In November 2015, ISIS terrorists carried out coordinated attacks across Paris, killing 130 people and wounding 400. Among the dead was Nohemi Gonzalez, a 23-year-old American studying abroad who was the first member of his large family to graduate. This week, lawyers for his family and others are in the Supreme Court to challenge a law enacted more than a quarter century ago, a law that protects social media companies from what the families see as the role of Internet companies in the ‘helping and abetting terrorist attacks.
How court rules could be game changer for American law, society and social media platforms which are some of the most valuable assets in the world.
What the law says
At the center of two cases to be discussed in two days is Section 230 of the Communications Decency Act of 1996, passed by Congress when Internet platforms were just in their infancy. In just 26 words, Section 230 draws a distinction between providers of interactive computer services and other providers of information. While newspapers and broadcasters can be sued for libel and other wrongful conduct, section 230 states that websites are not publishers or speakers and cannot be sued for material appearing on those sites. In essence, the law treats web platforms the same way it treats the telephone. And just like phone companies, websites that host speakers can’t be sued for what the speakers say or do.
At least that’s how the lower courts have uniformly interpreted Section 230. They said that, under the law, social media companies are immune from being sued for civil damages for most of the time. material appearing on their platforms. This is so, even though, at the same time, the law has a seemingly opposite goal: It encourages social media companies to remove material that is obscene, obscene, excessively violent, harassing, or otherwise objectionable.
The attack at the heart of the arguments
This week’s cases try to thread that needle. The Gonzalez family and the families of other terrorism victims are suing Google, Twitter, Facebook and other social media companies under the federal counterterrorism law, which specifically allows civil claims for aiding and abetting terrorism. Families say companies have done more than just provide platforms for communication. Rather, they argue that by recommending ISIS videos to those who might be interested, they were trying to get more viewers and increase advertising revenue.
Representing victims of terrorism against Google and Twitter, attorney Eric Schnapper will tell the Supreme Court this week that when Section 230 was enacted, social media companies wanted people to subscribe to their services, but today the model economic is different.
“Now most of the money is made from advertising, and social media companies make more money the longer you’re online,” she says, adding that one way to do this is through algorithms that recommend other related stuff to keep users online longer. long.
Furthermore, he argues, the executives of modern social media companies knew the dangers of what they were doing. In 2016, she says, they met with senior government officials who told them about the dangers posed by ISIS videos and how they were used for recruitment, propaganda, fundraising and planning.
“The attorney general, the director of the FBI, the director of national intelligence and the then White House chief of staff… those government officials… told them exactly that,” he says.
Google general counsel Halimah DeLaine Prado vehemently denies any such wrongdoing.
“We believe there is no room for extremist content on any of our products or platforms,” he says, noting that Google has “invested heavily in human review” and “intelligent detection technology” to “make sure that happens.”
Prado acknowledges that social media companies today are not like the social media companies of 1996, when the interactive internet was a fledgling industry. But, he says, if there is to be a change in the law, it is something that should be done by Congress, not the courts.
The choice before the judge
Daniel Weitzner, the founding director of the MIT Internet Policy Research Initiative, helped draft Section 230 and get it passed in 1996.
“Congress had a really clear choice in its mind,” he says. “Would the internet have been like the media that was pretty highly regulated?” Or would it have been like “the town square or the printing house?” Congress, he says, “chose the town square and the printing press.” But, he adds, that approach is now at risk: “The Supreme Court is now really at a time where it could drastically limit the diversity of speech that the Internet allows.”
There are plenty of “strange bedfellows” among the tech company’s allies in this week’s cases. Groups ranging from the conservative Chamber of Commerce to the libertarian ACLU have filed as many as 48 briefs asking the court to leave the status quo in place.
But the Biden administration has a narrower stance. Columbia law professor Timothy Wu sums up the administration’s position this way: “It’s one thing to more passively present, even organize, information, but when you cross the line to actually recommend content, you leave the protections behind.” of 230″.
In short, hyperlinking, bundling certain content together, sorting through billions of pieces of data for search engines, that sort of thing is fine, but actually recommending content that displays or solicits illegal behavior is another. .
If the Supreme Court were to adopt that stance, it would be very threatening to the business model of social media companies today. The tech industry says there is no easy way to distinguish between aggregation and recommendation.
And it would likely mean that these companies would be constantly defending their conduct in court. But filing a lawsuit and overcoming the hurdle of showing enough evidence to warrant a trial are two different things. Also, the Supreme Court has made it much more difficult to overcome that hurdle. The second case that the court hears this week, on Wednesday, concerns precisely this issue.
What makes this week’s cases so remarkable is that the Supreme Court has never addressed Section 230. The fact that the justices have agreed to hear the cases shows that they have concerns. Judge Clarence Thomas has been vocal in his view that the law should be interpreted narrowly, which means little protection for social media companies. Judge Samuel Alito indicated he might agree. But the opinions of the other judges are a kind of black box.
The cases are González v. Google LLC AND Twitter, Inc. v. Taamneh.
Jordan Jackson contributed to this story