for information provided by a third party. After all, it used that exact categorical language

in the very next subsection, which governs removal of content.”

Malwarebytes, 141 S. Ct. at 16 (Thomas, J., statement

respecting the denial of certiorari). Thus, properly construed, Section 230 protects only those internet service

providers who mistakenly host objectionable content

provided by a third-party or who, in good faith, restrict

13

more content than is necessary to keep their platforms

safe.

Here, Google deployed its own algorithms to affirmatively surface and make targeted recommendations of illicit third-party content to its users. To hold

that Section 230 protects Google for engaging in behavior that is the opposite of that which its text expressly

encompasses would be patently absurd. To conclude

that Google is entitled to immunity when that behavior

violates federal anti-terrorism laws is not only textually nonsensical, but downright dangerous.

C. The Immunity Afforded to Online Platforms Is Now So Broad That It Undermines Fundamental Public Interests

Including Child Protection

Overly broad construction of Section 230 can be

traced back to the Fourth Circuit’s decision in Zeran v.

America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Relying exclusively on Section 230’s purpose to protect

online providers in limited circumstances, without reference to the statutory text or the law’s other purpose

to protect children, the court erroneously held that

Section 230(c)(1) creates immunity for “any cause of

action that would make service providers liable for information originating with a third-party user of the

service.” Id. at 330, 333. Justice Clarence Thomas criticized the decision explaining that, “[a]lthough the text

of § 230(c)(1) grants immunity only from ‘publisher’ or

‘speaker’ liability, the first appellate court to consider

14

the statute held that it eliminates distributor liability

too.” Malwarebytes, 141 S. Ct. at 15 (Thomas, J., statement respecting the denial of certiorari) (citing Zeran,

129 F.3d at 331–34). “Extending § 230 immunity beyond the natural reading of the text,” Justice Thomas

cautioned, could have “serious consequences.” Id. at 18.

To that point, Doe v. Am. Online, one of the first

cases to adopt the approach in Zeran, is illustrative.

783 So. 2d 1010 (Fla. 2001). In this case, the majority

rejected Doe’s claims alleging that AOL had knowingly

distributed and permitted advertisements for child

pornography on its platform, that it had received complaints about child sexual abuse materials (CSAM) depicting Doe on its platform, and that it had failed to

terminate the account of the user it knew to be posting

such material in violation of the company’s terms of

service. Id. In his incisive dissent, Judge Lewis argued

that the majority’s reliance on Zeran had been in error

and that its decision “frustrate[d] the core concepts explicitly furthered by the [Communications Decency]

Act and contravene[d] its express purpose . . . [T]he socalled Decency Act has, contrary to well established legal principles been transformed from an appropriate

shield into a sword of harm.” Id. at 1019 (Lewis, J., dissenting). He also forewarned that adopting this approach would create “carte blanche immunity for

wrongful conduct plainly not intended by Congress.”

Id.

As predicted, courts following Zeran have “read

extra immunity” into the statute “where it does not belong” and in a manner far beyond what the text

15

supports. Malwarebytes, 141 S. Ct. at 15 (Thomas, J.,

statement respecting the denial of certiorari) (citation

omitted). The effect has been a cascade of increasingly

flawed decisions providing online platforms with immunity for a vast array of criminal and tortious activities that have very little to do with publishing,

including terrorism, Force, illegal firearm sales, Daniel

v. Armslist, LLC, 926 N.W.2d 710, 715, 726 (Wis. 2019),

cert. denied, 140 S. Ct. 562 (2019), and sex trafficking,

Doe v. Backpage.com, L.L.C., 817 F.3d 12 (1st Cir. 2016),

to name a few.

Even after Congress enacted the Fight Online Sex

Trafficking Act (“FOSTA”) to clarify that Section 230

does not immunize online service providers that facilitate or materially benefit from trafficking activities on

their platforms, courts still provided immunity to internet companies that knowingly or recklessly facilitated heinous crimes against children despite the

actual language of the Act. Pub. L. No. 115–164, 132

Stat. 1253; see also 164 CONG. REC. H1290-02 (daily ed.

