Supreme Court hears Google case that could break the internet

The family of a victim of the 2015 Paris terror attack is suing Google for spreading extremist content. If they win, the internet will never be the same.

These days, breaking the internet is more of a badge of honour than a literal concern.

It’s a Kim Kardashian selfie going extremely viral, not someone actually knocking out the plug.

But in Washington DC, the nine justices of the US Supreme Court are now deliberating over a case with the power to up-end the basic structure of the online world and, in the words of Justice Brett Kavanaugh, “crash the digital economy”.

The lawsuit before them is the most significant test of a statute that has been on the books since 1996, when Kardashian was 16 and Facebook, Google and the iPhone did not exist.

Section 230 of the Communications Decency Act, according to legal expert Alan Rozenshtein, is “the Magna Carta of the internet”. It provides a shield for online platforms so they are not liable for content posted by their users.

A 2014 magazine cover which featured Kim Kardashian in an effort to “break the internet”. Picture: Supplied

In the early days of the world wide web, this protected operators of chat rooms and bulletin boards. Two and a half decades on, while the law remains the same, it also covers everything from search engines to social media.

For the family of Nohemi Gonzalez, Section 230 is no longer fit for purpose.

The 23-year-old student was studying in Paris in 2015 when she was one of 130 people killed in an Islamic State terror attack. In legal action launched a year later, her parents argued Google – as YouTube’s parent company – aided and abetted ISIS by allowing its algorithms to recommend extremist content that radicalised the terrorists.

It is now up to America’s highest court to decide whether Google can use its Section 230 shield to reject the Gonzalez family’s claim.

This will not be a straightforward task. Hany Farid, a computer science expert from the University of California, says the law’s critics and supporters are evenly divided.

“Some say Section 230 has gone too far, that it has allowed bad actors to do awful things on the internet,” he said in a roundtable at the Brookings Institution. “Some say it hasn’t gone far enough because we want to have this open and free exchange of ideas.”

Mourners pay tribute to the victims of the 2015 Paris terror attacks. Picture: Getty Images

The Gonzalez family’s case, put to the court this week by their lawyer Eric Schnapper, is not that Google should be liable for ISIS videos posted on its sites. It is that it should be liable for enabling those videos to be spread by automated algorithms.

Farid argues this is the ugly truth of the business model of the online platforms.

“The closer and closer content gets to violating terms of service – it’s violent, it’s salacious, it’s conspiratorial, it’s nasty, it’s ugly – the more users engage,” he said.

“The platforms know this, so what they do is they recommend content that is more problematic because it drives user engagement.”

What gives the Gonzalez case momentum, according to Brookings governance studies senior fellow Benjamin Wittes, is that the digital giants are now “blamed for everything”.

“Election interference by the Russians, eating disorders, disinformation, abuse and bullying, hate speech … Everybody blames them for different things,” he said.

“We used to see them as the village square and now we see them as big, powerful, scary corporations.”

But as Google’s lawyer Lisa Blatt told the court: “All publishing requires organisation.”

The tech giants argue the internet could not function without algorithms. Picture: Supplied

About 500 hours of video is uploaded to YouTube every minute. Without Section 230’s legal immunity for algorithms – whether for search engine results or social feeds – the online world as we know it would be impossible to navigate.

“Exposing websites to liability for implicitly recommending third-party content defies the text (of Section 230) and threatens today’s internet,” Blatt said, a position backed by Google’s traditional rivals including Facebook, Twitter and Microsoft.

In the course of the hearing, some Supreme Court justices – who will hand down their decision in the middle of the year – expressed an interest in finding new guardrails in the law. But Schnapper struggled to offer a clear way forward, prompting several of the justices to repeatedly admit they were confused.

“We really don’t know about these things,” Justice Elena Kagan said to laughter.

“These are not like the nine greatest experts on the internet.”

Prior to the hearing, Rozenshtein – from the University of Minnesota – said the verdict would be “the most important Supreme Court opinion about the internet possibly ever”. But he argued it would make more sense if the issue was dealt with by politicians, not judges.

Beatriz Gonzalez, the mother of Nohemi, hopes her daughter’s death will be a catalyst for change. Picture: Getty Images

Joe Biden seems up for the challenge. Government lawyers have intervened in the case to back the Gonzalez family, while the President used a Wall Street Journal opinion piece last month to declare he wanted to “fundamentally reform Section 230”.

“We need Big Tech companies to take responsibility for the content they spread and the algorithms they use,” Biden said.

It is an area of rare common ground between the President and Republicans in Congress. That said, it will be difficult to secure a consensus on a solution, given Democrats want the platforms to be tougher in moderating content while Republicans want fewer constraints.

Beatriz Gonzalez, Nohemi’s mother, acknowledges she does not have the answers. She barely uses the internet, but she hopes the case delivers change from her daughter’s death.

“I don’t know much about social media or these ISIS organisations. I don’t know nothing about politics. But what I know is that my daughter is not going to vanish just like that,” she told the Associated Press.

Originally published as Supreme Court hears Google case that could break the internet