\u201cWe\u2019re a court. We really don\u2019t know about these things. These are not the nine greatest experts on the internet.\u201d<\/p>\n<\/div>\n
Supreme Court Justice Elena Kagan made the wryly self-deprecating comment early in oral arguments for Gonzalez v. Google<\/em>, a potential landmark case covering Section 230 of the Communications Decency Act of 1996. The remark was a nod to many people\u2019s worst fears about the case. Gonzalez<\/em> could unwind core legal protections for the internet, and it will be decided by a court that\u2019s shown an appetite for overturning legal precedent<\/a> and reexamining long-standing speech law.<\/p>\n<\/div>\n But during a remarkably entertaining session of questions today, the court took an unexpectedly measured look at Section 230. The outcome in Gonzalez<\/em> is far from certain, but so far, the debate suggests a reassuring awareness by the court of how important the ruling will be \u2014 and the potential consequences of screwing it up.<\/p>\n<\/div>\n Gonzalez v. Google <\/em>covers a very specific type of online interaction with potentially huge implications. The suit stems from an Islamic State shooting in Paris that killed student Nohemi Gonzalez in 2015. Her surviving family argued that YouTube had recommended videos by terrorists and therefore violated laws against aiding and abetting foreign terrorist groups. While Section 230 typically protects sites from liability over user-generated content, the petition argues that YouTube created its own speech with its recommendations.<\/p>\n<\/div>\n \u201cEvery time anyone looks at anything on the internet, there is an algorithm involved.\u201d<\/p>\n<\/div>\n<\/div>\n Today\u2019s hearing focused heavily on \u201cthumbnails,\u201d a term Gonzalez family attorney Eric Schnapper defined as a combination of a user-provided image and a YouTube-generated web address for the video. Several justices seemed dubious that creating a URL and a recommendation sorting system should strip sites of Section 230 protections, particularly because thumbnails didn\u2019t play a major part in the original brief. Kagan and others asked whether the thumbnail problem would go away if YouTube simply renamed videos or provided screenshots, suggesting the argument was a confusing technicality.<\/p>\n<\/div>\n The fine-line distinctions around Section 230 were a recurring theme in the hearing, and for good reason. Gonzalez<\/em> targets \u201calgorithmic\u201d recommendations like the content that autoplays after a given YouTube video, but as Kagan pointed out, pretty much anything you see on the internet involves some kind of algorithm-based sorting. \u201cThis was a pre-algorithm statute, and everyone is trying their best to figure out how this statute applies,\u201d Kagan said. \u201cEvery time anyone looks at anything on the internet, there is an algorithm involved.\u201d<\/p>\n<\/div>\n Introducing liability to these algorithms raises all kinds of hypothetical questions. Should Google be punished for returning search results that link to defamation or terrorist content, even if it\u2019s responding to a direct search query for a false statement or a terrorist video? And conversely, is a hypothetical website in the clear if it writes an algorithm designed deliberately around being \u201cin cahoots with ISIS,\u201d as Justice Sonia Sotomayor put it? While it (somewhat surprisingly) didn\u2019t come up in today\u2019s arguments, at least one ruling has <\/em>found<\/a> that a site\u2019s design can make it actively discriminatory, regardless of whether the result involves information filled out by users.<\/p>\n<\/div>\n Getting the balance wrong here could make basic technical components of the internet \u2014\u00a0like search engines and URL generation \u2014 a legal minefield. There were a few skeptical remarks about fears of a Section 230-less web apocalypse being overblown, but the court repeatedly asked how changing the law\u2019s boundaries would practically affect the internet and the businesses it supports.<\/p>\n<\/div>\n The court sometimes seemed frustrated it had taken up the case at all<\/p>\n<\/div>\n<\/div>\n As legal writer Eric Goldman alludes to in a write-up of the hearing,<\/a> justices sometimes seemed frustrated they\u2019d taken up the Gonzalez<\/em> case at all. There\u2019s another hearing tomorrow for Twitter v. Taamneh<\/em>, which also covers when companies are liable for allowing terrorists to use their platform, and Justice Amy Coney Barrett floated the possibility of using that case to rule that they simply aren\u2019t \u2014 something that could let the court avoid touching Section 230 by making the questions around it moot. Justice Kavanaugh also mulled whether Congress, not the court, should be responsible for making any sweeping Section 230 changes.<\/p>\n<\/div>\n That doesn\u2019t put Google or the rest of the internet in the clear, though. Gonzalez <\/em>almost certainly won\u2019t be the last Section 230 case, and even if this case is dismissed, Google attorney Lisa Blatt faced questions about whether Section 230 is still serving one of its original purposes: encouraging sites to moderate effectively without the fear of being punished for it.<\/p>\n<\/div>\n Blatt raised the specter of a world that\u2019s either \u201cTruman show or horror show\u201d \u2014 in other words, where web services either remove anything remotely legally questionable or refuse to look at what\u2019s on their site at all. But we don\u2019t know how convincing that defense is, especially in nascent areas like artificial intelligence-powered search<\/a>, which was raised repeatedly by Justice Neil Gorsuch as an indicator of platforms\u2019 strange future. The Washington Post <\/em>spoke with<\/a> prominent Section 230 critic Mary Anne Franks, who expressed tentative hope that justices seemed open to changing the rule.<\/p>\n<\/div>\n Still, the arguments today were a relief after the past year\u2019s nightmare legal cycle<\/a>. Even Justice Clarence Thomas, who\u2019s written some spine-tinglingly ominous opinions about \u201cBig Tech\u201d and Section 230, spent most of his time wondering why YouTube should be punished for providing an algorithmic recommendation system that covered terrorist videos alongside ones about cute cats and \u201cpilaf from Uzbekistan.\u201d For now, that might be the best we can expect.<\/p>\n<\/div>\n<\/div>\n