Are Google and Meta responsible for the racist carnage in Buffalo?

Ask the families of the victims of last year’s racist massacre in Buffalo what they want and one goal keeps popping up.

“Anyone and anyone, in anything and everything, that played a part in what happened to my mom and the other nine, what happened in Buffalo, to hold them accountable,” said Garnell W. Whitfield Jr., whose mother, Ruth, was one of 10 people — all black — who were killed.

That desire for accountability has resulted in two new ones civil lawsuits filed by the Buffalo families, the latest attempt to hold social media companies accountable when men steeped in violent ideologies open fire on those platforms. But even as such massacres seemingly continue unabated, lawsuit after lawsuit against tech giants has so far failed to reward the victims and their families in court.

Indeed, the Buffalo suits will face major challenges, digital law experts say, with some blunt predictions about their chances of success.

“It’s not going to work,” said Eric Goldman, a law school professor at Santa Clara University and co-director of the High Tech Law Institute.

In recent years, a handful of cases related to social media and tragic incidents have progressed past preliminary stages, including two lawsuits filed by families of victims of terrorist attacks in Istanbul and Paris that reached the Supreme Court. But the country’s top court rejected both attempts to hold companies, including Google and Twitter, liable for Islamic State videos that appeared on their sites.

The main legal obstacle, Mr. Goldman and others say, remains section 230 of the Communications Decency Act of 1996, which protects online businesses from liability for third-party content published on their sites. Drafted in the early days of the Internet, the statute was intended to protect Internet companies from lawsuits published by voice in chat rooms or other forums.

But as the decades have passed, critics say, its scope has broadened, even as calls for it to be narrowed have grown.

“The vast majority of courts have really conceded to this very outrageous, unconditional immunity approach when they read section 230,” said Mary Anne Franks, a law professor at the University of Miami who has argued for reforms of article 230. “There hasn’t been a case, I think, just like this. But if you look at some of the other attempts to hold social media companies accountable for acts of terrorism, etc., they’ve largely lost.”

All this irks people like Barbara Massey-Mapps, whose sister, Katherine, was also killed in the Buffalo Raid, in which the gunman used an assault rifle to shoot 13 customers and employees of a Tops supermarket. Three people survived.

The shooter, Payton Gendron, an outspoken white supremacist, livestreamed his attack. He had written voluminous online diaries full of racist content and references to the so-called “replacement theory,” which posits a nefarious conspiracy to replace whites with people of color.

And Ms Massey-Mapps, 66, believes social media is responsible for introducing him and others to such ideas, and for using algorithms capable of sending a steady stream of videos to people looking for racist or other hateful content.

“This wouldn’t spread so fast if you didn’t have Facebook or YouTube or whatever,” she said. “There is so much negativity, so much ugliness. And I’m like, why?

Ms. Massey-Mapps was one of three families of the victims and a Tops employee who filed a lawsuit in May against social media companies, including Meta (owner of Facebook and Instagram) and Google (owner of YouTube). A second lawsuit was filed this month by a legal team led by Benjamin Crump, a prominent civil rights attorney who said he intended to use the shooter’s own admission that he was influenced by social media to prove the case and set a new precedent.

“The laws, the technical justifications, always exist until they don’t exist anymore,” said Mr. Crump, “until people say, we can’t condone this.”

For opponents of Section 230, there are glimmers of hope: In 2021, a decision from the U.S. Court of Appeals for the Ninth Circuit in San Francisco – Lemmon vs Snap — limited the immunity afforded by the law in a case involving a so-called “speed filter” on Snapchat, which encouraged speeding in cars and had led to the deaths of three teenagers who used the filter.

A recent case in Oregon – against the anonymous chat site Omeglewhich has been used by some sexual predators – has also overcome Section 230 challenges. It is in the discovery phase and is being tried, prosecutors’ lawyers said.

As in those cases, the lawsuits filed in Buffalo allege that the social media platforms in question are essentially dangerous products, an attempt to circumvent the content protections provided by Section 230. The two lawsuits – filed in state court in Erie County – use nearly identical language, refer to the apps as “flawed” and suggest they are designed to be addictive to users and encourage violence.

However, the Supreme Court dealt a blow to opponents of Section 230 in May when it ruled against plaintiffs in two lawsuits brought by families of victims of terrorist attacks seeking damages from Google and Twitter.

Jess Miers, legal counsel for Chamber of Progress, a lobbying group representing tech companies such as Google and Meta, said those Supreme Court decisions strengthened Article 230 protections while giving websites leeway to address hate speech.

While “these tools and algorithms inadvertently reinforce offensive content,” she added, the Section 230 protections are “critical to ensuring that social media companies can continue to use algorithms” to monitor and minimize “harmful content.”

Jeff Kosseff, an associate professor in the Cyber ​​Science Department at the U.S. Naval Academy, said the Buffalo suits could face additional free speech challenges as hate speech is constitutionally protected, with the exception of “genuine threat or imminent incitement to violence.”.”

In recent years, there has been increased attention to the effects of social media on young people – including a warning from the Surgeon General in May. And Mr. Kosseff says such anti-tech sentiment could start to dominate legal arguments.

“We’ve had a lot of judges, especially in cases against big tech companies, who aren’t big fans of big tech companies,” Kosseff said. “So that’s why I would never say it’s absolutely doomed.”

Mr Gendron, now 20, has already faced criminal charges: in February he pleaded guilty in state court and was sentenced to life in prison with no chance of parole. He also faces federal charges, including hate crimes, some of which could carry the death penalty.

Bee a press conference to announce the second trial, family member after family member took the stage, some in tears, others stoic, to describe their pain.

“It doesn’t work out for me,” said Kimberly Salter, whose husband, Aaron, a retired police officer from Buffalo, was killed while working as a guard at Tops and was hailed as a hero afterwards. “I’m sure it won’t work out for the other families either.”