An upcoming U.S. Supreme Court case that asks whether tech firms can be
held liable for damages related to algorithmically generated content
recommendations has the ability to “upend the internet,” according to a
brief filed by Google this week.
The case, Gonzalez v. Google LLC, is a long-awaited opportunity for the
high court to weigh in on interpretations of Section 230 of the
Communications Decency Act of 1996. A provision of federal law that has
come under fire from across the political spectrum, Section 230 shields
technology firms from liability for content published by third parties
on their platforms, but also allows those same firms to curate or bar
certain content.
The case arises from a complaint by Reynaldo Gonzalez, whose daughter
was killed in an attack by members of the terror group ISIS in Paris in
2015. Gonzales argues that Google helped ISIS recruit members because
YouTube, the online video hosting service owned by Google, used a video
recommendation algorithm that suggested videos published by ISIS to
individuals who displayed interest in the group.
Gonzalez’s complaint argues that by recommending content, YouTube went
beyond simply providing a platform for ISIS videos, and should therefore
be held accountable for their effects.
Dystopia warning
The case has garnered the attention of a multitude of interested
parties, including free speech advocates who want tech firms’ liability
shield left largely intact. Others argue that because tech firms take
affirmative steps to keep certain content off their platforms, their
claims to be simple conduits of information ring hollow, and that they
should therefore be liable for the material they publish.
In its brief, Google painted a dire picture of what might happen if the
latter interpretation were to prevail, arguing that it “would turn the
internet into a dystopia where providers would face legal pressure to
censor any objectionable content. Some might comply; others might seek
to evade liability by shutting their eyes and leaving up everything, no
matter how objectionable.”
Not everyone shares Google’s concern.
“Actually all it would do is make it so that Google and other tech
companies have to follow the law just like everybody else,” Megan Iorio,
senior counsel for the Electronic Privacy Information Center, told VOA.
“Things are not so great on the internet for certain groups of people
right now because of Section 230,” said Iorio, whose organization filed
a friend of the court brief in the case. “Section 230 makes it so that
tech companies don't have to respond when somebody tells them that
non-consensual pornography has been posted on their site and keeps on
proliferating. They don't have to take down other things that a court
has found violate the person's privacy rights. So you know, to [say]
that returning Section 230 to its original understanding is going to
create a hellscape is hyperbolic.”
Unpredictable effects
Experts said the Supreme Court might try to chart a narrow course that
leaves some protections intact for tech firms, but allows liability for
recommendations. However, because of the prevalence of algorithmic
recommendations on the internet, the only available method to organize
the dizzying array of content available online, any ruling that affects
them could have a significant impact.
“It has pretty profound implications, because with tech regulation and
tech law, things can have unintended consequences,” John Villasenor, a
professor of engineering and law and director of the UCLA Institute for
Technology, Law and Policy, told VOA.
“The challenge is that even a narrow ruling, for example, holding that
targeted recommendations are not protected, would have all sorts of very
complicated downstream consequences,” Villasenor said. “If it's the case
that targeted recommendations aren't protected under the liability
shield, then is it also true that search results that are in some sense
customized to a particular user are also unprotected?”
26 words
The key language in Section 230 has been called, “the 26 words that
created the internet.” That section reads as follows:
“No provider or user of an interactive computer service shall be treated
as the publisher of or speaker of information provided by another
information content provider.”
At the time the law was drafted in the 1990s, people around the world
were flocking to an internet that was still in its infancy. It was an
open question whether an internet platform that gave individual third
parties the ability to post content on them, such as a bulletin board
service, was legally liable for that content.
Recognizing that a patchwork of state-level libel and defamation laws
could leave developing internet companies exposed to crippling lawsuits,
Congress drafted language meant to shield them. That protection is
credited by many for the fact that U.S. tech firms, particularly in
Silicon Valley, rose to dominance on the internet in the 21st century.
Because of the global reach of U.S. technology firms, the ruling in
Gonzalez v. Google LLC is likely to echo far beyond the United States
when it is handed down.
Legal groundwork
The groundwork for the Supreme Court’s decision to take the case was
laid in 2020, when Justice Clarence Thomas wrote in response to an
appeal that, “in an appropriate case, we should consider whether the
text of this increasingly important statute aligns with the current
state of immunity enjoyed by internet platforms.”
That statement by Thomas, arguably the court’s most conservative member,
heartened many on the right who are concerned that “Big Tech” firms
enjoy too much cultural power in the U.S., including the ability to deny
a platform to individuals with whose views they disagree.
Gonzalez v. Google LLC is remarkable in that many cases that make it to
the Supreme Court do so in part because lower courts have issued
conflicting decisions, requiring an authoritative ruling from the high
court to provide legal clarity.
Gonzalez’s case, however, has been dismissed by two lower courts, both
of which held that Section 230 rendered Google immune from the suit.
Conservative concerns
Politicians have been calling for reform of Section 230 for years, with
both Republicans and Democrats joining the chorus, though frequently for
different reasons.
Former President Donald Trump regularly railed against large technology
firms, threatening to use the federal government to rein them in,
especially when he believed that they were preventing him or his
supporters from getting their messages out to the public.
His concern became particularly intense during the early years of the
COVID-19 pandemic, when technology firms began working to limit the
spread of social media accounts that featured misinformation about the
virus and the safety of vaccinations.
Trump was eventually kicked off Twitter and Facebook after using those
platforms to spread false claims about the 2020 presidential election,
which he lost, and to help organize a rally that preceded the assault on
the U.S. Capitol on January 6, 2021.
Major figures in the Republican Party are active in the Gonzalez case.
Missouri Senator Josh Hawley and Texas Senator Ted Cruz have both
submitted briefs in the case urging the court to crack down on Google
and large tech firms in general.
“Confident in their ability to dodge liability, platforms have not been
shy about restricting access and removing content based on the politics
of the speaker, an issue that has persistently arisen as Big Tech
companies censor and remove content espousing conservative political
views,” Cruz writes.
Biden calls for reform
Section
230 criticism has come from both sides of the aisle. On Wednesday,
President Joe Biden published an essay in The Wall Street Journal urging
“Democrats and Republicans to come together to pass strong bipartisan
legislation to hold Big Tech accountable.”
Biden argues for a number of reforms, including improved privacy
protections for individuals, especially children, and more robust
competition, but he leaves little doubt about what he sees as a need for
Section 230 reform.
“[W]e need Big Tech companies to take responsibility for the content
they spread and the algorithms they use,” he writes. “That’s why I’ve
long said we must fundamentally reform Section 230 of the Communications
Decency Act, which protects tech companies from legal responsibility for
content posted on their sites.”
