If the Supreme Court Limits Section 230, It Will Change the Way the Internet Functions
The Supreme Court will hear in less than a month its first case related to Section 230 of the Communications Decency Act, an Internet law at the heart of recent tech policy debates. Depending on the court’s decision, online services of all kinds may have to fundamentally change the way their services operate, to consumers’ detriment.
Section 230 protects online services and users from facing legal consequences for hosting or sharing third-party content. The case, Gonzalez v. Google, will answer the question of whether Section 230’s protections extend to algorithmic recommendations, which includes much of the content on the Internet today, from search results and social media feeds to online marketplace listings and content on streaming services.
As the case draws nearer, multiple tech companies, trade associations, and tech-policy nonprofits have filed amicus briefs warning of the consequences of creating such a large exception to Section 230. Organizations such as Twitter, Meta, Reddit, the Wikimedia Foundation, Microsoft, Yelp, and ZipRecruiter have all filed. Notably, they point out that creating an exception for algorithmic recommendations will not solve critics’ problems with Section 230.
Lawmakers on both sides of aisle have called for changes to Section 230, but their rationales and desired changes differ markedly. Republicans argue that Section 230 allows social media platforms to censor conservative opinions, while Democrats argue that Section 230 protects platforms who do not do enough to remove hate speech and protect marginalized voices. However, opening companies up to more legal liability for algorithmic recommendations, as the Supreme Court might do, is unlikely to achieve either of their goals. Most companies would likely respond by moderating content even more strictly to avoid costly legal fees. Stricter moderation would further limit controversial political content and content from marginalized voices—content Republicans and Democrats want to protect, respectively.
Algorithmic recommendations are also crucial to the function of the modern Internet. Given the massive amount of content uploaded to the Internet every second of every day, online services rely on algorithms to recommend content that users are most likely to find relevant to their interests and activities. Even ranking content in chronological or reverse-chronological order involves an algorithm. Section 230 has always enabled online services to moderate content in a variety of different ways, and that extends to algorithmic recommendations as well; different online services use algorithms in different ways that best suit their users. For example, Spotify uses an algorithm to create custom playlists for users based on their listening habits to help them discover new music, TikTok uses an algorithm to determine what videos to show users on their “For You” page based on what videos they’ve “liked” or interacted with, and Google News uses an algorithm to sort news content based on what a user is likely to find interesting or relevant, such as news local to their area. All these practices make it much more likely that users will not be inundated with content that they have absolutely no interest in. Many online services even use algorithms to detect the types of harmful and illegal content Google was sued for in Gonzalez, which is the type of innovation Section 230 was designed to incentivize.
There is room to reform the way online services moderate content, both by making small, intentional changes to Section 230 and by separating the debate about online political speech from the debate about Section 230. But creating an exception for algorithmic content is not a small change, and depending on how the Supreme Court rules later this year, a finding in favor of the plaintiff would worsen users’ experience online and potentially damage online free speech.
