September 30, 2023

Supreme Court justices expressed hesitation Tuesday about eliminating a key legal shield that protects tech companies from liability for their users’ posts, and how companies moderate messages on their sites.

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Justices across the ideological spectrum expressed concern with striking the delicate balance set by Section 230 of the Communications Decency Act, as they considered the key case Gonzalez v. GoogleEven as some suggested a brief reading of the Liability Shield may sometimes make sense.

The current case was brought by the family of an American killed in the 2015 terrorist attack in Paris. The petitioners argue that Google, through its subsidiary YouTube, violated the Anti-Terrorism Act by aiding and abetting ISIS, as it promoted the group’s videos through its recommendation algorithm. Lower courts sided with Google, saying that Section 230 protects the company from being held liable for third-party content posted on its service.

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The petitioners argue that YouTube’s recommendations actually constitute the company’s own speech, which would fall outside the scope of the liability shield.

But the judges had trouble understanding where Eric Schnapper, the petitioner’s attorney, was drawing the line on what counts as YouTube-created content.

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Conservative Justice Samuel Alito said at one point that he was “completely confused” by the distinction YouTube was trying to make between his own speech and the speech of third parties.

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Schnapper repeatedly pointed to the thumbnail image YouTube shows users to see what video is coming next, or is suggested based on their views. He said the thumbnail was a joint creation between YouTube and the third party that posted the video, in this case ISIS, because YouTube contributed the URL.

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But several judges questioned whether this logic would apply to any attempt to curate information from the Internet, including search engine results pages. He expressed concern that such a broad interpretation could have far-reaching effects the High Court may not be prepared to predict.

Conservative Justice Brett Kavanaugh noted that courts have consistently applied Section 230 since its inception in the 1990s and pointed to an emcee brief that warned that the interpretation could harm many businesses, as well as their workers, There would be massive economic consequences for consumers and investors. Kavanaugh said these are “serious concerns” Congress may consider if it seeks to reauthorize the law. But the Supreme Court said, “He is not responsible for that.”

“You’re asking us to make a very accurate predictive decision right now that ‘don’t worry, it’s actually not going to be that bad,’” Kavanaugh told U.S. Deputy Solicitor General Malcolm Stewart, who serves on the High Court. Arguing to send the matter back to the lower court for further consideration. “I don’t know that this is the case at all. And I don’t know how we can measure that in any meaningful way.”

When Stewart suggested that Congress could amend Amendment 230 to change the reality of the Internet today, Chief Justice John Roberts pushed back, saying that “Amici suggests that if we were to make that choice, Congress could If we wait, the internet will sink.”

Even conservative Justice Clarence Thomas, who has openly written that the court should take up a case around Section 230, seemed skeptical of the petitioners’ line in the sand. Thomas said YouTube uses the same algorithm to recommend ISIS videos to users interested in that type of content as it uses to promote cooking videos to those interested in that topic. does. Besides, he said, he views them as suggestions, not positive recommendations.

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Thomas said, “I don’t see how a neutral suggestion about something you’ve shown interest in is helping and prodding.”

The judges also had tough questions for Google, wondering whether the liability protections are as broad as the tech industry would like to believe. Liberal Judge Ketanji Brown Jackson, for example, had a lengthy back-and-forth with attorney Lisa Blatt, arguing on Google’s behalf, about whether YouTube would be protected by Section 230 in a hypothetical scenario in which the company uses its homepage. But ISIS promotes videos. in the box marked “Featured”.

Blatt stated that publishing a homepage is inherent in the operation of a website, so should be covered by section 230, and that organization is a core function of platforms, so if subject headings cannot be covered, the statute Basically becomes “dead letter”.

Liberal Justice Elena Kagan suggested that it was not necessary to fully agree with Google’s assessment of the results from changing 230 for fear of possible consequences.

“I don’t have to accept all the stuff about Ms. Blatt’s ‘The Sky Is Falling’ to accept something like, ‘Boy, there’s a lot of uncertainty about the way you want us to go,’” in part. Just because it’s hard to draw lines in this area,” Kagan told Schnapper, adding jobs might be better suited for Congress.

“We’re a court, we really don’t know about these things,” Kagan said. “These are not like the nine biggest experts on the Internet.”

Section 230 supporters are optimistic

Many experts in favor of Google’s success in the case said they were more optimistic than before at a press conference convened by the Chamber of Progress, a center-left industry group that opposes Google and other major tech giants. Platforms support.

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Kathy Gelis is an independent attorney in the San Francisco Bay Area who filed a petition amicus brief on behalf of the person running the Mastodon servers, as well as a Google-funded startup advocacy group and a digital think tank. She told CNBC that the brief, like her and others, has a big impact on the court.

Gelis said, “It appears that if nothing else, the amicus counsel, not only myself, but my other colleagues may have saved the day as it was clear that the judges took a lot of lessons across the board.”

“And it appeared overall that the internet didn’t have a huge appetite to lift it up, particularly on a case that I think looked weak from a plaintiff’s perspective for them.”

Still, Eric Goldman, a professor at Santa Clara University School of Law, said that while he feels more optimistic on the outcome of the Gonzalez case, he is concerned for the future of Section 230.

Goldman said, “I’m scared that Rae is going to put all of us in an unenviable position.”

On Wednesday, the judge will hear a similar case with a different legal question.

In bye twitter, the judge will likewise consider whether Twitter can be held liable for aiding and abetting under the Anti-Terrorism Act. But the focus in this case is whether Twitter’s decision to routinely remove terrorist posts means it was aware of such messages on its platform and should have taken more aggressive action against them.

Conservative Justice Amy Coney Barrett asked Schnapper how the decision in that case could affect anyone in the Google case. Schnapper said that if the court rules against Tamneh, Gonzalez’s attorney should be given a chance to revise his arguments in a way that conforms to the standard set in the other case.

See: Should social media companies be held liable for user content? Consequences of changing section 230