Supreme Court Upholds Section 230, But the Future of the Internet Still Isn’t Guaranteed
The Supreme Court yesterday reached a decision on Gonzalez v. Google, the court’s first case related to Section 230 of the Communications Decency Act, an Internet law at the center of recent debate. The Supreme Court decided not to rule on Section 230, thus leaving the law in place, to the benefit of Internet services and their users. However, Section 230 may not be out of the woods yet, with some members of Congress still pushing for changes to the law that, in most cases, would have negative unintended consequences for businesses, consumers, and online services.
The Supreme Court’s decision came along with its decision in another case, Twitter v. Taamneh, in which it decided that Twitter was not liable under the Antiterrorism Act for aiding and abetting the terrorist organization ISIS for allegedly recommending ISIS content to users. Given that the circumstances of Gonzalez were similar—the family of a victim of an ISIS attack sued Google for YouTube allegedly recommending ISIS recruitment videos to users—rather than ruling on Section 230, the Supreme Court sent the case back to lower courts with instructions to consider the Twitter decision.
This was arguably the best possible outcome for Section 230, which protects online services and users from facing legal consequences for hosting or sharing third-party content. The worst-case scenario would have been the Supreme Court agreeing with Gonzalez’ argument that Section 230’s protections do not extend to algorithmic recommendations. Algorithmic recommendations are a key component of the modern Internet because, with such a vast amount of content online, algorithms are necessary to efficiently and effectively sort, filter, and recommend relevant content to users. A decision in favor of Gonzalez would have forced online services of all kinds to fundamentally change the way they operate, to consumers’ detriment, and exposed them to a flood of lawsuits.
On the other hand, the Supreme Court could have ruled in favor of Google, and its decision could have made a distinction between this specific case, in which Section 230 did apply, and other cases, in which Section 230 might not apply. This would also likely result in a flood of litigation from plaintiffs who aim to prove that their case is unlike Gonzalez and Section 230 does not apply. Instead, by choosing not to rule on Section 230, the Supreme Court left the law as it is.
The debate surrounding Section 230 is unlikely to stop because the law survived its first Supreme Court case. Lawmakers on both sides of the aisle have expressed a desire to amend or even repeal the law in order to address various concerns related to online speech. There are multiple bills currently facing Congress that would amend Section 230, including the EARN IT Act, the SAFE TECH Act, the Internet PACT Act, the CASE-IT Act, and the See Something, Say Something Online Act.
All of these bills are reintroductions of legislation that failed in previous years, indicating that they are unlikely to become law. Nonetheless, they represent a concerning trend of Section 230 reform attempts that, in trying to solve perceived problems with the Internet, would actually create more problems by undermining privacy and free speech, impeding content moderation, or placing unnecessary burdens on online services in ways that would damage the Internet economy.
Congress should continue to carefully consider any changes to Section 230, weighing the potential benefits against any risks an amendment might pose, and should keep changes to a minimum in order to preserve the legal shield that protects the Internet. Meanwhile, thanks to the Supreme Court’s decisions in Twitter and Gonzalez, the law remains in place to continue benefiting online services and their users.