Section 230 is at the heart of two cases being presented to the U.S. Supreme Court this week and, as oral arguments were heard Tuesday that could lead to a landmark ruling on Big Tech’s legal protections, the justices were forced to admit, “we really don’t know about these things.”
In 1996, the Communications Decency Act was passed wherein Section 230 established that a platform should not be treated the same as a publisher as it pertains to liability of content. Nearly 20 years later, a young woman’s death as one of 130 victims of Islamic State-inspired extremist attacks in Paris, France is being blamed in part on YouTube’s recommendations.
The case of Gonzalez v. Google LLC was argued Tuesday with attorney Eric Schnapper representing the family of 23-year-old Nohemi Gonzalez who was killed during those attacks in November 2015. The family charged that Google, the owner of YouTube, was liable for the actions of the terrorists in part because their platform’s algorithms recommended the Islamic State propaganda videos that incited the extremist violence.
However, as the arguments were heard, Justice Elena Kagan made the point shared by other members of the bench that certain technical minutia being considered were outside their scope.
“We’re a court, we really don’t know about these things,” she said before prompting laughter from the gallery. “You know, these are not like the nine greatest experts on the internet.”
As previously stated, Section 230 protections were the crux of the argument for which the text on offensive material blocking and screening read, “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.”
A subsection continued on civil liability that no “interactive computer service shall be held liable on account of…any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).”
Throughout the arguments, Justices Samuel Alito and Ketanji Brown Jackson also stated being “completely confused” and “thoroughly confused” respectively as the argument ventured beyond the scope of legal issues.
In a filing to the court, Section 230’s authors, Sen. Ron Wyden (D-OR) and former Rep. Chris Cox (R-CA), had tried to offer some background on the matter describing their original intent. “Congress drafted Section 230 in a technology-neutral manner that would enable the provision to apply to subsequently developed methods of presenting and moderating user-generated content. The targeted recommendations at issue in this case are an example of a more contemporary method of content presentation.”
They further suggested that recommendations were no different than content curation, “And because Section 230 is agnostic as to the underlying technology used by the platform, a platform is eligible for immunity under Section 230 for its targeted recommendations to the same extent as any other content presentation or moderation activities.”
Lisa Blatt, Google’s representation, seemed to try and pick up that point in her argument to the high court but Chief Justice John Roberts questioned the impartiality of recommendations that stemmed from coded algorithms.
“They appear pursuant to the algorithms that your clients have. And those algorithms must be targeted to something,” he stated. “And that targeting, I think, is fairly called a recommendation, and this is Google’s. That’s not the provider of the underlying information.”
Justice Neil Gorsuch, who heard arguments remotely due to a potential illness, reminded that Wednesday’s oral arguments on Twitter, Inc. v. Taamneh, a similar case brought up against Twitter, Facebook and Google regarding the 2017 death of Nawras Alassaf among 39 victims at an Istanbul nightclub attributed to ISIS, could help the court answer some of the trying questions Tuesday’s arguments raised.
Meanwhile, Justice Brett Kavanaugh reminded, as the Supreme Court has done before in an increasingly litigious society, that some issues were the responsibility of lawmakers to sort out as he asked, “Isn’t it better…put the burden on Congress to change that?”
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