Ep.

38: The Supreme Court case that could change the internet

DINA TEMPLE-RASTON: Nohemi Gonzalez always seemed like one of those kids who was on
track to do great things. She wanted to make a name for herself.

BEATRIZ GONZALEZ: Since she was like three, four years old, she was already like, know
what she wants, that she wanted to go to college and she wanted to, you know, build a
career.

TEMPLE-RASTON: That’s Nohemi’s mother Beatriz Gonzalez. She goes by Betty.

GONZALEZ: So, I don't know. I always tell her that she was an old lady trapped in a little
body…Very organized. Super organized. And she would always wanted to tell people what to
do and not to do.

JOSE HERNANDEZ: Very bossy, like her mom.

TEMPLE-RASTON: This is Jose Hernandez, Betty’s husband and Mimi’s stepfather. He’s eager
to talk about Mimi too.

HERNANDEZ: She always wanted to do things perfect. Whatever she started, she'll finish. If
she started doing like, painting a wall, she won't leave until it was done.

GONZALEZ: Yeah.

HERNANDEZ: So she never left things halfways.

TEMPLE-RASTON: Mimi enrolled at Cal State Long Beach, started working on a degree in
industrial design, and then she got it in her head that she wanted to study in Paris.

GONZALEZ: The design school in Paris, it was her dream.

TEMPLE-RASTON: That was back in 2015. So Mimi saved her money and finally went.

GONZALEZ: It was only a semester. She was supposed to be there only like for…

HERNANDEZ: Six months.

TEMPLE-RASTON: But it was the wrong six months.

It was the six months that included this:

FRENCH NEWSCASTER: Attaques ont frappe la capital Française…

NBC: Good evening, we start with the breaking news out of Paris and what looks to be at
this moment a city under terror attack on several fronts.
CNN: Who knows how many people have been injured in explosions…

TEMPLE-RASTON: Betty wanted to call her daughter, just to make sure she was okay, except
there was one problem.

HERNANDEZ: She couldn't get a hold of her because she had lost her phone, right?

GONZALEZ: She lost it, yeah. She lost her phone.

TEMPLE-RASTON: Nohemi’s boyfriend got the news on Facebook. Her friends in Paris had
messaged him. The details were heartbreakingly simple: Nohemi was at a restaurant. It had
been attacked. She died in the ambulance on the way to the hospital.

Betty and Joe run a barbershop in L.A. 20 chairs, men and women’s haircuts. And Nohemi’s
boyfriend just suddenly appeared at the shop to tell Betty the news: Nohemi had died in the
attacks.

HERNANDEZ: And I'm like, I wasn't expecting him to say it that way, but he told her. Just
straight out. And that was it. I didn't know what to say. The only thing that she said that she
wasn't, that wasn't true. It was not true. I know Mimi. And then she fell on the floor and I
tried to hold her and she was screaming and I didn't know what to say or what to do.

TEMPLE-RASTON: So that was the first unlikely thing about Nohemi Gonzalez…

[MUSIC]

TEMPLE-RASTON: She ended up being the only American killed by ISIS fighters when they
attacked Paris. And the second unlikely thing is this: She’s now at the center of a Supreme
Court case – Gonzalez vs. Google

SCOTUS ARCHIVAL AUDIO: Oyez, oyez, oyez…

TEMPLE-RASTON: And it involves a lawsuit seeking damages under the Antiterrorism Act. It
argues that Google, which owns YouTube, helped ISIS recruit by recommending the group’s
videos with its algorithms.

What the Court may now decide is whether these social media companies like YouTube
should be liable for that.

[THEME MUSIC]

TEMPLE-RASTON: I’m Dina Temple-Raston, and this is Click Here, a podcast about all things
cyber and intelligence.

Today, inside one of this year’s highest-stakes Supreme Court cases. For the first time, the
high court has agreed to consider a circa-1990s law that has been shielding social media
platforms from lawsuits. And what they decide could change the fate of the internet as we
know it.

Stay with us.

[BREAK]

TEMPLE-RASTON: Not long ago, it might have seemed crazy to suggest that YouTube might
share responsibility for radicalizing terrorists who killed an American in Paris.

Proving that will be Bob Tolchin’s job.

ROBERT TOLCHIN: I'm an attorney here in Brooklyn, New York. Among other areas of
practice, I've done a lot of work representing victims of terrorism.

TEMPLE-RASTON: He’s one of the lawyers in the Gonzalez case. And he says the high court
agreed to consider something that we all now kind of know to be true: That social media
has an uncanny ability to motivate people.

