A new Supreme Court case could literally break the internet

A new Supreme Court case could literally break the internet

Gonzalez v. Google, an extraordinarily high-stakes tech policy case that the Supreme Court announced it will hear on Monday, emerged from a horrible act of mass murder.

Nohemi Gonzalez was a 23-year-old American studying in Paris, who was killed after individuals affiliated with the terrorist group ISIS opened fire on a café where she and her friends were eating dinner. According to her family’s lawyers, she was one of 129 people killed during a November 2015 wave of violence in Paris that ISIS claimed responsibility for.

In the wake of Gonzalez’s murder, her estate and several of her relatives sued an unlikely defendant: Google. Their theory is that ISIS posted “hundreds of radicalizing videos inciting violence and recruiting potential supporters” to YouTube, which is owned by Google. Significantly, the Gonzalez family’s lawyers also argue that YouTube’s algorithms promoted this content to “users whose characteristics indicated that they would be interested in ISIS videos.”

The question of whether federal law permits a major tech company like Google to be sued over which content its algorithms served up to certain users divides some of the brightest minds in the federal judiciary. Although at least two federal appeals courts determined that these companies cannot be sued over their algorithms, both cases produced dissents. And it’s now up to the Supreme Court to resolve this disagreement in the Gonzalez case.

At stake are fundamental questions about how the internet works, and what kind of content we will all see online. Currently, algorithms and similar behind-the-scenes automation determine everything from what content we see on social media to which websites we find on search engines to which ads are displayed when we surf the web. In the worst-case scenario for the tech giants, a loss in Gonzalez could impose an intolerable amount of legal risk on companies like Google or Facebook that rely on algorithms to sort through content.

At the same time, there is also very real evidence that these algorithms impose significant harm on society. In 2018, the sociologist Zeynep Tufekci warned that YouTube “may be one of the most powerful radicalizing instruments of the 21st century” because of its algorithms’ propensity to serve up more and more extreme versions of the content its users decide to watch. Someone who starts off watching videos about jogging may be directed to videos about ultramarathons. Someone watching Trump rallies may be pointed to “white supremacist rants.”

If the United States had a more dynamic Congress, lawmakers could study the question of how to maintain the economic and social benefits of online algorithms, while preventing them from serving up ISIS recruitment videos and racist conspiracies, and potentially write a law that strikes the appropriate balance. But litigants go to court with the laws we have, not the laws we might want. And the outcome of the Gonzalez lawsuit turns on a law written more than a quarter-century ago, when the internet looked very different from how it does today.

That means that the potential for a disruptive decision is high.

Section 230 of the Communications Decency Act, briefly explained

There are many reasons to be skeptical that the Gonzalez family will ultimately prevail in this lawsuit. Even if their lawyers can prove that the individuals who murdered Nohemi watched ISIS videos on YouTube, it’s unclear how they could show that these videos caused Nohemi’s death. And the First Amendment typically protects video content, even videos that advocate violence or terrorism, unless the video is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

But the Gonzalez litigation never got that far. A federal appeals court dismissed the case, holding that Google is immune from the lawsuit thanks to one of the most consequential tech policy statutes ever enacted: Section 230 of the Communications Decency Act of 1996.

Briefly, Section 230 offers two protections to websites that host third-party content online.

First, it shields those websites from civil lawsuits arising out of illegal content posted by the website’s users. If I send a tweet falsely accusing, say, singer Harry Styles of leading a secretive, Illuminati-like cartel that seeks to overthrow the government of Ecuador, Styles can sue me for defamation. But, under Section 230, he cannot sue Twitter simply because it owns the website where I published my defamatory tweet.

Additionally, Section 230 states that websites retain this lawsuit immunity even if they engage in content moderation that removes or “restrict[s] access to or availability of material” posted on their site. So Twitter would still be immune from Styles’s hypothetical lawsuit if they ban other users, but not me, even after I commit defamation on their website.

These twin safeguards fundamentally shaped the internet’s development. It’s unlikely that social media sites would be financially viable, for example, if their owners could be sued every time a user posts a defamatory claim. Nor is it likely that we would have sites like Yelp, or the user reviews section of Amazon, if a restaurant owner or product maker could sue the website itself over negative reviews they believe to be defamatory.

But, while Section 230 protects websites that remove content they find objectionable, it is far from clear that it protects websites that promote illegal content. If I publish a defamatory tweet about Harry Styles, and Twitter sends a promotional email to its users telling them to check out my tweet, Styles would have a fairly strong argument that he can sue Twitter for this email promoting my false claim — even though Section 230 prevents him from suing Twitter over the tweet itself.

The Gonzalez family argues that YouTube’s algorithm should be treated the same way as Twitter would be treated if it sent mass emails promoting defamatory tweets. That is, while Google cannot be sued because ISIS posts a video to one of its websites, the Gonzalez family claims that Google can be sued because one of its websites uses an algorithm that shows ISIS content to users who otherwise most likely would not have seen it.

And this is an entirely plausible reading of Section 230, which, again, was enacted long before tech companies started using the sophisticated, data-informed algorithms that form the backbone of so much of today’s internet. Although several well-regarded judges have determined that Section 230 does protect tech companies from these sorts of suits, other highly respected judges urge a more limited reading of this landmark law.

Why is Section 230 written the way that it is?

Section 230 sought to undo a 1995 court decision that threatened to snuff out online conversations just as the internet was becoming widely available to most Americans. And the broader (now largely defunct) law that it was attached to, the Communications Decency Act, was primarily concerned with things like internet pornography.

Ordinarily, a company that enables people to communicate with each other is not liable for the things those people say to one another. If I write a letter or email to my brother which includes a defamatory conspiracy theory about Harry Styles, Styles can’t sue the Post Service or Gmail.

But the rule is typically different for newspapers, magazines, or other publications that carefully curate which content they publish. They can often be sued over any content — or, at least, any curated content — that appears in their publication.

Harry Styles signing autographs on a city street.

Just in case there is any doubt, I am emphatically not accusing this man of leading a secretive, Illuminati-like cartel that seeks to overthrow the government of Ecuador.
Wesley Lapointe/Los Angeles Times via Getty Images

Much of the internet falls into a gray zone between a telephone company — which does not screen the content of people’s calls, and therefore is not liable for anything said on those calls — and curated media such as a magazine. Twitter, for example, routinely deletes tweets it deems offensive. And it sometimes bans individuals, including former President Donald Trump. But Twitter doesn’t exercise anywhere near the level of editorial control that a magazine (or an online publication like Vox) exercises over its content.

Which brings us to a New York state trial court’s 1995 decision in Stratton Oakmont v. Prodigy Services Company.

Prodigy was a popular online service in the 1990s, which hosted several “bulletin boards” where users could discuss topics of mutual interest. An unidentified Prodigy user posted several statements to one of these bulletin boards, which allegedly defamed a brokerage company by falsely accusing it of committing “criminal and fraudulent acts.” The question in Stratton Oakmont was whether Prodigy could be held liable for these statements by one of its users.

Like Twitter, Prodigy fell into the gray zone between a telephone company and a magazine. It did not curate every piece of content that appeared on its website. But it did use an “automatic screening program” to remove some offensive content. And it did have content guidelines that were enforced by designated bulletin board leaders. This level of editorial control, according to Stratton Oakmont, was enough to make Prodigy liable for its users’ statements.

#Supreme #Court #case #literally #break #internet

About admin

Leave a Reply

Your email address will not be published. Required fields are marked *