Today, the President signed H.R. 1865, the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (commonly known as “FOSTA”). The law is intended to limit the immunity provided under Section 230 of the Communications Decency Act (“CDA Section 230”) for online services that knowingly host third-party content that promotes or facilitates sex trafficking. As drafted, the law has retroactive effect and applies even with respect to activities occurring prior to its enactment.
SESTA
YouTube Protected by CDA Immunity over Claims That It Provided Material Support to Terrorists
By Jeffrey Neuburger on
UPDATE: In June 2021, the Ninth Circuit affirmed the dismissal of claims in the Gonzalez case, mostly on § 230 grounds. Subsequently, on October 3, 2022, the Supreme Court granted certiorari in Gonzalez (see our follow-up post).
UPDATE: In a subsequent opinion, the court dismissed the plaintiffs’ third amended complaint. (See Gonzalez v. Google, Inc., 335 F.Supp.3d 1156 (N.D. Cal. 2018)).
Following the reasoning of several past decisions, a California district court dismissed claims against Google under the Anti-Terrorism Act (ATA), 18 U.S.C. § 2333, for allegedly providing “material support” to ISIS by allowing terrorists to use YouTube (temporarily, before known accounts are terminated) as a tool to facilitate recruitment and commit terrorism. (Gonzalez v. Google, Inc., 2017 WL 4773366 (N.D. Cal. Oct. 23, 2017)). The court rejected the plaintiffs’ arguments that Google provided the terrorists with material support by allowing them to sign up for accounts (or regenerate shuttered accounts) and then allegedly serve targeted ads alongside such posted videos. It ruled that even careful pleadings cannot change the fact that, in substance, plaintiffs’ attempt to hold Google liable as a publisher of the terrorist’s detestable content was barred by Section 230 of the Communications Decency Act (“CDA Section 230” or “CDA”).