 is a horrifying case that stems from mass murder, and involves extremely important digital policy issues, and the Supreme Court has announced that it will hear it on Monday.

23-year-old Nohemi Gonzalez, an American studying in Paris, was killed by ISIS gunmen when they opened fire on a café where she and her friends were having dinner. She was one of 129 individuals killed in a wave of violence in Paris in November 2015, for which ISIS claimed responsibility, according to the family's attorneys.

Gonzalez's estate filed a lawsuit against Google after she was killed. According to their case, Google-owned YouTube was used by ISIS to upload "hundreds of radicalizing films encouraging violence and recruiting potential sympathizers." The Gonzalez family's attorneys make a significant claim that YouTube's algorithms promoted this content to people who indicated that they would be interested in ISIS films.

Some of the finest minds in the federal bench disagree on whether federal law allows a large digital business like Google to be sued for the content that its algorithms brought up to specific consumers. 

Although at least two federal appeals courts found that these businesses cannot be sued for their algorithms, there were dissenting opinions in each decisions. The Gonzalez case's dispute must now be resolved by the Supreme Court.

It all boils down to a simple decision: Are these tech companies editorials? As in, do they control the content that goes up, gets promoted, censored etc...? Or are they simply platforms for people to publish the content?

Fundamental issues regarding how the internet functions and the type of content we all view online are at risk. The information we see on social media, the websites we visit when searching online, and even the advertisements we encounter when browsing the web are all currently determined by algorithms and similar automated processes. In the worst case scenario for the digital giants, a Gonzalez loss might subject businesses like Google or Facebook that rely on algorithms to go through content to an unbearable level of legal danger.

However, there is also solid proof that these algorithms have a negative impact on society. Due to its algorithms' propensity to give up increasingly extreme versions of the content its viewers choose to watch, the sociologist Zeynep Tufekci cautioned that YouTube "may be one of the most powerful radicalizing devices of the 21st century". Videos regarding ultramarathons may be recommended to viewers of jogging-related videos. With the same logic, white supremacist rants can be mentioned to someone who is watching Trump rallies.

If the US Congress were more active, legislators could research the issue of how to preserve the economic and social advantages of online algorithms while preventing them from delivering ISIS recruitment videos and racial conspiracies, and perhaps even draft legislation that strikes the right balance. However, the laws we have, not the laws we would like, are used by litigants in court. And the Gonzalez lawsuit's success depends on a statute that was drafted more than 25 years ago, at a time when the internet looked substantially different from how it does today.

There are a lot of reasons to doubt that the Gonzalez family will win this lawsuit in the end. It's not obvious how their attorneys will demonstrate that the ISIS films Nohemi's killers saw, led to her killing, even if they can show that they did watch them. Furthermore, as long as a video isn't directed to inciting or producing imminent violence or hate, the First Amendment generally protects it, even if it promotes terrorism or acts of violence.

However, the Gonzalez lawsuit was never resolved. A federal appeals court dismissed the case, ruling that 

 of the Communications Decency Act of 1996—one of the most important internet policy regulations ever passed—gives Google immunity from the claim.

In a nutshell, Section 230 provides two safeguards for websites that host online content from third parties.

First of all, it protects those websites against civil claims brought by individuals who submit illegal content on the website. Harry Styles, for example, has the right to sue me for defamation if I make a false claim in a tweet that he is the head of a cartel that is secretive and akin to the Illuminati and wants to destroy the government of Ecuador. But because Twitter controls the website where I posted my defamatory tweet, 

he is prohibited from suing Twitter under Section 230.

Websites are also exempt from lawsuits under Section 230, even if they participate in content moderation that "restrict[s] access to or availability of material" placed on their website. Therefore, even after I defame them on their website, Twitter would still be exempt from Styles's hypothetical lawsuit if they block other users but not me.

The growth of the internet was fundamentally shaped by these two safeguards. Social media platforms wouldn't likely be profitable, for instance, if their operators were subject to legal action every time a user posted a defamatory statement. If a restaurant owner or manufacturer could sue the website itself over unfavorable reviews they feel are libelous, it is unlikely that we would have Yelp or the user reviews part of Amazon.

The same goes for Google, Twitter, Facebook, SnapChat etc...

Although websites that remove undesirable content are protected by Section 230, it is not quite clear whether websites that support illegal content are also protected. Styles would have a good case to sue Twitter for this email promoting my false claim, even though Section 230 prevents him from suing Twitter over the tweet itself, if I publish a defamatory tweet about Harry Styles and Twitter sends a promotional email to its users telling them to check out my tweet.

Just in case, I'm not saying Harry is leading a cartel. It was an example. I have no proof. 

According to the Gonzalez family, YouTube's algorithm ought to be handled in the same way that Twitter would be handled if it sent out bulk mailings encouraging offensive comments. The Gonzalez family contends that Google can be sued even if ISIS posted a video to one of Google's websites, as one of Google's websites utilizes an algorithm that reveals ISIS information to viewers who otherwise would not have seen it. Basically, Google pushed and marketed the content, which is an editorial decision. 

As such, they aren't protected by Section 230, since 

it protects platforms from BEING an editorial. 

