The US Supreme Court case could bring tech giants to their knees

It is time to reexamine the question of whether social media companies should be responsible to recommend content to users.

A few weeks ago, the US Supreme Court decided to hear Gonzalez V Google. This landmark case is causing a lot of anxiety among social media moguls for the simple reason that it could cause a significant disruption in their highly lucrative business models. This is good news for democracy but it is also an opportunity for us all to pay more attention.

First, some background. Two US legislators, Representative Chris Cox of California and Senator Ron Wyden of Oregon, added a clause to the massive telecommunications bill then in Congress. This clause became section 230 under the Communications Decency Act. It read: “No provider, user or receiver of interactive computer services shall be treated like the publisher or speaker of any information provided to them by another information content provider.”

They were honourable in their motives. They had seen that early web-hosting service providers had been held responsible for any damage caused by content posted to the site by users over whom no control. It is important to remember that these were the early days of the internet. Wyden and Cox feared that if lawyers were allowed to crawl through every file on the medium, the development of new powerful technology would be impeded. In that sense, they were correct.

They didn’t know that section 230 would become a card to get out of jail for some of the world’s most successful companies, such as Google, Facebook, and Twitter. These platforms allow users to publish any content they want without their owners being held liable for it. It was so far-reaching that a professor of law wrote a book called The Twenty-Six Words That Created the Internet. Perhaps a bit exaggerated, but you get what I mean.

Now, let’s go back to November 2015, when Nohemi Gonzalez was a young American student in Paris. She was shot and killed by Islamic State terrorists in a Paris restaurant. They also murdered 129 others that night. Her family sued Google, alleging that Google’s YouTube subsidiary used algorithms to push IS videos out to viewers using the information it had collected. The petition for a review by the Supreme Court argues that YouTube videos were the main way in which IS recruited support and recruits from other areas than the ones it controlled.

However, the key point of the Gonzalez suit is not that YouTube shouldn’t be hosting IS videos (section 230 permits that), but that YouTube’s machine-learning recommendation algorithms, which could push other, potentially more radicalizing videos to YouTube, make it liable. To put it another way, YouTube does not have any legal protection to host the content its users upload, but it does not have protection from an algorithm that decides what videos they should view next.

Social media platforms are thriving because of recommendation engines. These are the tools that increase user engagement – keeping users on the platform to leave digital trails (viewing and sharing, liking, retweeting), etc – that allow companies to continuously refine user profiles for targeted ads. You can also make outrageous profits doing this. Social media companies would find the world much colder if the supreme court ruled that these engines do not have section 230 protection. Stock-market analysts may be shifting their advice to clients to sell from “hold” and “sell”.

For decades, legal scholars have argued that section 230 should be revised. It is viewed by freedom of speech advocates as a keystone to liberty and the “kill switch” for the internet. Donald Trump made threats about it. It is seen by tech critics, such as this columnist, as an enabler of corporate hypocrisy. It’s been more than 50 years since it was made law. That’s about 350 years of internet time. It’s a little like a man waving a red flag in front of a driverless vehicle. It might not be a bad idea, though.

Over the past few years, US courts have heard versions of the Gonzalez suit question: whether section 230 exempts internet platforms from making targeted recommendations about the content posted by users – and they have done so several times. Five courts of appeals have ruled that the section provides such immunity. Three appeals judges ruled it does not. One other ruled only that legal precedent precludes liability. In other words, there is no legal consensus. It is high time the supreme court decided this matter. Isn’t that why it exists?

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