Feb. 27, 2018) (statement of Rep. Lee); A.M. v. Omegle.com, LLC, 2022 WL 2713721, at *1 (D. Or. July 13,

2022); Does 1-6 v. Reddit, Inc., 51 F.4th 1137, 1142 (9th

Cir. 2022); M. L. v. Craigslist Inc., 2020 WL 6434845, at

*10 (W.D. Wash. Apr. 17, 2020).

This extreme view that would immunize online

platforms for their own misconduct is impossible to

reconcile with the statute’s plain language, which

clearly indicates that the operative reasons for immunity are restricting access to objectional content and

“Good Samaritan” screening. 47 U.S.C. § 230(c); see

16

also Alina Selyukh, Section 230: A Key Legal Shield

For Facebook, Google Is About To Change, NPR (Mar.

21, 2018) (statement of Rep. Cox), https://www.npr.org/

sections/alltechconsidered/2018/03/21/591622450/section230-a-key-legal-shield-for-facebook-google-is-about-tochange. Furthermore, broad construction of Section

230 has created a perverse incentive for online platforms to behave recklessly in pursuit of profit. Without

an obligation for online service providers to address

harmful activities on their platforms, no matter how

easily they could so, and no requisite standard of care

by which to conform their conduct, consumers—especially children and victims of abuse—are left to bear

the consequences.

II.

The Prevailing Interpretation of Section 230

Improperly Immunizes Online Platforms for

Conduct Beyond the Scope of “Traditional

Editorial Functions”

A publisher’s “traditional editorial functions” protected by Section 230 are those “such as deciding

whether to publish, withdraw, postpone or alter content.” Zeran, 129 F.3d at 330. However, the functional

transformation from early internet into a virtual world

with all manner of products and services has changed

the way online platforms relate with third-party content, such that online platforms frequently have duties

to their users beyond their role as publisher. When

companies design, develop, and deploy their own algorithmic tools, they transform from internet service provider into content service providers. There is no duty

17

owed to a user when the internet service provider acts

as a mere publisher, but there is a duty owed to a user

to not design a defective product. These are different

in kind and severable from traditional editorial decisions. When courts elide that distinction, they cause

plaintiffs great harm.

A. Courts Have Expanded Section 230 Beyond Congress’s Intent to Protect Only

the Online Provider’s Role as a Publisher when They Fail to Acknowledge

Online Platforms’ Additional Role as a

Manufacturer of Online Products with

Duties to Consumers and the Public

The online networked environment that Section

230 presides over today is profoundly different from

that of the early static, content-repository days of

Prodigy, which means Section 230’s limits on immunity are more important than ever for child protection.

Modern tech companies like Google are vastly larger,

wealthier, and more powerful than were the online service providers of two decades ago, and the activities in

which they engage are less obviously about speech.

See Shira Ovide, Big Tech Has Outgrown This Planet,

NY TIMES (Oct. 12, 2021), https://www.nytimes.com/

2021/07/29/technology/big-tech-profits.html. Today’s virtual world offers a multitude of products and services

that would have been unimaginable to Congress back

in 1996, and, as is true in the physical world, poorly

designed digital products can cause significant harm

to its users. Whereas in the physical world, consumers

18

may seek redress for their harm by filing a tort claim

against the manufacturer of the product, such claims

are often preempted by Section 230 in the virtual

world.

Section 230’s content-publisher model has proven

especially problematic in cases where a plaintiff ’s injury is causally connected to third-party content, but

the defendant’s alleged wrongdoing is not based on a

failure to moderate that content. The Fifth Circuit’s decision in Doe v. Myspace, one of the first appellate court

cases to address liability in the context of a defective

virtual product, is illustrative of the paradigmatic error courts have and continue to make in assessing

these claims under Section 230. Doe v. Myspace, 528

F.3d 413 (5th Cir. 2008). In that case, the Court considered allegations that the social media platform had

been negligent in its failure to implement basic safety

features that could have prevented Doe, then thirteenyears-old, from creating a profile on the platform

