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The Supreme Court could dismantle big tech—or keep them free from repercussions forever

Gonzalez v. Google could decide not only the future of Section 230, but the future of the internet as we know it.

 

Jacob Seitz

Tech

Posted on Feb 17, 2023   Updated on Feb 17, 2023, 8:37 am CST

The future of the open internet is now in the hands of the Supreme Court, as next week it will hear arguments on a landmark case that could upend life online. 

Gonzalez v. Google, as well as a sister case, is set to be heard by the Court on Feb. 21. And although it will be decided by just the nine justices, almost everyone has an opinion on how it should go. 

Over 70 amicus briefs have been filed by groups and individuals, ranging from Meta to Sen. Josh Hawley (R-Mo.), each arguing for how the Court should rule on the future of free expression and big tech.

At the heart of the case is Section 230, the long-debated and recently much-bemoaned portion of the Communications Decency Act that absolves tech companies from blame for harmful user-generated content hosted on their websites or services. Lawmakers on both sides of the aisle have debated amendments, repeals, and restrictions around Section 230 for years, but the propositions have never built significant momentum in Congress.

Which means it is now up to the Court to either maintain the status quo or kickstart the most extreme upheaval of the internet the U.S. has ever seen.

In November 2015, a series of coordinated terrorist attacks in Paris by the Islamic State of Iraq and Syria (ISIS) took the lives of at least 130 people. One of those killed was Nohemi Gonzalez, a 23-year-old American student. Her parents sued Google, the parent company of YouTube, arguing that the YouTube algorithm, through its recommendation system, was pushing ISIS recruitment videos to users and that those recommendations directly contributed to Nohemi’s death. 

Just over a year later, on Jan. 1, 2017, a gunman killed 39 people inside a nightclub in Istanbul. Among those killed was Nawras Alassaf, a Jordanian citizen who has American relatives. They sued Twitter, making similar claims that Twitter was in part responsible for Alassaf’s death by promoting ISIS content via its algorithms. 

The Supreme Court will hear Twitter v. Taamneh later this month.

In Gonzalez, Google defended itself against the suit under Section 230 (as did Twitter) and two lower courts ruled in favor of Google in the case. But, in their appeal to the Supreme Court, the Gonzalez family argued that while the YouTube recommendation algorithm is automatic and uses machine learning to push users’ content, it is not covered under Section 230.

“Whether Section 230 applies to these algorithm-generated recommendations is of enormous practical importance. Interactive computer services constantly direct such recommendations, in one form or another, at virtually every adult and child in the United States who uses social media,” they wrote in the argument.

Gonzalez v. Google would decide whether the algorithmic recommendation of content—something nearly every social media company does—is protected under Section 230. 

Fairplay, a children’s online safety advocacy group, argued in its amicus brief that 230 has become too broad and companies are enriching themselves while they hide behind it.

“Rarely in American jurisprudence has the judicial interpretation of a statute been more contrary to the statute’s language and legislative history than in the case of [Section 230],” it said. “The text simply does not support the expansive, all-encompassing immunity asserted by social media companies.”

Fairplay said that the lower court rulings in favor of Google make incorrect assumptions about its algorithms.

“The lower court’s conclusion that social media’s algorithmic recommendations are protected publishing activity erroneously assumed those algorithms merely furnish users with content they desire,” it wrote. “In fact, the companies expressly design their algorithms to maximize the profits from their online products by creating environments that keep young users online for as long as possible so they will see more targeted advertising. These purposes go far beyond traditional editorial functions or responding to user requests.”

While the text of the case only singles out recommendation algorithms, Aaron Mackey, Senior Staff Attorney at the Electronic Frontier Foundation (EFF) worries it could bring down all of Section 230.

“If recommendations are not protected by 230, the question is, well, what is the difference between a recommendation provided by Google or a ranking that a website like Yelp provides to its reviews?” Mackey said in an interview with the Daily Dot.

The implications of that decision—from TikTok’s For You Page to Instagram’s Explore tab to even what Google serves you when you search—are massive, not even including the possibility that the court could rule beyond the parameters of the case and strike down the statue in its entirety. 

The thorny issue has made strange bedfellows, with right-leaning organizations getting endorsements from broadly liberal activists, even as they note major fault lines in each other’s arguments. 

Mackey said that while EFF agrees with advocates like Fairplay that argue in favor of the Court deciding Google is liable, the organization doesn’t believe this is the case to litigate those issues.

“All of those critiques, both on the competition side and on the privacy side are 100% legitimate and we agree with those on the other side of this case that that is a problem,” he said. “We don’t think you solve those problems though by attacking the legal protections for hosting speech.”

Other advocacy groups have latched onto the case as well, seeing a potential court decision as a way to address myriad issues that have arisen alongside the rise of big tech, as Congress has remained intransigent.  

Jolina Cuaresma, Senior Policy Council at Common Sense Media, a nonpartisan advocacy organization, said Common Sense sided with Gonzalez because of Congress’s inaction on the protection of children’s data and the use of that data in tech companies’ algorithms.