The argument in Gonzalez is that by leaving ISIS videos up on its platform, and using
algorithms to recommend them to a wide array of impressionable viewers, Google and
YouTube bear some responsibility for the violence that followed.
TOLCHIN: It creates communities. So if you like beheading videos you're gonna be shunted
to preachers who talk about beheading. It links people who never would've met and then it
glorifies the activities. It teaches you how to do it, teaches you how to build a bomb.

TEMPLE-RASTON: He’s made this kind of argument before. Back in 2010, he represented
victims of terrorism in Israel.

TOLCHIN: You know, this case flows out of that work.

TEMPLE-RASTON: The then-Prime Minister of Israel, Benjamin Netanyahu, called it “the

Facebook intifada” because they were tracking terrorists who were inspired by things they
saw on social media.

TOLCHIN: And then they were tracing that to actual attacks.

TEMPLE-RASTON: Then in 2014, ISIS roared on the scene. It took over a huge swath of Iraq,
declared the Caliphate and then began using social media to invite people to move there
and become part of it.

ISIS VIDEO ‘FLAMES OF WAR’: They were the few of the few, from all corners of the world,
who answered the call of the prophet.

TOLCHIN: People can make a slick video that actually kind of makes them look good if
you’re disposed to their way of thinking and they can send that out to the whole world and
reach millions of people in a few seconds. That was such a powerful tool for ISIS.

TEMPLE-RASTON: He takes that a step further. He says that YouTube’s recommendation

algorithms aggressively pushed it toward people who might otherwise have had just a
passing interest.

TOLCHIN: Try this: Pick something really weird, like, you know, eggplant horticulture and
start looking up videos about growing eggplants and planting eggplants, and cooking
eggplant and fertilizing eggplants.

[MUSIC]

TEMPLE-RASTON: It isn’t a thought experiment.

If you do actually do that, YouTube will start helpfully sending you a steady stream of
eggplant videos. Facebook will start introducing you to other eggplant lovers.

TOLCHIN: YouTube's business is selling advertisements and they trick you into watching the
advertisements by keeping you zombie-like in front of your monitor so they entice you by
saying You liked this eggplant video, here's some eggplant sauce. Here's how to make baba
ganoush.

TEMPLE-RASTON: Before you know it, you’re part of a whole community utterly obsessed
with eggplant.

[MUSIC]

TEMPLE-RASTON: I actually know someone who became utterly obsessed with the ISIS
videos he found on social media. He was a Somali-American living in Minneapolis. His name
is Abdullahi Yusuf. And I interviewed him back in 2016 when he was just a teenager. He said
ISIS’s YouTube videos were incredibly effective.

ABDULLAHI YUSUF: You were led astray, but now you're, like, on the right path again. You
know, we're, we're glad you found this video.

TEMPLE-RASTON: I spoke to him shortly before a judge put him under a gag order, which
barred him from speaking to the media. But what he said back then is still very relevant to
what’s at stake in Gonzalez.

YUSUF: You know, it’s like the message is for you. Get up off your butt. If you don’t like it, go
do something about it. and, you know, it was check, check, check that’s me, that’s me,
that’s me. And, you know, sign me up.

TEMPLE-RASTON: Those videos he watched helped move Abdullahi to action. He got a

passport, bought a plane ticket, and was going to fly to Syria to join the group.

YUSUF: To us, ISIS was completely different at the time. They were pretty much going off the
Assad regime, you know.

TEMPLE-RASTON: This was in the earliest days of ISIS, when it seemed like ISIS had come
together to fight the Assad regime in Syria.
This was before the beheadings, before the burning of soldiers alive, long before the Paris
attacks.

YUSUF: We're the ones being oppressed, you know, come help us. You know, we're the ones
doing something noble. And I, I didn't see it as against, like, US foreign policy or anything.

TEMPLE-RASTON: And for Abdullahi, the ISIS message in 2014 resonated with him, and it
gave him a sense of self.

YUSUF: I'm confused about who I am, you know, am I American? Am I Somali? Am I Muslim
or whatever?

TEMPLE-RASTON: His friends introduced him to the ISIS YouTube channel. And he said
YouTube kept offering up more and more ISIS videos to watch.

YUSUF: The action, I guess the sense of adventure. Instagram was another big thing, you
know, the fighters there would post like pictures with them, them having nice villas and nice
cars and stuff like that. That was enticing, you know.

TEMPLE-RASTON: And they had wives, too.

YUSUF: Yeah, they had wives.

TEMPLE-RASTON: Was that enticing?