through which she was able to connect with a sexual

predator. Id. The Court rejected Doe’s claim, characterizing it as a “disingenuous” attempt to circumvent Section 230 and to hold MySpace liable based on her own

disapproval of the platform’s “monitoring, screening

and deletion” choices, activities generally protected by

Section 230. Id. at 420. In so holding, the Court ignored

that the alleged harm stemmed from Doe’s ability to

access the social media platform, which occurred well

before she interacted with any users, and not from the

contents of any correspondence posted to the website

by this predator or any other third party. By

19

disregarding MySpace’s affirmative conduct—namely

its failure to design and implement features that

would have prevented such foreseeable harms to minors in accessing their platform—and assuming that

Doe sought redress for some content-derived harm, the

Fifth Circuit improperly foreclosed claimants’ ability

to hold online platforms liable for their actions as manufacturers of products.

Many courts have followed suit, dismissing claims

against online platforms for their affirmative design

and system choices reasoning that, regardless of any

negligence or defects or preventable harm to others,

online entities are immune from liability so long as the

duty breached does not involve the creation of content.

See, e.g., Force v. Facebook, Inc 934 F.3d 53 (2d Cir.

2019); Marshall’s Locksmith Serv. Inc. v. Google, LLC,

925 F.3d 1263 (D.C. Cir. 2019); Stokinger v. Armslist,

LLC, No. 1884CV03236F, 2020 WL 2617168, at *5

(Mass. Super. Apr. 28, 2020); Herrick v. Grindr, LLC,

306 F. Supp. 3d 579, 590 (S.D.N.Y. 2018), aff ’d, 765 F.

App’x 586 (2d Cir. 2019), cert. denied, 140 S. Ct. 221

(2019); Dyroff v. Ultimate Software Grp., Inc., 934 F.3d

1093, 1097–101 (9th Cir. 2019); Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 21 (1st Cir. 2016).

In a departure, the Ninth Circuit in Doe v. Internet

Brands, Inc., held that Section 230 did not bar a claim

against the owners of a social networking site for individuals in the modeling industry for the website’s alleged negligent failure to warn about two individuals

who used the website to lure Doe to a fake audition,

where she was raped. The owners had obtained

20

information from an offline source about the third-parties’ scheme to target and lure victims through its platform. Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir.

2016). In so holding, the Court drew a distinction between a remedial measure that may require an interactive computer service provider to warn its users of a

known risk and the paradigmatic case of Section 230

immunity—a defamation claim based on content published by a third-party user. Id. at 853. The Court explained that Doe’s failure to warn claim “ha[d] nothing

to do with [Defendant’s] efforts, or lack thereof, to edit,

monitor, or remove user-generated content.” Id. at 852.

Further, the Court conceded that Defendant had acted

as the “publisher or speaker” of user content (Doe’s

profile), a “but-for” cause of her injuries, but nonetheless rejected the but-for causation requirement as applied to Section 230 preemption, explaining that

“[p]ublishing activity is a but-for cause of just about

everything [Defendant] is involved in,” however, “the

CDA does not provide a general immunity against all

claims derived from third-party content. . . . Congress

has not provided an all-purpose get-out-of-jail-free

card for businesses that publish user content on the

internet, though any claims might have a marginal

chilling effect on internet publishing businesses.” Id.

at 852–53.

The Ninth Circuit refined the publisher liability analysis in Lemmon v. Snap, Inc., 995 F.3d

1085 (9th Cir. 2021), asserting that whether a

defendant is treated as a publisher or speaker

depends on “the duty the plaintiff alleges.”

995 F.3d at 1091. To that point, the Court

21

added that the duty alleged in a products liability claim: “differs markedly from the duties

of publishers as defined in the CDA. Manufacturers have a specific duty to refrain from designing a product that poses an unreasonable

risk of injury or harm to consumers. Meanwhile, entities acting solely as publishers—

i.e., those that review material submitted for

publication, perhaps edit it for style or technical fluency, and then decide whether to publish it—generally have no similar duty.”

Id. at 1092. (internal citations and quotations omitted).

