Discord and 4chan Are Being Investigated for the Buffalo Attack. Nothing Will Happen.

New York officials announced with great fanfare an investigation of social media companies’ role in the white supremacist shooting that killed 10 people in Buffalo last weekend.  

“This terror attack again revealed the depths and dangers of these platforms that spread and promote hate without consequence,” New York Attorney General Letitia James wrote in a tweet on Wednesday, after the shooter used Twitch to livestream his assault and Discord to write a lengthy diary that detailed his plans. “We are doing everything in our power to stop this dangerous behavior now and ensure it never happens again.”

But bringing civil or criminal accountability to any of the tech companies now under scrutiny will be a tough, uphill slog, legal experts say. Social media platforms remain shielded from the activities of their users by robust legal protections, and hammering through them may prove too tough even for the famously hard-charging New York AG. 

“I’d be surprised if they can be held accountable in the way James is talking about,” Barbara McQuade, the former top federal prosecutor in Detroit, told VICE News. Rather, she said, “Our country needs to have a larger conversation about if and how we’re going to regulate social media to prevent them from being used in this way.”  

James’ investigation began with a referral from New York Gov. Kathy Hochul, who called on James to find out "whether specific companies have civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan and promote violence.”

James’ office will focus on a handful of platforms: messaging service Discord, chat boards 4chan and 8chan (which has been renamed 8kun), and the livestreaming service Twitch, which is owned by Amazon.

“We are cooperating with the NY Attorney General’s investigation,” a spokesperson for Twitch wrote in an email to VICE News.

A Discord spokesperson said the company “will cooperate” with the investigation.

“What we know at this time is that a private, invite-only server was created by the suspect to serve as a personal diary chat log. Approximately 30 minutes prior to the attack, however, a small group of people were invited to and joined the server. Before that, our records indicate no other people saw the diary chat log in this private server,” the company said.

The attack on a Buffalo grocery store located in a majority-Black neighborhood left 10 people dead and 3 more wounded. In a paranoid, 180-page screed, the 18-year-old accused shooter said he was motivated by racist conspiracy theories about people of color taking over the country. 

The suspect’s diary appears to have been written for months on Discord, but it was only revealed roughly 30 minutes before the attack. The shooter attempted to livestream his attack on Twitch from a camera mounted on his helmet. The post was removed about two minutes after the gunman opened fire and was watched in real time by only 22 people. But one of the viewers saved the video and shared it elsewhere, meaning that the clip has since been viewed millions of times on other sites. 

The suspect wrote in his online tirade that he was radicalized on 4chan while he was “bored” during the pandemic. 

Yet using the law to punish companies for any of this will be extremely difficult, legal experts say—and New York officials know this very well, despite their big talk.  

Prosecutors would have to overcome multiple barriers, according to Eric Goldman, a professor at Santa Clara University School of Law in Silicon Valley, and co-director of the university’s High Tech Law Institute. 

“There are three different hurdles the New York Attorney General’s office would have to clear to hold an internet company liable for an in-person mass murder,” Goldman told VICE News. “First, they’d have to establish the elements of a crime. And those elements weren’t written to make a service that’s helping users talk to each other to be liable for murder or anything like it.” 

The Constitution’s First Amendment, which guarantees free speech, represents a second hurdle. 

And finally, Goldman pointed to the infamously controversial Section 230 of the 1996 Communications Decency Act—a statute seen as such a powerful bulwark of online free speech that it’s sometimes called the “26 words that created the internet.” 

The law effectively shields websites from lawsuits or liability if users post something illegal, although there are special exceptions, including copyright violations and content related to sex work. 

The Electronic Frontier Foundation explains that Section 230 means “online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do.”

Former President Donald Trump famously hates Section 230, although his battle to get rid of it during his presidency failed. Trump seemed to think that smashing Section 230 would let him go after big tech companies, which Trump accused of giving a platform to his critics while failing to sufficiently protect his supporters. (Trump has since started his own social media company, Truth Social, which is not going well.) 

Goldman said James is just one of several state-level attorneys general who have made big pronouncements about going after social media companies, despite their limited powers to actually follow through. He pointed to Texas AG Ken Paxton, who has also railed against Big Tech, although for different reasons. Paxton and other Republicans accused Big Tech of stifling conservative voices. 

“I see Letitia James and Ken Paxton using the tools of their office to send political messages which may or may not be grounded in the law,” Goldman said. “They’re using internet services as a punching bag because that’s what people want to see.” 

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This story has been updated with additional comment from Discord.