Will Big Tech Lose Immunity? US Supreme Court Begins Review of Communications Decency Act Section 230

[Asia Economy Reporter Jeong Hyunjin] "The U.S. Supreme Court is set to hear a case that could completely reshape the online world as we know it." - U.S. Fortune

On the 21st (local time), the U.S. Supreme Court will begin hearings on the constitutionality of 'Section 230 of the Communications Decency Act,' which grants immunity to big tech platform companies for illegal content. This law has guaranteed freedom of expression and served as a foundation for platform companies to grow, but after these companies expanded, it became an excuse for leaving hateful, defamatory, and extremist content unchecked despite their enormous influence.

This is the first time the Supreme Court is reviewing this law. Amid growing public opinion that big tech platforms should be held accountable for various social problems they cause, there is speculation that the Supreme Court's decision could significantly change the direction of online platform businesses.

[Image source=Reuters Yonhap News]

◆ Platforms that aided terrorism: Is immunity under 'Section 230 of the Communications Decency Act' justified?

According to the New York Times (NYT) and others, the U.S. Supreme Court will begin hearings on the so-called 'Gonzalez v. Google' case on the 21st. The Gonzalez v. Google case originated from a shooting and bombing terrorist attack in Paris, France, in November 2015. Over 130 people, including 23-year-old American college student Nohemi Gonzalez, who was studying abroad in Paris at the time, died. The Gonzalez family sued Google, Facebook, and Twitter in 2016, alleging that the platforms were spreading extremist content.

The Gonzalez family argues that YouTube, owned by Google, played a key role in recruiting and radicalizing members during the Islamic State (IS) preparation process for the attack, and thus should be held responsible. They also pointed out that IS propaganda and messages from IS leaders were spreading through the platforms, failing to block the terrorist group. Google claims there is no problem based on Section 230 of the Communications Decency Act, which shields platforms from liability for content.

Enacted in 1996, Section 230 of the Communications Decency Act exempts platform operators from legal responsibility for content posted on their platforms. For example, this law prevents a platform operator that collects restaurant reviews from being sued by a restaurant over negative reviews left by users. In fact, federal appellate courts have ruled that Google is not responsible based on this law.

U.S. Supreme Court
Photo by AP Yonhap News

The core issue in this case is whether YouTube's content algorithm falls under the protection of Section 230. The Gonzalez family argues that Section 230 applies only to the content itself, not to the algorithm that recommends content. They claim that the algorithm recommending extremist content is problematic, and ultimately, the platform company that created and operates it cannot escape responsibility.

The day after hearing the Gonzalez v. Google case, on the 22nd, the Supreme Court will review the 'Twitter v. Taamneh' case. This case was filed by the family of Nawras Alashraf, a Jordanian who died in the 2017 IS shooting at a nightclub in Istanbul, Turkey. The family criticizes Twitter, a social networking service (SNS), for allowing some terrorist group content and thereby supporting and abetting them. Twitter, like Google, argues it is immune under Section 230.

◆ All eyes on the Supreme Court: "A case that could overturn the internet"

Foreign media describe the Supreme Court's ruling on Section 230 as "a case that could overturn the entire internet." Since this law has been central to the growth of big tech platform companies, if the Supreme Court issues a ruling that restricts it, platform businesses are bound to suffer. Especially if a ruling holds platforms responsible for YouTube's algorithmic recommendations, companies are expected to impose restrictions on service functions to avoid liability.

The Electronic Frontier Foundation (EFF) recently told Fortune, "Without Section 230, the free and open internet as we know it would not exist," adding, "The 26 words in this law are credited with creating today's internet."

There is intense debate over Section 230. According to the NYT, critics argue that the law allows large IT companies to avoid responsibility for harm caused on their platforms. However, supporters contend that removing legal protections would lead these companies to delete more negative content than before, suppressing freedom of expression.

Section 230 has often been a topic in the U.S. Congress. Both Republicans and Democrats have emphasized the need to amend the law, but their claims are completely opposite. Republicans argue that platforms disproportionately delete conservative content, while Democrats criticize them for allowing fake news to spread. Recently, even President Joe Biden voiced the need to revise the law.

However, some express doubts about whether the Supreme Court can properly understand and rule on this issue. The political media Axios reported, "Historically, the Supreme Court has not handled new technologies well," adding, "The future of big tech depends on a Supreme Court that may not fully understand these issues." It also noted that within the tech industry, there are concerns that the Court might not only rule against their interests but also create new issues by restricting Section 230.

Although the Gonzalez v. Google case hearings begin on this day, Fortune reports that the ruling is expected after June.