Washington –
Several Supreme Court justices said on Tuesday they were concerned about allowing lawsuits against YouTube and other social media companies over the algorithms they use to direct users to relevant content — even if it encourages terrorists or promotes illegal behavior.
The justices agreed for the first time to hear an appeal to Section 230, the federal law that protects websites from suing over content posted by others. This set off alarms at big tech companies.
But during Tuesday’s arguments, Justices Elena Kagan and Brett Kavanaugh said Congress, not the court, should decide whether to change the law.
“You know those aren’t, like, the top nine experts on the internet,” Kagan said with a laugh, referring to the nine judges.
She said it was very difficult to draw a line between normal algorithms that tell users they might be interested in similar videos and those that encourage specific individuals to view suspicious or harmful content.
Isn’t drawing that line “a thing for Congress, not a court?” she asked.
Kavanaugh said he also believes this may be a time for judicial restraint. Dozens of technology companies and business groups have warned that changing Section 230 “would lead to the collapse of the digital economy, with all kinds of impacts on workers and consumers, retirement plans and what-have-you, and those are serious concerns,” he said.
He said Congress was in a better position to revise its law if necessary, especially when courts have upheld Section 230 as a broad legal shield since 1996.
“Are we really the right body to fall back on this comprehension?” he asked, indicating forcefully that he thought the answer was no.
Chief Justice John G. Roberts, Jr. was also wary of opening the door to lawsuits. While the case before the court is related to terrorism, he said it could lead to a wave of lawsuits based on personal or business complaints.
Other justices admitted that they were confused and unsure of the arguments before them.
It didn’t seem as though the majority were ready to judge the California parents who are suing Google and YouTube over the death of their daughter in the 2015 terrorist attack in Paris.
The case, Gonzalez v. Google, asked whether YouTube could be held liable for using computer software that “recommended” Islamic State videos to potential recruits.
A federal judge and the Ninth Circuit Court of Appeals rejected that claim on the grounds that Section 230 protects websites from being litigated for content posted by others.
An attorney for Nohemi Gonzalez’s family argued Tuesday that Google, which owns YouTube, should be subject to a lawsuit over its actions. It was “encouraging people to watch ISIS videos,” said Eric Schnaber, a University of Washington law professor.
He explained that he was referring to a YouTube feature that displays a list of videos similar or related to those on the screen.
Deputy Attorney General Malcolm Stewart, representing the Justice Department and the Biden administration, sided with the plaintiffs, but stressed that the social media site could not be sued over ISIS videos appearing on its platforms.
Instead, they should be responsible for “targeted recommendations” that encourage potential recruits to watch similar ISIS videos.
Both faced mostly skeptical questions, including from Judge Clarence Thomas.
In the past, Thomas has argued that websites should not be protected from liability if they knowingly posted illegal or defamatory behavior and refused to remove it. But this issue was not raised in Tuesday’s case.
He said on Tuesday he was not convinced by the plaintiff’s argument that YouTube recommends videos to users. Other cooking related videos are shown to anyone who is interested in cooking. “I see them as suggestions, not recommendations,” he said.
The outcome may become clearer on Wednesday, when justices hear a related case of a 2016 law that allows victims of international terrorism to prosecute those who knowingly aided or abetted terrorists. This, in turn, has led to several lawsuits against YouTube, Facebook and Twitter as a result of ISIS-sponsored terrorist incidents.
Prosecutors in this case say that social media helped the terrorist who carried out the attack in Istanbul.
Twitter’s lawyers said the lawsuit should be dismissed because there is no evidence that the Twitter posts had any influence on the terrorist who committed the crime.