The US Supreme Court is considering a short but powerful law this week that, if changed, could reshape the modern Internet.
Section 230 of the Communications Decency Act protects internet companies from liability for the user-generated content they host and has become an unlikely nexus of controversy in recent years.
On Tuesday, the Supreme Court heard oral arguments in González against Google. That case, brought by the family of Nohemi González, a victim of the Islamic State terror attacks in Paris in 2015, argues that Google should be held responsible for the terrorist content promoted on YouTube that preceded the attack.
On Wednesday, the court heard a parallel case that blames Twitter for another deadly terror attack, in this case, one that resulted in the death of Nawras Alassaf, who was killed after an Islamic State gunman opened fire at an Istanbul nightclub in 2017.
The plaintiffs in both cases argue that the technology platforms in question should face legal liability for Islamic State content they hosted or promoted in the lead up to the attacks that collectively claimed more than 150 lives.
The Supreme Court judges faced the petitioner's argument that when YouTube offers content to users through its recommendation algorithm, it actually constitutes a different type of activity than just accommodation that content, one that is not protected by Section 230.
“We are focusing on the recommendation function, that they are affirmatively recommending or suggesting ISIS content, and it is not mere inaction,” said attorney Eric Schnapper, who represented the Gonzalez family in oral arguments Tuesday.
The idea that Section 230 could have exceptions is not new, but it is controversial. In 2018, a bill known as FOSTA created an exception to Section 230 that was ostensibly designed to reduce sex trafficking, but has since faced criticism for making sex work more dangerous.
The Supreme Court isn't the only government entity evaluating Section 230, though efforts to dismantle the law or make its protections come with strings attached have largely stalled in Congress in recent years.
On Tuesday, some judges expressed doubt that the country's highest court was the right body to reassess Internet law.
“We are a court, we really don't know about these things,” Judge Elena Kagan said. “These are not the top nine Internet experts.”
As Schnapper moved on, the judges expressed some confusion over his argument, and both sides attempted to clarify it. Schnapper's central argument centered on drawing a distinction between not removing dangerous content, a statistical inevitability given the amount of content that online platforms host, versus actually promoting that content and expanding its reach:
“Our view is that if the only alleged error is failure to block or delete, that would be protected by 230(c)(1). But, but that's it, 230(c)(1) protection doesn't go any further. And the theory of protecting the website from that was that the evil is essentially done by the person posting, the website at most allows the damage to continue. And what we're talking about when we talk about the website's own choices are affirmative acts by the website, not simply allowing third-party material to remain on the platform."
Ultimately, the judges tried to define the boundaries of what should and should not be reasonably protected by Section 230, exploring what-ifs: that platforms using algorithms should be allowed to deliberately promote illegal content, or that they should not be allowed to do so. any algorithmic recommendations at all.
“Let's assume that we are seeking an alignment, because it is clear from our questions that we are,” Judge Sotomayor said.
To make matters more confusing, Schnapper repeatedly referred to the platform's algorithmic recommendations as "thumbnails," a term that would be more broadly interpreted as snapshots showing a preview of a YouTube video.
Some judges took Schnapper's argument to another logical extreme, noting that an exception that removed 230 protections from algorithmic recommendations would also instantly give the same treatment to search engines that rank search results.
"So even down to the direct search engine, could they be responsible for their prioritization system?" Kagan asked.
Judges repeatedly expressed concern about the potentially far-reaching second-order effects of amending Section 230.
"He's asking us right now to make a very accurate predictive judgment that, don't worry, it really won't be that bad," Judge Brett Kavanaugh said. "I don't know if that's the case at all, and I don't know how we can meaningfully assess that."
Those reservations were almost universal among the justices, who did not seem eager to change the status quo, a perspective we can expect to surface again during oral arguments on Wednesday, which will be broadcast live again.
“We are talking about the possibility of significant liability in litigation and up until now people have focused on the Anti-Terrorism Act because that is the only point at stake here,” said Chief Justice John Roberts.
“But I suspect there would be many, many more defamation lawsuits, discrimination lawsuits… It would seem to me that support for terrorism would only be a small part of all the other things. And why shouldn't we worry about that?
