The Supreme Court heard arguments today in the first case challenging critical protections for tech companies under Section 230 of the Communications Decency Act to be argued before the high court.
The case hinges on the bounds of Section 230’s liability protection. Under the statute, platforms are currently not held liable for any of the vast quantities of third party content that they channel to users. The petitioners, the family of a 23-year-old woman killed by ISIS, say that Google is partly responsible due to the presence of ISIS videos on YouTube.
The petitioners argument rests on the contention that certain types of content, such as YouTube videos in which the Google-owned platform has generated thumbnails to assist in their promotion, are not protected by the liability shield, as the platform has a hand in promoting the content. In two hours of oral arguments, the Supreme Court justices weighed the question.
Malcolm Stewart, the U.S. deputy solicitor general, also presented the Department of Justice’s opinion on the case, which is that Section 230 protections are not as narrow as those argued by the petitioners, but that there are situations in which a tech platform’s use of its algorithms could open it up to liability.
In questions to the petitioners’ attorney, Eric Schnapper, the Supreme Court justices explored the question of where to draw the line between third party content that is carried by platforms, and content that the platforms should be held liable for.
Lisa Blatt, a well-known SCOTUS attorney, also presented arguments, representing Google.
In one exchange, Justice Sonia Sotomayor raised the question of whether algorithms that are specifically written to discriminate should be beyond the protections of Section 230, due to its conflict with anti-discrimination statutes.
“If you write an algorithm, that in its structure ensures the discrimination between people — a dating app, for example — and someone comes to you and says, I’m going to create an algorithm that inherently discriminates against people. It won’t match black people to white people, Asian people to Hispanics, it’s going to discriminate. You would say that internet provider is discriminating, correct?”
Schnapper agreed, caveating that it’s “hard to do this in the abstract.”
Sotomayor expressed skepticism that YouTube could be held liable for showing ISIS-promoting videos to users (which is what the petitioners allege), unless it deliberately wrote an algorithm to favor them.
“You have to have intent to aid and abet,” said Sotomayor.
Justice Clarence Thomas seemed to agree.
“I’m trying to get you to explain to us how something that is standard on YouTube for virtually anything you have an interest in, suddenly amounts to aiding and abetting because you’re [viewing] in the ISIS category,” said Thomas.
Justice Samuel Alito, another conservative justice, also took a dim view of the petitioners’ case. “I admit I’m completely confused by whatever argument you’re making at the present time,” Alito told Schnapper.
Justice Elena Kagan noted that it was not the place of the Court to reform Section 230, saying the Supreme Court did not represent “the nine greatest experts on the internet.”
“I could imagine a world where you’re right, that none of this stuff gets protection. And you know — every other industry has to internalize the costs of its conduct. Why is it that the tech industry gets a pass? [It’s] a little bit unclear,” said Kagan.
Justice Amy Coney Barrett also hinted that the Supreme Court may avoid ruling on the question of Section 230 at all, since tomorrow’s arguments will cover the question of whether terrorism law covers the tech platforms’ obligation (or lack thereof) to remove terrorist content.
If this is the route the court takes, it will constitute good news from the perspective of Donald Trump’s point man on tech regulation, Prof. Adam Candeub, who argues that the case presented in Gonzalez is a weak interpretation of Section 230 that favors the tech giants.
The case is Gonzalez v. Google LLC, No. 21-1333, in the Supreme Court of the United States.
Allum Bokhari is the senior technology correspondent at Breitbart News. He is the author of #DELETED: Big Tech’s Battle to Erase the Trump Movement and Steal The Election.