Nine justices set out Tuesday to determine what the future of the internet would look like if the Supreme Court were to narrow the scope of a law that some believe created the age of modern social media.
After nearly three hours of arguments, it was clear that the justices had no earthly idea.
That hesitancy, coupled with the fact that the justices were wading for the first time into new territory, suggests the court, in the case at hand, is not likely to issue a sweeping decision with unknown ramifications in one of the most closely watched disputes of the term.
Tech companies big and small have been following the case, fearful that the justices could reshape how the sites recommend and moderate content going forward and render websites vulnerable to dozens of lawsuits, threatening their very existence.
The case before the justices was initially brought by the family of Nohemi Gonzalez, a US student who was killed in a Paris bistro in 2015 after ISIS terrorists opened fire. Now, her family seeks to hold YouTube, a subsidiary of Google, liable for her death because of the site’s alleged promotion – through algorithms – of terrorist videos.
The family sued under a federal law called the Antiterrorism Act of 1990 , which authorizes such lawsuits for injuries “by reason of an act of international terrorism.”
Lower courts dismissed the challenge, citing Section 230 of the Communications Decency Act of 1996, the law that has been used for years to provide immunity for websites from what one justice on Tuesday called a “world of lawsuits” that stem from third party content. The Gonzalez family argues that Section 230 does not protect Google from liability when it comes to targeted recommendations.
Oral arguments drifted into a maze of issues, raising concerns about trending algorithms, thumbnail pop-ups, artificial intelligence, emojis, endorsements and even Yelp restaurant reviews. But at the end of the day, the justices seemed deeply frustrated with the scope of the arguments before them and unclear of the road ahead.
Family of ISIS victim says YouTube algorithm is liable. What will the Supreme Court say?
A lawyer representing the plaintiffs challenging the law repeatedly failed, for instance, to offer substantial limiting principles to his argument that could trigger a deluge of lawsuits against powerful sites such as Google or Twitter or threaten the very survival of smaller sites. And some justices retracted from the “sky is falling” attitude put forward by an advocate for Google.
On several occasions, the justices said they were confused by the arguments before them – a sign that they may find a way to dodge weighing in on the merits or send the case back to the lower courts for more deliberations. At the very least they seemed spooked enough to tread carefully.
“I’m afraid I’m completely confused by whatever argument you’re making at the present time,” Justice Samuel Alito said early on. “So I guess I’m thoroughly confused,” Justice Ketanji Brown Jackson said at another point. “I’m still confused,” Justice Clarence Thomas said halfway through arguments.
Justice Elena Kagan even suggested that Congress step in. “I mean, we’re a court. We really don’t know about these things. You know, these are not like the nine greatest experts on the internet,” she said to laughter.
But in court, Eric Schnapper, a lawyer for the family, repeatedly pushed much broader arguments that could impact other areas of third party content.
Yet even Thomas, who has expressed reservations about the scope of Section 230 before, seemed skeptical. He sought clarification from Schnapper of how one might be able to distinguish between algorithms that “present cooking videos to people who are interested in cooking and ISIS videos to people interested in ISIS.”
Alito asked whether Google might have been simply organizing information, instead of recommending any kind of content.
“I don’t know where you’re drawing the line,” Alito said.
Chief Justice John Roberts tried to make an analogy with a book seller. He suggested that Google recommending certain information is no different than a book seller sending a reader to a table of books with related content.
At one point Kagan suggested that Schnapper was trying to gut the entire statute: “Does your position send us down the road such that 230 can’t mean anything at all?” she asked.
When Lisa Blatt, a lawyer for Google, stood up she warned the justices that Section 230 “created today’s internet” because “Congress made that choice to stop lawsuits from stifling the internet in its infancy.”
“Exposing websites to liability for implicitly recommending third-party context defies the text [of 230] and threatens today’s internet,” she added.
In the end, Schnapper seemed to speak for the court when he said that “it’s hard to do this in the abstract.”