Without these 26 words slipped into a 1996 American law, the Web would probably not have become the universal platform we have today. On Tuesday and Wednesday, the United States Supreme Court considered for the first time the thorny question of the responsibility of the major platforms via two complaints related to Daesh terrorism filed against Google and Twitter. And if the judges of the supreme body seem reluctant to completely reconsider this famous “section 230”their decision, expected before June 30, could open the door to a torrent of complaints and transform the Internet.
González v. Google, YouTube algorithms in question
Nohemi Gonzalez, a 23-year-old American student, was on the terrace of Petit Cambodge on November 13, 2015, when Daesh terrorists opened fire, killing her instantly. The relatives of the only American victim of the attacks have filed a complaint in the United States against Google, the parent company of Youtube. They accuse him of having supported the growth of Daesh by suggesting his propaganda videos to certain users.
Their complaint has so far been dismissed by the courts under Section 230. But in their appeal to the Supreme Court, they argue that Google is not a “publisher” protected by this device, with an active recommendation of its algorithms.
Twitter v. Taamneh, is the lack of moderation akin to complicity?
This twin complaint was filed by the family of a victim of a Daesh attack on an Istanbul nightclub in 2017. According to the latter, Twitter is complicit in this act of terrorism for not having removed tweets from the group. nor stopped recommending these posts.
Section 230, an imperfect but crucial shield
The Telecommunications Act was passed in 1996 to modernize a 1934 law. Section 230 was added at the last minute in the House to protect an embryonic sector of the Web from lawsuits, stating: “No provider or user of a computer service interactive should not be treated as the publisher of any information provided by another information content provider”. Translation: a forum or a social network cannot be prosecuted for illegal content posted by an Internet user. The idea was to offer a shield encouraging websites to show good faith and to try to moderate their platform as well as possible.
But the young shoots have become giants under the regular fire of criticism. “We are in a delicate situation, because this text was written in another era, when the Internet was completely different,” summed up judge Elena Kagan. Changing the case law could “crash the digital economy, with all sorts of consequences for workers and pension funds etc”, noted the head of the Court, John Roberts.
In 1997, “CNN did an interview with Osama bin Laden, a very famous interview… According to your theory, could CNN have been prosecuted for complicity in the 9/11 attacks? then asked conservative judge Brett Kavanaugh. Like others, he doesn’t seem to want to open this Pandora’s box. Justice Kagan had everyone laughing when she noted that the Supreme Court’s nine justices “aren’t really the greatest experts on the Internet,” appearing to call on Congress to legislate to modernize the 1996 statute.
Elected officials turned against the platforms, but for different reasons
Many voices have been demanding for years that this law be modified or withdrawn, considering that Google, YouTube, Facebook or Twitter should be held responsible when they facilitate the propagation of so-called “problematic” content that can have serious repercussions in real life.
Lawmakers on both sides regularly criticize Section 230, but not for the same reasons. The left criticizes social networks for hiding behind this immunity to allow racist and conspiratorial messages to flourish; the right, outraged by the banishment of Donald Trump from several platforms, accuses them of “censorship” under cover of their right to moderation.
Given these divergent perspectives, legislative efforts to amend the text never came to fruition.