Today, the Supreme Court issued its opinion in Gonzalez v. Google LLC, a case about whether Section 230 of the Communications Decency Act (47 U.S.C. § 230) protected YouTube’s recommendation algorithms from a claim of secondary liability under the Anti-Terrorism Act (ATA). In a short, three-page per curiam opinion, the Court avoided addressing the Section 230 issue entirely. Instead, the Court held that much of the plaintiffs’ ATA complaint would fail to state a claim for relief under the Court’s separate decision in Twitter v. Taamneh (also handed down today), given that plaintiffs’ counsel in Gonzalez conceded that the allegations in the Gonzalez complaint were materially identical to the Twitter complaint. The Court also relied on the fact that plaintiffs did not seek review of a separate part of the Ninth Circuit’s opinion that addressed ATA claims related to revenue-sharing. Because the Court found that the underlying ATA claim would likely fail on the merits, it found it unnecessary to reach the interpretation of Section 230 immunity. This result was foreshadowed at the oral argument, where the Justices appeared to be concerned with line-drawing and potential unintended consequences of applying Section 230 to the algorithms at issue. The Court found a way out of deciding the Section 230 question in Gonzalez, but it remains to be seen whether the Court will look for a different vehicle to address the scope of Section 230 immunity in the future.

If you have any questions concerning the material discussed in this client alert, please contact the members of our Technology and Communications Regulation and Appellate and Supreme Court practices.

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Photo of Lauren Willard Lauren Willard

Lauren Willard is a partner in Covington’s Antitrust/Competition and Appellate practices. Drawing on her deep substantive antitrust experience in both the government and private practice, Lauren represents and advises clients on a variety of antitrust matters. She defends clients in complex civil litigation…

Lauren Willard is a partner in Covington’s Antitrust/Competition and Appellate practices. Drawing on her deep substantive antitrust experience in both the government and private practice, Lauren represents and advises clients on a variety of antitrust matters. She defends clients in complex civil litigation and class actions, counsels on mergers and acquisitions, and represents clients before federal regulators. She also represents clients in appellate matters before the U.S. Supreme Court and federal courts of appeals.

Lauren rejoined Covington after spending four years at the U.S. Department of Justice (DOJ) working on antitrust and appellate matters, with a particular focus on competition in the digital economy. She served as a Counsel to the Assistant Attorney General of the Antitrust Division, where she worked on a range of merger and conduct matters and served as the Front Office liaison to the International and Appellate sections. She also drafted several amicus briefs and statements of interest and coordinated with the Office of the Solicitor General and Civil Division on appellate matters involving antitrust issues. Lauren accepted a career detail to the Office of the Attorney General to lead the DOJ’s review of market-leading online platforms. In that role, she advised the Attorney General on the application of antitrust to technology platforms, managed antitrust investigations related to technology platforms, and coordinated with the States Attorneys General. Lauren also chaired the DOJ’s working group on Section 230 of the Communications Decency Act and drafted legislation that was cleared through the interagency process and presented to Congress. Following her detail, Lauren returned to the Antitrust Division, where she worked directly on the DOJ’s trial team in US v. Google, one of the biggest government antitrust monopolization litigations in the past 20 years.

After graduating from the University Virginia School of Law, she served as a law clerk to Justice Anthony Kennedy of the U.S. Supreme Court and Chief Judge Alex Kozinski of the Court of Appeals for the Ninth Circuit.

Photo of Madeline Salinas Madeline Salinas

Madeline Salinas counsels national and multinational companies across industries on data privacy, content moderation, and advertising issues.

Madeline advises clients on compliance with federal and state privacy frameworks, and counsels clients on navigating the rapidly evolving legal landscape. She regularly assists clients in…

Madeline Salinas counsels national and multinational companies across industries on data privacy, content moderation, and advertising issues.

Madeline advises clients on compliance with federal and state privacy frameworks, and counsels clients on navigating the rapidly evolving legal landscape. She regularly assists clients in designing cutting-edge products and services, developing privacy notices and consent forms, strategically engaging with state legislatures, and participating in rulemaking proceedings of state and federal agencies. In particular, Madeline has experience advising clients on compliance with laws implicating children’s privacy.

Madeline also partners with clients in developing content moderation policies and designing products and services that facilitate sharing of user-generated content, analyzing the evolving legal landscape and public policy considerations related to content moderation.

