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Supreme Court cases could usher in changes to Section 230

Two upcoming Supreme Court cases could significantly change how Section 230, which protects social media platforms from liability for third party content, is interpreted.

The Supreme Court will hear opening arguments next week for two cases that could fundamentally reshape a law giving tech platforms immunity from third-party content posted on their sites.

YouTube, Facebook, Reddit and others have long been protected by Section 230 of the Communications Decency Act, not only erasing liability for content posted by others but enabling companies to remove content deemed inappropriate. However, that interpretation of Section 230 is being challenged in Gonzalez v. Google LLC on Feb. 21, followed by Twitter, Inc. v. Taamneh on Feb. 22.

In Gonzalez v. Google LLC, the Supreme Court will consider whether Section 230 protects platforms when their algorithms target users and recommend content. The plaintiffs in the case allege that Google aided recruitment efforts by the terrorist group ISIS through YouTube videos, resulting in the death of Nohemi Gonzalez, the only American killed in a terrorist attack in Paris in 2015. In Twitter, Inc. v. Taamneh, the Supreme Court is considering tech companies' liability under the Anti-Terrorism Act when it comes to aiding and abetting terrorist acts.

Both cases stand to significantly impact how Section 230 is interpreted and applied to tech platforms -- something Congress has struggled to reach bipartisan agreement on.

"This may be one of the most consequential cases in the last 20 years on internet governance, both for good and bad," said Hany Farid, professor of electrical engineering and computer science at the University of California, Berkeley, during a webinar hosted by nonprofit public policy organization Brookings Institution.

Gonzalez v. Google LLC

Section 230, enacted in 1996, was designed to allow a burgeoning internet to prosper around user-generated content, Farid said.

"The government said we don't think we should hold the platforms responsible for every bad thing that happens or is said on the platform," Farid said. "If they did, we would never have these types of platforms."

This opinion will be the most important Supreme Court opinion about the internet, possibly ever.
Alan RozenshteinAssociate professor of law, University of Minnesota Law School

Gonzalez v. Google LLC is one of the first serious challenges to Section 230 and whether companies have liability protection and are shielded from civil action, he said.

The core of Gonzalez v. Google LLC is recommendation algorithms, said Daphne Keller, director of the program on platform regulation at Stanford University's Cyber Policy Center.

"It boils down to saying platforms are not liable for content posted by ISIS, but they are liable for recommendation algorithms that promoted that content," she said during the Brookings webinar.

Should the Supreme Court decide to take away immunity from algorithms that recommend or rank content based on user preference, Keller said that "guts what Section 230 was supposed to do in the first place." Indeed, without immunity, Keller said platforms could engage in over-removal of content out of an abundance of caution, limiting content users see, including emerging voices.

"It has an obvious speech impact but also has really foreseeable disparate impact on marginalized communities," she said.

Farid said the issue shouldn't be whether platforms are liable for recommendation algorithms but what are the objectives of the recommendation algorithms.

The goal of Google's algorithm is to present relevant information according to a specific search query, Farid said. When it comes to platforms like TikTok, YouTube and Facebook's recommendation algorithms, Farid said their goal is different. The metric is, instead, to keep user engagement for as long as possible.

"Social media is maximizing user engagement. That is what is leading to a lot of the problems on the platforms," he said.

Regardless of how the Supreme Court interprets Gonzalez v. Google LLC, the ruling will be significant, particularly given Congress's lack of action on Section 230 reform, said Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School.

"This opinion will be the most important Supreme Court opinion about the internet, possibly ever," he said.

Twitter v. Taamneh

Though Gonzalez v. Google LLC stands to significantly impact Section 230, Benjamin Wittes, editor in chief at Lawfare, argues that Twitter, Inc. v. Taamneh is the bigger of the two cases.

The plaintiffs in Twitter, Inc. v. Taamneh argue that the platforms should be held liable for aiding and abetting terrorist acts even if the platform was not knowingly doing so. That argument is inconsistent with the text of the Anti-Terrorism Act, Wittes said, which provides for aiding and abetting liability only in situations in which the individual or organization aided and abetted the actual act that caused the injury.

"It's possible that what will happen here is that if Twitter wins this case, which has nothing to do with Section 230 at all, then the Section 230 issue goes away in the Google case because Google has exactly the same area of liability in their case," Wittes said during the webinar.

Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.

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