Beijing, February 22 morning news, local time, Tuesday, the U.S. Supreme Court judges reportedly expressed hesitation on whether to overturn the “230 clauses to shelter technology companies.
Section 230 of the U.S. Communications Regulatory Act gives Internet platforms legal immunity from liability for almost all third-party content on their websites. This exempts U.S. technology companies from liability for content posted by users. In addition, this provision defines the way in which companies review content on their platforms.
In ruling on the case at issue, Gonzalez v. Google, judges on different sides expressed concern about upsetting the delicate balance set by Section 230. Some judges, however, believe that narrowing the legal interpretation of the clause may make sense in some cases.
The case was brought by the family of an American who was killed in the 2015 Paris terrorist attacks. The plaintiffs claimed that Google, through its subsidiary YouTube, aided and abetted the terrorist group ISIS (Islamic State) by recommending videos from ISIS through its recommendation algorithm, in violation of anti-terrorism-related laws. However, the lower court sided with Google in this case, holding that Google is not liable under Section 230 for content posted by third parties on its platform.
The plaintiffs argued that YouTube’s algorithmic recommendations actually constituted the company’s own speech and exceeded the line of exemption from liability. However, the justices struggled to understand how plaintiffs’ attorney Eric Schnapper drew the line on what content was created by YouTube.
Conservative Justice Samuel Alito said he was “thoroughly confused” by Schnapper’s attempts to show the difference between YouTube’s own speech and that of third parties.
Schnapper repeatedly demonstrated thumbnail images of videos on the YouTube platform, which show what videos will play next and are recommended based on the user’s viewing history. He said the thumbnails were created by YouTube and the third party that posted the videos, in this case, ISIS, because YouTube contributed the links to the thumbnails.
Multiple judges questioned, however, whether this argument applies to any act of organizing Internet information, such as the display of search engine results pages. They worried that an overly broad interpretation of the law could have far-reaching implications that the court could not have predicted.
Conservative Justice Brett Kavanaugh noted that courts have been applying Section 230 since it took effect in the 1990s and that overhauling its legal interpretation would have enormous economic consequences, affecting many businesses and their employees, consumers, and investors. He argued that this is an “important concern” for Congress to consider if it believes the status quo should be changed, but that the Supreme Court “does not have the ability to do that.
Conservative Justice Clarence Thomas has written publicly that the Supreme Court should take cases under Section 230, but he is also skeptical of the plaintiffs’ position. He said YouTube uses the same algorithm to suggest videos of interest to users, whether they are food videos or videos from ISIS. These are just suggestions, he said, not definitive recommendations. “I can’t understand how making neutral recommendations about something you’ve already expressed interest in is considered aiding and abetting behavior.”
At the same time, the justices asked pointed questions of Google, wondering if the disclaimer was indeed as broad as the tech industry expects. For example, liberal Justice Ketanji Brown Jackson argued at length with Lisa Blatt, a lawyer representing Google. The court presented a hypothetical scenario in which YouTube recommended ISIS videos in a section of its home page and tagged them as “featured videos. The court wanted to know whether YouTube would be protected by Section 230 in such a situation.
Blunt said that home page posting is a fundamental part of website operations and should be protected by Section 230 and that such information organization is one of the core functions of the platform. Therefore, if the headline is not covered by Section 230, the provision is essential “a dead letter.
However, liberal judge Elena Kagan argued that Google’s view on the applicability of the clause should not be fully endorsed, fearing potential untoward consequences. But she also said that the job of how to adjust this interpretation of the law may be more appropriate for Congress to do than the Supreme Court.
Several experts who supported Google, in this case, said they were more optimistic than before after this Supreme Court discussion. Cathy Gellis, an independent attorney in the San Francisco Bay Area, previously filed a legal brief on behalf of a Google-funded startup advocacy group and a digital think tank. She said the legal brief she and her peers filed appears to have had a big impact on the Supreme Court’s view.
It’s clear that the justices took a lot of lessons,” she said. In general, they don’t seem to have much interest in subverting the Internet, especially in a case where the plaintiffs’ side seems relatively weak.”
But Eric Goldman, a professor at Santa Clara University School of Law, said that while he’s optimistic about the outcome of the case, he’s still concerned about the future of Section 230. “I remain concerned that some of the views will put us all in an unexpected situation.”
On Wednesday, local time, the justices will also hear a similar case with slightly different legal issues. In Twitter v. Taamneh, the justices will likewise consider whether Twitter should be held liable under anti-terrorism law for aiding and abetting. The case will focus on whether the fact that Twitter has decided to regularly remove terrorist-related content means that Twitter was aware of the presence of such information on its platform and should have acted more aggressively against it.
