The Supreme Court’s docket this year has two cases that will require the Court to confront a thorny challenge of modern life–to adapt (or not) to the novel realities of today’s communication technologies.
Given the fact that at least five of the Justices cling to the fantasy that they are living in the 1800s, I’m not holding my breath.
The cases I’m referencing are two that challenge Section 230, social media’s “safe space.”
As Time Magazine explained on February 19th,
The future of the federal law that protects online platforms from liability for content uploaded on their site is up in the air as the Supreme Court is set to hear two cases that could change the internet this week.
The first case, Gonzalez v. Google, which is set to be heard on Tuesday, argues that YouTube’s algorithm helped ISIS post videos and recruit members —making online platforms directly and secondarily liable for the 2015 Paris attacks that killed 130 people, including 23-year-old American college student Nohemi Gonzalez. Gonzalez’s parents and other deceased victims’ families are seeking damages related to the Anti-Terrorism Act.
Oral arguments for Twitter v. Taamneh—a case that makes similar arguments against Google, Twitter, and Facebook—centers around another ISIS terrorist attack that killed 29 people in Istanbul, Turkey, will be heard on Wednesday.
The cases will decide whether online platforms can be held liable for the targeted advertisements or algorithmic content spread on their platforms.
Re-read that last sentence, because it accurately reports the question the Court must address. Much of the media coverage of these cases misstates that question. These cases are not about determining whether the platforms can be held responsible for posts by the individuals who upload them. The issue is whether they can be held responsible for the algorithms that promote those posts–algorithms that the platforms themselves developed.
Section 230, which passed in 1996, is a part of the Communications Decency Act.
The law explicitly states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” meaning online platforms are not responsible for the content a user may post.
Google argues that websites like YouTube cannot be held liable as the “publisher or speaker” of the content users created, because Google does not have the capacity to screen “all third-party content for illegal or tortious materia.l” The company also argues that “the threat of liability could prompt sweeping restrictions on online activity.”
It’s one thing to insulate tech platforms from liability for what users post–it’s another to allow them free reign to select and/or promote certain content–which is what their algorithms do. In recognition of that distinction, in 2021, Senators Amy Klobuchar and Ben Ray Lujan introduced a bill that would remove tech companies’ immunity from lawsuits if their algorithms promoted health misinformation.
As a tech journalist wrote in a NYT opinion essay,
The law, created when the number of websites could be counted in the thousands, was designed to protect early internet companies from libel lawsuits when their users inevitably slandered one another on online bulletin boards and chat rooms. But since then, as the technology evolved to billions of websites and services that are essential to our daily lives, courts and corporations have expanded it into an all-purpose legal shield that has acted similarly to the qualified immunity doctrine that often protects policeofficers from liability even for violence and killing.
As a journalist who has been covering the harms inflicted by technology for decades, I have watched how tech companies wield Section 230 to protect themselves against a wide array of allegations, including facilitating deadly drug sales, sexual harassment, illegal arms sales and human trafficking — behavior that they would have likely been held liable for in an offline context….
There is a way to keep internet content freewheeling while revoking tech’s get-out-of-jail-free card: drawing a distinction between speech and conduct.
In other words, continue to offer tech platforms immunity for the defamation cases that Congress had in mind when Section 230 passed, but impose liability for illegal conduct that their own technology enables and/or promotes. (For example, the author confirmed that advertisers could easily use Facebook’s ad targeting algorithms to violate the Fair Housing Act.)
Arguably, the creation of an algorithm is an action–not the expression or communication of an opinion or idea. When that algorithm demonstrably encourages and/or facilitates illegal behavior, its creator ought to be held liable.
It’s like that TV auto ad that proclaims “this isn’t your father’s Oldsmobile.” The Internet isn’t your mother’s newspaper, either. Some significant challenges come along with the multiple benefits of modernity– how to protect free speech without encouraging the barbarians at the gate is one of them.
Every new tool ever invented can be used for either benefit or harm. The rock used to crack a nut can be used to crack your neighbor’s head. The fact that a tool has benefit does not legitimate its use as a weapon. The internet is a tool. The companies that control it to take its profits should be held accountable for the choices they make. If their choices promote its weaponization, they are responsible.
Can they insert periodic disclaimers to absolve themselves of all guilt? It is working well for the MAGA lawmakers claiming truth for all of their lies.
