Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Social Links: If the Suit Fits

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CHARACTER.AI SUED IN TWO STATESCharacter Technologies has been hit with two lawsuits, including a wrongful death suit (among other claims), in less than two months over its popular Character.ai chatbot. The first was filed in the U.S. District Court for the Middle District of Florida (<a href="https://d34mgxl0pedajf.cloudfront.net/wp-content/uploads/2024/10/FILED-COMPLAINT_Garcia-v-Character-Technologies-Inc-1.pdf" target="_blank">Garcia v. Character Technologies Inc.</a>) by the mother of a Florida teenager who <a href="https://www.fastcompany.com/91215310/character-ai-app-lawsuit-legal-complaint-teen-suicide-chatbot-google" target="_blank">tragically committed suicide</a> after the chatbot allegedly encouraged the child to do so. The Plaintiff claims her son became instantly addicted to Character.ai and “fell in love” with the bot, leading to drastic behavioral changes such as sleep deprivation, school-related issues, and low self-esteem, which culminated in the child’s death. Just a few weeks later, two plaintiffs in Texas <a href="https://www.documentcloud.org/documents/25450619-filed-complaint/" target="_blank">filed suit</a> alleging that Character.ai <a href="https://www.npr.org/2024/12/10/nx-s1-5222574/kids-character-ai-lawsuit" target="_blank">abused the plaintiffs’ children</a> by exposing them to hypersexualized content, encouraging self-harm, and suggesting they should kill their parents. Both suits allege that the Character.ai chatbot is intentionally designed in a way that exploits minors by simulating human interaction, creating emotional dependence, and failing to implement safeguards against misuse. Given that these are the first major cases to seek damages related to anthropomorphized AI tech, it will be interesting to see whether juries find Character.ai liable, as this could spawn waves of similar lawsuits.MAJOR RECORD LABELS PETITION SUPREME COURT OVER VERDICT REVERSALThree of the world’s largest entertainment companies—Sony Music, Warner Music, and Universal Music—have <a href="https://tmsnrt.rs/3SX6Do2" target="_blank">petitioned the U.S. Supreme Court</a> to reconsider an appellate ruling that wiped out a $1 billion jury verdict in their suit against internet service provider Cox Communications. In 2019, a <a href="https://www.reuters.com/article/lifestyle/cox-to-pay-1-billion-to-music-labels-publishers-over-piracy-infringement-idUSKBN1YO0DE/" target="_blank">Virginia jury</a> found Cox liable for rampant music piracy by the company’s customers and failure to act despite receiving thousands of infringement notices. The verdict was <a href="https://business.cch.com/ipld/SonyMusicEntmtCoxComms4C20240220.pdf" target="_blank">overturned</a> earlier this year by the U.S. Court of Appeals for the 4th Circuit, which confirmed the jury’s finding of willful contributory infringement, but called for a new trial on damages because Cox did not directly profit from the piracy. Unsurprisingly, the plaintiffs appealed, and it appears the Supreme Court is poised to take the case. In a <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24-181.html" target="_blank">one-sentence order</a>, the High Court has invited the solicitor general to file a brief expressing the views of the United States. This is a strong indication that the Court is interested in hearing the case. With a new administration set to take the reins in Washington next month, it seems likely that appellate attorney <a href="https://www.scotusblog.com/2024/11/trump-taps-lawyer-who-argued-his-immunity-case-for-solicitor-general/" target="_blank">D. John Sauer</a> will be solicitor general. Sauer’s disposition toward IP cases is tough to predict, as his work has largely focused on hot-button social issues. A brief in the case may give insight into Sauer’s positions on copyright law and corporate liability.X CLAIMS OWNERSHIP OF ALEX JONES ACCOUNTThe asset liquidation of Alex Jones’s <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.882.0_1.pdf" target="_blank">intellectual</a> and tangible property in the bankruptcy proceeding following the $1.5 billion <a href="https://www.statesman.com/story/news/politics/state/2024/06/06/timeline-lawsuits-alex-jones-sandy-hook-shooting-infowars-false-claims/73985486007/" target="_blank">defamation judgment</a> against him has hit an unusual speedbump. At issue is Jones’s X account. With its 3.4 million followers, the account is among the highest-profile IP assets on the auction block. But here’s the thing: X has <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.937.0.pdf?ref=404media.co" target="_blank">filed an objection</a> claiming that the account belongs to it, not Jones, and is therefore exempt from an asset sale. This raises