YUSUF: I didn't think about that. I was 17 at the time. [LAUGHS]

TEMPLE-RASTON: All of this is not to re-litigate Abdullahi’s case, but rather to illustrate just
how skillful ISIS was at using social media to find people like Abdullahi and keep them on
the channels.

TOLCHIN: Really what enabled ISIS to grow to the proportions that it did — the availability
of these international world-class communications platforms.

TEMPLE-RASTON: That’s Bob Tolchin again.

TOLCHIN: That's what YouTube is, that's what Google is. That's what Twitter is. That's what
Facebook is. It's a communications platform that you couldn't build if you had a billion
dollars.

TEMPLE-RASTON: So the question the justices will need to answer is whether when social
media company algorithms amplify content, does it somehow become their content.

And are they responsible for that?

Stay with us.

[BREAK]

TEMPLE-RASTON: Gonzalez v. Google comes down to 26 words written in 1995 — before the
Internet was really a thing. Those 26 words make up something called Section 230 of the
Communications Decency Act.

KOSSEFF: I spent a lot of time making sure that I knew the 26 words.

TEMPLE-RASTON: That’s Jeff Kosseff. He’s a cybersecurity law professor at the United States
Naval Academy.

KOSSEFF: I actually have testified twice in Congress about Section 230, and both times I had
this irrational fear, maybe not totally irrational, but I was really worried that a member was
gonna ask me what the 26 words were and I was just gonna blank out right, right there,
and then it would be a meme.

TEMPLE-RASTON: It would have been a meme because he wrote the book about Section
230. A book called The 26 Words That Created the Internet.

TEMPLE-RASTON: What tune would we put them to?

KOSSEFF: Uh, probably to the Dial Up sound. I think that would probably be the most
appropriate.

[DIAL UP SOUNDS]
TEMPLE-RASTON: And those 26 words are:

KOSSEFF: No 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.

TEMPLE-RASTON: Those words have been interpreted as saying that platforms can’t be
sued for things that their users post. And it grew out of a desire to allow the Internet to
develop.

Back in 1995, online services like CompuServe and Prodigy were all the rage. In fact, Jeff
actually remembers being fascinated by Prodigy.

KOSSEFF: I had a friend whose father worked for a computer company. Really, it must have
been the very early nineties. Uh, so I was even in middle school and he showed me Prodigy.

ARCHIVAL PRODIGY VIDEO: The power of Prodigy puts the people of your community of
interest at your fingertips.

KOSSEFF: Which I just thought was the coolest thing. It was just mind blowing that it was
like, a television except you could actually interact with everything inside of it.

TEMPLE-RASTON: They hosted forums and message boards, and Prodigy did this thing that
people didn’t talk much about then: It moderated content.

And because Prodigy took down things its family-friendly users might find offensive, they
made themselves open to legal action, because they were essentially making editorial
decisions. Just like a newspaper.

KOSSEFF: You know, newspapers are responsible for everything in their pages. So if a letter
to the editor is printed in a newspaper and it's defamatory, the newspaper's gonna be
responsible.

TEMPLE-RASTON: The thinking was moderating content turned Prodigy into a publisher so it
was subject to the same laws that govern news organizations. And since no one wants to
get sued, there was a perverse incentive to just leave bad stuff up on a platform.
So Section 230 was written to protect these companies who were trying to do the right
thing, and to let a thousand flowers bloom, risk free, on this new thing called the Internet.

Bob Tolchin, the Gonzalez lawyer we talked to before, says given everything that has passed
since Section 230 was written, it's time for the High Court to take another look at it. He says
230 wasn’t written with beheading videos and radicalization in mind.

TOLCHIN: Tell us what it fairly says and what it doesn't say. I can imagine people on the
court thinking that, look, the statute doesn't say everything that's been attributed to it. And
if Congress wants to issue some kind of a blanket immunity like that, well Congress should
do it, not interpolation by the courts.

KOSSEFF: I'll speak with anyone who wants to talk to me about Section 230,

TEMPLE-RASTON: That’s Jeff Kosseff again.

KOSSEFF: And in the past few years, that's been a lot of people on the Hill, and I think that
half the people I speak with share concerns about, you know, why are we giving this
protection to these platforms when this really awful stuff happens as a result of what some
people see online?

TEMPLE-RASTON: And the other half of the people he speaks with…

KOSSEFF: Point to specific instances, things like the Hunter Biden laptop story where they
say, you know, the platforms were far too quick to block or downplay material that was
harmful to liberal interests. And that the platforms have a liberal bias and that they try to
suppress the views of conservatives.