These Ninth Circuit decisions are informative as

to the proper analysis of publisher liability under Section 230 in light of its text and history. The key lies in

the careful evaluation of the claimant’s cause of action

to determine if the defendant’s conduct—the alleged

source of harm—goes beyond the entity’s editorial

functions. See Bauer v. Armslist, LLC, 572 F. Supp. 3d

641, 664 (E.D. Wis. 2021) (describing Section 230 as a

“definitional provision” requiring a “fact-based inquiry”). While an online platform may be primarily designed for posting and exchanging content, that fact

alone does not sweep all decisions made by the platform within the scope of its publishing function. Indeed, “Section 230(c)(1) limits liability based on the

function the defendant performs, not its identity.” Force,

934 F.3d at 81 (emphasis added). Simply put, “[w]hen

a plaintiff brings a claim that is based not on the content of the information shown” but rather on the defendant’s own conduct “the CDA does not and should

22

not bar relief.” Id. at 82; see also FTC v. Accusearch Inc.,

570 F.3d 1187, 1204 (Tymkovich, J.) (10th Cir. 2009);

Bauer, 572 F. Supp. 3d at 663–64.

In the present case, Petitioner brings a claim under the Anti-Terrorism Act (ATA). 18 U.S.C. § 2333.

The duty imposed pursuant to a cause of action under

the ATA is the duty not to provide material support to

terrorism. Id. In the context of content algorithms, this

simply requires that Google not affirmatively utilize

the data curated through its statistical analyses to

target and connect users based on a shared interest in

the illicit materials. Nonetheless, Google breached this

duty when it affirmatively surfaced ISIS propaganda

videos and targeted users based on their own products’

analyses regarding user engagement. The harm alleged stems from Google’s affirmative deployment of

its own product which it designed to foster connections,

both with other users and the content, even when they

direct users to powerful terrorist organizations. Section 230 does not apply to Google’s affirmative conduct

and Google is not entitled to immunity from claims under the ATA, even if the third-party content (the ISIS

videos) set Petitioner’s injury in motion.

23

B. Courts Should Not Treat Interactive

Computer Service Providers as Publishers Rather than Information Content

Providers When Their Product Manipulates, Alters, or Develops Third-Party

Content to Such a Degree that Is Clearly

Outside the Scope of Traditional Editorial Functions

Unlike publishers, online companies are subject to

liability when they create their own content or develop,

even in part, content provided by another party. 47

U.S.C. § 230(f )(3). Thus, an internet service provider

may become an internet content provider for Section

230 analysis purposes when their product manipulates, alters, or develops third-party content to such a

degree that that they exceed the scope of traditional

editorial functions. See Zeran, 129 F.3d at 330. Unfortunately, Courts have struggled to distinguish the appropriate boundary between publisher and content

provider, and rather than analyzing the text of Section

230 itself, many have blindly followed their colleagues’

decisions which misinterpret Section 230.

Carafano v. Metrosplash.com, Inc., was one of the

first cases to interpret when an interactive computer

service provider can transform into an information

content provider by creating or developing content. 339

F.3d 1119, 1121 (9th Cir. 2003). The Court erroneously

concluded that “so long as a third party willingly provides the essential published content, the interactive

service provider receives full immunity regardless of

the specific editing or selection process.” Id. Carafano

24

was subsequently narrowed by the Ninth Circuit’s decision in Fair Hous. Council of San Fernando Valley v.

Roommates.Com, LLC, 521 F.3d 1157, 1168 (9th Cir.

2008). In Roommates, Plaintiffs alleged that Defendant, an internet-based business that helps its users

find roommates, violated the federal Fair Housing Act

and California housing discrimination laws by designing their website to elicit information from subscribers

regarding protected characteristics and discriminatory

preferences and matching users based on those preferences. Id. The Court correctly held that “Roommate’s

own acts—publishing the questionnaire and requiring

answers to it—are entirely its doing and thus section

230 of the CDA does not apply to them. Roommate is

entitled to no immunity.” Id. (emphasis added).

