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Justices Unlikely To Gut Tech Firms' Legal Protections, Defer To Congress

The Supreme Court appears unlikely to gut tech companies’ legal protections that cover how they recommend and curate content for users. Despite widespread fear in the tech community about such a blow, a majority of the justices during oral arguments Tuesday seemed reluctant to upend decades of legal precedent that has effectively immunized search engines and social media companies from liability for their decisions about policing content, including practices that amplify or hide particular posts, reports Politico. The case before the high court seeks to hold Google’s YouTube liable for the death of Nohemi Gonzalez, a California college student killed in a 2015 terrorist attack in Paris blamed on ISIS. Her family claims Section 230 of the Communications Decency Act doesn’t protect YouTube’s use of algorithms to recommend ISIS recruitment content to users. Both liberal and conservative justices suggested Congress not the courts, should amend Section 230. Justice Elena Kagan said it would be best for lawmakers to take a scalpel to the law The court’s reinterpretation of the statute could upend years of legal precedents and lead to a deluge of lawsuits. “We’re a court. We really don’t know about these things. These are not like the nine greatest experts on the internet,” Kagan said.


Justice Clarence Thomas — who for years had urged the court to take up a Section 230 case — seemed unconvinced that algorithms aren’t covered by the liability shield. “I see these as suggestions and not really recommendations, because they don’t really comment on them,” Thomas said of YouTube’s use of algorithms to promote videos. Thomas said he didn’t see the ties between YouTube’s use of algorithms to recommend ISIS videos as a “aiding and abetting” terrorism under the Anti-Terrorism Act when YouTube relies on a neutral algorithm to recommend content. Kagan said she didn’t have to accept the tech industry’s “sky is falling” arguments to agree that “there is uncertainty about going the way [the plaintiff] would have us go, in part just because of the difficulty of drawing lines in this area.” Justice Brett Kavanaugh cited concerns raised by tech companies in amicus briefs that a completely different interpretation could “really crash the digital economy.” “Those are serious concerns and concerns that Congress — if it were to take a look at this and try to fashion something along the lines of what [the plaintiff] is saying could account for — we are not equipped to account for that,” he said. Justice Ketanji Brown Jackson argued that tech companies’ protection from liability should be limited to the actual hosting and transmission of user-created content, with all decisions about how to organize, rank and display that content subject to potential litigation under ordinary legal standards.

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