The US Supreme Court on Tuesday heard arguments in a landmark case that could transform the internet by scrapping decades-old legal protections for tech companies.
During hearings, the judges expressed uncertainty about whether to limit a legal protection that shields internet companies from a variety of court cases, and at times appeared confused about some of the underlying issues.
“We’re a court, we really don’t know about these things. You know, these aren’t the nine greatest experts on the internet,” Judge Elena Kagan said of herself and her peers, drawing laughter from the stands and smiles from others on the bench.
The case follows the death of American college student Nohemi Gonzalez in a 2015 terrorist attack in Paris, after her family sued Google-owned YouTube for allegedly allowing videos helping ISIS spread its message and recruits to recruit.
Google claims that a 1996 law, Section 230 of the Communications Decency Act, gives it, Twitter, Facebook and other online businesses broad immunity from lawsuits over user-posted content.
Terrorist victim Nohemi Gonzalez’s mother, Beatriz Gonzalez, and stepfather, Jose Hernandez, are speaking before the Supreme Court on Tuesday following arguments in their lawsuit against YouTube
The case follows the death of American college student Nohemi Gonzalez (above) in a 2015 terrorist attack in Paris, prompting her family to sue Google-owned YouTube
Judges repeatedly expressed confusion during Tuesday’s hearing, with Judge Samuel Alito once telling Google’s attorney that he was “completely confused by the argument you are currently making.”
Judge Ketanji Brown Jackson also admitted to being “thoroughly confused” during the arguments, which she said deviated from the scope of the legal issues under consideration.
Nohemi was a 23-year-old student at California State University in Long Beach studying abroad in France when ISIS suicide bombers and gunmen staged a coordinated attack on entertainment and restaurant facilities, killing 130 people.
The lawsuit, filed by her family, highlighted the tension between the technology policies shaped a generation ago, at the dawn of the internet, and the reach of today’s social media, which counts billions of posts every day.
The San Francisco-based 9th US Circuit Court of Appeals relied on Section 230 to dismiss the lawsuit, which is now on final appeal in the Supreme Court.
The lawsuit accused Google of “materially supporting” terrorism and alleged that YouTube, through the video-sharing platform’s computer algorithms, unlawfully recommended ISIS videos to certain users.
The video recommendations helped spread the Islamic State’s message and recruit jihadist fighters, the lawsuit says.
The judges expressed concern about the possible consequences of reducing immunity for Internet companies and the difficulty of knowing where to draw the line, and expressed skepticism that these companies should be protected from certain types of harmful or defamatory content.
Judge Kagan said Congress, not the court, should make the necessary changes to Section 230.
Judge Brett Kavanaugh, one of six Conservatives, agreed with his Liberal colleague in a case that seemed to cross ideological lines.
“Isn’t it better,” Kavanaugh asked, to leave things as they are and “put the onus on Congress to change that?”
US Supreme Court Justices can be seen (seated LR): Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., Samuel A. Alito, Jr. and Elena Kagan. Standing (L-R): Judges Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Ketanji Brown Jackson
= Beatriz Gonzalez (C), Jose Hernandez (L), Nohemi Gonzalez’s mother and stepfather, and her lawyer Eric Schnapper (R) walk to speak to the news media after hearings
Beatriz Gonzalez, right, the mother of 23-year-old Nohemi Gonzalez, a student killed in the Paris terrorist attacks, and stepfather Jose Hernandez
Nohemi was a 23-year-old student at California State University in Long Beach studying abroad in France when ISIS suicide bombers and gunmen staged a coordinated attack
The judges used a variety of examples to examine what YouTube does when it uses computer algorithms to recommend videos to viewers, whether it’s content produced by terrorists or cat lovers.
Chief Justice John Roberts suggested that YouTube isn’t “proposing anything specific to the person who made the request,” but just a “21st-century version” of what’s been going on for a long time, and puts a bunch of things together around the person might want to look at.
Judge Clarence Thomas asked whether YouTube uses the same algorithm to recommend rice pilaf recipes and terrorist content. Yes, he was told.
Kagan noted that “every time someone looks at something on the internet, there’s an algorithm involved,” whether it’s a Google search, YouTube, or Twitter.
She asked Gonzalez family attorney Eric Schnapper if agreeing to him would ultimately render Section 230 meaningless.
Schnapper said no, adding: “As you say, algorithms are everywhere. But the question is, “What is the defendant doing with the algorithm?”
Lower courts have interpreted Section 230 broadly to protect the industry, which the companies and their allies say has fueled the Internet’s meteoric growth, by shielding companies from lawsuits over user posts and encouraging the removal of harmful content.
But critics argue that the companies haven’t done nearly enough to monitor and moderate content, and that the law shouldn’t block lawsuits over referrals that direct viewers to more material that interests them and keep them online longer.
Any reduction in their immunity could have dramatic consequences that could affect every corner of the internet as websites use algorithms to sort and filter a mountain of data.
Lisa Blatt, representing Google, told the court that recommendations are just one way to organize all of this information. YouTube users watch a billion hours of video every day and upload 500 hours of video every minute, Blatt said.
However, Roberts was among several judges who asked Blatt whether YouTube should enjoy the same legal protections for its recommendations as it does for hosting videos.
“They appear according to your customers’ algorithms. And these algorithms have to be geared towards something. And that targeting, I think, is rightly called a recommendation, and that’s Google’s. That’s not the provider of the underlying information,” Roberts said.
Google claims a 1996 law, Section 230 of the Communications Decency Act, grants it, Twitter, Facebook and other online companies broad immunity from lawsuits
Given the complexity of the issue and the court’s apparent caution, Judge Neil Gorsuch suggested another factor in the recommendations made by YouTube and others, noting that “most algorithms today are designed to maximize profits.”
Gorsuch suggested that the court could remit the case to a lower court without considering the extent of Google’s legal protection. He engaged in phone arguments because he was “a little under the weather,” Roberts said.
Several other judges said arguments in a related case Wednesday could offer a way to avoid the difficult issues raised Tuesday.
The court will hear about another terrorist attack at an Istanbul nightclub in 2017 that killed 39 people and sparked a lawsuit against Twitter, Facebook and Google.
Separate challenges to the social media laws passed by Republicans in Florida and Texas are pending in the Supreme Court, but they would not be heard until the fall or a decision until the first half of 2024.