Google, Twitter Supreme Court Cases Won’t Break the Internet

Despite all the furor, the future of the internet does not hinge on two cases being argued this week in the United States Supreme Court. There is no risk that the legal immunity that Congress long ago granted to Internet service providers will collapse. Judges are asked to decide a narrow and technical legal question. If ISPs lose, they will make some changes to the algorithms they use to sort content. Most users’ experience will barely budge. The two cases that sparked the dire predictions involve lawsuits against Google and Twitter, respectively. The lawsuits were brought by families who lost loved ones to vicious acts of terrorism. The central allegation is that the companies encouraged these acts through the videos and other materials they made available to users. Judges are not asked to decide if the allegations are true, but if the cases should go to trial, in which case the jury would determine the facts.

Google is being sued based on recommendations that YouTube’s algorithms make to users in the familiar “up next” box. Twitter is accused of making insufficient efforts to remove pro-terrorist posts. The question of immunity is clearly presented only in the Google case. But because a Google victory would almost certainly prevent the lawsuit against Twitter, the immunity argument deserves to be examined in detail.

The relevant issue before the court is how to interpret Section 230(c)(1) of the Communications Decency Act, passed by Congress in 1996, after a New York court held an ISP liable for material allegedly defamatory message posted on a message board he hosted. .

The text is simple: “No provider or user of an interactive computer service should be considered the publisher or speaker of information provided by another information content provider.” When commentators refer to the legal immunity of ISPs, this is the primary provision they have in mind.

Here’s how the law works: If I upload a video to YouTube, I’m the content provider, but YouTube isn’t the speaker or publisher. Therefore, if my video causes harm, such as defamation, YouTube is not responsible.

Sounds simple, right? But now we come to what the judges have to decide: if Google creates an algorithm that recommends my harmful video to you, is the video still provided by “another” provider, or is the provider now YouTube itself? ? Or, in the alternative argument, does the algorithm’s recommendation turn Google into the publisher of the video? Either interpretation of the law would allow plaintiffs to circumvent statutory immunity.

These are not easy questions to answer. But neither are they political issues that should be sent to Congress. They involve nothing but the ordinary, day-to-day work of the courts, determining the meaning of a law susceptible to more than one interpretation.

In fact, courts have often ruled on the limits of Section 230 immunity. In perhaps the best-known example, the United States Court of Appeals for the 9th Circuit ruled in 2008 that the section offered no protection to a roommate site that required users to answer questions that those offering accommodation could not legally ask. The questions, the court wrote, made the site “the developer, at least in part” of the relevant content.

In the Google case, by contrast, the 9th Circuit held that the selection algorithm is merely a tool to help users find the content they want, based on what the users themselves consulted or researched. Use of the algorithm did not make Google the creator or developer of the ISIS recruitment videos that are the centerpiece of the case, as the company did not materially contribute to “the illegality” of the videos. Dissenting Judge Ronald Gould said the plaintiffs should be allowed to stand trial for their claims that Google “knew that ISIS and its supporters were inserting propaganda videos on their platforms” and should share legal responsibility because YouTube , through its selection algorithms, “amplified and amplified these communications.”

During oral argument in the Google case, Judge Ketanji Brown Jackson questioned whether ISPs were turning Section 230 upside down. The provision was drafted, she said, to allow companies to block certain offensive content. How, she asked, was it “conceptually consistent with congressional intentions” to use the section as a shield to promote offensive content?

The answer depends on whether using an algorithm to decide what content to recommend is like telling the user “This is great stuff that we fully approve of!” Here, my own view is that Big Tech has the better of the argument. But the case is extremely close. And I certainly don’t think a court ruling against ISPs would drop the sky.

Google warns in its brief that if the plaintiffs’ interpretation of Section 230 prevails, the company will have no way to sort and categorize third-party videos, let alone decide which ones to recommend to a given user. And the company goes further: “Hardly any modern website would work if users had to sort through content themselves.”

Good points! But not as good as they would be if the company’s YouTube subsidiary, along with other ISPs, hadn’t spent so much time in recent years tweaking algorithms to address government objections to content recommended to consumers. users. That is to say, if the ISPs lost, I think they would manage.

I suspect what worries ISPs is less the potential complexity of enforcing lesser immunity than the flood of lawsuits, many of them unfounded, that would surely ensue. It’s a real concern – and contrary to the correct interpretation of a law, it’s exactly the kind of problem we might want Congress to address.

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