several interesting questions and a judgment either way could have wide-ranging implications for all social media platforms. Though X’s <a href="https://x.com/en/tos" target="_blank">Terms of Service</a> state that users maintain ownership of “any Content you submit, post or display on or through the Services,” the terms do not explicitly define who actually owns the account. An ownership argument in this context is unusual. We’ve been <a href="/topics/owned-second-circuit-holds-that-traditional-principles-of-property-law-apply-to-social-media-accounts" target="_blank">covering</a> social media account ownership issues <a href="/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_self">for years</a> and in the majority of cases the conflict is between employee/employer or company/consultant. X may very well prevail in this action. Users own their content, but the account itself will likely be seen as an extension of a user’s license to access and use the platform’s services. We’ll be following this one very closely.X LAWSUIT AGAINST ISRAELI DATA SCRAPING FIRM REVIVEDIt appears that Israeli firm Bright Data will be back in court facing an amended version of a complaint from X that was <a href="https://casetext.com/case/x-corp-v-bright-data-ltd-1" target="_blank">dismissed last May</a>. As we <a href="/topics/california-federal-court-holds-x-s-claims-against-scraper-preempted-by-federal-law" target="_self">reported in June</a>, X alleged that Bright Data’s scraping and selling of data from X violated the social media giant’s Terms of Service and the U.S. District Court for the Northern District of California held that X’s claims were preempted by federal copyright law. Though the court declined to allow amendments related specifically to Bright Data’s scraping operations, it granted X’s motion for leave to amend the company’s trespass to chattels claims and fraudulent business acts allegations. Judge William H. Alsup ruled that X’s updated complaint sufficiently alleges that Bright Data improperly accessed X’s servers, writing: “X Corp. newly alleges that scrapers traverse the X service in patterns markedly different from humans or authorized machines, that scrapers thus use underlying server capacity in abnormal proportions, and that this results in intermittent, isolated server failures and a ‘glitchy, lagged user experience’ for X’s human users.” Judge Alsup added that X also properly alleged that if it hadn’t purchased “millions of dollars of server capacity,” the alleged scraping would have resulted in “catastrophic system failures,” concluding that, with these revised allegations, “X Corp.’s proposed complaint now sufficiently alleges server impairment from scrapers accessing its service. . . Bright Data does not contest that if X Corp. states trespass to chattels as to data scrapers, it plausibly does so as to Bright Data, too. This order will assume as much.” You can read Judge Alsup’s thorough, and surprisingly entertaining, <a href="https://www.courtlistener.com/docket/67637345/156/x-corp-v-bright-data-ltd/" target="_blank">ruling</a>. Now that this case is set to move forward, we’ll see if it will have wider implications on the legalities of data scraping and platform protection.META PREVAILS IN IMMUNITY SUITUniversity of Massachusetts Amherst professor <a href="https://en.wikipedia.org/wiki/Ethan_Zuckerman" target="_blank">Ethan Zuckerman</a> has lost his bid for immunity from potential lawsuits alleging breach of contract and violation of federal criminal computer fraud laws related to his “Unfollow Everything 2.0” browser extension. The extension is designed to allow users to turn off the newsfeeds assembled for them by Facebook’s algorithms with one click, blocking unwanted content and advertisements. Unfollowing functionality is already in place on Facebook but requires unfollowing groups and pages individually. In the <a href="https://casetext.com/case/zuckerman-v-meta-platforms-inc" target="_blank">November 22 ruling</a>, Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California wrote that Zuckerman’s “alleged injury is too contingent upon uncertain events to satisfy the constitutional ripeness requirement” and that the request for relief is too speculative because Zuckerman has not actually released the browser extension. Last May, Zuckerman filed a <a href="https://knightcolumbia.org/documents/gu63ujqj8o" target="_blank">preemptive suit</a> against Meta requesting immunity under Section 230, asking the court to declare that his extension would not violate Facebook’s <a href="https://www.facebook.com/legal/terms?