The Supreme Court Recognizes the Internet

At this week's oral arguments on two crucial issues, the justices performed well.


The Supreme Court is reviewing its stance on the brief yet important "26 words that launched the internet" for the first time.


Online platforms are shielded from liability under the 1996 Communications Decency Act's Section 230 for any content published by a third party on their website. This protection encouraged creativity and involvement, which contributed to the early success of the web. Recent criticism of Section 230 has increased due to claims made by opponents from both political parties that it provides prominent internet firms with too much protection and not enough accountability.

But until last week, when justices heard oral arguments for two cases addressing 230, the Supreme Court's viewpoint on the matter remained a mystery. The question of whether Google is responsible for YouTube recommendation algorithms exposing people Islamic State videos came up in court on Tuesday. Similar allegations were made in the lawsuit on Wednesday, but it focused on Twitter's purported liability for ISIS members using its platform to recruit and raise money. Whatever the justices rule will be a significant event in the history of the internet: Reinterpreting 230 would compel digital businesses of all sizes to change in order to avoid liability, and affirming it would increase pressure on Congress or regulatory agencies to develop their own proposals for upgrading the legal guardrails of the internet.

Though the Court's decisions won't be be released for at least a few months, the direction and tone of the questioning indicate that the justices tilt more towards the former. Professor of digital and information law at Cornell Law School James Grimmelmann told me, "There doesn't seem to be any willingness on the Supreme Court's side to purposely open the floodgates for cases against computer giants. He stated: "We haven't known anything for years. This is important in part because the Court hasn't talked anything about platforms before. We've finally learned something about what they're thinking. They appear to favour letting the internet alone, if that makes sense.

The Court briefly examined whether purposefully discriminatory algorithms may lose their Section 230 protection; the example they explored was a dating app algorithm that forbade interracial pairings. They appeared to be considering the significance of intentionality, such as whether it would make a difference if YouTube had created an algorithm that preferred ISIS or other extremists over more positive content or if any algorithm would still be covered by 230. Yet these challenges were not resolved; the judges made hints that they would prefer for Congress to fine-tune Section 230 if that were necessary and occasionally made fun of their own understanding of the problems. Justice Elena Kagan jokingly said on Tuesday, "We actually don't know much about these things. You know, these aren't really the top nine things.

Yet, they usually gave off the impression of having good online comprehension. Eric Schnapper, a lawyer for the family of ISIS victim Nohemi Gonzalez, spoke extensively on YouTube's decision to propose videos using thumbnail images during the oral arguments against Google, claiming that this amounts to the site creating new material. Is there any method of organisation other utilising thumbnails? Apparently in a rhetorical manner, Justice Samuel Alito questioned. (He then made a joke about how he thought the website may have "ISIS video one, ISIS video two, and so on.") If YouTube's recommendation system behaves differently for films on, instance, rice pilaf than it does for videos from ISIS, Judge Clarence Thomas questioned Schnapper. Justice Kagan said, "I don't think so," after Schnapper indicated he didn't think so.I believe the underlying implication of Justice Thomas's query was that algorithms were inherent to the internet and were used every time someone looked at something online. She questioned if the Court would go "down the road such that 230 actually can't mean anything at all" as a result of this algorithm-focused strategy.

The justification Schnapper offered didn't seem to satisfy any of the justices. In summary, Judge Brett Kavanaugh noted that the word "interactive computer service" has come to refer to a service "that filters, screens, picks, chooses, and organises material" as defined by Section 230. The essential quality that makes a website an interactive computer service also implies that it loses that protection if algorithms are not exempt from Section 230 immunity. Therefore, we seldom give a law an interpretation that renders it functionally worthless from a textual and structural perspective.

The Justice Against Sponsors of Terrorism Act lawsuit against Twitter was the main topic of discussion on the second day of arguments, with little attention paid to Section 230. This led to a protracted debate over what could or might not be considered "aiding and abetting." Would a platform be held accountable, for instance, if it didn't uphold rules barring terrorists from using its services? According to Edwin Kneedler, speaking on behalf of the Department of Justice, the law "requires more than allegations that a terrorist organisation availed itself of interactive computer services that were remote from the act of terrorism; were widely and routinely available to hundreds of millions, if not billions of persons," taking Twitter's side in the case.

The Court then went through a number of scenarios, including the sale of pagers, the purchase of firearms, the possibility that Osama bin Laden would use personalised banking services, and the fictitious instance in which J. Edgar Hoover would have informed Bell Telephone that Dutch Schultz was a gangster and was using his phone to engage in criminal activity. Chief Justice John Roberts remarked, "The discussion this morning has actually taken on a very scholarly tone.

In actuality, both mornings had a lot of abstraction. The Court must address the more pressing issues before anyone can debate whether 1,348 ISIS clips with a total of 163,391 views on YouTube, or an average of 121 views per video, indicate algorithmic amplification of terrorist propaganda, as claimed in the case documents. I argued a few weeks ago that, particularly if it decides that all algorithms are not covered by Section 230 protection, the Supreme Court's ruling in these two cases would change the internet as we know it. In addition to rendering search engines ineffective, this would result in a flood of legal lawsuits against any companies using automated content organisation.

The Court took these cases because it was evidently interested in seeing if focusing on algorithmic suggestions could be a suitable way to update Section 230. Grimmelmann added, "I can see why that looked tempting. The judges, however, "recognised how difficult it truly is, and why that line's not a very good to draw, when the cases actually went to oral argument."