“Some significant challenges come along with the multiple benefits of modernity– how to protect free speech without encouraging the barbarians at the gate is one of them.”
Can some concentration be placed on the obviously sexually based mailings, unsolicited order deliveries and bogus billings on SPAM; I have been deleting and permanently deleting 200 – 400+ posting daily for months.
Sheila, I wish you could be called to testify in these and so many other lawsuits. You are so skilled at explaining the important details of issues like this and you would make it very hard for any honest judge to think otherwise.
Oh darn….I said any honest judge and that doesn’t apply to so many of them.
Sharon – excellent point!
Revisiting the topic of speech vs behavior, on which you wrote a few days ago. I find it hard to believe that, with all the tech geniuses swarming the earth, algorithms cannot be adjusted to filter out harmful posts and posters. But hey, that’s just me.
There may be no way to read all regular postings or videos, but they can screen such videos with algorithms and target phrases. If I call someone a liar on Twitter, Elon places a post that “Regular Twitter members don’t make posts with this claim.”
I get that when responding to politico’s posts, mainly. Why do politicians get to lie and not get scrubbed for disinformation? Biden and Blinken are the worst of all the liars on Twitter. I don’t even have to mention Trump and MAGA.
Isn’t there a prudent person rule in the legal sphere?
If any social media agent crosses the line, a penalty should be slapped against them. Chat Gpt (AI) is the next technology that should require a morality clause. This morality clause would then include all social media platforms.
Section 230 is like the second amendment. People aren’t reading the whole law. There are two paragraphs in the “civil liability” part of section 230.
(2) Civil liability
No provider or user of an interactive com- puter service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, exces- sively violent, harassing, or otherwise objec- tionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict ac- cess to material described in paragraph (1).
Part B looks like it gets ignored. You can read the code yourself: https://www.govinfo.gov/content/pkg/USCODE-2021-title47/pdf/USCODE-2021-title47-chap5-subchapII-partI-sec230.pdf
I feel and share in the grief of a father who lost his daughter as a random victim to a murderous crime during a dream trip to Paris. I do not judge him for making the case in an attempt to find cause and seek justice. At the same time, I would want to believe that his daughter would not want her sacrifice to be used in a way to cause harm and inconvenience to so many others who had nothing to do with such a heinous crime.
Further to my point, above. As an infantry soldier (US Army Civil Affairs) following graduation from high school, I was trained in counter insurgency strategies. It is the intent of terrorists to disrupt society and foment conflict as a catalyst to spawn greater disruption. In the complex case of Gonzales vs. Google, if the court rulers in favor of the plaintiff, then the terrorists can claim a greater victory than they had imagined. I do not believe that is what Nohemi Gonzales would have wanted to vindicate her death.
It’s a good bet that the EU will regulate the social media industry. They will remove the angst around the ditherers so we won’t have to.
I’m not sure I understand using the Section 230 case to criticize those of who believe judges should be limited in their rulings by sticking to the wording of the statute/constitutional provision and what was intended when that statute/constitutional provision was passed. Seems to be a stretch since the law is less than 3 decades old. Isn’t the problem here that Congress has simply not updated the law to apply to new technology.
No, I don’t think it’s the role of courts to step in and “update” laws under the guise of judicial interpretation so they address new situations that arise. It’s a dangerous and undemocratic idea that unelected federal judges (especially those on the Supreme Court who have no accountability whatsoever) should be determining what laws are appropriate and adopting them via judicial fiat.
My guess is that the Supreme Court will defer to Congress and not change the law. My guess too that you’ll see a coalition of conservative and liberal justices voting that way, probably by 7-2 or maybe more.
Don’t get me wrong. I very much think Section 230 needs to be changed. But that’s the role of Congress, not unelected federal judges.
Leaving this to Congress? The “Dreamers” will howl with laughter. More than 70% of registered GOPers believe they should have a legal path to citizenship. But DEMs won’t just write a bill that provides that – they will add 23 things to it , most of which the GOP will never vote for. Governing is “sausage making”? Maybe not “making” anything at all but hot, smelly air…
It appears that the behavior of the algorithm wielding companies needs to be held
to account.
Mitch – if “The Former” can’t “be held to account”, why do you think Meta can?
Free Rein vs Free Reign….
Different conceptions here…. Does the spelling matter?
Did you mean to suggest monarchical prerogatives?? or lack of guidance???
Just curious….