TEMPLE-RASTON: And why would conservatives give any protection to platforms that have it
out for them? That’s thought to be Justice Clarence Thomas’ position.

What happens next comes down to two things — and either way, the stakes are huge. The
justices could decide to strike down immunity provisions in some kind of wholesale way.
Which would mean tech companies could suddenly find themselves open to enormous legal
risk unless they change the way they sort through their content.

Or the court could more or less affirm what the lower courts have already said – that the
use of algorithms doesn’t turn social media companies into publishers.
KOSSEFF: And they won't be liable for all of it.

TEMPLE-RASTON: Google’s attorneys in the case did not respond to repeated requests for
comment.

Betty Gonzalez and her husband Jose, for their part, aren’t thinking much about the court
case. They’re not going to the oral arguments. They are still processing Mimi’s death.

GONZALEZ: I was in a bubble for many months, and I think I’m still in a bubble.

TEMPLE-RASTON: Mimi’s mother always thought her daughter would make a name for
herself. Being defended in a Supreme Court case wasn’t what she had in mind.

GONZALEZ: I don’t know nothing about law or politics. And I don’t want to get involved.

TEMPLE-RASTON: But at the same time:

GONZALEZ: I don't want her life to just be, you know, like gone and forgotten, just like that.

TEMPLE-RASTON: Mimi had always been so focused on college, so intent on finishing what
she started. And in Spring of 2016, it finally happened.

[COMMENCEMENT MUSIC]

TEMPLE-RASTON: Betty and Jose went to graduation to accept her diploma…

GONZALEZ: We had a conversation one time that she said, Mommy, when I get my diploma,
when I graduate, it's like both graduating because it's hard effort.

COMMENCEMENT VIDEO: At this time, we would like to present her diploma to her mother,
Beatriz…

TEMPLE-RASTON: And as they walked on stage.

Mimi’s name was the first to be read.

COMMENCEMENT VIDEO: NOHEMI GONZALEZ…

[APPLAUSE]

GONZALEZ: So when I walk through the stage I remember both words that she told me and
um, I said to myself, Mimi, here we are getting your diploma.

[MUSIC]

TEMPLE-RASTON: There’s a lovely picture of Mimi in Paris. She’s in the middle of a group
shot with some other students studying there, too. They all have that happy scruffy college
look, the one that says they have their whole lives ahead of them. It was taken less than a
month before the Paris attacks.

Mimi had posted it on Facebook.

This is Click Here.

TEMPLE-RASTON: Here are some of the top cyber and intelligence stories of the week:

Norway’s prime minister Jonas Gahr Støre has warned that Russia poses “a real and serious
threat” to the country’s oil and gas industry.

Støre said that the country’s counterintelligence and cybersecurity agencies had stepped up
their efforts to defend against cyber attacks.

The prime minister made his comments after seven Russians were arrested in Norway in
connection with drone flights over some of the nation’s major energy installations.

Støre said Norweigians shouldn’t be surprised if there are more arrests like this going
forward. He said Russia may be taking great risks as it seeks to gather intelligence.

TEMPLE-RASTON: The FBI released an alert last week warning of Iranian hack-and-leak
operations targeting organizations in the U.S. and Israel.

The alert centers on an Iranian company called Emennet Pasargad. The FBI had previously
linked the company to interference in the 2020 presidential elections.
And the FBI said the company — which has changed its name several times to avoid
sanctions — has targeted entities in Israel since 2020. They typically steal information and
then leak it, putting it up on social media and online forums. The group often pretends to be
a hacktivist organization to muddy attempts at attribution.

TEMPLE-RASTON: And finally, the head of the Cybersecurity and Infrastructure Security
Agency, Jen Easterly, said that over the next year the agency will focus on beefing up cyber
defenses on water, hospitals, and schools. Easterly specifically mentioned a recent
ransomware attack on the Los Angeles Unified School District. She called it a “case study”
for cyber incident reporting because the school district reached out to the FBI and CISA for
assistance.

[MUSIC]

TEMPLE-RASTON: Click Here is a production of The Record by Recorded Future. I’m Dina
Temple-Raston, your host, writer and executive producer.

Sean Powers is our senior producer and marketing director, and Will Jarvis is our producer
and helps with the writing. Karen Duffin and Lu Olkowski are our editors. Darren Ankrom is
our fact checker, and Ben Levingston composes our theme. Kendra Hanna is our intern.

And we want to hear from you. Please leave us a review and rating wherever you get your
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We’ll be back next Tuesday.