On February 21, when Justice Elena Kagan stated, “We are a court—we really don’t know about these things,” there was a chuckle heard throughout the US Supreme Court. We don’t rank among the top nine experts on the internet.
Reynaldo Gonzalez, whose daughter was killed in an ISIS terror attack in Paris in 2015, filed Gonzalez v. Google on February 21. Gonzalez claims that YouTube’s algorithm helped facilitate the attack by recommending the group’s recruitment videos to people who would be most receptive to their message. The decision of the case could determine how social media platforms operate globally in the future.
The case centres on the issue of whether tech companies should be held accountable for harmful content posted by their users on their platforms, given that they are currently shielded from liability under Section 230 of the Telecommunications Act, a law passed in 1996 with the main goal of fostering competition in the broadcasting and telecoms industries. It’s a defense that has prevented businesses with widely used platforms from being held accountable for the harms caused by extremist content and misinformation. But, it also forms the basis for internet free expression.
The Internet Society, which filed an amicus brief in support of Section 230, is led by president and CEO Andrew Sullivan. “The purpose of Section 230 was to try to prevent platforms from becoming the soccer ball that gets kicked around whenever people disagree about what appropriate free expression on the internet is,” he says. “If you begin to tamper with this, you are fundamentally tampering with the internet’s design. And the network will fragment as a result of it.
For nearly 20 years, discussions around Section 230 have mostly taken place in the circuit courts, which are inferior courts within the US federal court system. During the 2016 presidential election, when Republican lawmakers started to capitalise on and exaggerate sometimes unfounded claims that social media sites were suppressing conservative users, this changed. Republican leaders have continued to charge big tech companies like Meta and Twitter of prejudice after that message proved successful in energising some of their base.
One notable instance of this purportedly “biassed” enforcement is Facebook’s 2018 decision to block Alex Jones, the presenter of the right-wing website Infowars, who was eventually hit with $1.5 billion in damages after tormenting the relatives of mass shooting victims.
Republicans were outraged by a number of actions that were protected by the First Amendment of the US constitution, which guarantees free expression. As those protections are essentially impenetrable by legislation, lawmakers chose to focus on Section 230.
Leading conservatives started calling for amendments to the legislation in 2018 that would explicitly depend on how businesses handle political speech when determining their liability protections under Section 230. Sens. Josh Hawley of Missouri and Ted Cruz of Texas, both well-known Republicans, repeatedly misinterpreted the section’s text. Cruz stated in 2018 that the prerequisite for Section 230 immunity “is that you’re a neutral public forum,” interpreting the statute to only protect websites that treat left- and right-wing political viewpoints equally.
More constraints on how platforms can and cannot control material have been attempted to be imposed by recent laws in both Texas and Florida.
Gonzalez v. Google follows a different course and concentrates on platforms’ inability to handle extreme content. Social media sites have been charged with supporting hate speech and inciting acts of violence that have caused harm in the real world, including the genocide in Burma, murders in Ethiopia, and a failed coup in Brazil.
According to G. S. Hans, an associate law professor at Cornell University in New York, “the content at issue is manifestly awful and unpleasant.” “But online discourse includes that in some measure. And I worry that the content’s extremeness will result in certain interpretations or theological connotations that, in my opinion, aren’t really representative of the internet’s overall dynamics.
The debates around Section 230, according to Sullivan of the Internet Society, combine Big Tech firms, which, as private businesses, have the authority to select what information is permitted on their platforms, with the internet as a whole.
Consumers have lost sight of how the internet operates, claims Sullivan. “We have started to confuse social issues that have to do with the overwhelming dominance by an individual player or a small handful of players with problems that are related to the internet because we have had an economic reality that has meant that certain platforms have become overwhelming successes.”
According to Sullivan, only larger platforms would be able to withstand such laws, further solidifying the grip that Big Tech platforms currently have.
There is a good chance that international consequences will follow US decisions on internet regulation. A verdict on Section 230 might serve as a precedent for other nations, according to Prateek Waghre, policy director at the Internet Freedom Foundation in India.
The specifics of the case are less important, according to Waghre. It’s more about how other nations, especially those with authoritarian leanings, will exploit a prescriptive legislation or precedent coming out of the United States to legitimise their own actions.
The Indian government has already taken steps to exert more control over content in the nation, such as creating a committee for content moderation that is chosen by the government and tougher enforcement of the nation’s IT laws.
Waghre believes that platforms will likely apply the same standards and procedures to other marketplaces if they are required to establish rules and tools to comply with a revised or completely eliminated Section 230. These platforms, especially Facebook, are so pervasive that for millions of people in many nations they virtually serve as the internet.
According to him, once something is done in one country, it will eventually be justified or used as precedent in another.