This week, the U.S. Supreme Court is looking at whether to narrow Section 230, a foundational internet shield law that passed in 1996. But even some of the justices are grappling with that role.
“I mean, we’re a court, we don’t really know about these things. These are not, like, the nine greatest experts on the internet,” Justice Elena Kagan said Tuesday, eliciting laughter in the courtroom.
But technology experts have said what the Supreme Court decides could dramatically disrupt the internet.
“Section 230 has been a cornerstone rule for the internet,” said Matthew Schruers, president of Computers & Communications Industry Association.
“If Section 230 were to disappear overnight, I think there are very real questions about whether a company, even the size of Google or Facebook, would be viable, without really radical changes to how their user interface works,” said Michael Karanicolas, executive director of UCLA’s Institute for Technology Law and Policy.
Karanicolas called Section 230, “The most important law in tech, the law that created the modern internet.” He told Straight Arrow News he was very concerned when he saw that this issue was coming before the Supreme Court and would prefer any reform be dealt with as a legislative matter, which he said will open it up to more public debate.
The two cases this week against Google and Twitter are brought by families of victims killed in separate terror attacks. The plaintiffs have challenged the tech companies’ legal immunity under Section 230, the law that says companies are not liable for what other post on their sites, while also allowing platforms to moderate content without fear of liability.
“So much of the digital economy turns on the ability of services to moderate their ecosystems without the risk of legal peril for whichever needle they miss in the haystack,” Schruers said.
But the families in these cases argue the platforms should be held liable for allowing terrorist content that may have helped radicalize the attackers. In Google’s case, the plaintiffs’ lawyers argued YouTube is acting as a publisher by recommending more terrorist-related videos, claiming a publisher would be legally liable.
If the Supreme Court agrees to narrow or gut Section 230, Schruers said there are two ways internet companies could respond to legal liability.
“You’ll have two different experiences, either the kindergarten, Sesame Street experience, or the chaotic Bourbon Street experience,” Schruers said. “Either over-moderated or under-moderated. And neither experience is what internet users or advertisers want.”
“Meaningful, individualized review is simply not possible at that kind of scale, even for a company with the resources of Google or Facebook,” Karanicolas said.
Which is why tech lawyers in front of the Supreme Court argued it is more likely the internet would go the other direction and avoid moderation to avoid claims of being a publisher.
“The worst case scenario would be a legal ruling that disincentivizes companies — or encourages companies — not to police content online, and that in turn leaves users at greater risk of dangerous content,” Schruers said.
With the future of the internet hanging in the balance, several justices suggested this quandary might be a better case for Congress.
For more in-depth coverage of Section 230 and the details of these two cases, click here.