Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019) was decided by the United States Court of Appeals for the Second Circuit on July 31, 2019 (No. No. 18-397 (August Term, 2018)). The Second Circuit affirmed dismissal of the federal anti-terrorism claims on Sec. 230(c)(1) grounds and dismissed the foreign-law claims without prejudice for lack of diversity jurisdiction under 28 U.S.C. Sec. 1332(a). Force became the leading appellate authority holding that recommendation algorithms are publishing conduct. Its reasoning framed the question the Supreme Court later declined to answer in Gonzalez v. Google LLC.
The question before the court
Does 47 U.S.C. Sec. 230(c)(1) shield a social network from federal anti-terrorism liability where the plaintiffs allege it hosted a designated terrorist organization's pages and used algorithms to route that content to the eventual attackers? Does the use of matching algorithms take a service outside the statutory meaning of 'publisher'?
The governing rule
47 U.S.C. Sec. 230(c)(1), enacted by the Communications Decency Act of 1996, bars treating a provider of an interactive computer service as the publisher or speaker of information provided by another information content provider. 'Publisher' is undefined and is given its ordinary meaning: 'one that makes public' (Klayman v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir. 2014)); 'the reproducer of a work intended for public consumption' (FTC v. LeadClick Media, LLC, 838 F.3d 158, 175 (2d Cir. 2016)); distributors included (Zeran v. America Online, Inc., 129 F.3d 327, 332 (4th Cir. 1997)). Neutral matching tools remain protected. Fair Housing Council v. Roommates.Com, LLC, 521 F.3d 1157, 1172 (9th Cir. 2008); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003).
How the court applied it
Plaintiffs were U.S. citizen victims, estates, and relatives of victims of five Hamas attacks in Israel between 2014 and 2016. They alleged Facebook gave Hamas, a designated foreign terrorist organization, a communications platform, failed to remove openly maintained Hamas pages, and used newsfeed, friend-suggestion, and advertising algorithms that delivered Hamas content to the individuals who carried out the attacks. Writing for the panel, Judge Droney held that supplying a forum and declining to delete third-party posts sits at the core of publishing under Sec. 230(c)(1). The court then rejected the plaintiffs' central theory that algorithmic 'matchmaking' converts a service into a non-publisher. It reasoned that arranging and distributing third-party information inherently creates connections between speakers, content, and audiences, and that this is an essential result of publishing rather than something added to it. Internet services have always made editorial choices about placement, format, and targeting by geolocation, language, or registration data, and no case law strips immunity because those choices produce matches. Accepting the argument would let any service lose immunity merely by organizing content that third parties supplied. The court separately rejected the contention that automating editorial judgment removes the protection, relying on Carafano's rule that immunity attaches regardless of the specific editorial or selection process so long as a third party supplies the essential content.
What the court concluded
The Second Circuit affirmed dismissal of the federal anti-terrorism claims on Sec. 230(c)(1) grounds and dismissed the foreign-law claims without prejudice for lack of diversity jurisdiction under 28 U.S.C. Sec. 1332(a). Force became the leading appellate authority holding that recommendation algorithms are publishing conduct. Its reasoning framed the question the Supreme Court later declined to answer in Gonzalez v. Google LLC.
From the opinion
- “"arranging and distributing third-party information inherently forms 'connections' and 'matches' among speakers, content, and viewers of content"”
- “"we find no basis in the ordinary meaning of 'publisher' ... for concluding that an interactive computer service is not the 'publisher'"”
- “"it would turn Section 230(c)(1) upside down to hold that Congress intended that when publishers ... become especially adept"”
Why it matters for cyber conflict
Force is the anchor precedent for the proposition that algorithmic amplification of hostile-actor content is protected publishing, which shapes whether victims of terrorist or state-sponsored information operations can reach the platforms that distributed the content.
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Read the opinion: Force v. Facebook, Inc. on CourtListener. This note is a summary prepared by the Journal, not legal advice, and not a substitute for the opinion itself.
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