_rdr" target="_blank">Terms of Service</a> or federal computer fraud laws, but this action was also rejected. The current case was dismissed without prejudice, so Zuckerman could refile it if he ever releases the Unfollow Everything 2.0 extension, but after two court losses, he faces significant headwinds.UBER’S ARBITRATION CLAUSE UPHELD BY APPEALS COURTIn a <a href="https://aboutblaw.com/bgm7" target="_blank">5–2 decision</a>, the New York Court of Appeals has ruled that a plaintiff’s legal claims against Uber must go through arbitration—even though her action was currently pending before a court. The ruling stems from a November 2020 lawsuit brought by plaintiff Emily Wu, who originally agreed to a prior version of Uber’s Terms of Service without mandatory arbitration. Uber amended its <a href="https://www.uber.com/legal/en/document/?name=general-terms-of-use&country=united-states&lang=en" target="_blank">Terms of Service</a> in January 2021, updating its mandatory arbitration clause, which Wu agreed to.At the heart of the case is the plaintiff’s argument that the arbitration clause should not apply to claims pending in court, even though the amended Terms of Service purported to apply to “any claims” without limitation. Among other things, Wu claimed that Uber’s notice to Wu violated <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/" target="_blank">Rule 4.2 of the Rules of Professional Conduct</a> for attorneys, which bars the other party in a pending lawsuit from directly contacting a party they know is represented by counsel. The Court of Appeals <a href="https://www.reuters.com/legal/government/column-uber-clickwrap-contract-gets-blessing-nys-top-court-theres-twist-2024-11-26/" target="_blank">disagreed with Wu</a>, maintaining that (a) a mass email notification sent by Uber clearly explained there would be changes to the arbitration agreement and that Wu entered into a contract when she agreed to the revised terms; (b) Uber did not know that Wu was represented by counsel when it sent the mass notice; and (c) even if the claim had merit, Wu’s requested remedies were too extreme and she did not even ask for the more targeted and sensible remedy of simply voiding the arbitration agreement and allowing the dispute to move forward in court.In his majority opinion, Judge Anthony Cannataro wrote, “For essentially as long as there have been written contracts, parties have entered them without first carefully reviewing their terms. That failure can have legal consequences, whether the party is a sophisticated entity or an ordinary consumer, and whether the contract is presented on paper or through an electronic pop-up window.”

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Character Technologies has been hit with two lawsuits, including a wrongful death suit (among other claims), in less than two months over its popular Character.ai chatbot. The first was filed in the U.S. District Court for the Middle District of Florida (Garcia v. Character Technologies Inc.) by the mother of a Florida teenager who tragically committed suicide after the chatbot allegedly encouraged the child to do so. 

While generative AI seems to be getting all of the attention these days, the medical field is another area where AI is gaining traction. <a href="https://www.axios.com/2023/11/15/ai-doctor-medical-diagnosis-elsevier-openevidence" target="_blank" dir="ltr">Axios reports about a partnership between Elsevier and OpenEvidence</a> that’s helping doctors use generative AI to use medical research to treat patients in real time.The tentative agreement between SAG-AFTRA and the studios seeks to curb the studios’ use of AI, but <a href="https://www.hollywoodreporter.com/business/business-news/where-sag-aftra-deal-may-miss-ai-protections-1235646988/" target="_blank">there are still concerns from union members</a> about the use and reach of AI in the creative process.The Supreme Court of the United States <a href="https://hls.harvard.edu/today/supreme-court-takes-on-social-media-in-lindke-v-freed-and-oconnor-ratcliff-v-garnier/" target="_blank">recently heard arguments</a> as to whether government officials can block citizens from their personal social media accounts (<a href="https://www.scotusblog.com/case-files/cases/lindke-v-freed/" target="_blank">Lindke v. Freed</a> and <a href="https://www.scotusblog.com/case-files/cases/oconnor-ratcliff-v-garnier/" target="_blank">O’Connor-Ratcliff v. Garnier</a>).On a lighter note, it seems that <a href="https://www.axios.com/2023/10/13/ijbol-meaning-twitter-gen-z-lol-meme" target="_blank">“LOL” is out and “IJBOL” is in</a>. Axios reports that Gen Z now is using the new acronym—unpacked as “I Just Burst Out Laughing”—to describe something funny on social media.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

While generative AI seems to be getting all of the attention these days, the medical field is another area where AI is gaining traction. Axios reports about a partnership between Elsevier and OpenEvidence that’s helping doctors use generative AI to use medical research to treat patients in real time.