As part of her practice, Madeline represents clients in consumer protection enforcement actions brought by the Federal Trade Commission on topics related to data privacy and advertising.

Photo of Yaron Dori Yaron Dori

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Artificial Intelligence and the Internet of Things;
  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Section 230 and digital safety considerations;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The FTC Act and related agency guidance and regulations;
  • State privacy laws, such as the California Consumer Privacy Act (CCPA) and California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act;
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Digital advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

Photo of Megan Crowley Megan Crowley

Megan Crowley is a litigator who represents clients in high-stakes matters, from case inception through trial and appeal. Her practice focuses on complex commercial disputes and litigation under the Administrative Procedure Act. Megan currently represents several leading technology companies in cutting-edge litigation relating…

Megan Crowley is a litigator who represents clients in high-stakes matters, from case inception through trial and appeal. Her practice focuses on complex commercial disputes and litigation under the Administrative Procedure Act. Megan currently represents several leading technology companies in cutting-edge litigation relating to cybersecurity and data privacy.

Megan rejoined Covington from the U.S. Department of Justice, where she defended executive branch agencies in some of their most high-profile cases. Drawing upon this experience, she has secured a number of landmark victories against the federal government in recent years. Megan was a key member of the Covington team that represented TikTok in its successful challenge to the Trump Administration’s efforts to ban the app, and its defense of the district court’s injunction on appeal. She also represented Xiaomi Corporation in its successful challenge to the Department of Defense designation that would have banned the company from U.S. financial markets, securing a preliminary injunction and, ultimately, a rescission of the ban.

Photo of Beth Brinkmann Beth Brinkmann

Beth Brinkmann is a leading national appellate litigator, handling federal and state court matters across the country, and has argued 26 cases before the Supreme Court of the United States. Beth also leads constitutional and statutory litigation against federal agency action. Clients regularly…

Beth Brinkmann is a leading national appellate litigator, handling federal and state court matters across the country, and has argued 26 cases before the Supreme Court of the United States. Beth also leads constitutional and statutory litigation against federal agency action. Clients regularly turn to Beth for advice on complex legal issues pending in litigation across multiple jurisdictions and Supreme Court strategy.

Beth is co-chair of the firm’s Appellate and Supreme Court Litigation practice.

Beth has argued on behalf of firm clients before the U.S. Supreme Court, representing several major power companies in a leading administrative law case and representing a patent owner in a win against the federal government. She has won significant recent appeals for firm clients in other courts as well, including in the California Supreme Court for a national athletic organization in a tort case; in the Second Circuit Court of Appeals for a global bank in an antitrust case; in the Fourth Circuit Court of Appeals for a national financial institution in a class action matter; in the Ninth Circuit Court of Appeals for an online app in an unfair business practice case; and in the DC Circuit in a FCC regulatory matter.

Beth’s litigation for clients against federal agency action in various federal district courts includes obtaining a preliminary injunction to prevent the government’s shutdown of a video-sharing app; winning an action for a global electronics maker against the government’s adverse designation to ban it from U.S. financial markets; and a nationwide preliminary injunction against the government’s proposed most-favored nation drug pricing rule on behalf of a life sciences association.

Before joining the firm, Beth served for more than 15 years in senior litigating positions at the U.S. Department of Justice, most recently as Deputy Assistant Attorney General in the Civil Division. She oversaw the Division’s nationwide appellate litigation, including winning oral arguments in defense of the Affordable Care Act, defense of the President in a national security political question suit, NIH funding of stem cell research, preemption of state immigration statutes, and federal regulation of the Supreme Court terrace. Beth presented congressional testimony and advised cabinet-level department leadership and regulatory agencies on dozens of rulemaking matters, litigation risk assessments, and legislative proposals. Beth previously served as Assistant to the Solicitor General for several years, representing Executive Branch agencies and officials before the U.S. Supreme Court. Beth also previously led a Supreme Court and appellate practice at another national firm, served as an Assistant Federal Public Defender with more than a dozen criminal jury trials, and worked as a public interest litigator, including two civil bench trials.

Over the course of her career, Beth has been recognized as an outstanding appellate advocate by multiple organizations and is regularly invited to speak before legal audiences about the U.S. Supreme Court business docket, appellate advocacy, and government-facing litigation.