In February, the Supreme Court will hear two cases that could alter how the Internet is regulated. IChotiner speaks with a legal expert about the potential ramifications of the Court’s upcoming decisions.
In February, the Supreme Court will hear two cases—Twitter v. Taamneh and Gonzalez v. Google—that could alter how the Internet is regulated, with potentially vast consequences. Both cases concern Section 230 of the 1996 Communications Decency Act, which grants legal immunity to Internet platforms for content posted by users. The plaintiffs in each case argue that platforms have violated federal antiterrorism statutes by allowing content to remain online.
Until now, Internet platforms could allow users to share speech pretty freely, for better or for worse, and they had immunity from liability for a lot of things that their users said. This is the law colloquially known as Section 230, which is probably the most misunderstood, misreported, and hated law on the Internet. It provides immunity from some kinds of claims for platform liability based on user speech.
So the plaintiffs’ arguments come down to this idea that Internet platforms or social-media companies are not just passively letting people post things. They are packaging them and using algorithms and putting them forward in specific ways. And so they can’t just wash their hands and say they have no responsibility here. Is that accurate?
The consequences seem potentially harmful, but, as a theoretical idea, it doesn’t seem crazy to me that these companies should be responsible for what is on their platforms. Do you feel that way, or do you feel that actually it’s too simplistic to say these companies are responsible? Europe recently had the legal situation these plaintiffs are asking for. Europe had one big piece of legislation that governed platform liability, which was enacted in 2000. It’s called the E-Commerce Directive. And it had this very blunt idea that if platforms “know” about illegal content, then they have to take it down in order to preserve immunity.
I think it is a really important interim measure. Lawmakers can’t possibly make smart laws unless they understand what’s going on. I mean, of course, the European civil servants who drafted the D.S.A. have been looking closely at these questions since 2011. They’ve been looking closely at the real-world mechanics of content moderation and what platforms do when they face liability for user content, and they drafted something very careful, accordingly.
We’re much better off with a law that tries to take into account the rights and interests of Internet users who are going to be affected by it. If you think about what I described, there are these provisions that are intended to protect users who will never be in court to defend their interests. If somebody is injured by online content, be it a copyright owner or the plaintiffs in this case, they go to court and they sue a platform.
You said you were sympathetic with the goals, but it seems that the goals might have been just to stop companies from restricting far-right content. The Texas law is also motivated by a concern about conservative voices being silenced, but it comes at it a little bit differently. It says that platforms can engage in content moderation under their own discretionary terms, but they have to do so in a way that is viewpoint-neutral. And there’s a lot of disagreement and uncertainty about what it means to be viewpoint-neutral.
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