Social Links

On October 3, 2022, the United States Supreme Court granted certiorari in <a href="https://www.scotusblog.com/case-files/cases/gonzalez-v-google-llc/">Gonzalez v. Google LLC</a><a href="https://www.scotusblog.com/case-files/cases/gonzalez-v-google-llc/">, No.1-1333</a>, to address the scope of <a href="https://www.law.cornell.edu/uscode/text/47/230">Section 230 of the Communications Decency Act</a>.  The Court will consider whether Section 230(c)(1) immunizes website operators and other online service providers when they use algorithms to recommend content to users, specifically terrorism-related videos posted on YouTube by other users of the video-sharing service.  Section 230(c)(1) is famously concise, having been referred to as the “<a href="https://www.jeffkosseff.com/home">the twenty-six words that created the internet.” </a><a href="https://www.jeffkosseff.com/home"> </a>It says simply “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.”  Since its passage over 25 years ago, courts across the country have often construed the law to provide broad immunity to online service providers that host user-generated content. One example is <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/17-17351/17-17351-2019-09-12.html">Malwarebytes, Inc. v. Enigma Software Group USA, LLC</a>, which stated “[M]any courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”  Section 230 has facilitated the growth of the modern interactive Web, by protecting companies that host user-generated content from potential liability. But the law has come under intense scrutiny in recent years, with both courts and legislatures chipping away at this important safe harbor.I. Section 230 ImmunityIn 1997, when Section 230 was less than a year old, the Fourth Circuit held in <a href="https://caselaw.findlaw.com/us-4th-circuit/1075207.html">Zeran v. America Online</a> that Section 230 provided online service providers with broad immunity from liability arising from content posted by users. Writing for the court, Judge Wilkinson looked to the congressional purpose behind the statute, characterizing Section 230 as a shield for free speech online. As dozens of state and federal courts around the country adopted Zeran’s holding, this expansive interpretation of Section 230 took hold.In the following decades, courts expanded these protections even further, holding that the Section 230 safe harbor applies regardless of how the plaintiff characterizes the claim, so long as the claim treats the online service provider as the publisher or speaker of content provided by someone else (typically another user).  Courts even held that Section 230 <a href="https://caselaw.findlaw.com/us-9th-circuit/1158381.html">protects users who repost other users’ content</a>, and <a href="https://law.justia.com/cases/federal/appellate-courts/ca5/07-50345/07-50345-cv0.wpd-2011-02-25.html">social media platforms that facilitate communications between users</a>.  In other cases, however, courts have found exceptions to the Section 230 safe harbor*, particularly where an online service provider is more actively involved in developing the content at issue or where the plaintiff’s claim alleges activity that goes beyond the traditional activities of a publisher.  (*We’ve provided a summary of these cases at the end of this post.) This trend towards courts narrowing and finding exceptions to the historically broad Section 230 immunity has accelerated in recent years, and Section 230 has also been the target of various legislative attempts to limit its scope at both the federal and state levels. For years, however, the Supreme Court has remained above the fray, routinely denying certiorari without comment when parties sought Supreme Court review in Section 230 cases. Two years ago, in a statement accompanying the Court’s decision not to review a different case involving the scope of liability under Section 230, Justice Thomas wrote that “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” Justice Thomas repeated his call <a href="https://www.supremecourt.gov/DocketPDF/21/21-459/193572/20210923155657043_Petition%20for%20Writ%20of%20Cert%20-%20Doe%20v%20Facebook.pdf">to review Section 230 earlier this year</a>.Now some 25 years since its passage, the Court has for the first time decided to take up the important question of how broadly the protections afforded by Section 230 apply. II. Gonzalez v. GoogleThe family of Nohemi Gonzalez sued Google under the <a href="https://www.govinfo.gov/app/details/USCODE-2015-title18/USCODE-2015-title18-partI-chap113B-sec2333">Anti-Terrorism Act</a>, alleging that, by recommending ISIS recruitment <a href="https://www.govinfo.gov/app/details/USCODE-2015-title18/USCODE-2015-title18-partI-chap113B-sec2333">videos</a> through its YouTube algorithm, Google could be held accountable for Nohemi’s death during an ISIS attack in Paris in November 2015.The family first brought suit in the Northern District of California, alleging that Google was liable for Nohemi’s death under the Anti-Terrorism Act, and that through its ownership and operation of YouTube, Google knowingly provided material support to ISIS in the form of its YouTube platform.  