Section 230 and the SCOTUS - Gonzalez v. Google LLC & Twitter v. Taamneh

So, I figured I should be the one to make this thread since it hasn’t been made yet.

Issue: Whether Section 230(c)(1) of the Communications Decency Act immunizes interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limits the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information.

Issues: (1) Whether a defendant that provides generic, widely available services to all its numerous users and “regularly” works to detect and prevent terrorists from using those services “knowingly” provided substantial assistance under 18 U.S.C. § 2333 merely because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use; and (2) whether a defendant whose generic, widely available services were not used in connection with the specific “act of international terrorism” that injured the plaintiff may be liable for aiding and abetting under Section 2333.

These cases seem to collectively call the Civil Liability protections enshrined in Section 230 of the Communications Decency Act into question.

To put it into layman’s terms, this sole statute is essentially what allowed the Internet as we know it to flourish, with technological innovation and freedom of expression becoming unquestionable and intangible from the online experience. In spite of the fact that these liability protections given to web platforms regarding user-generated/third-party content are not unlimited, with exceptions made for specific crimes and criminal elements involving deliberate aiding and abetting, it has attracted controversy from both sides of the political spectrum, with conservatives and right-wing ideologues expressing contempt for these protections on the grounds that they actually assure some level of unfettered freedom that they cannot control, both on a civil and criminal level, and moderate Democrats supporting narrowing these protections on the basis that they may impinge certain interests, such as crime.

I think it goes without saying that, in my view (as well as that of every freedom-conscious pundit and platform), Section 230 is as relevant and necessary now as when it was conceived more than 20 years ago.
Yes, the Internet back then wasn’t anything like the one we have today, but the primary arguments grounding these protections still apply. It is simply not feasible for every platform to control or presume any and all ways their services may be misused by bad-faith and criminal actors without severely restricting the scope in which their services may operate or function.

Dispensing with outright, or narrowing the scope of these protections, would place a target on the backs of these platforms for foreign and bad-faith actors to step in and enable the US Court system to function as a vector of attack by nefarious actors, including those of a foreign nature, to intimidate or cause irreparable harm to these platforms and services.

With regard to these specific cases, it seems to be premised on terrorist-related content and activity, specifically with regard to allegations that Google and Twitter “knowing aided and abetted” terrorist actors by enabling their use of the platforms to function, thereby acting as a vector for civil liability in the injury suffered by the respective parties.

In Gonzalez, the injury seems to be based on whether Google’s algorithmic recommendations system boosting content uploaded by ISIS insurgents had implications affecting the ‘publisher’ vs. ‘platform’ criteria outlined in Section 230.
With regard to this matter in particular, my assertion is that it does, since the process by which this content is automated and difficult to control with 100% specificity. Nefarious parties are notorious for figuring out ways to bypass filtering systems and technologies which would prevent this type of function (i.e. using alternate tags or keywords, using link shorteners/proxy services). To dispense with or narrow these protections would inadverdently compel companies to censor/regulate these types of matters in such a way that will require them to curate them, which will inevitably lead to broader censorship, especially with regard to matters of genuine interest, like terrorist-related activities. People have a right to know this information, even when it’s re-uploaded by third parties for the purpose of discussion, critique, etc.

In Twitter, the questions seem to be centered specifically around what constitutes ‘knowingly aiding and abetting’ such nefarious acts. My contention is that such questions are best answered on a case-by-case basis, otherwise broad immunity should be retained with respect to some level of intentional or deliberate acts to recognize and prevent such misuse, as these matters may be too complex to predict, critique, or otherwise quantify outside of cooperation with law enforcement with respect to criminal matters.
The Internet is constantly evolving, as are the ways in which it is engaged with, so it would be unfeasible to articulate each and every single vector in which a service or platform could rule out or address misuse, outside of the bare minimum good-faith efforts to remove/filter/suppress it.

The optimist in me argues that the Supreme Court is likely to affirm Section 230 and not harm, or limit, the scope of its protections, considering that the arguments supporting this position are very much sound and have not changed.

But the pessimist in me is afraid that all of this will either become lost on the conservative ‘corrupt court’, whose understanding of the Internet and why all of this matters is skewed by their political leanings and biases. Justice Clarence Thomas has already voiced support for limiting the Section 230 protections, regurgitating the same arguments and reasoning employed by most other conservatives, as well as remarking on the anomalous nature of it all, in addition to playing into the same arbitrary, fly-by-night and garden-variety complaints regarding social media ‘censorship’ (an argument Alito has also expressed sympathy for).

The pessimist in me is also afraid that the SCOTUS will take a completely different approach to the matter, basically claiming that anything that infringes upon an individual’s ability to make civil suits against a company would run afoul of basic principles, completely without regard to the technical and intricate aspects of the matter at hand, because, conservatives have demonstrated that they are more idealistic in their jurisprudential reasonings, rather than practical, hence why the obscenity doctrine still exists and why Roe was overruled, and why Obergefell was met with such resounding dissent when it was passed.

I really don’t know what to expect.

Pinging @terminus for insight and visibility, since policy of this type happens to be your forte’.

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I haven’t watched the Sec. 230 case, but judging by the sentiments expressed by those who have watched/listened to the arguments, or are aware of the questions, the SCOTUS may feel compelled to leave things as they are.

I’m not about to make any assumptions, though. We still have the Twitter one, which is scheduled for tomorrow (Wednesday). I’m hoping Twitter’s lawyers are as good at this.

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