The Supreme Court, Section 230 and the future of the internet

The US Supreme Court has begun hearing a case that could have wide-reaching implications for the internet.

The case, brought by the family of victims of a terrorist attack against Google, could reshape the law on whether companies have ultimate responsibility for the content posted by users on their platforms.

The Gonzalez vs Google case began on Tuesday in the Supreme Court, with the family of American woman Nohemi Gonzalez, who was killed in an Isis attack in Paris in 2015, claiming that YouTube (a subsidiary of Google) did not do enough to prevent its algorithm from recommending terrorist recruitment and training videos, contributing to her death.

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The Supreme Court will also hear another case this week from the family of the victim of a 2017 Isis nightclub attack in Turkey. In that case, the family argues that Facebook, Twitter and Google aided the group by not doing enough to remove its content from their platforms.

The question the Supreme Court will need to answer is whether Section 230 of the Communications Decency Act of 1996 still shields tech companies from liability for the content on their platforms and the algorithms that serve it to users.

What is Section 230?

When Section 230 was introduced “websites were young and perceived to be vulnerable”, said The Economist. It was intended to prevent them from being “bogged down in lawsuits if users posted material to which others might object”.

The law removes a website’s “liability for potentially harmful posts created by other people”, while also allowing for the removal of “obscene” posts without “risking liability for any such content they happen to leave up”.

The effectiveness of Section 230 has been subject to regular scrutiny as the current internet “dwarfs its ancestor”, with platforms now doing more than simply hosting content. A key question in the Gonzalez case is whether Section 230 protects platforms that are “also making ‘targeted recommendations of information’”, said The Guardian.

Almost all social media sites use an algorithm which “recommends content to users based on their online activity”, and any change to that technology would have a lasting impact on these sites and “alter the face of the internet itself”.

What are the Supreme Court justices saying so far?

There has been some “hesitation” among most of the justices about “upending” Section 230, said CNBC.

In the first hearing of the Gonzalez suit some of the justices “expressed doubt” about whether the Supreme Court was the “right body to reevaluate the internet law at all”, pointing to Congress as responsible for any widespread changes, reported Taylor Hatmaker at Yahoo! Life. A number of bills tasked with making changes to Section 230 have been put forward but “largely stalled out in Congress in recent years”.

The lawyer for the plaintiff, Eric Schnapper, argued that YouTube’s algorithm “led to the recruitment of Isis soldiers”, but that was met with a “slew of scepticism on a variety of grounds” by the justices, said Time.

Some of the court justices questioned how a “neutral” algorithm could with intent and knowledge be “aiding and abetting terrorists” in recruiting users to extremist groups, while others “voiced confusion” over Schnapper’s argument.

There was also concern for the “wave of unintended consequences” the case might bring, with the potential to ignite an “onslaught of frivolous lawsuits” that would particularly damage smaller websites.

What is the future of Section 230?

“It’s hard to see how the internet as we know it would function without the core liability protection of Section 230”, wrote The Wall Street Journal, but there remains a need for lawmakers to clarify how a “law from the AOL era applies to an AI age that was unimaginable in 1996”.

The case currently with the Supreme Court has the potential to see Section 230 disappear altogether if it rules in favour of Gonzalez. That would see internet companies “get more cautious”, said The Independent, and implement deeper censorship on user communication and posts that protect them from legal liability.

The other alternative is that social media companies “abandon moderation altogether and let the lowest common denominator prevail”, but this could lead to services ending up “dominated by trolls” and proliferated with extreme content.

“Politicians will also have a say” in the future of Section 230, wrote The Economist, with representatives on either side of the aisle keen to enact changes, but unable to agree exactly how. “Disgruntlement with Section 230 is bipartisan”, it said, “but the remedy is not straightforward”.