Two Supreme Court cases could upend internet rules

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The Supreme Court could soon redefine the rules of the internet as we know it. This week, the court will hear two cases, Gonzalez vs. Google And Twitter against Taamnehwhich give him the opportunity to radically change the rules of online speech.

Both cases deal with how online platforms have handled terrorist content. And both have raised deep concerns about the future of content moderation, algorithms and censorship.

Article 230 and Gonzalez vs. Google

If you’ve spent any time following the various culture wars associated with free speech online over the past few years, you’ve probably heard of Section 230. Sometimes referred to as “the twenty-six words that invented the internet” , Section 230 is a provision of the Communications Decency Act that protects online platforms from liability for the actions of their users. It also protects the ability of companies moderate what appears on their platforms.

Without these protections, advocates of Section 230 argue, the Internet as we know it could not exist. But the law has also come under scrutiny in recent years as part of a broader consideration of Big Tech’s impact on society. Basically, those on the right support the repeal of section 230 because they claim it allows censorshipwhile some on the left said it allowed tech giants to avoid responsibility for the societal harm caused by their platforms. But even among those seeking to change or dismantle Section 230, there has been little agreement on specific reforms.

Article 230 is also at the heart of Gonzalez vs. Google, which the Supreme Court will hear on February 21. THE case, submitted by family members of a victim of the 2015 Paris terror attack, claims that Google violated US anti-terrorism laws when ISIS videos appeared in YouTube recommendations. Section 230 protections, the suit says, should not apply because YouTube algorithms suggested the videos.

“It’s basically saying that the platforms are not responsible for the content published by ISIS, but they are responsible for the recommendation algorithms that promoted that content,” said Daphne Keller, who leads the platform regulation program. at Stanford’s Cyber ​​Policy Center, during a recent panel discuss the case.

It may seem like a relatively narrow distinction, but algorithms underpin almost every aspect of the modern internet. So, the Supreme Court’s decision could have a huge impact not just on Google, but on almost every business operating online. If the court sided against Google, then “it could mean online platforms would have to change the way they operate to avoid liability for content promoted on their sites,” said the Bipartisan Policy Center, a think tank. based in Washington. , explain. Some have speculated that platforms could be forced to remove any type of ranking, or should engage in content moderation so aggressive that it would weed out all but the most mundane and uncontroversial content.

“I think it’s accurate that this opinion will be the most important Supreme Court opinion on the Internet, possibly ever,” Alan Rozenshtein, a law professor at the University of Minnesota, said at the same panel. , organized by the Brookings Institution.

This is why dozens of other platforms, civil society groups and even the original authors of Article 230 have weighed, via “friends of the court” memoranda, in favor of Google. In his ShortReddit argued that the erosion of 230 protections for recommendation algorithms could threaten the existence of any platform that, like Reddit, relies on user-generated content.

“Section 230 protects Reddit, as well as Reddit’s volunteer moderators and users, when they promote and recommend, or remove, digital content created by others,” Reddit says in its filing. “Without strong Section 230 protection, internet users — not just businesses — would face many more lawsuits from plaintiffs claiming to be harmed by everyday content moderation decisions.”

Yelp, which has spent much of the past few years advocating for antitrust action against Google, shared similar concerns. “If Yelp couldn’t analyze and recommend reviews without liability, those fraudulent review submission costs would disappear,” the company said. argue. “If Yelp were to display every review submitted, without the editorial freedom that Section 230 affords to algorithmically recommend some over others for consumers, business owners could submit hundreds of positive reviews for their own undertaken with little effort or risk of penalty.”

Meta, on the other hand, argue that a 230 decision finding does not apply to recommendation algorithms would lead to platforms removing more “unpopular” speech. Interestingly, this argument seems to play into right-wing concerns about censorship. “If online services risk substantial liability for the dissemination of third-party content … but not for the removal of third-party content, they will inevitably opt for the removal of content that comes close to the line of potential liability,” the company writes. “These incentives will have a particularly heavy impact on content that challenges the consensus or expresses an unpopular point of view.”

Twitter against Taamneh

The day after the hearing of the pleadings by the Supreme Court Gonzalez versus Google, he will hear yet another case with potentially huge consequences for how online speech is moderated: Twitter against Taamneh. And although the case does not deal directly with section 230, the case is similar to Gonzalez vs. Google in a few important ways.

As González, the case was brought by the family of a victim of a terrorist attack. And like González, the victim’s family members are using US anti-terrorism laws to hold Twitter, Google and Facebook accountable, arguing that the platforms aided terrorist organizations by not removing ISIS content from their services. As with the previous case, the concern among tech platforms and advocacy groups is that a ruling against Twitter would have far-reaching consequences for social media platforms and publishers.

“There are implications for content moderation and whether companies could be held liable for violent, criminal, or defamatory activities promoted on their websites,” the Bipartisan Policy Center says of the case. If the Supreme Court were to agree that the platforms were liable, then “greater content moderation policies and restrictions on posting content should be implemented, or it will cause the platforms to apply no content moderation for avoid awareness”.

And, like the Electronic Frontier Foundation noted in its filing in support of Twitter, the platforms “will be forced to take extreme and frightening measures to protect themselves from potential liability.”

There could even be potential ramifications for companies whose services are primarily operated offline. “If a company can be held liable for the actions of a terrorist organization simply because it allowed members of that organization to use its products under the same conditions as any other consumer, then the implications could be startling. “, said Vox. writing.

And after

It will be several more months before we know the outcome of either of these cases, although analysts will be watching the proceedings closely to get an idea of ​​the direction of the judges. It should also be noted that these are not the only crucial cases regarding social media and online discourse.

There is two others cases, related to restrictive social media laws in Florida and Texas, which could also end up in the Supreme Court. These two elements could also have important consequences for the moderation of online content.

In the meantime, many proponents argue that Section 230 reform is best left to Congress, not the courts. Like Jeff Kosseff, a law professor at the US Naval Academy who literally wrote the book about article 230, recently writingcases like González “challenging us to have a national conversation about tough issues involving free speech, content moderation and harm online.” But, he argues, the decision should rest with the branch of government where the law originated.

“Perhaps Congress will determine that too many damages have proliferated under Section 230 and change the law to increase liability for algorithmically promoted content. Such a proposal would face its own set of costs and benefits, but that is a decision of Congress, not the courts.

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