The fate of the social media industry is in the hands of the Supreme Court. The highest court in the land has heard oral arguments for Gonzalez v. Google, a case that concerns Section 230 of the Communications Decency Act of 1996.
Section 230 is the controversial piece of legislation that provides platforms like YouTube, Facebook, and Twitter with “safe harbor” status. The 27-year-old rule shields tech companies from being legally liable for any content posted on their platforms by third parties — so long as the companies react to moderation demands in a timely manner.
There have been many challenges to Section 230’s authority over the years, and Gonzalez v. Google is the latest attempt to rewrite the law. The case centers around Nohemi Gonzalez (pictured above), who was one of the 130 people killed in the November 2015 Paris attacks perpetrated by ISIS.
Subscribe to get the latest creator news
The prosecution is arguing that the YouTube algorithm aided and abetted the attacks by promoting ISIS recruitment videos. Lawyers for the Gonzalez family are looking to position the algorithm as its own form of speech, which would invalidate Section 230 protections.
If the Supreme Court rules in favor of the Gonzalez family, the consequences for the tech industry would be enormous. Senator Ron Wyden (D-OR), who co-introduced Section 230 while serving in the House of Representatives, has argued that “all online media would face an onslaught of bad-faith lawsuits and pressure campaigns from the powerful” if the safe harbor provision is stripped. Other parties, including Google itself, have warned that a Section 230 rollback would have catastrophic consequences for the digital advertising industry.
So far, it seems as if the Court will need a lot of convincing in order to buy the prosecution’s argument. During the oral hearings, Justice Clarence Thomas said he didn’t “understand” how algorithmically-recommended content constitutes “aiding and abetting.” Justice Sonia Sotomayor had similar questions for the Gonzalez legal team. Justice Brett Kavanaugh suggested that the Court could “put the burden on Congress” rather than deciding on Section 230 itself.
Some Congresspeople would definitely be interested in shouldering that burden. Section 230 was a favorite target of Donald Trump during his presidency, and there is bipartisan support for measures that would transform the law and the protections it provides.
All three branches of the U.S. government seem to agree that Section 230 is in need of an overhaul. 27 years after it was first passed, the 26-word doctrine is still being used to oversee technology that didn’t exist in the 90s. During the Supreme Court hearing, Justice Elena Kagan put it best: “Everyone is trying their best to figure out how…a pre-algorithm statute applies in a post-algorithm world.”
