Big Tech’s future depends on a Supreme Court that doesn’t understand it

Image: Brendan Lynch/Axios

The firestorm surrounding big tech and content moderation is heating up at the Supreme Court – but some experts fear the court is simply not well equipped for the task.

Why it matters: The court hasn’t been particularly good at grappling with new technology in the past. As it delves into the political battle over social media algorithms, there is a real fear that the judiciary could end up creating more controversies than they solve.

Driving the news: The court will this week hear arguments in two cases involving Section 230, the federal law that says technology platforms are not liable for what their users post.

• Both lawsuits — one against Google and one against Twitter — argue that while tech companies are not liable for the content of user posts, they should be liable for what their algorithms promote or suggest.
• The ramifications of such a decision may not be fully apparent for years, even to the engineers working on those products.

“The court could think it’s doing one thing and it’s actually doing something else entirely,” said Evelyn Douek, a Stanford law professor who specializes in technology law. “It doesn’t fit the problem.”

The concern within the tech industry is not just that the court could rule against them — that’s something every party in a Supreme Court case has to worry about — but that a Supreme Court ruling restricting Section 230 as opposed to a statute restricting Section 230 , could later cause unforeseen problems Even the critics of the law should not necessarily be happy about this.

• Even if Google and Twitter win, there’s a realistic scenario where “the court is still saying problematic things… that will result in the legal system being armed against the court’s moderation,” said Berin Szóka, president of libertarian think tank TechFreedom , during a roundtable with reporters last week.
• “There are legitimate concerns that the court simply might not understand or appreciate the technical complexities driving the modern web,” wrote Jess Miers, an attorney with the Pro-Tech Chamber of Progress.

Context: The Supreme Court is an inherently slow-moving institution that seeks to solve problems primarily by seeking a broad principle that can endure forever. And that’s just hard to reconcile with complex, evolving technology.

• This tension was particularly evident in cases involving privacy and law enforcement.
• Back in 1979, the court ruled that police didn’t need a search warrant to get a list of every phone number you called. Because you voluntarily provided that information to a third party (the phone company), the court held, you have no reasonable expectation that it is private.
• In 1979 this may have seemed like a fairly tight rule for landline telephones. But the court is struggling to adapt its “third-party doctrine” at a time when third parties have access to all of our correspondence, searches, and even our physical movements. If nothing your phone can track is private, then what is?

The cases of Section 230 represent a very different set of questions, and they ask the court to interpret a law passed by Congress, not the scope of a civil right.

• But it’s not that hard to understand why nine lawyers in a room in 2023 might not predict the future of content algorithms, just as nine lawyers in a room in 1979 didn’t know the magnitude of the precedent they ultimately set .
• “Even pleadings in this case disagree, for example on how a potential ruling against Google and Twitter should apply to search engines – another process that uses algorithms to deliver specific content.

Details: The lawsuit against Google was filed by the family of a man killed in an IS attack. It’s not clear if the perpetrator of this attack watched ISIS’s YouTube videos, but the family say Google is responsible for the patterns that lead people to dangerous videos.

Between the lines: The Supreme Court picked up these cases, though there wasn’t much disagreement in the lower courts on how to apply Section 230 — these courts have sided with tech companies.

• This is widely taken as a sign that at least some of the conservative judges want to reverse the provision.
• Judge Clarence Thomas has written critically of the determination on a number of occasions – and Thomas’ individual hobbies are increasingly finding their way into the court’s mainstream.
• “There seems to be an appetite to do something,” Douek said.

A judgment is expected by summer.

Source: www.axios.com