The Supreme Court today declined to weaken one of the key laws supporting freedom of expression online and recognized that digital platforms are not usually liable for illegal acts by their users, ensuring that everyone can continue to use those services to speak and organize. .
Decisions a González vs. Google AND Twitter versus Taamneh they are excellent news for a free and vibrant internet, which inevitably depends on the services that host our intervention. The courthouse inside Gonzalez declined to address the scope of 47 USC 230 (section 230), which generally protects online users and services from lawsuits based on content created by others. Section 230 is an essential part of the legal architecture that allows everyone to connect, share ideas and advocate for change without the need for immense resources or technical expertise. By failing to address Section 230, the Supreme Court has avoided undermining it.
In Tamneh, the Supreme Court rejected a legal theory that would have made online services liable under the Federal Justice Against Sponsors of Terrorism Act on the theory that members of terrorist organizations or their supporters simply used these services as we all do: to create and share content. The decision is another win for user online discourse, as it avoids an outcome where providers censor far more content than they already do, or even ban certain topics or users altogether when they might later be held liable for having aided or abetted unlawful acts by their users.
Given the potential for both decisions to have dire consequences for users’ freedom of expression, EFF is pleased that the Supreme Court has left existing legal protections for online speech in place.
But we cannot rest easy. There are pressing threats to user speech online as Congress considers legislation to weaken Section 230 and otherwise expand intermediary liability. Users must continue to defend their ability to have a free and open Internet that everyone can use.
Read on for a more comprehensive analysis of Supreme Court decisions.
Supreme Court sidesteps attempt to weaken Section 230
The Supreme Courts Gonzalez the decision to avoid interpreting Section 230 is a victory for free speech online. Based on his ruling in Tamneh (discussed below), the Supreme Court ruled that the plaintiffs in Gonzalez had failed to establish that YouTube could be held liable as an aide and supporter under JASTA for hosting content from ISIS members and supporters.
Why the Gonzalez plaintiffs could not hold YouTube directly liable under JASTA, the court ruled that there was no need to decide whether YouTube needed the civil immunity protection of Section 230.
The court’s refusal to interpret Section 230 is a great relief. As EFF wrote in a memoir of a court friend [PDF]the interpretation of article 230 requested by the Gonzalez the plaintiffs would have led to a much more censored and less user-friendly Internet.
If online services could face liability based on simply recommending other users’ content or providing basic but essential tools that people use to share their content, such as URLs, they would radically reshape everyone’s ability to speak and share content online. People would have a hard time finding the communities and content they want, and speakers and creators wouldn’t be able to find the audience for their content. In short, the Gonzalez the plaintiffs’ interpretation of Section 230 would have gutted many of the benefits that online services provide to their users.
Not to mention, if platforms were responsible for simply hosting content associated with terrorist organizations, they would predictably react by censoring a large volume of protected speech, including news of terrorist acts, counter-speech by others, and any other content that someone might claim that he later supported terrorism. There is no doubt that this reaction would have a disproportionate impact on marginalized speakers.
The courts Gonzalez the decision is also a victory in another sense. The Supreme Court’s decision means that the decision of the lower courts, by the US Court of Appeals for the Ninth Circuit, no longer has any legal authority. That decision sought to dangerously narrow Section 230 protections for legal claims under the Anti-Terrorism Act, raising the specter of widespread internet censorship. The Ninth Circuit also approved the use of automated filters to address concerns about the distribution of harmful content, a dangerous and naïve view that would have led to much more automated censorship.
Online services are not responsible for illegal acts of users
The Supreme Courts Tamneh The decision is also good news to ensure that Internet users can talk and have access to information on controversial topics, including talk of terrorism.
The central question in Tamneh was whether online services could be held liable for aiding and abetting acts of terrorism because they generally provided services used by those organizations or their supporters. There was no allegation that the rigs were specifically used to plan the attack on Reina. EFF feared that allowing accountability based on claims that a service was generally aware that others had used its service would lead to censorship of users’ speech, as platforms would be less willing to host speeches on controversial topics. Together with a coalition, we filed a brief of friends of the court warning the Supreme Court of that dangerous outcome.
Thankfully, the Supreme Court declined to rule that online services could be held liable. Although the courts’ opinion is based on historical interpretations of the legal concept of liability for aiding and abetting, the result is that online services are generally not at fault for having a service open to users that some used to perform illegal acts.
The court recognized this defendants platforms are on a global scale and enable hundreds of millions of them (or billions) of people to upload large amounts of informationtion on a daily basis. However, there are no allegations that the defendants treated ISIS differently from anyone else.
The Supreme Court also rejected an argument by the plaintiffs that the automated systems used by platforms to distribute content to users could be seen as substantive assistance to ISIS in creating accountability under JASTA. Instead, the court ruled that those recommender systems are inseparable and essential features of the service architecture.
All content on their platforms is filtered through them algorithms, which supposedly sort content based on information and inputs provided by users and found in the content itself. As presented here, the algorithms appear to be agnostic regarding the nature of the content, corresponding to any content (including ISIS content) with whichever user is most likely to view it content. The fact that these algorithms matched some ISIS content with some users therefore does not convert defendants passive assistance in active aiding and abetting. Once the platform and the sorting tool algorithms were up and running, defendthe ants at most would have stood back to look; it is not assumed that they have taken any further action regarding ISIS.
That said, the Supreme Court’s ruling does not preclude any potential liability when the services positively support and abet specific terrorist acts rather than merely assisting the entity at large: the outcome could have been different in such a case. This might be read by some as an invitation to enact appalling laws that require services to spy on their users or censor their speech.
EFF will continue to fight any attempts to censor the Internet. And we will continue to center users’ rights to free speech so lawmakers and courts know how their decisions will harm everyone’s ability to rely on the Internet to speak, organize, and find their communities. Today, however, EFF is relieved that the Supreme Court has avoided harming users’ speech.
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