Google Case Heads to Supreme Court With Powerful Internet Shield Law at Stake

From The Wall Street Journal:

Google goes before the U.S. Supreme Court this week to defend what is widely regarded as a pillar of the online economy—and one that is also being blamed for a proliferation of harmful content.

The law at issue, known as Section 230, gives internet platforms legal immunity for almost all third-party content hosted on their sites. A decision to limit that immunity could scramble the business models of the internet’s biggest companies—especially social media platforms such as Instagram, TikTok and Google’s YouTube that rely heavily on recommendation algorithms.

“Unless they reaffirm the status quo, they’re going to cause a huge disruption,” said Alan Rozenshtein, a University of Minnesota law professor, at a Brookings Institution panel discussion about the case last week, where he described Section 230 as “the Magna Carta of the internet.”

There is widespread support in Congress for overhauling Section 230, but legislative efforts to do so have stalled amid partisan disagreements over the diagnosis and the cure.

Lawmakers in both parties worry that the immunity law has helped spread promotion of harmful content to vulnerable groups such as children. Democrats also say the immunity has allowed companies to ignore false and dangerous information spreading online, while Republicans say it has enabled liberal-leaning tech companies to block conservative viewpoints.

That has put the Supreme Court in position to potentially rewrite a legal cornerstone of the internet. The case, Gonzalez v. Google, was brought by the family of an American college student, Nohemi Gonzalez, who was among more than 100 people killed during the 2015 Paris terrorist attacks.

The plaintiffs allege that YouTube failed to take down some ISIS terrorist videos and even recommended them to users. They say that makes Google liable for damages under the Anti-Terrorism Act, although they haven’t presented evidence that the terrorists involved saw those videos. In essence, the plaintiffs and their allies argue that Section 230 protection shouldn’t apply to platforms’ algorithmic recommendations of harmful content.

Google, a unit of Alphabet Inc., prevailed in lower courts by arguing that it is protected by Section 230 of the 1996 Communications Decency Act. The law is often known as a shield because it prevents platforms from being sued for hosting harmful user posts, a measure that has been credited with paving the way for internet platforms to prosper economically.

Section 230 also shields platforms from suits for blocking objectionable content. Lawmakers at the time hoped this would encourage internet companies to block harmful content such as sexual images of children, but detractors say tech platforms have used it to censor conservative viewpoints.

Groups supporting the plaintiffs, including some child-safety advocates and conservative free-speech proponents, say the case is a long-overdue chance to right a fundamental legal imbalance that has given the online platforms an unhealthy amount of power and influence.

They say the internet ecosystem has become a breeding ground for a range of social ills, from hate speech to eating disorders, largely because of the 1996 immunity shield for online platforms.

In friend-of-the-court briefs, several allies of the plaintiffs focused on the potential harms done to children online by algorithmic recommendation systems that aim to maximize minors’ engagement.

Link to the rest at The Wall Street Journal

Oral arguments before the Supreme Court were held earlier today. Accounts that PG read indicated that several of the justices were not favorably impressed by the plaintiff’s arguments. That said, comments or questions from the members of the Supreme Court are not always indicative of how those members will vote on the matter at hand.

1 thought on “Google Case Heads to Supreme Court With Powerful Internet Shield Law at Stake”

  1. From everything I’m hearing, this oral argument was more like a 1L moot court argument than a true appellate argument. And that’s not a good thing for anyone; as Justice Kagan noted, the ones actually making the decisions are not the nation’s nine biggest experts on the ‘net, and the lawyers did not help them (probably because the facts don’t help either side’s lawyers very much — “more of the same” is not a “neutral tool” because it requires reference to how the viewer got there in the first place, and the plaintiffs have serious problems with causation the moment § 230 gets bypassed). Here are two reliable summaries (although one of them makes no pretense of being neutral!).

    I don’t really expect it, but I won’t be entirely surprised if this case is either set for reargument (possibly with rebriefing on a new question presented) or DIGged (dismissed as improvidently granted; this is not an affirmance, but it lets the opinion below stand without establishing any precedent). It’s much more likely than normal that the Court will choose one of these punts, but “much more likely than normal” raises it from less than 5% to maybe 15% or so. We’ll know more after tomorrow; as Amy notes in her summary (the first link above), there’s a chance that tomorrow’s argument in the parallel-but-not-congruent Twitter case may influence the result in this case.

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