Thanks
Jeffrey–I think what I was thinking (assuming I was) was that “reign” implies control…but you point is well taken…
Todd E Smekens. “Biden and Blinken are the worst of all liars on Twitter.” I’m not on Twitter so I can’t cite evidence to refute your claim, but it seems ridiculous. I challenge you to cite evidence supporting it or admit that you are just producing hot, smelly air.
Lester. Has the GOP written a clean bill that gives Dreamers a path to citizenship? If not, that pretty much destroys the point you seem to be trying to make. I haven’t seen any indication that that the GOP leadership has more interest in negotiating differences than they have in simply saying NO to whatever Dems propose.
Sharon – you are so RIGHT ON. Neither party nor the majority of DC “pols” are interested in governing – they are about power, money, special interests, ideology….Ever see the national numbers for how much ALL VOTERS trust both parties???
AI is taught,by the developer(human)(hired,bought and sold). the rythems are,how the developer has taught it to react.feed content,feed the basis for distributing,feed the parimeters on which it will export the content which has been,by someone at this point, that has been fed into its cashe. start history,and allow it to adjust again and again to focus on the developers (humans)feed. its taught by someone human(at this point)not somethig. it didnt magically fall from the sky of g santos’s pocket. windows didnt magically appear,and google has only madeitformots own need$.
if there is no control now,we have started Orwells 1984. bots bebots,and you may never bethe wiser..now if the scotus was Ai, we have a vaugue idea how HAL would react..P.S. my i pad name is HAL,you?
This government will never ever ever ever ever ever put a stop to promoting criminality.
What we’ve seen in our government, with the January 6th insurrection, and all of the boldface lying, lying with impunity, how are they going to hold anyone else accountable for anything.
It’s the law, politicians are not penalized for lying! And I mean the law protects politicians so they can lie!
The government actively promoted the drug trade, out of the other side of their mouth, there was the war on drugs!
We hear the government talking about how terrible weapons of war are in the streets, but the government actively promoted illegal gun running activities, being the main gun runners of weapons to the inner cities!
Our government has supplied weapons to terrorist organizations! Osama bin laden was a recipient of money and weapons by the US government to fight the Russians! Then, they turned around and used it on those who sent it to them.
Human rights, civil rights, all excellent ideas, and it should equalize the playing field for everyone. No one is above anyone else as long as they abide by the law. But what if the law is criminal? Slavery? Voting rights? It was illegal for women to vote, it was illegal for people of African descent to vote. They still make it difficult to vote. Our government actively repeals laws of fairness, laws that are supposed to equalize civil society in the face of systemic prejudice and bigotry! So, how? How! How are they going to handle this issue an affair and equitable manner. They will not! If anything, they will throw the baby out with the bath water!
Our government is supposed to be a system of laws, checks and balances, and arbiter of civil rights, an arbiter of human rights, The Great equalizer!
Has any government and recorded history that you are aware of actually lived up to its billing of fairness?
This entire system of government should be ripped to shreds, because it is actually useless! Infrastructure falling apart, states thumbing their nose at the federal government! Hundreds of little fiefdoms and little purported authoritarians who all want to be something they are not. Self-important and self-a-grandized, but not having any wisdom or knowledge about what they claim they are trying to do.
Until folks wise up to the fact that what you proposing is no better than wishing on a star!
The moral and civil decay That’s being witnessed is not a geographic phenomenon! It is a global sepsis, fatally infecting humanity to its end!
The hunters in Africa that catch monkeys by putting a large piece of fruit in a clay jar and when the monkey reaches in and grabs the fruit, he can’t pull his hand out! They walk up with a club and whack that monkey in its head and eat its brains while it’s still wiggling around. Was the monkey stupid? Well that depends on your interpretation of stupidity. An actuality the monkey was greedy, and he was greedy enough that he traded his life for his greed! Sound familiar?
And, let’s take a look at the hunters! They eat the raw brains of these monkeys which cause a brainwriting disease on those who do it. They can’t walk, they can’t speak, and they die a terrible death. Does that stop the hunters from practicing brain eating? Nope, they still do it! Sound familiar?
Money and greed, it will destroy everything! Actually it has destroyed everything! Humanity is basically on a failing life support as we speak.
Is there any wonder why there’s a lack of respect for religious, secular, social, and political authority?
The hypocrisy by those authorities are not hidden, they are manifestly and figuratively using a bullhorn to promote their misdeeds. But does anybody pay attention?
