On May 18, 2023, the United States Supreme Court (the Court) issued its decision in Gonzalez v. Google LLC (Case No. 21-1333), where it held that Google LLC (Google), as an online service provider, did not “aid and abet” ISIS terrorist attacks under section 2333 of the Anti-Terrorism Act (ATA) by allowing ISIS to use its platform. In deciding on the matter, the Court declined to address the Ninth Circuit’s application of section 230 of the Communications Decency Act.

As previously reported by the E-TIPS® Newsletter here, the estate of Nohemi Gonzalez, a victim of the November 2015 terrorist attacks in Paris, sued Google under section 2333 of the ATA for recommending ISIS recruitment videos through its YouTube algorithm, alleging that Google is liable for Gonzalez’s death. The lower court in the Northern District of California held that section 230(c)(1) of the Communications Decency Act, which provides that “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”, protected Google against the claims. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s decision and the Court later granted certiorari to review the matter.

The Court largely drew from its analysis in the recent decision, Twitter, Inc v. Taamneh, (Case No. 21–1496) (Twitter), where the family of an American killed in a 2017 ISIS terrorist attack sued Facebook, Google, and Twitter, alleging that they had “aided and abetted” ISIS by allowing ISIS to recruit, fundraise, and spread propaganda on their platforms. In Twitter, the Court considered that to be liable for aiding and abetting under section 2333 of the ATA, an individual would have to take an “affirmative act” “with the intent of facilitating the offense’s commission.” The Court determined that the only conduct that the defendants allegedly undertook was creating their platforms and setting up algorithms to display content relevant to user inputs, which does not constitute active assistance with respect to ISIS’ acts of terrorism. However, the Court left open the possibility that similar allegations against other online service providers could succeed if the aid provided was more “direct, active, and substantial” than alleged in the case. 

In Gonzalez, the Court held that the allegations underlying the plaintiffs’ complaint were largely identical to those at issue in Twitter and the plaintiffs likewise failed to state a plausible claim for aiding and abetting under the ATA. Indeed, the Court stated that much, if not all, of the plaintiffs’ complaint seemed to fail under either the Twitter decision or the Ninth Circuit’s unchallenged holdings. This rationale further led the Court to decline to address the application of section 230 of the Communications Decency Act, stating that the plaintiffs’ complaint appeared to have little, if any, plausible claim for relief.

Ultimately, the Court vacated the judgment and remanded the case for the Ninth Circuit to consider the plaintiffs’ complaint in light of the Court’s decision in Twitter.

Summary By: Sharan Johal


23 05 31

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