Two cases have reached the Supreme Court that could substantially change tech companies’ liability for information published on their platforms. Gonzalez v Google LLC and Twitter, Inc. v Taamneh share similar histories. In both cases, families of the victims of terrorist attacks are seeking damages against tech companies for their role in providing a platform that terrorists used for communications. Gonzalez takes a look at the controversial §230(c) of the Communications Decency Act, while Twitter reviews the Justice Against Sponsors of Terrorism Act (JASTA).
According to §230(c) of the Communications Decency Act, an internet provider cannot be held liable for the speech of third parties on their platforms . In oral arguments that took place on February 21, Gonzalez argued §230(c) does not provide immunity for internet providers that utilize algorithms and recommend lists, and that recommending a certain video via an algorithm should be considered speech .
Over 75 Amicus briefs have been filed. Most noteworthy of these is a brief filed in favor of Google by Senator Ron Wyden (D-OR) and former Representative Christopher Cox (R-CA), who coauthored the law. In their brief they state that when §230(c) was written in 1996, Congress wrote the law with the intent that it would be neutral to technology changes, such as algorithms .
In the Twitter case, the family of a victim of the 2017 Reina Nightclub in Istanbul argue that Twitter, in failing to take down and ban ISIS related accounts, aided and abetted an act of international terrorism . JASTA provides a framework for victims to claim damages against anyone who “knowingly providing substantial assistance” to acts of international terrorism . The court’s conservative justices seemed to struggle with finding a definition of substantial assistance .
What’s Next? Undoubtedly, an overturn of §230(c) would have a tremendous fallout. However, in a world where information is controlled by algorithms, we must ask ourselves how we can responsibly regulate this technology. The answer should lie beyond the pending decision in Gonzalez. Congress instead should take initiative to change the almost thirty-year-old law. Congress could not possibly have fully comprehended the tremendous power of the technology that we have today; perhaps it is time for a new law that caters to the needs of the public in this digital age.