The future of Section 230 is currently before the US Supreme Court. A report suggests that the early signs are promising.
The critical legal component of Section 230 is currently before the US Supreme Court. Gonzalez v Google challenges the idea that platforms have Section 230 legal immunity based on recommendations. There is also the case of Twitter, Inc. v. Taamneh which asks a fairly similar question as well, but that case won’t be going ahead until later on.
As you know form the recent report we published oral arguments are being heard in this particular case. A lot of people who know about internet and technology are rightfully nervous about this one because it could fundamentally change the legal liability of the internet. While some might trivialize potential impacts of chipping away at Section 230 protections, there is precedence with FOSTA, showing that even when it comes to saying that Section 230 doesn’t apply in cases of human trafficking, the consequences can be much more dire and wide ranging than initially expected.
The bottom line is that Section 230 is not something you really want to mess around with. Yet, that is exactly what Gonzalez v Google is trying to do. The idea is basically that if the algorithm happens to recommend terrorist content, then companies like Alphabet should be held liable under anti-terrorism laws. Another argument is that Alphabet should be able to just keep those same bad actors from creating new accounts and continue publishing terrorist content. I’ll give you a moment to stop laughing at the idea that this is even possible in any practical sense.
Still, it doesn’t do much to make this case any less scary for anyone living in the US, owns an American based website, or owns a website that relies on US infrastructure. For those keeping score, that is a lot of the internet right there. Just think services like Cloudflare or large hosting companies out there.
So, with oral arguments under way, the worrying is well under way as well. While it is, indeed, early days, and things can change quite dramatically, the early signs, according to at least one report, show some signs of promise. From Law and Crime:
The Supreme Court heard nearly three hours of oral arguments Tuesday over the hotly-debated question of how much immunity internet companies should have under §230 (or Section 230) of the Communications Decency Act of 1996.
Just months ago, Justice Clarence Thomas signaled he would be open to revamping Section 230 when he wrote in another case that it is “hard to see” why the law should give Big Tech protection from liability for companies’ “own ‘acts and omissions.’”
During oral arguments, though, none of the justices—not even Thomas—appeared willing to cut back on YouTube’s immunity in the Gonzalez case.
At the outset, Justice Thomas and Chief Justice John Roberts tag-teamed attorney and law professor Eric Schnapper, who argued on behalf of the Gonzalez family, to ask whether YouTube’s algorithms that suggest videos with corresponding thumbnail images should be considered outside the scope of Section 230’s protection. Thomas pointed out that if YouTube uses the same algorithms for a cooking enthusiast who might like to see more rice pilaf recipes as it does for an ISIS-sympathizer who wishes to see terrorist content, then the algorithm itself is “basically neutral.”
Justice Kagan later joked about the wisdom of allowing the Supreme Court to answer complex questions related to the functioning of the internet.
“These are not like the nine greatest experts on the internet,” Kagan said, to much laughter from the bench and gallery.
Justice Neil Gorsuch, who participated in the arguments from home due to being “a little under the weather,” showcased his own tech-savvy by commenting several times during the marathon arguments that artificial intelligence can generate its own content, even writing poetry or making recommendations. Still, Gorsuch presented those hypothetical questions as contrasts to the kind of conduct at issue in Gonzalez.
Justice Sonia Sotomayor was likewise unwilling to chip away at Section 230’s scope. The justice called Schnapper’s argument “extreme,” and commented, “this has gone further than I thought.”
Again, this is very early days into this, but there are some positive signs early on. Whether that positive energy will carry on through as a sign of where this ruling is going to go is, of course, still to be determined. Maybe there’s some minor reasons to be optimistic?
Drew Wilson on Twitter: @icecube85 and Facebook.