However, as to whether Defendant was an information

content provider, the Court held that because Defendant had “materially contributed” to the unlawfulness

of the content under the Fair Housing Act, Defendant

had “developed” the content as understood in Section

230. Id. The Roommates decision generated significant

confusion which other courts have attempted rectify by

adding their own insights to the material contribution

test. For example, the Sixth Circuit offered the following distinction between publication and content development: “[publishers] are necessary to the display of

unwelcome . . . content,” whereas the actions of developers are “[responsible] for what makes the displayed

content illegal or actionable.” Jones v. Dirty World Entertainment Recordings L.L.C., 755 3d 398, 414 (6th

Cir. 2014). While not formalized in the material-contribution test, whether an online service provider

25

generates revenue from the harmful content has also

been an important consideration in the “developer”

inquiry. See, e.g., FTC v. Accusearch Inc., 570 F.3d at

1200.

Courts regularly cite the Roommates material contribution test, but in so doing often ignore the Circuit

Court’s reasoning—Roommate’s own conduct was illegal and thus any action it took after that point inherently “materially contributed to the unlawfulness.”

Roommates, 521 F.3d at 1168. What courts have

largely failed to understand is that when an internet

service provider’s own actions are responsible for what

made the content harmful, they may be held liable as

a content developer, regardless of if “materially contribute” to the illegality.

As in Roommates, Google becomes a developer

through their affirmative design decisions. The “material contribution” that makes the content harmful

stems from the defectively designed algorithms that

the company engineers to keep users engaged and increase revenue, a fact that serves to strengthen the relationship between the company and the harm. More

precisely, what made the contents of these ISIS propaganda videos harmful was in the way in which Google

affirmatively curated, presented, and targeted the material to foster connections amongst users with similar

interests when they connected members of powerful

terrorist organizations and those most susceptible to

radicalization and violence. See Gonzalez v. Google

LLC, 2 F.4th 871, 914 (9th Cir. 2021) (Berzon, J.,

26

concurring); see also id. at 924–25 (Gould, J., concurring in part and dissenting in part).

C. The Creation of Algorithms Designed to

Maximize Company Profit by Exploiting

User Vulnerabilities Is Not An Editorial

Decision Within the Meaning of Section

230

Twenty-six years ago, the argument that internet

service providers operate exclusively as passive conduits for third-party content and thus should not be

liable for harms caused by the activities on their platforms may have been reasonable. Today, however, platforms such as Google and Facebook operate some of the

most technologically advanced websites in the world.

Online companies like Google can not only manipulate

content and exploit user behaviors to drive up profits,

but they also affirmatively exercise that ability as well.

“Many . . . successful internet companies . . . design

their applications to collect, analyze, sort, reconfigure,

and repurpose user data for their own commercial reasons, unrelated to the original interest in publishing

material or connecting users. These developments

belie any suggestion that online intermediaries are

merely conduits of user information anymore.” Olivier

Sylvain, Intermediary Design Duties, 50 CONN. L. REV.

203, 218 (2018); see also 164 CONG. REC. S1849-09

(daily ed. Mar. 21, 2018) (statement of Sen. Wyden).

Tech companies like Google have propelled much

of the harmful content on their platforms to optimize

27

user engagement often with little regard to the collateral consequences. Protecting Youth Mental Health,

U.S. SURGEON GENERAL’S ADVISORY (2021), https://www.

hhs.gov/sites/default/files/surgeon-general-youth-mentalhealth-advisory.pdf. For example, in 2017, a British

teenager named Molly Russel took her own life after

months of viewing pro-suicide and self-harm content

recommended to her through social media. Adam Satariano, British Ruling Pins Blame on Social Media for

Teenager’s Suicide, THE NEW YORK TIMES (Oct. 1, 2022)

https://www.nytimes.com/2022/10/01/business/instagramsuicide-ruling-britain.html. Following an intensive

investigation, the Senior Coroner for the Northern District of Greater London issued a landmark ruling, that

the teen “died from an act of self-harm while suffering

from depression and the negative effects of on-line content.” Regulation 28 Report to Prevent Future Deaths,

