The Google case heads to the Supreme Court with a powerful Internet Shield Act at stake

WASHINGTON — Google is going to the US Supreme Court this week to defend what is widely seen as a pillar of the online economy — and one also blamed for the distribution of harmful content.

The contested law, known as Section 230, grants Internet platforms legal immunity to almost all third-party content hosted on their sites. A decision to limit that immunity could throw off the business models of the biggest internet companies — particularly social media platforms like Instagram, TikTok, and Google’s YouTube, which rely heavily on recommendation algorithms.

“If they don’t reaffirm the status quo, they will cause a major disruption,” University of Minnesota law professor Alan Rozenshtein said at a Brookings Institution panel discussion of the case last week, where he referred to Section 230 as “the Magna Carta of the… internet.”

There is broad support in Congress for revising Section 230, but legislative efforts to do so have stalled amid partisan disagreements over diagnosis and cure.

Lawmakers from both parties fear the immunity bill has helped expand advertising of harmful content to vulnerable groups like children. Democrats also say the immunity has allowed companies to ignore false and dangerous information circulating online, while Republicans say it has allowed liberal-minded tech companies to block conservative viewpoints.

That has enabled the Supreme Court to potentially rewrite a legal cornerstone of the internet. The Gonzalez v. Google case was brought by the family of an American college student, Nohemi Gonzalez, who was among more than 100 people killed during the 2015 Paris terrorist attacks.

The plaintiffs allege that YouTube failed to remove some ISIS terror videos and even recommended them to users. They say this makes Google liable for damages under the Anti-Terrorism Act, although they have provided no evidence that the terrorists involved saw the videos. In essence, plaintiffs and their allies argue that Section 230 protections should not apply to algorithmic recommendations by platforms about harmful content.

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Google, a unit of Alphabet Inc., prevailed in lower courts arguing that it was protected by Section 230 of the Communications Decency Act of 1996. The law is often referred to as a shield because it prevents platforms from being sued for hosting malicious user contributions, a measure that internet platforms are said to have paved the way to commercial success.

Section 230 also protects platforms from lawsuits to block objectionable content. Lawmakers at the time hoped this would encourage internet companies to block harmful content like sexual images of children, but critics say tech platforms have used it to censor conservative viewpoints.

In court, Google argues that the company is protected by an Internet Shield Act, which prevents platforms from being sued for hosting malicious user posts. Photo: noah berger/Agence France-Presse/Getty Images

Groups supporting the plaintiffs, including some child safety advocates and conservative free speech advocates, say the case is a long-overdue chance to right a fundamental legal imbalance that has given online platforms an unhealthy level of power and influence .

They say the internet ecosystem has become a breeding ground for a range of social ills, from hate speech to eating disorders, largely because of the 1996 immunity shield for online platforms.

In pleadings from the Friends of the Court, several of the plaintiffs’ allies focused on the potential harm caused to children online by algorithmic recommender systems designed to maximize underage engagement.

“We all woke up 20 years later and the internet isn’t that great,” Hany Farid, a computer science professor at the University of California, Berkeley, told the Brookings panel recently. “And maybe it’s time to start thinking about how to make the internet a more civilized place.”

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But the prospect of Section 230 being rolled back by the Supreme Court has sparked a wave of concern in the internet industry.

Companies and others submitting friendly briefs in support of Google include Meta Platforms Inc., owners of Instagram and Facebook, and NetChoice, a trading group that also owns TikTok, owned by China’s ByteDance Ltd. heard.

microsoft corp Also siding with Google, saying that platforms “will inevitably have to drastically limit the content they allow on their services — even content they have no reason to believe violates any law.”

In addition to the American Civil Liberties Union and the Progressive Policy Institute, a number of conservative pro-business groups have sided with Google.

Section 230’s restriction would smother the internet’s creative ferment as platforms become cautious about recommending personalized content – the technology that has made platforms like TikTok and Instagram so popular, said Jeff Kosseff, author of “The Twenty Six Words That Created the Internet”, a book about the Section 230 Immunity Act.

Section 230 sponsors Sen. Ron Wyden (D., Ore.) and former Rep. Christopher Cox (R., Calif.) also filed a brief in support of Section 230.

A ruling against Google “would subject platforms to liability for all of their decisions to feature or not to feature certain third-party content — the very acts Congress sought to protect,” the two wrote.

But in a worrying development for internet companies, the Biden administration argues that loose interpretations of the federal immunity law threaten to undermine other legal protections.

“Too broad reading of [the immunity law] would undermine the enforcement of other important federal laws by both private prosecutors and federal agencies,” the US attorney general wrote in a letter from the court’s friend.

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Should the Supreme Court uphold Section 230 again? What would be the impact if this were not the case? Join the conversation below.

The Supreme Court decided last fall to hear the case. Many legal scholars believe that Judge Clarence Thomas likely led the push to review the Gonzalez case, having previously suggested in court statements and opinions that the federal courts’ current interpretation of Section 230 may be too broad.

The case is scheduled to be heard in court on Tuesday, with a decision expected by the end of the Supreme Court’s term in late June or early July.

Some scholars believe the judges may not yet decide the Gonzalez case. That’s because the plaintiffs’ underlying claims under the Counter-Terrorism Act could be dismissed by judges in a similar case, Twitter Inc. v. Taamneh, scheduled for trial on Wednesday.

The Twitter case was brought up by family members of Nawras Alassaf, who was killed in an ISIS attack on an Istanbul nightclub in 2017. Mr Alassaf’s relatives claim that Twitter, Google and Meta have materially supported ISIS and are “the tool of choice in spreading propaganda”.

Lawyers for Twitter, Google and Facebook have said in court filings that they have made extensive efforts to remove ISIS content and that there is no direct causal link between the websites and the Paris and Istanbul attacks.

Write to John D. McKinnon at [email protected]

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