Why Google’s Supreme Court case could shake up the internet

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We’ve all wasted countless hours to online recommendation algorithms that suggest we might enjoy watching yet another cat video or just following another influencer. But in just a few months, social media platforms may need to find new ways to keep users engaged, and the internet could be undergoing a major overhaul.

The Supreme Court on Tuesday began hearing arguments in a case called Gonzalez v. Google, which questions whether the tech giants can be held legally responsible for the content promoted by their algorithms. The case targets a cornerstone of today’s internet: Section 230, a statute that protects online platforms from liability for content produced by others. If the Supreme Court weakens the law, platforms may need to overhaul or scrap the recommendation algorithms that govern their feeds. And if the Court strikes down the law entirely, it will leave tech companies more vulnerable to lawsuits based on user content.

“If there are no protections for user-generated content, I don’t think it’s hyperbolic to say this is probably the end of social media,” says Hany Farid, a computer scientist at the University of California, Berkeley. Social platforms, such as Twitter and YouTube, rely heavily on two things: user-created content and recommendation algorithms that promote content that is more likely to grab other users’ attention and keep them on the platform for as long as possible. . The court’s verdict could make one or both strategies more dangerous for tech companies.

Gonzalez v. Google originated in the events of November 2015, when gunmen affiliated with the terrorist organization ISIS killed 130 people in six coordinated attacks across Paris. Nohemi Gonzalez, a 23-year-old student, was the only American to die in the attacks. Her family later sued Google, which owns YouTube, claiming the video platform’s recommendation algorithm promoted content from the terrorist group.

Google argues that using algorithms to sort content is “quintessential publishing,” something necessary for users to browse the Internet, and therefore protected by Section 230. That statute, which was originally part of the Communications Decency Act of 1996 states that, by law, computer service providers cannot be treated as the publishers of information created by someone else. It’s a measure dating back to the early days of the internet that was meant to stop tech companies from intervening heavily in what happens online.

“This law was designed to maximize speech, meaning that by giving companies a fairly broad immunity from liability, you allow companies to create platforms where people can speak up without proactive monitoring,” says Gautam Hans, a clinical associate professor of law at Cornell Law School.

Gonzalez argues that recommendation algorithms go beyond simply deciding what content to display, as “neutral tools” like search engines do, and instead actively promote content. But some experts disagree. “That distinction makes absolutely no sense,” says Brandie Nonnecke, a technology policy specialist and director of the CITRIS Policy Lab, based at UC Berkeley. She contributed to a case brief which argues that both types of algorithms use pre-existing information to determine what content to show. “Differentiating content viewing and content recommendation is not a starting point,” Nonnecke says.

In deciding Gonzalez v. Google, the Supreme Court can go one of three paths. If the Court sides with Google and declares Section 230 fine as it is, everything stays the same. At most, the Court could throw all of Section 230 out the window, leaving the tech giants open to lawsuits not only for the content their algorithms recommend, but also for anything users say on their sites.

Or the Court may take a middle ground, tailoring the statute in a specific way that might require tech companies to face some additional liability in specific circumstances. This scenario could be a bit like a controversial 2018 amendment to Section 230, which made platforms liable for third-party content related to sex trafficking. Given the constraints of Gonzalez v. Google, Section 230 amendment could lead to changes such as excluding content related to terrorism or requiring companies to curb algorithms that push increasingly extreme content and prioritize advertising revenue over the interests of users or society, Farid He says.

Hans doesn’t expect the Supreme Court to issue its decision until the end of June. But he warns that if Section 230 falls, big changes across the internet will quickly follow, with ripples reaching far beyond YouTube and Google. Technology platforms, already dominated by a handful of powerful companies, could consolidate even more. And the companies that remain could crack down on what users are allowed to post, making the case have implications for people’s free speech. “This is the downstream effect that I think we should all be concerned about,” says Hans.

Even as the Supreme Court takes Google’s side, experts say the momentum is growing for the government to curb big tech, either by amending Section 230 or introducing other measures. Hans says he hopes Congress will take the lead, though he notes that lawmakers have yet to pass any new legislation to that effect. Nonnecke suggests that an alternative approach might focus on giving users more control over recommendation algorithms, or a way to opt out of sharing personal information with algorithms.

But not even the Supreme Court seems willing to move away from the issue. A second case discussed this week, called Twitter v. Taamneh, also examines the accountability of technology platforms for pro-terrorism content. And as early as the fall, experts expect the Supreme Court to hear cases exploring two conflicting state laws on content moderation by social media platforms.

“Whatever happens in this case, the regulation of tech companies will continue to be an issue for the Court,” says Hans. “We’ll be dealing with the Supreme Court and technology regulation for a while longer.”

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