Google tries to ‘astroturf’ the Supreme Court

As Google awaits a U.S. Supreme Court decision that could dramatically upend portions of its business model, a group of prominent online content creators and a nonprofit for authors have rushed to its defense.

In January, a number of prominent internet influencers and the nonprofit Authors Alliance filed an amicus brief defending the tech giant in Gonzalez v. Google. The case, which is slated for oral arguments on Tuesday, could weaken — or even upend — the company’s treasured liability protections under Section 230 of the Communications Decency Act. And those same protections, the creators wrote, are vital to them too.

Left unmentioned in the brief was that the parties behind it had direct financial ties to Google. The group that funded the brief, a nonprofit advocate for startups called Engine, is funded in part by Google. And at least one of the content creators who signed on to the amicus brief has said that employees from YouTube, a Google subsidiary, invited them to sign onto the brief. In addition, the firm representing the creators and Authors Alliance — Keker, Van Nest & Peters — represents Google in other litigation.

Google spokespeople did not respond to multiple requests for comment. Authors Alliance referred comment to one of its lawyers, Ben Berkowitz, who maintained that neither the group nor the creators were paid to sign onto the brief. Berkowitz also said that neither Alphabet, nor Google, nor its subsidiaries authored the brief or contributed funding.

“Our firm’s representation of Google in unrelated litigation is public knowledge, and not a conflict,” he stated. “We represented Authors Alliance and a diverse group of individual content creators to express their views to the Supreme Court about the important role Section 230 plays in protecting and promoting diverse and independent content.”

But for Big Tech critics, the intertwining of interests behind the amicus brief is another illustration of how those companies have used their resources to tilt the scales of power. Beyond the millions Google spends on lobbying each quarter and the trade associations that make its case to policymakers on the Hill, the company has pointed its operatives to another target: the Supreme Court.

“These YouTube creators are just a new angle on an old Google tactic: flooding the zone with supporters — who are often funded by Google — to boost its corporate agenda in Washington,” said Katie Paul, director of the Tech Transparency Project. “Whether it’s policy groups, academics, foundations, or YouTube creators, they’re all part of the same Google influence machinery.”

The Tech Transparency Project highlighted the creator initiative in a report, first shared with POLITICO, on Google’s influence operation ahead of the Supreme Court case. TTP has disclosed funding from several groups including the Omidyar Network, which was created by eBay founder Pierre Omidyar.

Under Section 230, tech platforms like YouTube are immune from being sued for content posted by their users. Gonzalez v. Google questions whether Section 230 immunity should extend to user-created content that platforms recommend or promote — including via algorithms, which channel the majority of content viewed on YouTube and across the internet. The creators’ brief argues that platforms will be less likely to recommend broad swathes of content if doing so increases the risk of a lawsuit, and that the livelihoods of online creators will suffer as a result.

“Major platforms might be less likely to host and promote independent creators’ content,” the brief contends. “New and emerging creators may be unlikely to reach new audiences. And speech generally could be chilled online, hindering Congress’ policy goals of fostering a free and open Internet.”

Among those creators who signed on to the brief were the family video blogger Jeremy Johnston; Mikhail Varshavski, a handsome internet doctor known as Doctor Mike who boasts a YouTube channel with 10.5 million subscribers; and Milad Mirg, an online creator whose posts have “offered behind-the-scenes looks at his fast-food job at Subway.”

The brief also included Jordan Maron, a video game streamer who goes by CaptainSparklez and who operates a YouTube channel with 11.4 million subscribers. In a video posted to his channel before the brief was filed, Maron revealed that he had been brought into “a group call with YouTube employees, other creators, creator-adjacent business people to inform us of what this is and ask if we wanted to be part of something called an amicus brief.” Google Store has previously sponsored Maron, and Google has sponsored videos posted by other creators who signed onto the brief.

The revelation of who paid for the brief came via a footnote, which states that “Engine’s Digital Entrepreneur Project made a monetary contribution intended to fund the preparation and submission of this brief.” No other person or entity made such a contribution, the footnote explains.

Kate Tummarello, Engine’s executive director, denied that Google had any direct or indirect involvement in funding the brief. She also pushed back on the notion that the call described by Maron was convened by Google subsidiary YouTube to solicit creator signatures.

“My understanding is that YouTube does informational updates on policy topics that impact creators,” Tummarello said. “As part of those conversations, Section 230 was discussed at a high level.” Tummarello said she was also on that call, and that it was she who talked to the YouTube creators to gauge their interest in the amicus brief through Engine’s Digital Entrepreneur Project. She said none of the signers received any compensation, and that Engine “isn't reliant on or beholden to any funder.”

“Engine has been an advocate on Section 230 for years because we advocate on behalf of startups who rely on [its] framework to host and moderate user-generated content (which we explained in a separate brief we signed),” Tummarello said.

Groups that receive Google funding are not barred from supporting the company before the judiciary. In fact, a number of groups supported by Google have also filed briefs in the case. However, the rules hold that an amicus brief must disclose the people or entity — beyond those on the brief, their members, or their counsel — who contributed money for putting together the brief or its submission.

Besides the creators, nearly seven dozen amicus briefs have been filed on Gonzalez v. Google. Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) have weighed in, as has the Department of Justice and a slew of internet experts and tech lobbying groups.

The Supreme Court is slated to hear oral arguments on Tuesday. The case centers around Google and YouTube’s alleged role in the deadly 2015 rampage through Paris by ISIS terrorists. The family of Nohemi Gonzalez, an American student killed in the attack, sued Google over ISIS recruitment videos that allegedly spread across YouTube and were not immediately removed from the site.