Supreme Court Justices Appear Reluctant to Remove Internet Company Protections

Several justices seem to shy from the question of Section 230's protection of recommendation algorithms

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U.S. Supreme Court justices expressed reluctance to open internet companies to lawsuits related to user-generated content in oral arguments on Gonzalez v. Google this week.

Gonzalez centers on Section 230, a provision of the Communications Decency Act enacted in 1996 that protects internet hosts and users from legal liability for third-party content on their sites. The plaintiffs—family members of a student killed in a terrorist attack—are suing Google (GOOG) over allegedly, through its YouTube algorithms, helping the Islamic State to enlist new recruits.

The U.S. Court of Appeals for the 9th Circuit previously sided with Google, ruling that Section 230 protects YouTube video recommendations so long as the algorithm treats content on the site similarly.

A distinction in Gonzalez is whether YouTube—and other internet companies—should receive the same protections for hosting content and for making recommendations through an algorithm.

Justices Appear Hesitant to Open Liability

Justices across the ideological spectrum expressed hesitation during Tuesday's oral arguments to potentially dismantle Section 230. Justice Elena Kagan said that "every time anybody looks at anything on the internet, there is an algorithm involved," while Justice Clarence Thomas confirmed that the same YouTube algorithm is responsible for recommending recipes and terrorist content, suggesting that the company cannot be sued if the algorithm is "neutral."

Justice Brett Kavanaugh noted a consensus across federal appeals courts on the scope of Section 230 and suggested putting the "burden on Congress to change that." Several justices remarked on their uncertainty about the future of lawsuits against internet companies if the Supreme Court lifted Section 230.

Still, Chief Justice John Roberts said Section 230 doesn't go so far as to shield websites from any lawsuits related to recommendations of third-party content whatsoever. Roberts noted that "the videos just don't appear out of thin air... those algorithms must be targeted to something."

Implications of Changes to Section 230

Justices acknowledged that Section 230 pre-dated today's algorithms and the volume of content available online. Internet companies have argued that Section 230 was key in the development of the internet as we know it and that changing or lifting 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 basis of its allegedly providing protection that is too broad for internet companies. Samir Jain of the Center for Democracy and Technology noted that "there’s common cause in the sense of believing that Section 230 is too broad but not common cause in what they are trying to accomplish at the end of the day."

Twitter v. Taamneh

On Wednesday, the Supreme Court heard oral arguments on a second case, Twitter v. Taamneh, that is related to Gonzalez. Twitter arose following a 2017 terrorist shooting in Istanbul and centers around whether social media companies violated the Anti-Terrorism Act by hosting videos from the Islamic State.

In arguments on Gonzalez, multiple justices acknowledged that a decision to not hold Twitter liable for "aiding and abetting" terrorism in the second case could be a path around deciding whether Section 230 protected Google from liability in the first.

In Twitter oral arguments, numerous justices questioned counsel for both parties about several hypothetical scenarios that may involve "aiding and abetting." Consensus among the justices was more elusive, as Twitter's lawyer Seth Waxman argued that the company should not be liable for aiding and abetting terrorism when it is not directly aware of a specific post or account. Justice Sonia Sotomayor noted, though, that "willful blindness is something we have said can constitute knowledge."

The Supreme Court is expected to issue a ruling on both cases this summer.

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  1. U.S. Supreme Court. "Gonzalez v. Google LLC: Oral Arguments."

  2. AP News. "Supreme Court wrestles with lawsuit shield for social media."

  3. SCOTUS Blog. "Justices will consider whether tech giants can be sued for allegedly aiding ISIS terrorism."

  4. Bloomberg. "Supreme Court Doesn't Want to Create ‘World of Lawsuits’ for Tech Firms."

  5. CBS News. "Supreme Court skeptical of limiting powerful legal shield for internet companies."

  6. NBC News. "Biden and Republican senators join forces in attack on Big Tech at Supreme Court."

  7. U.S. Supreme Court. "Twitter, Inc. v. Taamneh: Oral Arguments."

  8. CNBC. "Supreme Court considers whether Twitter can be held liable for failing to remove terrorist content."

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