NORTH LONDON CORONER’S SERVICE (Oct. 13, 2022),

https://www.judiciary.uk/wp-content/uploads/2022/10/

Molly-Russell-Prevention-of-future-deaths-report-20220315_Published.pdf. Specifically, the Coroner found

that the platforms algorithmic tool fueled binge periods during which the teen was fed a stream of increasingly harmful content which ultimately “contributed to

her death in a more than minimal way.” Id.; Dan

Milmo, Molly Russell inquest must lead to action on

internet dangers, says coroner, THE GUARDIAN (Sept. 29,

2022) https://www.theguardian.com/technology/2022/

sep/29/molly-russell-inquest-must-lead-to-action-oninternet-dangers-says-coroner. As news of the teen’s

death spread, thirty additional families came forward

alleging that social media played a role in their

28

children’s suicide as well. See Faith Ridler, THIRTY

Families Blame Social Media Firms for Their Roles in

Children’s Suicides as it Emerges Pinterest Sent a Personalised Email to Molly Russell’s Account with SelfHarm Images AFTER She Took Her Own Life, DAILYMAIL

(Jan. 27, 2019, 1:20 PM), https://www.dailymail.co.uk/

news/article-6636807/Now-30-families-blame-socialmedia-firms-roles-childrens-suicides.html.

Similarly, in 2019, the public learned that

YouTube had been recommending compromising videos

of young children, thus enabling a “pedophilia ring” to

proliferate on its site. Ryan Broderick, YouTube’s Latest Child Exploitation Controversy Has Kick-Started

A War Over How to Fix The Platform, BUZZFEED NEWS

(Feb. 22, 2019, 5:42 PM), https://www.buzzfeednews.com/

article/ryanhatesthis/youtube-child-sexual-exploitationcreators-watson; K.G. Orphanides, The Paedophile Scandal Shows YouTube is Broken. Only Radical Change

Can Fix It, WIRED (Feb. 23, 2019), https://www.wired.

co.uk/article/youtube-paedophiles-boycott-algorithmchange.

These stories illustrate that Google is aware of its

products’ capabilities to manipulate human behavior

both on and offline, and of the harms that have befallen

its users as a result. Yet, Google is still refusing to take

any responsibility by, for example, eliminating the

targeting feature from its algorithmic design. Google

designs mathematically sophisticated algorithms intended to curate, analyze, and exploit user data in

pursuit of profit. This affirmative conduct is not, even

by modern internet standards, within the scope of

29

traditional publisher function. Judge Katzmann states

it best:

“[t]he cumulative effect of recommending several friends, or several groups or events, has

an impact greater than the sum of each suggestion. It envelops the user, immersing her in

an entire universe filled with people, ideas,

and events she may never have discovered on

her own. Yet the creation of social networks

goes far beyond the traditional editorial functions that the CDA immunizes.”

Force, 934 F.3d at 82; see also Gonzalez, 2 F.4th at 914

(Berzon, J., concurring). Simply put, Section 230 does

not apply to Google’s affirmative conduct and they are

not entitled to immunity for their violation of 18 U.S.C.

§ 2333.

III. This Court Should Interpret Section 230

Consistent with Its Text and Child Safety

Purpose to Avoid Further Injustice and to

Give Victims an Avenue for Meaningful

Redress

The explosion of online abuse and the life-long impacts of that abuse on victims necessitate a return to

the original intent of Section 230 protections.

A. Broad Construction of Section 230 Facilitates the Spread of CSAM

When Congress passed Section 230 as part of the

CDA they promised some degree of protection for

30

children online—both from exposure to sexually explicit material and from the harms attendant to the

production and distribution of child sexual abuse material (CSAM). See supra. In this respect, it has failed

and in large part because of the expansive immunity

read into Section 230 by federal courts. Indeed, the incentive Congress sought to provide has been twisted

such that companies stand to gain significant profits

from hosting illicit content on their platforms. The

tragic result has been an explosion of growth in the

online marketplace for the production and trafficking

of CSAM. At any given time, there are at least one million child sex offenders searching for CSAM online.

