The Supreme Court Has Spoken on Gonzalez v Google – Now It’s Congress's Turn To Address Section 230
A comfortable fall evening in Paris. A gentle breeze swung the reddening leaves against the backdrop of stars. That was the perfect setting for a night in town. The handwritten menu on the wall offered espressos and fine teas and the lively yellow canopy sheltered the sidewalk. Life was good and the bistro made for the perfect Parisian memory to bring back home after a semester abroad as an exchange student. There she was, relaxing on the terrace with her friends.
Across town, three men in a small rental car dashed through the streets and came to a screeching halt behind another vehicle. One of the occupants jumped outside, shot and killed the driver of the stopped car, and proceeded to discharge his automatic weapon at people at the bar across the street. Back in the car, they drove across the street and attacked a second restaurant. Thirteen people were killed. Hop in the car again and, after a few more blocks, they arrived at the bustling corner with that inviting terrace under the yellow canopy. Another volley of shots hit the revelers, injuring eight and killing five. Among those killed was Nohemi Gonzalez, a 23-year-old industrial design senior student from California State University, finishing her semester abroad at the Strate School of Design in Paris. Before the night was over, 130 were dead, and 416 were injured. The victims came from 19 countries, though Nohemi was the only American.
The day after the carnage, on 14 November 2015, ISIS claimed responsibility for the crimes by issuing a written statement and releasing a video on YouTube.
Ideologies, prejudices against groups, and religious or political beliefs can radicalize individuals to the point that they will give their lives and destroy the lives of many others for a cause. Extremist groups can offer a sense of purpose, community, and identity. Someone struggling in life can become prey to psychological manipulation via exposure to violent material and other inflammatory information.
Given that groups are being recruited and organized on online platforms, does social media play a role and hold any responsibility? These were the questions at the heart of Gonzalez v Google, the lawsuit brought forward by Nohemi’s family against YouTube for, allegedly, aiding and abetting by allowing ISIS to use its platform “to recruit members, plan terrorist attacks, issue terrorist threats, instill fear, and intimidate civilian populations.” The complaint stated that because YouTube (owned by Google’s parent company, Alphabet) uses computer algorithms that recommend content based on a user’s viewing history, it assisted ISIS in spreading its message. The Gonzalez case posited that the platform was liable under the Anti-Terrorism Act for offering targeted content recommendations of terrorist content on its services.
Google defended itself by relying on Section 230 of the Telecommunications Decency Act, passed in 1996, which provides internet platforms a broad liability shield and immunity from civil liabilities for third-party user-generated content. The lower court ruled in favor of Google, the appellate court upheld the decision, and the family went in front of the Supreme Court which had agreed to review the case.
A decision that abolished this immunity would turn the internet companies' business models upside down. Platforms could become legally liable for material posted by users, leading them to heavily moderate or remove such content, and change the nature of what is hosted and how users interact with it. This will be unaffordable for all but the largest firms and have significant implications for free expression by users.
It is Tuesday, February 21, 2023, and the couple’s dark clothes strongly contrast the white marble from the steps of the Supreme Court building in Washington, DC. They have a somber look on their faces, their gazes crossing in the distance. Nohemi’s mother and stepfather are ready to enter the building. Inside, the attorneys for the claimant, the Solicitor General of the United States, and the attorneys for the defendant get ready to plead their case in front of the nine justices.
During almost three hours of discussions the justices on both sides, liberal and conservative, repeatedly acknowledged how consequential a ruling could be. As the Court grappled with the arguments, Justice Elena Kagan finally put it into words: “[E]very other industry has to internalize the costs of its conduct. Why is it that the tech industry gets a pass?” She also acknowledged, “we’re a court, we really don’t know these things…these are not like, the nine greatest experts on the Internet...isn’t that something for the Congress to do, not the Court?”
Technology and the marketplace have changed since the ‘90s when Section 230 was written, and so must our expectations about the role and obligations of online platforms. Social media, artificial intelligence, and ubiquitous mobile devices are part of our lives from the moment we wake up every day. They help us navigate traffic, poll friends for a convenient time together, automate mundane tasks, put an almost infinite amount of knowledge on the tip of our fingers, and make endless entertainment only one tap away. At the same time, the path for the dissemination of false or nefarious information is open and accelerated by algorithmic recommendations. The same technology that helps us plays a role in spreading misinformation. We need to regain control of the tech that surrounds us, at the risk of letting it fall into the hands of bad actors interrupting the virtuous cycle of innovation of the last three decades. With the speed at which tech evolves, we will need to continue to revisit the balance among free speech, liability protection, cost of content moderation, and minimization of harmful content and disinformation.
On Thursday, May 18, 2023, almost eight years after the attack, the Supreme Court issued a three-page, unsigned opinion that said that because the plaintiffs would not be able to establish liability even without Section 230’s protections, the Section 230 issues raised by the case were not ready for a decision. In their words “We therefore decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief,” sending the suit back to the 9th Circuit Court of Appeals for further consideration. Advocates of free speech, including the ACLU, and the large internet platforms celebrated the development as a victory. The way I see it, more discussion is still needed.
We cannot sit at a café oblivious to the risks that surround us. This decision, or lack thereof, by the Court, directs the action back to Congress, where it belongs. The issues previously discussed should be addressed via legislative action creating a new regulatory framework focusing on transparency, fairness, auditability, and due process. Liability protection should be limited, extending the current carve-outs related to federal crimes, sex trafficking, and intellectual property violations. The new construct should include provisions for civil rights violations, targeted harassment, incitement to violence, hate speech, and disinformation. At the same time, it is urgent to accelerate the debate in society to better determine what constitutes acceptable content on major social media platforms.
This is an opportune moment to create a new government body with a dedicated focus on this area that will act as the enforcement arm to protect consumers and competition while keeping up with the progress in the field and protect the conditions that will allow us to continue to enjoy the benefits of innovation.
Nothing will reduce the pain associated with the 130 lives cut short by a group of extremists on that day in Paris. Nohemi is not going to graduate or pursue her dreams as a designer. However, she may still have helped us move tech back onto its rails.
About the Author:
Paulo Carvão is an accomplished Global Technology Executive with a record of leading large businesses at IBM, where he was a senior leadership team member until 2022. Since then, he has acted as a strategic advisor for technology and go-to-market issues and is a Venture Capital Limited Partner and investment committee member. As a Harvard Advanced Leadership Initiative Fellow, Paulo focuses on the intersection of technology and democracy.