United States

In the United States’ punitive criminal legal system, third-party access to formerly convicted and formerly incarcerated individuals’ criminal records marks them for exclusion from opportunities to seek employment, housing, and participate in political processes. The principal justification for burdening individuals who have been convicted of criminal offenses with the ongoing stigma of having a criminal record is the argument that criminal records are public information and a search engine’s right to freely publish public information about someone’s criminal record is protected by the First Amendment.

As stated earlier, there is considerable overlap between the right to privacy and the right to be forgotten. In the United States they blur because neither public nor private information, once published, can be removed from the internet. Even if criminal records are expunged or sealed, if they were once published (even on a government website) they will likely still show up in search results on the web. If a resident of the United States, not having a right to be forgotten, claims that publication of information about expunged or sealed criminal records violates their right to privacy, courts cannot order a search engine to remove the information. The fundamental right to privacy implicit in the Fourteenth Amendment and penumbras of other parts of the U.S. Constitution¹ limits only government intrusion into individuals privacy. Freedom from invasion of privacy by private actors - including search engines - is not protected by the Constitution of the United States. There is an urgent need to amend privacy law in response to the wild proliferation of unregulated data merchants, and, because they have published and sold so much of our data already, to enact law that gives residents of the United States the right to be forgotten. Sadly, at present, U.S. law governing the internet privileges corporations over persons.

Section 230

In the United States internet service providers are immune from liability pursuant to Section 230 of the Communications Decency Act. Section 230(c)(1) provides that “[n]o 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.” Hailed as “the twenty-six words that created the internet,”² Section 230 was enacted in 1996, when the internet was just starting to expand. Today, tech companies have an incredible amount of influence and power, and the immunity Section 230 affords them is commensurate only with the harm they cause internet users by ruthlessly pursuing the accumulation of wealth at the expense of individual needs.

Unlike Europe’s data controllers, which must erase links to third-party content if so ordered by the court, U.S. interactive computer service providers have no obligation to remove information unless the information infringes copyright or violates federal or state sex trafficking laws.³ No matter how much harm the content causes, if it is third-party content that the computer service provider did not create, Section 230 serves as a shield.

The reach of Section 230 protection was challenged in Gonzalez v. Google LLC (Docket 21–1333), where the Ninth Circuit Court of Appeals upheld a lower court’s finding that Google’s use of recommendation algorithms did not materially contribute to incitement to terrorism leading to bombings by Daesh in Paris in 2015 where Nohemi Gonzalez, the daughter of the plaintiff, was killed. One of the central questions in Gonzalez is whether Google’s use - through its subsidiary Youtube - of a recommendation algorithm makes Google the publisher of content selected by the recommendation algorithm, and, as publisher, not covered by the immunity Congress extended to platforms through Section 230. A publisher is a person who materially contributes to the published content. Corporations are persons. The question becomes whether Google’s use of a recommendation algorithm materially contributes to alleged illegality. The court reasoned and the court of appeals affirmed that Youtube “amplified” content and did not publish it, and was therefore “shielded by Section 230 […] because amplification, without more, does not amount to a ‘material contribution’ of the alleged illegality.”⁴

The Supreme Court granted certiorari to the case in October 2022, along with a related case Twitter, Inc. v. Taamneh, also dealing with Section 230 and terrorism-related content. Oral arguments in Gonzalez were held February 21, 2023. These are the first cases over Section 230 heard by the U.S. Supreme Court.

On Thursday, May 18, the U.S. Supreme Court ruled unanimously in Twitter v. Taamneh that neither Twitter nor Google in Gonzalez v. Google had causes of action because “plaintiffs’ allegations are insufficient to establish that […] defendants aided and abetted ISIS in carrying out the relevant attack.”⁵ The rulings did not resolve the question of what responsibility platforms should have for the content posted on and recommended by their sites. Although the court passed on deciding the scope of Section 230, Justice Clarence Thomas, writing for the court, acknowledged that the platforms use algorithms to steer users toward content that interests them but suggested that the users somehow prompt the algorithms by choosing to view terrorism rather than cooking. “The algorithms appear agnostic as to the nature of the content, matching any content (including ISIS’ content) with any user who is more likely to view that content,” Justice Thomas wrote. “The fact that these algorithms matched some ISIS content with some users thus does not convert defendants’ passive assistance into active abetting.”⁶ The court’s decisions in Twitter v. Taamneh and Gonzalez v. Google thus allowed the justices to avoid ruling on the scope of Section 230, for now.

Footnotes