EUR. PARLIAMENTARY RSCH. SERV., CURBING THE SURGE

IN ONLINE CHILD ABUSE: THE DUAL ROLE OF DIGITAL TECHNOLOGY IN FIGHTING AND FACILITATING ITS PROLIFERATION

2 (Nov. 2020), https://www.europarl.europa.eu/RegData/

etudes/BRIE/2020/659360/EPRS_BRI(2020)659360_

EN.pdf. In the last fifteen years alone, online exploitation and abuse of children has increased by 422 percent. U.S. SENT’G COMM’N, FEDERAL SENTENCING OF

CHILD PORNOGRAPHY: PRODUCTION OFFENSES 3 (2021),

https://www.ussc.gov/sites/default/files/pdf/researchand-publications/research-publications/2021/20211013_

Production-CP.pdf. Millions of individual users consume more than 15 million child sexual abuse images

in a market currently valued between $3 and $20

billion dollars annually. Michael H. Keller & Gabriel

J.X. Dance, The Internet Is Overrun With Images of

Child Sexual Abuse. What Went Wrong?, NYTIMES.COM

(Sep. 2019), available at https://www.nytimes.com/

31

interactive/2019/09/28/us/child-sex-abuse.html?msclkid

=531b2a24a55511ec9733999ed45d40bd.

These materials not only exist on the dark roads

of the internet, but also on mainstream platforms as

well. For example, Google returns 920 million videos

on a search for ‘young porn,’ and Pornhub has facilitated and profited from the distribution of thousands

of videos with violent titles such as “Screaming Teen”

and “Degraded Teen.” Nicolas Kristof, The Children of Pornhub, NY TIMES (Dec. 4, 2020), https://www.nytimes.com/

2020/12/04/opinion/sunday/pornhub-rape-trafficking.html.

The harms of CSAM are also well documented.

The trauma stemming from child sexual abuse is complex and individualized, and it impacts victims both

in the short-term and throughout their lifetimes. See

generally, BESSEL VAN DER KOLK, THE BODY KEEPS THE

SCORE: BRAIN, MIND, AND BODY IN THE HEALING OF

TRAUMA (Viking 2014). It takes a significant toll on victims’ overall health, increasing the risk for not only for

depression, anxiety, substance abuse, post-traumatic

stress disorder (PTSD), and suicidal ideation, but also

physical ailments such as high blood pressure and

chronic illness. See CENTERS FOR DISEASE CONTROL AND

PREVENTION, NATIONAL CENTER FOR INJURY PREVENTION

AND CONTROL, DIVISION OF VIOLENCE PREVENTION, PREVENTING SEXUAL VIOLENCE (last reviewed by the CDC

on Jan. 17, 2020), available at https://www.cdc.gov/

violenceprevention/sexualviolence/fastfact.html?CDC_

AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fviolence

prevention%2Fsexualviolence%2Fconsequences.html.

The paradigm shift from tangible to digital CSAM has

32

only exacerbated these effects, many of which are

lifelong. Von Weiler, J., Haardt-Becker, A., & Schulte,

S., Care and treatment of child victims of child pornographic exploitation (CPE) in Germany, 16 J. OF SEXUAL AGGRESSION 211, 216 (2010); NATIONAL CENTER

FOR MISSING & EXPLOITED CHILDREN, CHILD PORNOGRAPHY POSSESSORS ARRESTED IN INTERNET-RELATED

CRIMES: FINDINGS FROM THE NATIONAL JUVENILE ONLINE

VICTIMIZATION STUDY, available at http://us.missingkids.

com/en_US/publications/NC144.pdf; U.S. DEP’T OF JUSTICE, THE NATIONAL STRATEGY FOR CHILD EXPLOITATION

AND PREVENTION AND INTERDICTION, 11 at D-12 (2010),

available at http://www.justice.gov/psc/docs/natstrategy

report.pdf; Leonard, M.M., ‘I did what I was directed to

do but he didn’t touch me’: The impact of being a victim

of internet offending, 16 J. OF SEXUAL AGGRESSION 249,

254 (2010). While perpetrators of online abuse are responsible for resulting harm to children, so too are

online platforms that remain complicit in fostering

the spread of abuse. The state of online abuse demands a recognition of Section 230’s original text and

intent.

