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Supreme Court sidesteps Section 230 -- for now

Although the Supreme Court's recent decisions in cases against Twitter and Google avoided ruling on Section 230, the issue will likely be in front of the justices again soon.

The debate on reforming a law that protects online platform providers from being held liable for content posted to their sites continues as pending cases wind their way to the Supreme Court and policymakers look for ways to carve out amendments.

Sens. Josh Hawley, R-Mo., and Richard Blumenthal, D-Conn., introduced the bipartisan "No Section 230 Immunity for AI Act" on Wednesday. The bill would let consumers take companies complicit in using artificial intelligence to create AI-generated content like deepfakes to court without Section 230 protection.

The bill seeks to add a clause to Section 230, enacted in 1996, stripping immunity from AI companies in cases involving the use of harmful content generated by AI.

"We can't make the same mistakes with generative AI as we did with big tech on Section 230," Hawley said in a press statement. "When these new technologies harm innocent people, the companies must be held accountable."

Tech and social media companies have long been protected by Section 230, including in two recent cases that reached the Supreme Court earlier this year. The highest court's decisions in Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh were expected to shed light on the extent to which immunity is granted by Section 230 to large tech platforms. At the heart of both cases: recommendation algorithms and the role they played in terrorist attacks.

But the Supreme Court decided that Google and Twitter hadn't intentionally aided terrorist groups through their content recommendation algorithms and instead called on Congress to address platform liability, which could provide new guidance for future rulings.

Why the Supreme Court held off on Section 230

In Twitter, Inc. v. Taamneh, plaintiffs sued Twitter for aiding and abetting the terrorist organization ISIS through videos and content shared on their platform. Plaintiffs in Gonzalez v. Google LLC similarly sued Google for aiding and abetting ISIS. In both cases, family members of the plaintiffs were killed in terrorist attacks. The cases forced the Supreme Court to consider whether those big tech companies were protected by Section 230.

In unanimous decisions on the cases, the Supreme Court justices decided that the platforms and their recommendation engines didn't intentionally aid and abet ISIS, thereby rendering the question of 230 immunity moot.

"To be sure, it might be that bad actors like ISIS are able to use platforms like defendants' for illegal -- and sometimes terrible -- ends," wrote Justice Clarence Thomas, who delivered the Supreme Court opinion in Twitter, Inc. v. Taamneh. "But the same could be said of cell phones, email, or the internet generally. Yet, we generally do not think that internet or cell service providers incur culpability merely for providing their services to the public writ large."

They can't stick their heads in the sand forever. This was a unique case that allowed them to avoid the issue.
Alan RozenshteinAssociate professor of law, University of Minnesota

While the plaintiffs attempted to make a case for Section 230 reform, they were unable to show that big tech platforms violated laws prohibiting aiding and abetting terrorism, said Riana Pfefferkorn, research scholar at the Stanford Internet Observatory.

"This is not unusual. Many cases against platforms that are barred by Section 230 would fail on the merits anyway," she said.

Pfefferkorn said Taamneh is a big win for Section 230. But it might not be long before the Supreme Court revisits Section 230 in two cases challenging social media laws enacted in Texas and Florida. After that, more cases are sure to come, according to Pfefferkorn.

That's why Congress will need to step in, she said.

How Congress could weigh in

Alan Rozenshtein, associate professor of law at the University of Minnesota, said that in the oral arguments for the Taamneh and Gonzalez cases, the Supreme Court justices indicated it would be better for Congress to determine whether to change companies' liability for third-party content. That put the ball in policymakers' court.

The issue is that Congress has struggled for years to reach any sort of consensus on Section 230 reform. Additionally, tech companies with strong lobbying power ideologically believe in the broad interpretations of Section 230, making it unlikely that Congress will want to change the status quo, Rozenshtein said.

"You can imagine Congress just continuing to not do anything about it," he said.

Rozenshtein said he believes cases in smaller courts will continue to tackle Section 230, and the Supreme Court will eventually have to take up the issue again down the road. That includes the cases on Texas and Florida's social media laws, which restrict platforms' capabilities to moderate online content.

"They can't stick their heads in the sand forever," he said. "This was a unique case that allowed them to avoid the issue."

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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