Professor David Sloss’s latest op-ed is titled Section 230 and the Presumption Against Extraterritoriality, and was co-authored with Swathi Rajan, who is one of Professor Sloss’s students.
The op-ed discusses the Ninth Circuit opinion in Gonzalez v. Google (2021) regarding it raising important questions about how the presumption against extraterritoriality applies to immunity defenses invoked by social media companies under 47 U.S.C. § 230. Section 230 shields internet companies from civil liability for user-generated content hosted on their platforms. Gonzalez holds, effectively, that there is no conceivable application of Section 230 that could be “extraterritorial” under the presumption.
The post first discusses the Gonzalez decision as it relates to the presumption against extraterritoriality and explains why Gonzalez is inconsistent with Supreme Court precedent. After presenting a critique of the Ninth Circuit’s analysis in Gonzalez, they consider two approaches to Section 230 and extraterritoriality. The post concludes by suggesting that the focus test does a poor job of promoting the central goal that the presumption against extraterritoriality is ostensibly intended to accomplish.
