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Feb 23, 2023 11 min read

US Supreme Court hears two "Section 230" cases that could decide the future of the Internet

US Supreme Court hears two "Section 230" cases that could decide the future of the Internet

🔐 Premium: What’s happening in the US Supreme Court? It’s fair to say that most people have never heard of “Section 230." But as I write, the debate over the relevance and efficacy of this nearly 30 year old, 26-word law is facing its biggest test and most thorough scrutiny.

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🔐 In this week’s premium article, I looked at the two cases before the US Supreme Court that could have huge implications for the way the internet, and social media, works today. Here’s an update (added 28th Feb 2023)…

Gonzalez v Google

In watching the 3 hour live stream of “oral arguments”, what was strikingly obvious was how the Justices defied their partisan stereotypes and asked excellent questions in spite of their limited technical knowledge. In the end, this turned into a case more about the HOW they might resolve the case (remember, the law is only 26 words long), rather than whether they SHOULD. After all, it’s the US Congress that writes the law, and the politicians have failed to grasp this nettle for over a decade.

Looking at the commentary that followed proceedings, it seems that consensus amongst political journalists was that the Court is roughly divided 2-2-4 (for/against/neutral) on whether to support Google’s case for the sweeping immunity they’re seeking.

Some Justices, like Gorsuch and Kavanaugh appear likely to vote for the status quo, citing the risk of economic disruption if a narrower reading of Section 230 were adopted. On the other hand, two of the Justices argued that the “power to select and recommend content” can be abused (you don’t say), and therefore they appear to lean against an outright win for Google.

Sitting on the fence, Justice Sotomayor argued for an immunity for "good" selection criteria but not for "bad" criteria (however you do that). While Justice Jackson believed that immunity should not extend to Internet platforms that are promoting offensive material.

Justice Kagan acknowledged the difficulty of refashioning Section 230 and wrestled with the notion that the immunity Google wanted would also allow it to knowingly boost a false and defamatory video and to refuse to take it down.

Here’s The Thing: This is not going to be a straightforward, binary decision. The Justices were clearly wrestling with how to create a legal definition for the 21st century from 26 words written in the previous century that were intended to protect children from indecent content (not from terrorist videos on YouTube.)

IMHO, my money is on both sides losing. Gonzalez will not win the argument that Google are liable for the death of their child. Equally, Google will not win immunity. My guess is that the Justices will censor Google and introduce a tighter definition of the law, triggering a barrage of legal arguments from Google’s vast army of expensive lawyers.

One thing’s for sure, this isn’t going to be resolved quickly or quietly.

What would a change to Section 230 mean for the Internet?

In this week’s Premium content, I look at what’s happening in the US Supreme Court and the implications for the Internet as we know it today. It’s fair to say that most people have never heard of “Section 230”. But as I write, the debate over the relevance and efficacy of this near 30 year old, 26-word law, is facing it’s biggest test and scrutiny.

Because right now, the US Supreme Court is hearing two cases that could have a significant impact on Section 230, the law that provides a liability shield for internet service providers from being held liable for user-generated content.

In Gonzalez v Google and in Taamneh v Twitter, the cases rest on whether the platforms' use of artificial intelligence algorithms to decide what content appears in a users feed is considered to be an editorial decision.

If the Supreme Court rules in favour of the plaintiffs, it would mean platforms like Facebook, YouTube and Twitter would become responsible for the content on their apps. Which would lead to tighter controls and more restrictive policies. For many, it would be the end of comments pages, and “say what you want” message boards, fundamentally changing the relationship between the platforms and their users. Strict content standards and enforcement mechanisms would become the norm as platforms taking on more liability.

In this premium issue of Wiser! I make sense of what's happening and what could come next as the nine judges of the US Supreme Court consider the role of AI, algorithms and the social media platforms in the context of Section 230. To start, let's understand what we mean by "Section 230."

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