For years, Washington has been confused about how to regulate the internet—or if it should even try. But the Supreme Court will hear a case next week that could change our online world as we know it.
On Tuesday, the judge will hear arguments González v. Google, a case challenging Section 230 of the Communications Decency Act, a 1996 law that grants internet platforms immunity for most third-party content posted on websites. The argument will revolve around technological algorithms, which plaintiffs say increase extremist messaging during terrorist attacks. They argue that Section 230 protections should not apply to content that the company’s algorithm recommends online, so Google is legally responsible for extremist videos published on its YouTube service.
While the hearing is set for next week, a resolution is not expected until June.
Section 230 is the reason why companies like Facebook or Twitter are not responsible for their content users, and why websites are not at fault if someone writes defamatory criticism. But in recent years, critics say it can misinform and protect sites known to spread hateful and extremist rhetoric. However, experts also fear that reinstating Section 230 could go too far and could undermine the foundation of free speech on which the internet is built.
New AI developments, like ChatGPT, add a new dimension to the battle over 230, because bots that have now proven to be unreliable by providing accurate information and getting the right facts may be protected by law.
Some experts say the Supreme Court’s decision on the case could be a unique opportunity to set the rules for Section 230, but others warn that going too far could derail 230 and make our relationship with the internet almost unrecognizable.
“The more the digital world becomes intertwined with our physical world, the more important it becomes,” said Lauren Krapf, chief counsel for technology policy and advocacy at the Anti-Defamation League, an anti-discrimination group. fortune.
The backbone of the modern web
Section 230 has allowed the internet to function as it does today by allowing websites to publish as much content as possible without fear of legal offences, with a 26-word provision that has had a profound effect on the formation of the internet today: “No provider or user of an interactive computer service shall be deemed to be a publisher or speakers of any information provided by other information content providers.
The Electronic Frontier Foundation, a digital rights organization, said that without Section 230, “the free and open internet as we know it could not exist,” while the legal provision protecting internet companies is often referred to as “the 26 words that make up the Internet.”
But the words written more than a quarter of a century ago have come under scrutiny in recent years, and politicians on both sides of the aisle have targeted the 230 as part of a larger effort to regulate the Internet. Even tech leaders including Meta CEO Mark Zuckerberg have suggested that Congress should require platforms to demonstrate that they have systems in place to identify illegal content. But how and to what extent the law should be refined is far from consensus.
“We’re at a point where Congress really needs to update Section 230,” Krapf said. His organization has filed an amicus brief in Google’s case on behalf of the plaintiffs asking the Supreme Court to consider the ramifications of the section 230 immunity provision.
But because of the effects of Section 230, getting agreement on how best to fix it is no easy task.
“Because [Section 230] is a tall piece to the puzzle, I think there are a lot of different points of view on how it should be updated or changed and what it should do,” Krapf said.
Case
What makes González v. Google The case differs from previous attempts to refine Section 230 in that the issue was brought before the Supreme Court instead of Congress for the first time, and could set a precedent for future interpretations of the law.
At the heart of the argument is the proliferation of pro-terrorist messaging on online platforms. The Gonzalez family acknowledged that the Google-owned YouTube service was involved in the radicalization of ISIS fighters during the 2015 terrorist attacks in Paris that killed 130 people—including 23-year-old Nohemi Gonzalez, an American study abroad student. A lower court ruled in favor of Google citing 230 protections and the Gonzalez family to the Supreme Court, arguing that Section 230 covers content, but not algorithmic content recommendations.
Google isn’t the only case presenting a potential challenge to Section 230 next week. A related case that the court will hear on Wednesday, Twitter byehas been put out by the relatives of Jordanian citizen Nawras Alassaf, who was one of the 39 killed in 2017 during the ISIS-affiliated mass shooting in Istanbul nightclub.
Alassaf’s family sued Twitter, Google, and Facebook for failing to control pro-terrorist content on their websites, a lawsuit that a lower court allowed to move forward. Twitter later argued that proceeding with the lawsuit was an unconstitutional expansion of the Anti-Terrorism Act and appealed the decision to the highest court. The lower court never ruled on the case, so Section 230 was never discussed, but it is likely to come up in a Supreme Court hearing next week.
Targeting recommendations can be a slippery slope
The Gonzalez family is asking the Supreme Court to clarify that YouTube’s recommendations are exempt from Section 230, and that exceptions to the law are not being heard.
In 2018, former president Donald Trump signed a law that would find online sites responsible for content involving sex trafficking. But the difference with Google’s case is that the plaintiffs are not targeting specific content, but online recommendations made by the company’s algorithm.
“These lawsuits are lawsuits targeting YouTube recommendations, not the content itself, because if they’re targeting the content itself, Section 230 is clearly in play and the lawsuit will be thrown out of court,” Paul Barrett, deputy director and senior research scholar at the Stern Center for Business and NYU Human Rights, told fortune.
Virtually every online platform, including Google, Twitter, and Facebook, uses algorithms to generate user-curated content recommendations. But Barrett argued that targeting recommendations instead of content could be a slippery slope due to future lawsuits against online platforms, as recommendation algorithms have become core to all tech companies.
Barrett and the center associated with him also filed an amicus brief with the court, which acknowledged the need for Section 230 to be modernized, but also said that the law remains an important pillar of free speech online, and extreme decisions that open the door. Algorithms that will be targeted instead of content can protect the protection.
“Recommendations are not a separate, distinct, and unusual activity for YouTube and recommended videos. Recommendations are, in fact, what social media platforms do in general,” he said.
If the Supreme Court rules for the Gonzalez family, then section 230 could be vulnerable to future lawsuits that target online platforms’ algorithms rather than their content, Barrett said, adding that in extreme cases, it could lead to the erosion of full protection. law affords to technology companies.
“I think what you’re going to see is a dramatic constriction or reduction of what’s available on most platforms, because they don’t want to take the risk,” he said. However, he said online platforms will censor themselves into less “bait” content.
This extreme 230 will make life more difficult for large companies, but it may also be an existential threat to smaller online platforms that have fewer resources and resources, Barrett said, including popular sites like Wikipedia.
“We wanted to raise the alarm that: ‘Hey, if you go down this road you can do more than you think you’re doing,'” Barrett said.
Both Barrett and Krapf agree that Section 230 may be long overdue for refinement, and that it is becoming more important as technology intertwines itself with our lives. Krapf described the court hearing as a good opportunity to gain clarity on Section 230 as part of Congress’s need to regulate the behavior of technology companies and ensure consumers are protected even from the digital world.
“I think the urgency is just continuing to build on itself,” Krapf said. “We’ve seen our dependence on the digital world become our own over the past few years. And now with a new wave of technological advancements coming front and center, we need better rules of the road.