“These are not, like, the nine greatest experts on the internet,” noted Justice Elena Kagan – a reference to herself and fellow colleagues on the Supreme Court.
Depsite this, the justices are being asked to negotiate complex arguments that could have wide implications for online providers and ultimately everyone who uses the internet. Their rulings in two cases argued before the court on Feb. 21 and Feb. 22, 2023, could force social media companies to change the way they do business. So, will the Supreme Court “break the internet,” as some have suggested? The Conversation asked Michael W. Carroll, a cyberlaw expert at American University, to explain what is at stake – and how the justices appear to be thinking about the cases.
Can you talk us through the two cases?
The justices are looking at two separate cases – Gonzalez vs. Google and Twitter vs. Taamneh – that arise out of the same lawsuit. They are being argued separately because they revolve around the interpretation of two different laws.
Both cases result from terrorist attacks. The Google case was brought by the family of Nohemi Gonzalez, an American woman killed in the 2015 attack by the Islamic State group in Paris. The death of a Jordanian man in a 2017 attack by the terrorist group in Istanbul forms the basis of the Twitter case.
What both have in common is the claim that social media platforms played a role in the organizing of the attacks. In particular, it was argued by lawyers for the two families that Twitter and YouTube, owned by Google, amplified the Islamic State group’s recruiting and fundraising messages.
Central to this argument is that the social media platforms used algorithms that boosted content to those who may be interested in the Islamic State group’s content.
How do the two cases differ?
In the case of Google, the company is saying it cannot be held responsible because it is protected by Section 230 of the Communications Act. Section 230 holds that no provider of an interactive computer service shall be treated as the publisher or speaker of information provided by a third party. Google’s lawyers argue that treating YouTube as the publisher of Islamic State group videos would contravene Section 230.
Complicating matters, however, is the definition in the act of what an information content provider is. It is defined as a person or entity responsible for creating or developing content “in whole or in part.” The plaintiff in Gonzalez is arguing that in promoting Islamic State group videos through thumbnails on the platform, YouTube is responsible for content creation and, as such, can be held responsible.
As law professor Eric Schnapper, representing the Gonzalez family, argued to the justices: “I type in ISIS video and they are sending me to a catalogue of thumbnails which they created.”
The Twitter case is not centered on Section 230. Rather, at question is whether social media platforms can be seen to be “aiding…