Supreme Court poised for look at Big Tech

YouTube defending against lawsuit claims from 2015 Paris attack victim’s family

WASHINGTON — The tech industry is facing criticism from the left for not doing enough to remove harmful content from the internet and from the right for censoring conservative speech. Now, the high court is poised to take its first hard look at online legal protections.

The family of Nohemi Gonzalez, killed in a shooting by Islamic State gunmen in Paris in 2015, have filed a lawsuit claiming YouTube’s recommendations helped the Islamic State group’s recruitment, which is at the center of a closely watched Supreme Court case being argued Tuesday about how broadly a law written in 1996 shields tech companies from liability. The law, known as Section 230 of the Communications Decency Act, is credited with helping create today’s internet.

A related case, set for arguments Wednesday, involves a terrorist attack at a nightclub in Istanbul in 2017 that killed 39 people and prompted a suit against Twitter, Facebook and Google, which owns YouTube.

A win for Gonzalez’s family could wreak havoc on the internet, say Google and its many allies. Yelp, Reddit, Microsoft, Craigslist, Twitter and Facebook are among the companies warning that searches for jobs, restaurants and merchandise could be restricted if those social media platforms had to worry about being sued over the recommendations they provide and their users want.

“Section 230 underpins a lot of aspects of the open internet,” said Neal Mohan, who was just named senior vice president and head of YouTube.

Gonzalez’s family, partially backed by the Biden administration, argues that lower courts’ industry-friendly interpretation of the law has made it too difficult to hold Big Tech companies accountable. Freed from the prospect of being sued, companies have no incentive to act responsibly, critics say.

The legal arguments have nothing to do with what happened in Paris. Instead, they turn on the reading of a law that was enacted “at the dawn of the dot-com era,” as Justice Clarence Thomas, a critic of broad legal immunity, wrote in 2020.

When the law was passed, 5 million people used AOL, then a leading online service provider, Tom Wheeler, the former chairman of the Federal Communications Commission, recalled at a recent conference at Harvard’s Kennedy School of Government. Facebook has 3 billion users today, Wheeler said.

The law was drafted in response to a state court decision that held an internet company could be liable for a post by one of its users in an online forum. The law’s basic purpose was “to protect Internet platforms’ ability to publish and present user-generated content in real time, and to encourage them to screen and remove illegal or offensive content,” its authors, Sen. Ron Wyden, D-Ore., and former Rep. Christopher Cox, R-Calif., wrote in a Supreme Court filing.

Groups supporting the Gonzalez family say companies have not done nearly enough to control content in the areas of child sexual abuse, revenge porn and terrorism, especially in curbing computer algorithms’ recommendation of that content to users. They also say that courts have read the law too broadly.

Recommendations have emerged as the focus of the Supreme Court case. Google and its supporters argue that even a narrow ruling for the family would have far-reaching effects.

“Recommendation algorithms are what make it possible to find the needles in humanity’s largest haystack,” Kent Walker and Google’s other lawyers wrote in their main brief to the Supreme Court.

“If we undo Section 230, that would break a lot of the internet tools,” Walker said in an interview.

The justices’ own views on the issue are largely unknown, except for Thomas’.

He suggested in 2020 that limiting the companies’ immunity would not devastate them.

“Paring back the sweeping immunity courts have read into Section 230 would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail,” Thomas wrote.

If the justices would avoid the hard questions posed by the case, they could focus on Wednesday’s arguments involving the attack in Istanbul. The only issue is whether the suit can go forward under the Anti-Terrorism Act.