“Common Sense had to take a position on this because this is what we have been telling Congress has been a problem, the amount of data collected on our kids,” she said. “At the time a child is 13 years old, platforms have accumulated somewhere around 70 million data points on that one individual alone. And it’s that kind of behavior, data collection, that should not be covered under Section 230.”

Common Sense Media is an organization dedicated to protecting privacy for children.

In its brief, Common Sense said that if the Court decided to side with Google, it would be “stretching the plain language of Section 230.” 

It also claimed that Google, by recommending videos to users using data it collected, is acting outside of its platform protections granted under 230. The brief goes on to argue that the Court siding with Google would have “significant social and economic policy with severe consequences on all of us, particularly adolescents.”

While the case is not about data collection per se, Common Sense is worried that, if the Court sides with Google, it will give tech companies carte blanche to continue collecting data to power their recommendation algorithms. 

If the Court rules that Section 230 does not cover recommendation algorithms and sides with Gonzalez, that could possibly set the stage for new rules for how companies store and collect user data, something Common Sense and EFF alike have been fighting for for years.

While there has yet to be a clear indication of how the court will rule in both cases, Justice Clarence Thomas stated in 2020 that he wanted the court to take up a case like this and decide whether Section 230 provides too much protection to tech companies.

Thomas suggested that tech companies be treated as a common carrier—like telecoms companies—and should not be allowed to discriminate the types of content they carry, or in the modern parlance of big tech complaints, “censor voices.” Thomas wrote in a previous denial that a new look at 230 is in order.

“When Congress enacted the statute, most of today’s major Internet platforms did not exist,” Thomas wrote in Malwarebytes, Inc. v. Enigma Software Group USA, LLC in 2020, which the Court decided against hearing.

Thomas said that courts left a basic reading of 230 behind, going beyond what the rule was intended to do and giving platforms near blanket immunity. 

“Courts have also departed from the most natural reading of the text by giving Internet companies immunity for their own content,” he noted, which could be an inference for how he would decide on recommendation algorithms.

Mackey argued, though, that the recommendation algorithms implemented by Google and other tech companies are no different than the layout of a print newspaper, a free expression that is broadly accepted and understood. 

“What is the New York Times doing on its front page where it’s giving bigger space with bolder fonts in the upper right-hand corner to a story? Where they’re making a huge photo that goes across the four columns of the broadsheet? And they’re putting other things on, you know, [page] 16 as opposed to [page] one,” he said. “So why are those not considered recommendations by those who are calling for 230’s sort of narrowing?”

Section 230 should protect instances like that, Mackey said, and any argument against that is misconstruing the statute.

Despite the upheaval people say a Gonzalez ruling could cause, Cuaresma said that Common Sense believes it wouldn’t be as drastic as some people think.

“It’s going to create some changes in how the company operates if the company believes that there’s an underlying statute or common law or civil code that makes them liable for something because, again, it’s just an immunity shield, and they’ll still have immunity for certain things that do have to do with publishing,” she said.

Mackey disagreed.

“What that means is, if the provider can’t make those choices, can’t make information easily available to you, then you’re going to have a hard time finding the things that you want. And the people who want to find you, who are creating the content that they think you would like, are going to have a hard time finding their audiences,” he said. “So these recommendation tools are going to blunt the fundamental usefulness of platforms’ ability to organize information.”

Tech companies that host user content across the board could be open to lawsuits if the Supreme Court rules against Google in this case, especially smaller tech companies that might not have the massive resources to defend themselves against litigation. Meta, Twitter, Reddit, and Yelp wrote amicus briefs urging the Court to side with Google in the case, and all could face lawsuits over their algorithms in the future if Google loses. 

A drastic reinterpretation of Section 230 could mean that companies like this might stop hosting user-generated content entirely, or implement heavy moderation services before users are even allowed to post, possibly delaying or suppressing the kinds of breaking news or event reaction that is common on sites like Twitter. 

Antagonizing advocacy groups aren’t the only odd alliances in the case. EFF joined a swath of tech companies and tech advocacy groups in publishing an amicus brief in support of Google in the case, despite having been critical of Google in the past. Mackey said while they support Google here, they’re still fighting for more competition in the tech space and stricter privacy regulations. 

“People are justifiably concerned about the dominance of a handful of players in this space,” he said. “We’re talking about a handful of companies that host the speech and creative works of, you know, billions of people. And so that is a problem that is a competition problem. And it’s also a privacy nightmare, in terms of their ability to collect information on you. We don’t have a comprehensive consumer data privacy law.”

But a decision is not easy. While a ruling in favor of Gonzalez could harm big platforms, the Court siding with Google could retrench big tech, protecting their algorithms and setting a precedent for any future legal challenge. Future litigation over giant tech companies could be made that much more difficult, and the Court could make them essentially immune from any repercussions.

All of this is being put in the hands of the Supreme Court, in which every justice is over the age of 50, and, as Justice Elena Kagan said, are “not necessarily the most technologically sophisticated people.”

The Court’s ability to understand these incredibly nuanced arguments about Section 230, the protections awarded to internet content providers, and the massive ramifications of a decision either way, will be on full display on Tuesday. 

A decision is likely to come in the fall, and nothing less than the future of the internet is at stake.

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*First Published: Feb 17, 2023, 8:35 am CST