Today, the Supreme Court heard arguments in Gonzalez v. Google, a Section 230 case.
The outcome of this case could reshape the internet.
Section 230 It is a federal law that states that technology platforms are not responsible for the posts of their users.
Gonzalez v. Google Google is suing the family of a man killed in an ISIS attack.
The Gonzalez family says Google is responsible for promoting ISIS content through its algorithms.
If the court rules in favor of the Gonzales family, it could set a precedent that would hold tech companies responsible for content promoted by their algorithms.
Tech companies will have to invest more in content moderation and developing new algorithms to detect and remove harmful content, which could limit freedom of speech and expression.
On the other hand, if the court rules in favor of Google, it can reaffirm Section 230 and ensure that tech companies will continue to enjoy broad liability protection.
Some experts worry that the court is not well-equipped to rule in this area because it has historically not been great at handling new technology.
Supreme Court Justice Elena Kagan stated today that they are not “the nine best experts on the Internet.”
“We court. We don’t really know about this stuff. These aren’t, like, the Nine Greatest Experts on the Internet.”
– Supreme Court Justice Elena Kagan in Gonzales v. Google.
– Alex Kantrowitz (@Kantrowitz) February 21, 2023
A decision will be reached this summer. This is what we learned from today’s opening arguments.
Gonzalez v Google: Oral Arguments
With opening arguments today, Supreme Court justices are concerned about the unintended consequences of allowing websites to be sued for recommending user content.
Attorneys representing various parties were asked questions about how to protect harmless content while holding to account harmful content recommendations.
In addition, the judges are concerned about the impact of such a decision on individual users of YouTube, Twitter and other social media platforms.
The concerns are that narrowing Section 230 could lead to a wave of lawsuits against websites alleging antitrust violations, discrimination, defamation, and causing emotional distress.
In defense of Google
Lisa Platt, the attorney representing Google in this case, says that technology companies are not responsible for what their algorithms promote because they are not responsible for the choices and interests of their users.
The algorithms are designed to display content based on what users have expressed an interest in seeing, not to promote malicious or illegal content.
Google and other technology companies do not create content or control users’ posts. It provides a platform for users to share their thoughts, ideas and opinions.
Holding technology companies accountable for the content promoted by their algorithms would have a chilling effect on freedom of speech and expression.
It may force technology companies to engage in more content moderation, which could limit the free flow of ideas and information online.
This could stifle innovation and creativity, and undermine the very essence of the Internet as an open space for communication and collaboration.
Section 230 of the Communications Decency Act is designed to protect technology companies from this liability.
It understands the importance of freedom of expression and the impossibility of censoring the content posted by millions of users.
Google’s lawyer argues that courts should respect this precedent and not create new rules that could have far-reaching consequences for the future of the Internet.
Arguments against Google
Eric Schnaber, who is representing the plaintiffs in this case, argues that Google and other technology companies should take responsibility because they can influence what users see on their platforms.
Algorithms are not neutral or objective. They are designed to increase engagement and keep users on the platform, often by promoting sensational or controversial content.
Arguably, Google and other technology companies are responsible for preventing the spread of harmful content.
When they fail to take appropriate action, they could be considered complicit in spreading the content, which could have serious consequences.
Allowing tech companies to avoid liability for content promoted by their algorithms could incentivize them to prioritize profit over public safety.
Critics of Section 230 suggest that the Supreme Court should not interpret it in a way that allows tech companies to evade their liability.
Expert legal analysis: what will happen?
Search Engine Journal has been contacted Daniel AProfessor at Boston University School of Law, for his legal opinion on today’s opening arguments.
The first thing Lyons notes is that the petitioners have struggled to present a clear and concise argument against Google:
“My sense is that the petitioners have not had a good day arguing. They seem to be struggling to explain exactly what their argument is — which is not surprising, since their argument has changed so many times over the course of this litigation. Multiple lines of questions showed the justices struggling to define the line Between the user’s letter and the platform’s letter. The petitioners haven’t really answered that question, and the Attorney General’s answer (that Section 230 should not apply anytime the platform makes a recommendation) is problematic both legally and politically.”
Lyons notes that Justice Clarence Thomas, an advocate for narrowing the scope of Section 230, was particularly hostile:
“I was surprised by how hostile Justice Thomas was to Gonzalez’s arguments. Since 2019, he has been the loudest on the court to take the case for Section 230 to narrow the scope of the law. But he seemed unable to accept today’s petitioners’ arguments. On the other hand, Justice Brown Jackson surprised me with how forceful she was in prosecuting Law. She has so far kept silent but seemed most sympathetic to petitioners today.”
Lyons believes the most likely path forward is for the Supreme Court to dismiss the cast against Google:
Judge Barrett has suggested what I think is the most likely path forward. If Twitter wins the accompanying case that will be heard tomorrow, it means that hosting/recommending ISIS content does not violate anti-terrorism law. Since Gonzalez sued over the same claim, that means the court can dismiss Gonzalez’s case as moot — because whether Google is protected under Section 230 or not, Gonzalez loses in either case. I’ve thought for a while that’s a likely outcome, and I think it’s even more likely given how bad Gonzalez’s performance is today.”
Then again, it’s still too early to name it, Leon continues:
However, it is unwise to predict the outcome of a case based on oral argument alone. Google could still lose, and even win benefits present risks, depending on how narrowly the court wrote the opinion. The court’s decision will likely change the way the platforms recommend content to users — not just social media companies like YouTube and Facebook, but companies as diverse as TripAdvisor, Yelp or eBay. How far it will depend on how the court writes the opinion, and it is too early to predict that.”
The entire oral argument could be heard for the full three hours Youtube.
Featured image: No-Mad / Shutterstock