Supreme Court justices skeptical of challenges to tech giant immunity

Though rulings in either cases could have dramatic repercussions for tech companies, the justices seemed wary of making waves and there was little noticeable daylight between the court’s ideological wings.

Caitlin Chin, a fellow at the Center for Strategic and International Studies (CSIS), broke down the law in an interview with Capital News Service:

“Section 230 is a legal provision that essentially says two things: First, that online platforms should not be treated as the publishers of content that is created by third parties. In other words, if platforms like social media or restaurant review sites or e-commerce platforms decide to allow user-generated content or third party content, they should not be sued or liable for that content in most, but not all, cases. And second, Section 230 also says that if platforms make good faith efforts to remove or moderate content on their website, they shouldn’t be held liable for that either.”

The issue considered in Twitter v. Taamneh is whether a company that provides widely accessible services can be considered to provide substantial assistance to terrorists using the platform under the federal Anti-Terrorism Act.

The families of five victims of terrorist attacks perpetrated by ISIS sued under the ATA, claiming that the companies allowed the terror organization to use their platforms to recruit, plan and fundraise for the attacks.

In a related case, Gonzalez v. Google, the family of a U.S. citizen killed in a terror attack while studying in Paris, claimed that YouTube’s algorithm targeted and recommended videos to its users, thus supporting ISIS.

Despite the order in which they were argued, the Gonzalez case can only proceed if the justices rule in favor of Taamneh et al. in the Twitter case.

At multiple times during Tuesday’s arguments, the justices suggested that perhaps Section 230 issues would be better resolved across the street at the Capitol.

There was much hand-wringing  at the court about making a blanket solution to a complex problem. As Justice Elena Kagan quipped, “We really don’t know about these things. You know, these are not like the nine greatest experts on the Internet.”

On the first day of proceedings — Google v. Gonzalez — justices seemed to question attorney Eric Schnapper, who was representing the Gonzalez family. Justice Clarence Thomas asked what the difference was between an algorithm that recommends cooking videos and one that suggests ISIS content, which Schnapper had trouble answering.

The question illustrated a point made later by Kagan, who said that it was difficult to draw a line between recommendations of neutral algorithms, which suggests content with minimal input from its owners.

In the Taamneh case, Kagan compared Twitter’s role to that of a bank: “Yeah, the same thing could have been said of banking. It was, you know, we just provided the same banking services to the terrorists as we did to everybody else. But in fact that — the provision of that service materially supported, and the bank knew that it was going to materially support, terrorist services.”

On the other hand, Justice Samuel Alito was far more skeptical that Twitter’s general services constituted aiding and abetting, comparing it to the liability a telephone company would have if terrorists used their phones.

Attorney Lisa Blatt, who represented Google, juxtaposed what some perceive as the two extremes presented by Section 230: an internet where everything is subject to challenge and only uncontroversial, sunshiney things pass through and an anarchic place where almost everything is allowed.

“You have the Truman Show versus a horror show,” Blatt said. “You have only anodyne, you know, cartoon-like stuff that’s very happy talk, and otherwise you just have garbage on the Internet.”

There is a middle ground between those two extremes, though it most likely would require legislative action, rather than a decisive ruling in either case. Congress has already made carve-outs from Section  230 for sex trafficking and copyright violations.

Congress could make additional exceptions for hate speech and violence, according to Chin.

Other proposals include allowing internet platforms to be sued, but for highly limited damages. An individual harmed by something posted online could sue for injunctive relief or attorneys fees, but not for large sums of money.

Alternatively, Congress could take a consumer protection approach, making internet service providers subject to terms of service agreements and bringing them under the jurisdiction of a federal regulatory agency like the Federal Trade Commission.

“The way I personally stand is, yes, I can see why Section 230 helps a lot of businesses, especially smaller businesses,” said Chin. “If I were to run a tech startup with one or two people, it would be super, super difficult for any startup to get off your feet, if they’re facing millions of lawsuits over content that other people post on their websites. So I can understand why Section 230 can be beneficial.”

“But at the same time, as we’ve seen in the past, Section 230 has provided incentives for tech platforms to essentially not moderate very, very harmful content,” she said. “And I think the two terrorist attacks highlighted in these cases demonstrate that. Tech platform tech platforms need responsibilities. I do think that there’s a middle ground between either no liability or 100% liability.”

The Biden administration has called for Congress to revoke Section 230’s liability shield and bring tech companies under tighter regulation.

However, the administration is walking a narrow line on the issue. The Department of Justice argued against the tech companies in Gonzalez vs. Google, but joined Twitter in the second case.

The administration is balancing its interests. The government wants to limit Section 230 immunity but is hesitant to expand the scope of the ATA.

Deputy Solicitor General Edwin Kneedler said Wednesday: “The United States condemns in the strongest terms the terrorist act that caused Mr. Alassaf’s death and sympathizes with the profound loss that the plaintiffs, in this case, have experienced.”

“We submit, however, that the allegations in this complaint do not state a claim that the defendants aided and abetted, that is, that they assumed a culpable role in that murder.”