B. Victims Have No Leverage to Hold Online

Platforms Accountable and to Seek Redress for their Harms

In the physical world, when a Plaintiff is harmed

as a result of a company’s tortious conduct, they may

seek redress by filing a lawsuit against the wrongdoer.

Whereas courts generally consider elements like negligence, foreseeability, and intent where the allegations

33

involve real-world harm, they have largely failed to do

the same when that harm occurs online. As a result,

when victims of online harm seek redress, they may

find their claims dismissed without the benefit of any

fact-intensive inquiry into the company’s functional

role in the harm. Dismissal of such cases at the prediscovery stage all but forecloses on victims’ ability to

prove that the defendants operated with a culpable

mens rea. Indeed, courts have acknowledged the dangers of granting a motion to dismiss based on the

CDA’s limited immunity defense. See, e.g., CYBERsitter, LLC v. Google, Inc., 905 F. Supp. 2d 1080, 1086

(C.D. Cal. 2012). In fact, Congress has specifically

acknowledged the importance of discovery in cases of

online exploitation, trafficking, and abuse, observing

that internet companies believed they “would be able

to win again in court and deny us our opportunity to

look at the documents and to look at the underlying

evidence that one should always look at in an investigation.” 164 CONG. REC. S1827, 1830 (Sen. McCaskill).

Without the ability to engage in discovery, there

will be no serious consideration of how much companies like Google know about the likelihood of harm to

children accessing their platforms. This is especially

important given the sophisticated algorithms implemented by online platforms that prioritize user engagement and profitability, often at the expense of

children’s safety. See, e.g., Wells, G., Horwitz, J., &

Seetharaman, D., Facebook Knows Instagram is Toxic

for Teen Girls, Company Documents Show, THE WALL

STREET JOURNAL (Sep. 14, 2021), https://www.wsj.com/

34

articles/facebook-knows-instagram-is-toxic-for-teengirls-company-documents-show-11631620739?mod=hp_

lead_pos7; Craig Timberg, YouTube Says It Bans

Preteens But It’s Still Delivering Troubling Content to

Young Children, THE WASHINGTON POST (Mar. 14, 2019),

https://www.washingtonpost.com/technology/2019/03/14/

youtube-says-it-bans-preteens-its-site-its-still-deliveringtroubling-content-young-children/. The decision to forgo

discovery not only prevents victims from seeking any

meaningful redress, but it also prevents online companies from learning about potentially dangerous features on their platforms and thus hinders discovery of

new technologies that could increase user safety and

promote growth.

By cutting off victims’ opportunity to gather evidence into tech company practices, courts have

thwarted the CDA’s child protection purpose and denied countless victims the access to justice Congress so

plainly promised. The opportunity to correct this miscarriage of justice is now before this Court. As Justice

Thomas explains, “[p]aring back the sweeping immunity courts have read into § 230 would not necessarily

render defendants liable for online misconduct. It

simply would give plaintiffs a chance to raise their

claims in the first place. Plaintiffs still must prove the

merits of their cases, and some claims will undoubtedly

fail.” Malwarebytes, 141 S. Ct. at 18 (Thomas, J., statement respecting the denial of certiorari). Returning

Section 230 to its text and original intent will serve

35

Congress’s goal of ensuring accountability for companies that recklessly gamble with users’ lives.

---------------------------------♦---------------------------------

CONCLUSION

Fidelity to Section 230’s text and express policy objectives will restore balance to the law in favor of child

protection. For this reason, this Court should interpret

Section 230 to provide petitioners access to justice for

the harm done.

Respectfully submitted,

MARCI A. HAMILTON, ESQ.

Counsel of Record

Founder & CEO

CHILD USA

Professor of Practice in Political Science

UNIVERSITY OF PENNSYLVANIA

3814 Walnut Street

Philadelphia, PA 19104

(215) 539-1906

hamilton.marci@gmail.com

Dated December 7, 2022.