Hi, this is Wayne again with a topic “The Supreme Court hears Section 230 arguments | The Vergecast”.
Foreign Court arguments this week on two cases that, honestly, depending on how this goes, would be the story of the year yeah story of the decade. This could be like the week the internet changed forever because of how the Supreme Court might decide in these two cases. One is Gonzalez V Google, which is at a correct me from that’s the one that is the boundary of 230, where Google might be liable for the YouTube recommendation system in a very narrow way, and the other one is Twitter. Vitamnay, where Twitter, allowing terrorists to use Twitter might make it liable under the anti-terrorism ACT right, aiding and abetting terrorism right and then the facts of this case.
Addie are particularly weird, so go through the Gonzalez case really quickly. Just so people understand what what happened here and why Google found itself in front of the Supreme Court. So both these cases are about.
There were Islamic State attacks and someone died in that attack and the families uh sued the a whole sort of host of services. There’S meta YouTube Twitter, um, saying that they aided in a vetted terrorism and with Gonzalez the claim is YouTube, is not necessarily responsible for just the fact that terrorists were on the platform, but their recommendations served up terrorist videos and ended up then promoting this or their Claim is promoting this and actually creating content, instead of just hosting third-party content, which they maybe wouldn’t be liable for under Section 230., if you post something in our comments that somebody doesn’t like yeah 230 is just like flat out bars you from suing us. In many cases, Addie in this case, what the distinction here is that YouTube’s recommendation system like took a video for terrorist Recruitment and showed it to someone else in that undid the 230 protection right. The claim is that they are producing their own content um.
I am hesitant to make any metaphors because metaphors are where everything goes to die here, but it’s sort of like if YouTube, had published a separate series of videos and was like hey. These things are all really great and we endorse them is a little bit where they’re going with this. That’S the first case. That’S the Google case with 230 in the middle of it. Yes, what’s going on in the Twitter case, the Twitter case is one that was basically taken up as a sort of if you take up Gonzalez.
Please please please take this too, which is arguing that even if 230 is Falls here, even if 230 weren’t around Twitter is just providing a basic service and terrorists happen to have used that service, and you cannot say that somebody aided in abetted terrorism, if they’re just There’S somebody there that is happens to be on your platform and you weren’t trying to get them there. You were opposed to them being there, but you failed to kick them off so Twitter’s. Saying: okay, look. We know the Islamic state uses Twitter and, like you said you know, the facts of both cases are super weird, because there’s no, nobody alleged that there was like a specific video or like a specific like that one of the attackers even used the service. That’S not alleged in so is it like super broad yeah? It’S basically like you contributed to the existence of Isis as an Enterprise and therefore you’re responsible for so I I just want to put out the stakes here right. So if Google loses the Google case in the Supreme in the worst possible way and the Supreme Court says all right, your recommendation system on a platform is a decision you have made that creates new content that you are responsible for.
That means platforms will become liable for what they’re, algorithms algorithms, too algorithms become illegal. On the internet, like at some level, everything that happens on a computer is an exercise in sorting and prioritization, and you get the sense that these cases are out of the Supreme Court, because there’s Isis, and so like everyone can agree. Isis is bad yeah.
Maybe this is clear to everyone, but on a technical level, it’s also that there are basically sanctions against Isis right. That is. This is the rare example where there is a group where it is literally illegal to deal with them. Basically, every platform has to stop operating because there’s just no way to there’s no way to open up a user account signup form and guarantee that Isis won’t use it right. Like you, you can’t are you in Isis you you have to. You have to do some work and most platforms, it’s illegal, to deal with them, so they do do some work to make sure that platforms aren’t being used in this way.
Yeah surprisingly, this is TC mentioned this. How surprisingly intelligent the Supreme Court seemed about the stakes? So what you would want, just in an abstract way, you’re a lawyer in front of the Supreme Court you’re, arguing your position, you’re you’re kind of dancing into. I want the narrowest interpretation of this thing, because that is the most likely outcome. Yeah right, like every Supreme Court opinion, is like literally increasingly like this is a narrow like they path themselves in the back they’re like we threaded the needle, we did it once again.
The Supreme Court has saved the day in America right um here at the dude, blew it right Eddie. They were like here’s a narrow interpretation of this he’s. Like I don’t know, maybe Google search should be legal. Yes, people just like justices just kept asking him things, and they were just clearly like trying to get him to draw any level of lines that would not just blow up the internet like okay. Well, what? If you know thumbnails what, if they instead of thumbnails, you posted screenshots and he’s like yeah, I mean maybe there’s a Google search question that I think this was Kagan again. Who was talking about okay? Well, there’s search you’re.
Clearly, if you have a top result, maybe you’re saying this is really good and he just would not say it would not draw any of those lines. When I say that I stare into the night sky wondering why the Supreme Court took this case. It’S this stuff or there’s not even a direct connection like there’s, not a specific video. It was yeah it wasn’t. This terrorist saw this video and went and did this act of terrorism, because that would be clear. Generally people have used this platform. Some of them were terrorists, and some of them, maybe are the ones who did the Terrors. There’S like not a direct connection there, and this is all all the stuff we’ve been talking about – is what tamnay hinges on a lot, which is: do you have to have an actual connection to a specific Act of terrorism, or is the it enough that you are Providing a megaphone that lets Isis recruit okay, um, so this is all at least someone unsettled, but it opens the door to okay.
