I previously blogged about a cert petition I helped to prepare regarding the scope of section 230 immunity. Last week, the final briefing was submitted to the Supreme Court. In my view, the briefing makes clear that the Court should grant cert on the important issue of whether section 230 immunizes Twitter's knowing possession and distribution of child pornography.
The issue arises through a provision in the Communications Decency Act, which encourages "Good Samaritan" acts to keep objectionable content off the internet. 47 U.S.C. §230(c). The Act states internet platforms are not liable for "good faith" acts to remove such content. Section §230(c)(2)(A). It clarifies that platforms may exercise that editorial control without being "treated as the publisher or speaker." Section 230(c)(1).
In the case at hand, the Ninth Circuit construed the Act to immunize an internet platform's knowing and deliberate decision to keep "child pornography" on the internet—a federal crime so damaging that Congress expressly allows victims to seek civil penalties. (The images are better described as "child sex abuse materials, or CSAM, but we have followed the current legal nomenclature.) In response to repeated alerts that child pornography depicting the minor petitioners (John Doe 1 and John Doe 2) was on its platform, Twitter asked for John Doe 1's ID—verifying that he was a minor. Twitter, in its own words, "reviewed the content" showing coerced sex acts by minors. But Twitter then decided "no action will be taken." The video proliferated—and Twitter profited—until a Department of Homeland Security official intervened.
