SCOTUS Confused in Internet Case

( – Those concerned with how the federal government regulates the Internet might not be reassured by the discussion in the US Supreme Court during oral arguments on February 21st.

The nine justices are hearing a case, Gonzalez vs Google, that examines how current law regulates Internet-based companies such as Google and YouTube. At issue is what is referred to in short form as “Section 230.” Section 230 is part of the Communications Decency Act.

This law immunized companies such as Facebook, Twitter, and similar sites from legal responsibility for the actual content placed on their platforms by ordinary users. Put another way, the law protects a company like Facebook from being sued by a disgruntled user because another user posted an essay, video, or other content that the plaintiff believes is illegal or inappropriate.

The user who posted the content, not Facebook – which merely passively hosted the content – would be legally liable.

SCOTUS justices were trying to understand the lines between what is considered “speech”, and what is not. For example, it is widely agreed that if John Q. Public posts a story about his favorite cookie recipe, that post would be considered speech.

But companies such as Google and Facebook use algorithms—sets of instructions that direct computer servers to “feature” or suppress certain posts and content uploaded by users. The case before the justices asks, in part, are these algorithms “speech” acts by companies like Google and Facebook?

Justice Elena Kagan acknowledged the confusing and subtle nature of the arguments, saying the justices “are not like the nine greatest experts on the internet.”

Justices Ketanji Jackson Brown and Samuel Alito also expressed confusion during oral arguments.

The Internet age has raised questions about the intersection of traditional law with new technologies. These questions have vexed some of the most respected legal minds, and legal scholars widely agreed by the public to be reasonable people have come to sharply divergent conclusions.

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