US Supreme Court justices expressed reluctance to open up Internet companies to lawsuits related to user-generated content in oral arguments on Gonzalez v. Google this week.
González focuses on Section 230, a provision of the Communications Decency Act passed in 1996 that protects Internet hosts and users from legal liability for third-party content on their sites. Plaintiffs — family members of a student killed in a terrorist attack — are suing Google (GOOG) allegedly helps the Islamic State recruit new recruits through its YouTube algorithms.
The US Court of Appeals for the 9th Circuit previously sided with Google, ruling that Section 230 protects YouTube video recommendations if the algorithm treats content on the site similarly.
Difference in González is whether YouTube — and other Internet companies — should get the same protections for hosting content and for making algorithmic recommendations.
Judges seem hesitant to open up liability
Justices across the ideological spectrum expressed hesitancy during Tuesday’s oral arguments to potentially strike down Section 230. Justice Elena Kagan said that “every time someone looks at anything on the Internet, there’s an algorithm involved,” while Justice Clarence Thomas affirmed that the same YouTube’s algorithm is responsible for recommending recipes and terrorist content, suggesting that the company cannot be sued if the algorithm is “neutral.”
Judge Brett Kavanaugh noted the consensus across federal appeals courts on the scope of Section 230 and suggested shifting “the burden to Congress to change it.” Several justices noted their uncertainty about the future of litigation against Internet companies if the Supreme Court strikes down Section 230.
However, Chief Justice John Roberts said Section 230 does not go far enough to protect websites from any lawsuits related to third-party content recommendations. Roberts noted that “videos don’t just appear out of thin air… these algorithms have to be on target.”
Consequences of changes in § 230
The judges acknowledged that Section 230 predated today’s algorithms and the amount of content available online. Internet companies argued that Section 230 was key to the development of the Internet as we know it, and that changing or repealing the law could pose a significant threat to Internet companies.
At the same time, political figures on both sides of the aisle have opposed Section 230 on the grounds that its purported protections are too broad for internet companies. Samir Jain of the Center for Democracy and Technology noted that “there is common ground in terms of believing that Section 230 is too broad, but it is not common ground for what it is trying to achieve at the end of the day”.
Twitter v. Taamneh
On Wednesday, the Supreme Court heard oral arguments in the second case, Twitter v. Taamnehit is related González. Twitter arose after a terrorist shooting in Istanbul in 2017 and focuses on whether social media companies violated anti-terrorism law by hosting Islamic State videos.
In arguments to GonzálezMany judges have acknowledged that the decision not to hold Twitter liable for “facilitating” terrorism in the latter case could be a way to decide whether Section 230 protects Google from liability in the former.
in Twitter oral arguments, multiple justices questioned both sides’ advice on several hypothetical scenarios that may involve “aiding and abetting.” Concurrence between the justices was more difficult because Twitter lawyer Seth Waxman argued that the company should not be liable for aiding and abetting terrorism when it is not directly aware of a particular post or account. However, Justice Sonia Sotomayor noted that “willful blindness is something that we have said can constitute knowledge.”
The Supreme Court should decide on both cases this summer.