We have now said YouTube’s recommendation system gets rate of 230 because it is YouTube making some sort of direct editorial choice that exposes them to liability, and the thing they have chosen to do is promote the illegal speech of Isis yeah. If you can get there, there’s no reason. You can’t replace the illegal speech of Isis with this illegal defamatory speech about my company yeah right and then maybe you’ll win, and maybe you won’t, but that door right now is slammed shut and this just cracks it up. It just cracks it open to say the recommendations are create liability for YouTube for the content of the speech Justice it also raised.
The question of section 230 also protects users. So if you hit thumbs up on a YouTube, video is that you then trying to promote and repeat the speech too. It seemed like, at least in a Google case. There was an understanding of not only the stakes, but what questions they should ask and what the answers at least should be, which I found surprising.
I was surprised and relieved okay, what stood out to you? I think that they just went through and asked a bunch of the questions we have been asking at just the broadest level that Clarence Thomas opens up with okay, so is there an actual YouTube algorithm that promotes terrorism, or is there just a single large recommendation algorithm That happens to give you what you want, and maybe some of that is Terrorism uh. His example used rice pilaf, but I think that there are all these questions that are actually digging into first of all, how the services work, and not just taking it for granted that there is something called the algorithm that is evil. They recognize computers have to sort information somehow and so you’re trying to make these very fine-grained distinctions. Second of all, there’s a real understanding that there are a bunch of services that do rely on these things, and these Services have become enmeshed in our lives and any decision is going to affect them greatly.
Brett Kavanaugh made a really big deal out of okay. What are the economic implications of this? Is this going to tear down a huge section of the internet while we’re trying to figure out what the law is? The third part is just that there were these weird little moments where they actually recognize things that I think just many average people wouldn’t, which is things like AI text generation and images that they were talking about. Algorithms, and can algorithms produce content and Justice courses, says okay yeah. Well, there are these tools that can make images and texts.
So clearly the algorithms can generate things and that opens up this whole other can of worms. It was just it was smart, but none of which means they’ll rule in a way that I like. But it was just a far cry from a bunch of the really bizarre sweeping clearly politically motivated rulings that we’ve gotten from a lot of Courts, including the Supreme Court. Sometimes all right. So we talked about the argument in the Gonzalez case, which is: how does a recommendation algorithm work? Are you liable for these thumbnails? What was the argument in the Twitter case like much more metaphor, heavy, which is one of my least favorite types of supreme court hearing um, there’s just a huge amount of it turns on okay. So there is this test uh that defines what aiding and abetting is for specifically civil cases like the kinds of lawsuits that are getting brought here and part of it hinges on all right. Well, what does it mean for Twitter? To have known? Does Twitter have to have known that there was this really specific act that was being planned and that Isis was planning it and that there were these specific Isis accounts that they had to ban to stop recruiting, or did it just have to vaguely know that there Were terrorists on the platform and then there’s also all right how much of a specific relationship do they have with these terrorists? Is this like going into a bank? Is it like selling them a gun? What other is it like? Stealing, sheep they’re just a million different metaphors in play Stealing sheep. Yes, this was one of the metaphors who’s, the farmer on on the court on the bench.
The opening metaphor in the case was, is this more like if you have a friend who’s, a murderer and a thief and you give them a gun, but you just happen to not know exactly when they’ll use the gun, or is it you doing something like opening A gate, and then it turns out that the person you’re opening the gate for is trying to steal sheep. Okay. So that’s like the level of argumentation we’re talking about which is exactly like being on Twitter. Actually, someone trying to steal your sheep and all you have is a gun – is fairly close to the average Twitter day.
Right. It’S like I don’t know. I’Ve got to protect the situation, everyone’s panicking, there’s a sheep Thief. I’M just firing indiscriminately.
Stealing your neighbor’s eggs would have been the better Tuesday on there’s 30 to 40 feral pigs. This is an example of how hard things are going to get if 230 isn’t around that. You have all these really super fine lines about what counts as aiding and abetting what counts as something that’s really valuable to Twitter or a really valuable to terrorists. What does it mean to actually know what’s happening on your platform that right now, section 230 means you? Don’T really have to deal with these things if it goes away suddenly you’re already making these long long lists of metaphors and long lists of determinations about what is and is not supporting terrorism.
What do you think happens now? Are they going to horse trade between the two cases like you were suggesting? I really don’t want to make predictions, but, yes, it seems possible they’re, just going to rule in the narrowest least 230 precedent making possible way, and I don’t know that they necessarily seem that likely to say that Twitter is in the clear actually the most unsatisfying result. That I have heard described is that they just say: hey. You changed your argument way too much. Gonzalez lawyers were throwing this out for now yeah, so we’ll see I mean I I do think the particularly with the Gonzales case. I think we, the Supreme Court rule that Google is illegal, does not seem like a likely outcome. Um, I think, with the Twitter case the we think you should do a better job of making sure the terrorists don’t like that’s a safe ruling yeah, even though it might have some consequences about, like verification or whatever so we’ll see.
But it’s we’re expecting decisions at the end of this term, which is like quite some time away, right, Abby yeah. I believe the next term starts in October. So yeah we probably are months yeah, okay, but I would say that the the general valence from the lawyers in the world as well that could have got a lot worse. Good.
All right, I think I’ve heard, is clearly they could rule really bad ways down the line, and there are specific subtle ways that we have not talked about here, that they could do that even as part of Gonzalez. But we came out of this much more reassured than we thought. .