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Supreme Court skeptical of limiting powerful legal shield for internet companies

Supreme Court hears case about Big Tech liability
Supreme Court hears case about Big Tech liability 02:10

Washington — The Supreme Court appeared resistant on Tuesday to limiting the scope of a federal law that has served as a powerful legal shield for internet companies, expressing concerns about the ramifications of a broad potential decision that could open the door to a deluge of lawsuits and change the current landscape of the internet.

At the center of the case, known as Gonzalez v. Google, is Section 230 of the Communications Decency Act of 1996, which protects internet companies from liability over content posted by third parties, and allows platforms to remove objectionable content.

The legal battle marks the first time the court is considering the scope of the law, and the question before the justices is whether Section 230 immunizes platforms like YouTube, Facebook and Twitter when they make targeted recommendations of information to users.

Over the course of nearly three hours of arguments, several of the justices acknowledged the challenges of applying a law passed more than 25 years ago to the current landscape of the internet, where social media platforms have flourished and highly complex algorithms use an array of factors to predict the content that will be of most interest to users.

"This was a pre-algorithm statute," Justice Elena Kagan said. "And, you know, everybody is trying their best to figure out how this statute applies, [how] the statute which was a pre-algorithm statute applies in a post-algorithm world."

At several points, liberal and conservative justices alike expressed confusion with the arguments raised by counsel Eric Schnapper, who was arguing on behalf of the family of Nohemi Gonzalez, an American college student who was among the 129 people killed in Paris by ISIS terrorists in November 2015.

Gonzalez's family sued Google, which owns YouTube, in 2016, alleging the tech giant aided and abetted ISIS in violation of a federal anti-terrorism statute by recommending videos posted by the terror group to users.

"I'm completely confused by whatever argument you're making at the present," Justice Samuel Alito remarked.

"I guess I'm thoroughly confused," Justice Ketanji Brown Jackson told Schnapper about concepts raised in the case. 

Others contended that the Supreme Court may not be the best venue for weighing the future of Section 230 and its protections, as it risked undermining efforts by Congress to shield internet companies when it drafted the law in 1996.

"We're a court. We really don't know about these things. These are not the nine greatest experts on the internet," Kagan told Schnapper to laughter. "There is a lot of uncertainty about going the way you would have us go, in part just because of the difficulty of drawing lines in this area, and just because of the fact that, once we go with you, all of a sudden we're finding that Google isn't protected. And maybe Congress should want that system, but isn't that something for Congress to do, not the court?"

Justice Brett Kavanaugh noted that in the decades since Section 230 was enacted, courts of appeals have interpreted the law to provide broad protection to internet companies. He cited warnings from Google's supporters that a decision narrowing Section 230's immunity could crash the digital economy and upend the internet. 

"Those are serious concerns, and concerns that Congress, if it were to take a look at this and try to fashion something along the lines of what you're saying, could account for," he said. "We are not equipped to account for that."

The two justices also expressed concerns that a ruling in favor of the Gonzalez family limiting the reach of Section 230 could open the door to a flood of litigation.

"You are creating a world of lawsuits," Kagan told Malcolm Stewart, deputy solicitor general who argued for the Biden administration. "Really anytime you have content, you also have these presentational and prioritization choices that can be subject to suit."

Google has prevailed in earlier court proceedings. A federal district court in California and then the U.S. Court of Appeals for the 9th Circuit found the tech giant was protected under Section 230 and immune from liability.

The company and other platforms told the court that Section 230 has allowed for new services to come online and free expression to flourish. Lisa Blatt, who argued before the Supreme Court on behalf of Google, said Section 230's "26 words created today's internet," and the algorithmic recommendations used by internet companies allow them to organize the mammoth amount of videos, comments and photos posted to their sites.

"Helping users find the proverbial needle in the haystack is an existential necessity on the internet," she said.

But the law has come under threat from Republicans and Democrats alike, though for different reasons, and some lower court judges have warned Section 230 is too wide-reaching. GOP lawmakers claim the law's "broad grant of immunity" allows platforms to remove content based on political ideology, while Democratic lawmakers believe tech companies need to do more to remove harmful content and misinformation that spreads online.

The Biden administration is backing the Gonzalez family in the dispute before the Supreme Court. Stewart, the deputy solicitor general, said the Justice Department believes interactive service providers can be sued for their recommendations, which are choices made by the platforms themselves on how to organize third-party content.

Chief Justice John Roberts likened the recommendations systems to a bookseller directing a customer looking for a book about baseball legend Roger Maris to a table with other sports books.

"It's really just a 21st century version of what has taken place for a long time in many contexts, which, when you ask a question, people are putting together a group of things, not necessarily precisely answering your question," he told Schnapper.

Still, Roberts told Blatt that the recommendation by YouTube through its "Up Next" feature is not provided by another third party, but rather by YouTube and Google.

"The videos just don't appear out of thin air," he said. "They appear pursuant to the algorithms that your clients have. And those algorithms must be targeted to something, and that targeting, I think, is fairly called a recommendation, and that's Google's."

Only Justice Clarence Thomas has written about lower courts' interpretations of Section 230, saying in a 2020 statement that they have left "questionable precedent in their wake." The Supreme Court, he said then, should consider whether the law's text "aligns with the current state of immunity enjoyed by internet platforms."

But during arguments Tuesday, Thomas questioned how YouTube's "neutral" algorithm recommending content a user has an interest in "suddenly amounts to aiding and abetting." 

The dispute against YouTube was the first the justices heard this week involving social media companies and whether they can be held accountable for content posted by third parties.

On Wednesday, the justices heard arguments in an appeal of a 9th Circuit decision against Twitter and weighed whether tech giants like Twitter, Facebook and YouTube can be held liable for aiding and abetting a terrorist attack under the Anti-Terrorism Act. The case did not involve Section 230, but at the center of both were efforts to hold internet companies accountable.

The case was brought by the family of Nawras Alassaf, who was killed in a 2017 attack at the Reina nightclub in Istanbul by Abdulkadir Masharipov, who is alleged to have committed the attack at the direction of ISIS.

The family sued Twitter, Facebook and Google seeking to hold them liable for allegedly aiding and abetting the attack. A federal district court sided with the tech companies, but the 9th Circuit reversed and allowed the suit to proceed. The appeals court found Twitter could be secondarily liable under federal law for "knowingly" assisting an act of international terrorisms, even though its services were not use in connection with the attack or by the perpetrators.

During nearly three hours of arguments, the justices struggled with what linked Twitter to the perpetrators of the terror attack, as well as what was considered "aiding and abetting." Others, primarily Kagan, appeared concerned with how a decision in Twitter's favor would impact other institutions like banks sued for providing support to terrorist groups.

The Biden administration is supporting Twitter in the case. 

Decisions from the court in both disputes is expected by end of June.

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