WASHINGTON — An upcoming Supreme Court showdown between Big Tech and its critics has drawn opposition from President Joe Biden and some of his most prominent Republican allies in Congress.
The Biden administration is roughly on the same page as prominent Republicans, such as Sens. Ted Cruz of Texas and Josh Hawley of Missouri, in favor of limits on Internet company immunity under a provision of the Communications Decency Act of 1996, called Section 230. I am debating.
The 26 words of the legislative text, which have been attributed to aiding the rise of social media, have largely shielded companies from defamation claims and many other lawsuits over content posted by users.
Both senators have been major thorns in Biden’s side even before he took office, drawing attention to the populist wing of the Republican Party. Both objected to the certification of 2020 election results as part of former President Donald Trump’s ill-fated campaign to stay in power, which culminated in the Jan. 6 riot at the Capitol.
But a loose alliance court hearing Tuesday in a case involving YouTube shows the broad immunity companies receive from protests for their content moderation decisions and how content posted by users cuts across ideological lines. . YouTube owner Google also has unusual bedfellows backing him, with the left-leaning American Civil Liberties Union, the liberal Cato Institute and the corporate giant US Chamber of Commerce all taking his side.
The case attests to a central feature of the modern Internet: targeted recommendation. Apps like YouTube want to keep users on their sites, so they try to show them relevant content that will entice them to click. But opponents argue that the company should be liable for that content. If consumers can sue apps over the consequences of those decisions, tech companies may have to upend the way they design their products — or at least be careful about what content they promote.
Sameer Jain, vice president of policy at the Center for Democracy and Technology, a tech-aligned group that supports Google, said that although Biden, Cruz and Hawley have criticized Section 230, they are separate in their efforts to change it. Are. Democrats want companies to take a firmer hand in moderating content, while Republicans, assuming a conservative bias, want fewer constraints overall.
Jain said, “There is common cause in the sense of believing that Section 230 is too broad, but common cause is not what they are trying to achieve at the end of the day.”
The case before the Supreme Court on Tuesday focuses on claims that YouTube’s actions by recommending certain videos contributed to the death of an American woman in the 2015 Islamic State terrorist attacks in Paris. Family members of Nohemy Gonzalez, one of 130 people killed in a series of attacks in Paris by the militant Muslim group commonly known as ISIS, want to sue the company under an anti-terrorism law . YouTube says that it should not be held responsible for these deaths.
The court is hearing a related case on Wednesday in which relatives of Jordanian Nawrs Alsaf, who was killed in an Islamist attack in Istanbul in 2017, accused Twitter, Google and Facebook of aiding and abetting the spread of extremist Islamic ideology. imposed, which the companies deny. , The judge will not address Section 230 in that case.
In the Google case, Principal Deputy Solicitor General Brian Fletcher, representing the Biden administration, took a similar position in his brief to what Cruz and other Republicans took in their briefs. Hawley filed a separate brief opposing Google. Cruz and Hawley are both attorneys who were once clerks in the High Court.
In all three briefs, Unlikely Allies argues that Section 230 does not confer immunity on claims related to recommendation algorithms, the key question in this case, although the substance of the legal arguments is different.
The lawsuit targets YouTube’s use of its algorithms to suggest videos based on content users have previously viewed. The family’s lawyers allege that YouTube’s proactive role goes beyond the conduct of Congress intended to protect the 27-year-old law. Prosecutors do not allege that YouTube had any direct role in the murder.
The stakes are high because recommendations are now an industry norm. Apps like Instagram, TikTok, Facebook, and Twitter long ago started relying on recommendation engines, or algorithms, to decide what people watch most of the time, rather than focusing on chronological feeds or content that People have seen.
Biden took a shot at tech companies in his State of the Union address earlier this month, though he did not mention Section 230. He was more specific in a Wall Street Journal op-ed last month, in which he said the companies needed reform. “To take responsibility for the content they spread and the algorithms they use.” A White House spokesman declined to comment on the administration’s position on the matter.
Cruz said in an interview that while there may be some common ground on legislation to overhaul Section 230, the Biden administration is fine with “censoring” ideas from most companies with which they disagree.
“Big Tech openly engages in anti-competitive activity. They enjoy a monopoly advantage. And they use that power, among other things, to censor and silence the American people and I believe that we must use every tool at our disposal to stop it,” he said.
Hawley said that Section 230 is “almost entirely a creation of the courts” and that Congress did not intend it to confer absolute immunity.
“I think this is an opportunity for the Supreme Court to sort out some of the tangles that the courts themselves have woven into the law here,” he said in an interview.
Mukund Rathi, an attorney with the Electronic Frontier Foundation, said it was disappointing but not surprising from his perspective that Biden joined Republicans in weighing in against Google.
He warned of wider consequences if Google lost, a brief point the company made, noting that volunteer moderators on Reddit, for example, could be held accountable for their actions.
“The rhetoric is that these are bad powerful tech companies who are hurting common people and doing a lot of damage and injustice,” Rathi said. In fact, if Section 230 is diluted, “you’re going to end up hurting those ordinary people.”
But even some in the tech industry have come around to the idea of taking back Section 230. Roger McNamee, a venture capitalist who was an early investor in Facebook, said in an interview that companies should not receive immunity for their decisions to expand. fixed content.
“This is the first opportunity that the Supreme Court has had to stand up for the American people in the face of a tech industry that undermines public health, democracy and public safety,” he said.