Jesus Christ himself said in the gospel book of Matthew, “blind guides is what they are. If then, a blind man guides a blind man, both will fall into a pit.”
I don’t know, kind of makes sense to me!
Sharon Miller writes, “I’m not on Twitter, so I can’t cite evidence to refute your claim, but it seems ridiculous.”
That’s not a very bright comeback – if you want to be an informed voter, you should have access to Twitter even if you never use it to send a Tweet. I expect within a short period, you will be sharing your opinions.
Todd,
Lol, I reckon I should do a better job of proofreading before I post! I guess we all have some shortcomings. I actually have more than most! But, at least I try.
I think self-deprecation is better than self-defication lol! 🫣😲
Look at all of the intellectuals throughout history, Plato, Socrates, Martin Luther, Confucius, Abraham Lincoln, Gandhi, Albert Einstein, Just a name a few, did any of them make a difference in humanities misery? Absolutely not.
Change takes faith, faith has a running buddy, it’s hope, hope gives rise to expectation. Without faith expectation becomes unfulfilled. Hopelessness is the rule.
Humanity lacks the direction, humanity is faithless and that’s not just me saying it. Many of the commenters on this thread expressed the exact same thing, they don’t believe in faith, unfaithful in faith? lol! Which I find oxymoronish lol. Without faith, ones entire life is a metaphoric dangling participle!
Todd – so Twitter is your trusted source to be an “informed voter”? LOL
I winced at the casual, dismissive rejection of the phrase “honest judges” ! Come on! Most of the readers/commentators on this blog are smarter than that! Our muse, Prof. Sheila, sure is!
Todd. You are evading giving the evidence I challenged you to provide. That suggests you have no such evidence.
John P Sorg at 12:55 “This entire system of government should be ripped to shreds.”
What do want to replace it with? Anarchy, i.e. might makes right? Maybe you’d rather have a dictator. Trump is applying for the position. The second coming? Think you can make that happen? Maybe you’d like to start a nuclear war and count on evolution to start over. Oh, I forgot. You don’t believe in evolution.
The Other Sheila – You hit the point exactly. Better algorithms CAN be written – easily. They won’t filter everything. Look at your spam email that might filter “free money”, but not “fr33 m0n3y”. Still the point is that the companies, in the pursuit of MAXIMUM profits at all costs, does not give a fig if their algorithms encourage misinformation (AKA lies), hatred, or even promote violence. After all, the purposes of these businesses are to maximize their return on investment, rather than the previous “provide a reasonable return on investment”. Screw the world, screw the environment, too bad people my suffer, be harmed or killed – money is everything and the only thing.
That is the argument. Does the law really allow them to promote violence in pursuit a profit with complete immunity? I am not a lawyer. Dan brought up an interesting point. Paul seems to believe that any changes to the status quo is “legislating from the bench” unless those changes reverse decades or centuries of precedent that are deemed too liberal.
We all seem to agree that the answer is that these companies have too much immunity. The questions seems to be (1) is it a case of needing to change the law or to apply the law as written, and (2) does the court actually care?
Sharon Miller,
Are you an actual teacher? Lord have mercy, where did you teach? Your pithiness leans more to the side of ignorance than enlightenment!
Explain to me what you hope for? Explain to me what you have faith in? Is the faith justified? Is the hope justified? That’s right, you don’t believe in faith. So therefore your hope is useless!
All of your vast experience, has led you to this point? Get a clue! You’re like the individual who sets on the sidelines of the peanut gallery trying to seem informed and intellectual by injecting disjointed syllables, but basically failing!
You want to talk about evolution? You possess some special intellectual insight on it that I have somehow missed?
By all means, fire away! I’d love to be put in my place by an intellectual dynamo. Somehow I don’t believe you’re up to that challenge anyway, so, what now?
You don’t have an answer to my question so you mount a personal attack on me. Shame on you.
Lol,
Sharon, you walk up to the line, you make statements that you deem cocksure about someone’s beliefs, but you can’t explain your own? SHAME ON YOU!
Now you can go tell on me! 🙉🙈🙊
John Sorg–STOP IT.
This may be a good time to remind all commenters of the rules: NO ad hominem attacks, no personal invective. You are free to debate, disagree and argue about philosophies and facts, but NOT to engage in insults and/or defensive accusations.
These rules apply to everyone.