Furthermore, this is a very reasonable interpretation of Section 230, 

which was passed long before digital corporations began utilizing the sophisticated, data-driven algorithms that underpin so much of the modern internet. 

Although a number of reputable judges have concluded that Section 230 does shield Internet businesses from these types of lawsuits, some highly regarded judges advocate for a more constrained interpretation of this ground-breaking legislation.

Why is Section 230 phrased in this particular manner?

At a time when the majority of Americans were beginning to have access to the internet, Section 230 aimed to overturn a 1995 court ruling that threatened to put an end to online talks. Additionally, the Communications Decency Act, the more comprehensive statute to which it was tied, was primarily focused on issues like internet pornography.

Normally, a business that facilitates communication between individuals is not responsible for what those individuals say to one another. Harry Styles cannot file a lawsuit against the Postal Service or Gmail if I send my brother a letter or email that contains false information about him.

For newspapers, magazines, and other publications that choose carefully which content to publish, the rule is often different. They are frequently liable for any content that appears in their publication, or at the very least any curated content.

Forums in the 1990's: the state of digital "talk" has advanced at incredible speed over the last decades. 

Much of the internet exists in a murky space between curated media like magazines and telephone companies, which do not screen the content of people's calls and are therefore not responsible for anything spoken on those calls. For instance, Twitter often removes tweets that it deems objectionable. Additionally, it occasionally bans people, including former President Donald Trump. However, Twitter doesn't exert anywhere close to the kind of editorial control over its material that a magazine or an online publisher does.

Stratton Oakmont v. Prodigy Services Company

In the 1990s, Prodigy was a well-liked online service that offered a number of "message boards" where users could converse about subjects of common interest. In many posts to one of these message boards, an unnamed Prodigy user reportedly defamed brokerage firm Stratton Oakmont by falsely accusing it of engaging in "criminal and fraudulent actions." In Stratton Oakmont, the issue was whether Prodigy could be held responsible for these claims made by one of its users.

Prodigy, like Twitter, occupied a liminal space between a phone company and a publication. Every item of content that published on its website wasn't carefully chosen by it. However, it did employ a "automated screening program" to eliminate some objectionable material. Additionally, there were rules about content that were upheld by leaders of the bulletin boards. According to Stratton Oakmont, this amount of editorial oversight was sufficient to hold Prodigy accountable for the opinions of its users.

In order to ensure that businesses like Prodigy could run discussion forums without being held accountable for the content of those boards, Section 230 sought to overturn Stratton Oakmont. Because of this, federal law prohibits "any supplier or user of an interactive computer service from treating any information given by another information content provider as the publisher or speaker of such information."

Therefore, Section 230 states that they will not be recognized as the "publisher" of content created by its members. In practice, the law stated that online forums shall not be treated as though they were publications like magazines or newspapers.

Additionally, online forums maintain their immunity from legal action even if they "restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." This is according to a different provision of Section 230.

Prodigy was found liable in Stratton Oakmont for illegal information posted on its message boards because it took some time to delete the content that it found disagreeable. If eliminating offensive content rendered websites vulnerable to legal action, the websites might suffer irreparable damage. 

Users might possibly flood internet forums with pornography, forcing the website to either leave those images up in order to avoid a flood of lawsuits that could force it out of business 

or to subject all posts on the forums to the kind of advance editorial review usually reserved for newspapers.

The Gonzalez plaintiffs effectively argue that a website is not protected by Section 230 when it "affirmatively recommends other party materials," regardless of whether those recommendations are made by a human or by a computer algorithm. It is genuinely unclear whether Section 230 applies to websites' decisions to promote, rather than remove, content.

Given this inclusive language, a divided panel of the United States Court of Appeals for the Ninth Circuit came to the conclusion that Section 230 protects YouTube's algorithmic decisions. The Ninth Circuit asserted, among other things, that websites must logically choose to prioritize some content while obscuring other content. The court stated that websites have always decided where on their sites certain third-party content should live and to whom it should be exposed. 

Again, this is a complex legal issue that has divided lower court judges without regard to partisanship or ideology.

If Google can be held accountable if its algorithms direct a specific user to a specific piece of damaging information, what happens if someone searches for "ISIS" on Google and ends up on a pro-ISIS website that radicalizes them?

Google should be concerned that, if the Gonzalez case goes against it, it might be held responsible for illegal content posted by others, at least if an algorithm surfaces it. And without some sort of algorithm that chooses which websites are presented in which order whenever someone performs a search, it's unclear how a search engine can even function.

In an ideal scenario, Congress would take action and draft a new law that strikes a reasonable compromise between assuring the continued operation of critical websites and some safeguards against the promotion of unlawful information. But it's unlikely that Congress will manage to thread this particular needle, especially at a time when many Republicans want to alter Section 230 in order to include clumsy protections for political conservatives.

Republicans are against censorship (for 230) and Democrats want more censorship (more regulations, less protection...less 230). 

Therefore, we must wait to see if the Supreme Court issues a ruling that could stifle the modern digital world. Simply put, this problem was not considered when Congress drafted Section 230 in 1996.

New case in US Supreme Court could change the internet

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