In their amended complaint, the plaintiffs alleged that YouTube assisted ISIS in spreading its message by recommending ISIS videos to users using an algorithm designed to introduce users to content they might be interested in based on their “account information and characteristics.” On August 15, 2018, the lower court in the Northern District of California granted Google’s motion to dismiss, holding that the claims were barred by Section 230, and that algorithmic recommendations of ISIS content did not render Google an “information content provider.” Gonzalez’s family appealed to the Ninth Circuit, which affirmed the lower court’s holding that plaintiffs’ claims were mostly barred by Section 230.  The court rejected plaintiffs’ argument that the Anti-Terrorism Act imposes on Google a duty not to support terrorists, and agreed with Google’s argument that the thrust of plaintiffs’ claims was that Google did not do enough to block or remove content, which necessarily required the court to treat Google as a publisher.  Throughout the opinion, the court expounded upon the focus and goals of Congress in enacting Section 230 (Gonzalez, 2 F.4th 871, 896–97).In their petition to the Supreme Court, the plaintiffs accepted that Section 230 protects Google when ISIS posts videos on YouTube, and focused instead on YouTube recommendations of the videos at issue.  They argue that major tech companies vie for users’ attention and, in order to increase the time that people spend on their websites, provide algorithmic recommendations of material that may interest users.  These recommendations, the plaintiffs contend, move beyond “traditional editorial functions.” The plaintiffs argued that application of Section 230 to these recommendations would “remove all civil liability incentives for interactive computer services to eschew recommending ... harmful materials, and den[y] redress to victims who could have shown that those recommendations had caused their injuries.”  The crux of the plaintiffs’ legal argument is that recent decisions granting Section 230 protections for recommendations were wrongly decided, and that the Court should look to the text of the statute to return to a narrower interpretation of its protections.In its opposition, Google emphasized that both circuit courts that had considered content recommendations had determined that they were protected by Section 230, and that the Supreme Court had denied certiorari in both cases.  It went on to argue that, if YouTube recommendations are not shielded from legal liability, “Section 230 would be a dead letter.”  It noted that every publication provides recommendations to users simply through prompts like “read on” or “click here,” and that these are protected as typical publisher functions.Although the questions presented do not address Section 230, the Supreme Court also agreed to hear another case decided in the same Ninth Circuit opinion seeking to hold a number of <a href="https://www.supremecourt.gov/DocketPDF/21/21-1496/226415/20220526180216120_21-xxxx%20-%20Twitter%20Inc.%20v.%20Taamneh%20-%20cert.%20petition.pdf">social media companies liable for extremist content published on their platforms following terrorist attacks</a>.III. Pending Supreme Court’s ReviewGonzalez presents a narrow but important question, asking whether recommendations provided by online platforms qualify for Section 230 immunity. By deciding to hear this case, the Court has shown for the first time that it is ready to make a decision regarding the scope of Section 230, at a time when the statute has never been more relevant, or more controversial. A decision in this case is expected before the Court breaks for its summer recess in July 2023. * Additional examples include: <div><ul><li><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/04-56916/0456916-2011-02-25.html">Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC</a><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/04-56916/0456916-2011-02-25.html">, 521 F.3d 1157 (9th Cir. 2008)</a>, holding that Section 230 did not apply where a questionnaire on the defendant’s website asked users to submit discriminatory responses;</li></ul></div><div><ul><li><a href="https://www.casemine.com/judgement/us/5914b18eadd7b0493475a0e1">F.T.C. v. Accusearch Inc.</a><a href="https://www.casemine.com/judgement/us/5914b18eadd7b0493475a0e1">, 570 F.3d 1187 (10th Cir. 2009</a>), holding that Section 230 did not apply when the service provider was itself an “information content provider” with respect to disclosure of protected materials; </li><li><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/05-36189/05-36189-2011-02-25.html">Barnes v. Yahoo!, Inc.</a><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/05-36189/05-36189-2011-02-25.html">, 570 F.3d 1096 (9th Cir. 2009),</a> as amended (Sept. 28, 2009), holding that Section 230 did not apply when the service provider agreed to remove content but failed to do so; and</li></ul></div><div><ul><li><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/12-56638/12-56638-2014-09-17.html">Doe v. Internet Brands, Inc.</a><a href="https://law.justia.com/cases/federal/appellate-courts/ca9/12-56638/12-56638-2014-09-17.html">, 824 F.3d 846 (9th Cir. 2016)</a>, holding that Section 230 did not apply when a website provider has knowledge of criminal activity and negligently failed to warn users of a known risk. </li></ul></div>