WASHINGTON — President Joe Biden and some of his most prominent Republican challengers in Congress have become allies, of sorts, in an upcoming Supreme Court showdown between Big Tech and its critics.
The Biden administration is virtually on the same page as prominent Republicans such as Senators Ted Cruz of Texas and Josh Hawley of Missouri, arguing for limits on internet companies’ immunity under a provision of the Communications Decency Act of 1996 called Section 230 .
The 26-word piece of legislation, which has been attributed to helping social media rise, has largely shielded companies from defamation claims and many other lawsuits over content posted by users.
Both senators, vying for attention in the populist wing of the Republican Party, have been prominent thorns in Biden’s side even before he took office. Both opposed certifying the results of the 2020 election as part of former President Donald Trump’s ill-fated campaign to stay in power that culminated in the Jan. 6 riot on Capitol Hill.
But the loose alliance in a case involving YouTube that the court heard on Tuesday illustrates how opposition to the broad immunity that companies receive for their content moderation decisions and content posted by users cuts across ideological lines. There are also unusual fellows supporting YouTube owner Google, with the left-wing American Civil Liberties Union, the libertarian Cato Institute and the corporate giant US Chamber of Commerce all on their side.
The case takes aim at a core feature of the modern internet: targeted recommendation. Applications like YouTube want to keep users on their site, so they try to show them related content that entices them to click. But opponents argue that the company should be held accountable for that content. If consumers could sue apps for the consequences of those decisions, tech companies might have to change how they design their products — or at least be more careful about the content they promote.
Samir Jain, vice president for policy at the Center for Democracy and Technology, a technology-aligned group that supports Google, said that while Biden, Cruz and Hawley have criticized Section 230, they differ on how to replace it. Democrats would like to see companies stronger in content moderation, while Republicans, sensing an anti-conservative bias, want fewer restrictions overall.
“There’s common cause in the sense of believing that Section 230 is too broad, but not common cause in what they’re trying to accomplish at the end of the day,” Jain said.
The case before the Supreme Court on Tuesday centers on allegations that YouTube’s actions contributed to the death of an American woman in the 2015 Islamic State terror 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 carried out by the Muslim militant group, commonly known as ISIS, are seeking to sue the company under an anti-terrorism law. YouTube says it shouldn’t be held responsible for these deaths.
The court is hearing a related case on Wednesday in which relatives of Nawras Alassaf, a Jordanian citizen killed in an Islamist attack in Istanbul in 2017, accuse Twitter, Google and Facebook of aiding and abetting the spread of militant Islamic ideology, what companies deny. . Judges will not address Section 230 in this case.
In Google’s case, top Deputy Attorney General Brian Fletcher, representing the Biden administration, took a similar position in his petition to the one Cruz and other Republicans took in their own petition. Hawley filed a separate petition against Google. Cruz and Hawley are former superior court attorneys.
In all three documents, the unlikely allies claim that Section 230 does not provide immunity on claims related to recommendation algorithms, the key issue in the case, although the substance of the legal arguments differs.
The process is aimed at using YouTube’s algorithms to suggest videos to users based on content they’ve previously viewed. YouTube’s active role goes beyond the kind of conduct Congress intended to protect with the 27-year-old law, the family’s lawyers argue. The plaintiffs do not allege that YouTube played any direct role in the murder.
The stakes are high because recommendations are now an industry norm. Apps like Instagram, TikTok, Facebook and Twitter have long since started to rely on recommendation engines, or algorithms, to decide what people see most of the time, rather than emphasizing chronological feeds or content that people have perused.
Biden attacked tech companies in his State of the Union address earlier this month, though he made no mention of Section 230. He was more specific in a Wall Street Journal op-ed last month in which he called for reform, saying that companies need to “take responsibility for the content they post and the algorithms they use”. A White House spokesman declined to comment on the administration’s position on the case.
Cruz said in an interview that while there may be some common ground in legislation to revise Section 230, the Biden administration agrees with companies that “censor” views they disagree with.
“Big Tech engages in blatant anti-competitive activities. They enjoy monopoly profits. And they use that power to, among other things, censor and silence the American people, and I believe we should use every tool at our disposal to stop that,” he said. he said.
Hawley said Section 230 is “almost entirely a creation of the courts” and that Congress did not intend for it to confer blanket immunity.
“I think this is an opportunity for the Supreme Court to untangle some of the knots that the courts themselves have woven into the law here,” he said in an interview.
Mukund Rathi, an attorney for the Electronic Frontier Foundation, said it was disappointing, but not surprising from his perspective, that Biden joined Republicans in opposing Google.
He warned of the wide repercussions if Google loses, noting that volunteer moderators on Reddit could, for example, be held accountable for their actions, a point the company highlighted in a summary.
“The rhetoric is that these are powerful and bad technology companies that are harming ordinary people and causing a lot of harm and injustice,” said Rathi. In fact, if Section 230 is watered down, “you’re going to end up hurting these common people.”
But even some people in the tech industry had the idea of reducing Section 230. Roger McNamee, a venture capitalist who was an early investor in Facebook, said in an interview that companies should not be given immunity for their decisions to extend certain content.
“This is the first opportunity the Supreme Court has to defend the American people in the face of a technology industry that has undermined public health, democracy and public safety,” he said.