by WASHINGTON – President Joe Biden and some of his most prominent Republican opponents in Congress have become allies in an upcoming Supreme Court showdown between big tech and its critics.
The Biden administration is roughly on the same page as prominent Republicans like Sens. Ted Cruz of Texas and Josh Hawley of Missouri when they advocate limiting the immunity of Internet companies under a provision of the Communications Decency Act of 1996 called Section 230 express.
The 26-word legal text, which is credited with the rise of social media, has largely protected businesses from defamation lawsuits and many other lawsuits over user-posted content.
Both senators, who are vying for attention on the populist wing of the Republican Party, were a prominent thorn in Biden’s side even before he took office. Both declined to confirm the 2020 election results as part of former President Donald Trump’s ill-fated campaign to stay in power, which culminated in the January 6 riots in the Capitol.
But the loose alliance in a case from YouTube the court is hearing on Tuesday shows how opposition to the broad immunity corporations receive for their content moderation decisions and what content cuts users across ideological lines. There are also unusual bedfellows supporting YouTube-owner Google, including the left-leaning American Civil Liberties Union, the libertarian Cato Institute and corporate giant US Chamber of Commerce, all siding with it.
The case is aimed at a central feature of the modern Internet: targeted recommendation. Apps like YouTube want to keep users on their sites, so they try to show them related content that entices them to click. However, opponents argue that the company should be liable for this content. If consumers could sue apps over the consequences of those decisions, tech companies might need to change the design of their products — or at least be more careful about what content they promote.
Samir Jain, vice president of policy at the Center for Democracy and Technology, a tech-focused group that supports Google, said that while Biden, Cruz and Hawley have all criticized Section 230, they differ on what should replace it. Democrats would like to see more corporate involvement in content moderation, while Republicans, who perceive an anticonservative bias, would like fewer restrictions overall.
“There is common ground in the sense that Section 230 is too broad, but no common ground in what they want to achieve at the end of the day,” Jain said.
The case before the Supreme Court on Tuesday centers on claims that YouTube’s actions contributed to the death of an American woman in the 2015 Islamic State terrorist attacks in Paris by recommending certain videos. Family members of Nohemi Gonzalez, one of 130 people killed in the series of linked attacks in Paris perpetrated by the Muslim militant group commonly known as ISIS, are trying to sue the company under an anti-terror law . YouTube says it shouldn’t be held liable in these deaths.
The court on Wednesday is hearing a similar case in which relatives of Nawras Alassaf, a Jordanian national who was killed in an Islamist attack in Istanbul in 2017, are accusing Twitter, Google and Facebook of supporting and abetting the spread of militant Islamic ideology, which the companies deny . The judges will not deal with Section 230 in this case.
In the Google case, Assistant Attorney General Brian Fletcher, representing the Biden administration, put his brief in a position similar to what Cruz and other Republicans have put in their own brief. Hawley filed a separate brief against Google. Cruz and Hawley are both solicitors who were once employed by the High Court.
In all three briefs, the unlikely allies maintain that Section 230 does not provide immunity from claims relating to recommendation algorithms, the key issue in this case, although the substance of the legal arguments differ.
The lawsuit targets YouTube’s use of algorithms to suggest videos to users based on previously viewed content. YouTube’s active role goes beyond the conduct that Congress sought to protect with the 27-year-old law, the family’s attorneys claim. Plaintiffs do not allege that YouTube played a direct role in the killing.
The stakes are high because recommendations are now an industry norm. Apps like Instagram, TikTok, Facebook, and Twitter long ago started relying on recommendation engines or algorithms to decide what people watch most of the time, rather than emphasizing chronological feeds or content that people have reviewed.
Biden blasted tech companies in his State of the Union address earlier this month, despite not mentioning Section 230. In a Wall Street Journal op-ed last month calling for reform, he got more specific, saying companies “must take responsibility for the content they distribute and the algorithms they use.” A White House spokesman declined to comment on the administration’s position in the case.
Cruz said in an interview that while there might be some common ground in legislation revising Section 230, the Biden administration is mostly comfortable with companies “censoring” views they disagree with.
“Big Tech engages in patently anti-competitive activities. They enjoy monopoly profits. And they’re using that power to, among other things, censor and silence the American people, and I believe we should use every means at our disposal to stop that,” he said.
Hawley said Section 230 was “almost entirely a creation of the courts” and that Congress had no intention of giving it blanket immunity.
“I think this is an opportunity for the Supreme Court to untangle some of the knots that the courts here themselves have woven into the law,” he said in an interview.
Mukund Rathi, an attorney for the Electronic Frontier Foundation, said it was disappointing but not surprising that Biden had joined Republicans to crack down on Google.
He warned of far-reaching consequences if Google loses, pointing out that volunteer moderators on Reddit, for example, could be held liable for their actions, as the company noted in a brief.
“The rhetoric is that these are bad powerful tech companies that harm ordinary people and cause a lot of harm and injustice,” Rathi said. In reality, if section 230 is weakened, “you will end up harming these common people.”
But even some people in the tech industry have come up with the idea of reducing Section 230. Roger McNamee, a venture capitalist who made an early investment in Facebook, said in an interview that companies shouldn’t be given immunity for their decisions to amplify certain content.
“This is the first opportunity the Supreme Court has had to speak on behalf of the American people in the face of a technology industry that has undermined public health, democracy and public safety,” he said.
