Republican senators, former national security officials, and the state of Texas have filed separate amicus curiae briefs in Texas urging the Supreme Court to back a narrow interpretation of Section 230 that would no longer protect websites from being sued for the content they recommend.
Section 230, a Provision of the Communication Decency Act, states that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). This means is that social media companies are not on the hook for the content published by its users.
Sure, these companies can enact their own terms of service that take a stand against harassment, bullying, doxing, and other malicious acts, but there is nothing holding them legally liable for the results of violations. Section 230 has recently been thrust back into the spotlight as social media usage has grown exponentially in the three decades since the provision was originally passed. New lawsuits have cropped up challenging whether Section 230 should still receive a broad interpretation in the modern era of the internet.
Section 230 passed in 1996 when the internet was still considered the Wild West. In 1996, only 20 million Americans had access to the internet, Amazon was still a small online bookstore, and even more stunning compared to today, Americans spent fewer than a half hour online a month.
Today that’s unfathomable. According to Nielsen, Americans now spend 27 hours a month online and Facebook alone has over a billion users. Social media companies worry about Section 230 being revisited, as they would then be accountable for the content being published by users.
Courts are beginning to reconsider Section 230, as next year, the Supreme Court is gearing up to hear the case of Gonzales v. Google is set to be heard. The case itself is both radical and heartbreaking. In November of 2015, Nohemi Gonzalez was a 23-year-old American student studying in Paris who was killed when individuals affiliated with the terrorist group ISIS opened fire in a Paris café. That month, ISIS claimed responsibility for over 100 people killed in Paris.
The Gonzales family and estate sued Google as the owner of YouTube. Their claim is that ISIS has posted hundreds of videos to YouTube specifically meant to incite violence and recruit potential supporters. They take it a step further by alleging that YouTube’s algorithms promoted this radicalized content to users whose characteristics suggest an interested in said videos.
Section 230 current shields companies like Google from being held accountable for this, and two appeals courts sided with the internet giant. However, it is now in the hands of the Supreme Court to determine whether companies like Google can face litigation over these types of targeted algorithms.
Because the basis of the suit is more about promoting content then regulating it, this type of lawsuit and others like it have teeth that social media companies should be running scared from.
The amicus curiae briefs filed in Texas all encourage the Supreme Court to reconsider their interpretation of Section 230, without explicitly attempting to take sides in the situation. The brief for the state of Texas asks the Supreme Court to “correct” the lower courts’ “misapplication of Section 230 in a way that prevents citizens from obtaining relief for wrongs committed through the internet.”
The brief further goes on to state their position by saying, “[those lower court decisions generally serve to protect bad actors from the consequences of the actions- not to promote the free exchange of ideas on the internet.”
The brief goes on to discuss the Gonzalez case, reminding the court that petitioners in Gonzalez are not blaming Google for the actions of the terrorists, but instead, that they are directly liable for their own actions. Google “actively aided and abetted terrorism by recommending ISIS videos to YouTube users.”
Here, they are supporting the main idea in Gonzalez that Section 230 is not a shield to social media companies because this is not a free speech issue. Instead, the lawsuit alleges that the algorithm used by websites like Google use to push their content is a product that is purposefully promoting harmful content, and that this then becomes a product liability issue.
The brief filed by U.S. Senators including Ted Cruz and Lindsay Graham sets out to support the narrative, like the one in the state of Texas’s brief, that says that lower courts have made an “erroneous interpretation… of Section 230.”
The brief also argues that Section 230 does provide immunity to websites, but “only where platforms “in good faith” remove or restrict access to third-party content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The brief further points out that if “Congress had intended to fully immunize internet service providers from distributor liability, it could have done so.”
The third amicus curiae brief filed by former federal officials who have significant counterterrorism experience in both Republican and Democratic administrations, representing officials from groups such as the National Security Council, Officer of the Director of National Intelligence, the Central Intelligence Agency, the Department of Homeland Security, the Department of Justice, the Federal Bureau of Investigation, the Department of Defense, and the Department of State.
To say those are heavy hitters backing the brief would be an understatement. They use their front line experience and knowledge to state that “as experienced national security officials, prosecutors, and law enforcement officials, amici have seen firsthand the threat that only radicalization poses to the United States.” Like the brief from the state of Texas, this one also takes the approach that Section 230 should not be applicable in cases such as Gonzalez because it is an algorithm (products liability) issue and not a free speech issue.
“Terrorist content is amplified and promoted by algorithms developed and used by internet platforms. These algorithms recommend content to users based on sophisticated analysis of their interests, designed to drive user engagement and maximize the time users spend on platforms by serving more and more extreme con-tent, thus increasing advertisement views and generating greater revenue.”
They further allege that purposeful, targeted recommendation of extremist content increases use engagement: “[t]hese algorithms have learned that divisive, hateful, and conspiratorial content engages users and so this type of content is prioritized, leading to rampant misinformation and conspiracies and, in turn, increased anger, hate, and in-tolerance, both online and offline.” They back the idea that the petitioners in Gonzalez do not treat social media platforms as a publisher or a speaker, but instead take the route of holding them accountable for their purposefully made algorithm pushing dangerous and extremist content.
Gonzalez v. Google will set the high bar for legal precedent when it comes to whether social media companies can continue to use Section 230 as a shield under its provisions. This is the first time the Supreme Court has taken up the interpretation of Section 230 and the effects it will have on the social media landscape will be wide and immediate no matter of the outcome.