The Supreme Court of the United States on Tuesday examined a case that could transform the internet, but gave no indication that it had decided to reform the law that allows technology companies such as Google or Facebook not to have to legally answer for the content they disseminate.
“We are in a delicate situation, because it is about a law that was written in another era, when the internet was completely different,” summed up Judge Elena Kagan.
The Supreme Court is studying the scope of a law that, since 1996, grants some immunity to large digital platforms. The case is linked to the November 2015 attacks in Paris and stems from a complaint against Google filed by relatives of Nohemi González, one of the 130 victims of these attacks. This American, who was studying in France, died in the Belle Equipe cafeteria at the hands of a commando from the Islamic State (IS) group.
His parents accuse YouTube, a subsidiary of the Californian giant, of having recommended videos of the jihadist group to some of its users. According to them, “by recommending IS videos to its users, Google has helped IS spread its message and thus provided it with material support.” Federal courts dismissed the complaint on behalf of a legal provision known as “section 230,” adopted when the Internet was in its infancy and which has become one of its pillars.
This section decrees that Internet companies enjoy legal immunity for the content they publish because they are not a “publisher.”
“A needle in a haystack”
Nohemi González’s relatives believe, on the contrary, that Google did not limit itself to distributing IS content, but that its service selected users to offer them the jihadist group’s videos, so it cannot claim that immunity. “The problem is that when you click on a video, YouTube will automatically keep sending you other videos that you haven’t requested,” said Eric Schnapper, on behalf of the González family.
But according to Lisa Blatt, a representative of Google, the term “recommendation” is excessive. “There are 3.5 billion daily queries on the search engine. (The answers) are different for each person and could all be considered as recommendations”, he stated, before assuring that “the internet would never have taken off if everyone could sue all the time.”
In the past, several Supreme Court justices have expressed their desire to change the reading of Article 230, which politicians are increasingly questioning, although divisions between Democrats and Republicans make it difficult to change it. And by accepting this appeal, when it usually dismisses the vast majority of cases brought before it, the high court has hinted that it may be willing to change the case law.
A perspective that scares the big technology groups.
“in a broad sense”
However, in addition to casting doubts about the validity of section 230, judges have expressed their frustration at the complexity of the issue, while artificial intelligence continues to advance at full speed, with the recent appearance of interfaces such as ChatGPT. “In a post-algorithmic world, AI can generate content, even by following neutral rules. It can generate poetry, it can generate controversy”, judge Neil Gorsuch launched.
And the high court judges “are not the nine greatest internet experts,” Elena Kagan noted, making the audience laugh. “If we side with them, suddenly Google will no longer be protected. And maybe that’s what Congress wants, but isn’t that something for Congress to decide and not the court?” she asked.
Changing the jurisprudence could “bring down the digital economy, with all sorts of consequences for workers and pension funds etc,” Judge John Roberts noted. On Wednesday, the temple of American law will examine a similar case, but it raises a different legal question: If there were no Article 230, could platforms be convicted under anti-terrorism laws, even if they did not directly support an attack?
Google said it was “proud” that its case was brought to court with the stakes in mind. “Eroding these protections would fundamentally change how the internet works, making it less open, less secure and less useful,” said Halimah DeLaine Prado, Google’s chief legal counsel.
The court will issue a sentence for both cases before June 30.