WASHINGTON — President Joe Biden and some of his most prominent Republican opponents in Congress have become allies, of sorts, in the upcoming Supreme Court battle between Big Tech and its critics.
The Biden administration is roughly on the same page as prominent Republicans, such as Sens. Ted Cruz of Texas and Josh Hawley of Missouri, as they object to restrictions on the immunity of internet companies under the provisions of the 1996 Communications Decency Act called Section 230.
26 words of the legislative text, which is associated with the help of social media, generally protects companies from defamation claims and many other lawsuits regarding content posted by users.
Both senators, who are interested in the populist wing of the Republican Party, have been important thorn in Biden’s side, even before he took office. Both sides objected to the certification of the 2020 election results as part of former President Donald Trump’s ill-fated campaign to stay in power that culminated in riots on January 6 at the Capitol.
But the loose alliance in the YouTube case heard by the court on Tuesday illustrates how the opposition to the broad immunity the company receives for content moderation decisions and what content users post across ideological lines. There are also unusual bedfellows supporting YouTube owner Google, with the left-leaning American Civil Liberties Union, the libertarian Cato Institute and the corporate giant’s US Chamber of Commerce all taking sides.
The case addresses a key feature of the modern internet: targeted recommendations. Applications like YouTube want to keep users on the site, so they try to show related content that will entice people to click. But opponents argue that companies should be held responsible for their content. If consumers can sue apps about the consequences of these decisions, tech companies may have to change the way they design their products — or at least be more careful about the content they promote.
Samir Jain, vice president of policy at the Center for Democracy and Technology, a technology advocacy group that supports Google, said that while Biden, Cruz and Hawley have all criticized Section 230, they differ on what it would replace. Democrats want to see the company take a stronger hand in moderating content, while Republicans, who perceive an anti-conservative bias, want fewer constraints.
“There is common cause in the sense that they believe section 230 is too broad but not common cause in what they are trying to accomplish at the end of the day,” Jain said.
The case before the Supreme Court on Tuesday focused on claims that YouTube’s actions contributed to the death of an American woman in the 2015 Islamic State terrorist attack in Paris by recommending certain videos. Family members of Nohemi Gonzalez, one of 130 people killed in a series of related attacks in Paris by the militant Muslim group, commonly known as ISIS, are seeking to sue the company under anti-terrorism laws. YouTube said it was not responsible for the deaths.
The court heard a related case on Wednesday in which relatives of Nawras Alassaf, a Jordanian citizen killed in an Islamist attack in Istanbul in 2017, sued Twitter, Google and Facebook for aiding and abetting the spread of militant Islamic ideology, which the companies denied. . The judge will not discuss section 230 in the case.
In the Google case, Chief Deputy Attorney General Brian Fletcher, who represents the Biden administration, took the same position in his brief that Cruz and other Republicans took in their own briefs. Hawley filed a separate brief opposing Google. Cruz and Hawley are attorneys who once clerked for the high court.
In all three briefs, the unlikely ally argued that Section 230 does not provide immunity for claims related to recommendation algorithms, the central question in the case, although the substance of the legal arguments differed.
The lawsuit targets YouTube’s use of algorithms to recommend videos to users based on content they’ve previously viewed. YouTube’s active role extends beyond the type of conduct Congress intended to protect with the 27-year-old law, the family’s attorneys said. Prosecutors did not allege that YouTube played a direct role in the murder.
The stakes are high because recommendations are now the industry norm. Apps such as Instagram, TikTok, Facebook and Twitter have long since relied on recommendation engines, or algorithms, to decide what people see most often, rather than emphasizing chronological feeds or content that people have researched.
Biden took a shot at tech companies in his State of the Union address earlier this month, though he didn’t mention Section 230. He was more specific in a Wall Street Journal op-ed last month where he called for reform, saying companies need it. to “take responsibility for the content it spreads and the algorithms it uses.” A White House spokesman declined to comment on the administration’s position on the case.
Cruz said in an interview that while there are some common reasons for legislation to overhaul Section 230, the Biden administration is mostly OK with companies “censoring” views they disagree with.
“Big Tech is involved in blatantly anti-competitive activities. They enjoy monopoly profits. And they use their power, among other things, to censor and silence the American people and I believe we must use every tool at our disposal to stop that,” he said. said.
Hawley said that Section 230 is “almost entirely court-made” and that Congress did not intend to grant blanket immunity.
“I think this is an opportunity for the Supreme Court to untie some of the knots that the judiciary itself has tied here,” he said in an interview.
Mukund Rathi, an attorney at the Electronic Frontier Foundation, said it’s disappointing but not surprising from his perspective that Biden is joining Republicans in considering Google.
He warned of wide-ranging consequences if Google lost, noting that volunteer moderators on Reddit could, for example, be held accountable for their actions, a point the company briefly made.
“The rhetoric is that of powerful tech companies that are destroying ordinary people and causing so much harm and injustice,” Rathi said. In fact, if section 230 is weakened, “you will end up harming ordinary people.”
But even some people in the technology industry have come to the idea of paring back Section 230. Roger McNamee, a venture capitalist who is an early investor in Facebook, said in an interview that the company should not receive immunity for decisions to expand. specific content.
“This is the first opportunity the Supreme Court has had to stand up for the American people in the face of a technology industry that is undermining public health, democracy and safety,” he said.