(Washington) The Supreme Court of the United States considered on Tuesday the thorny question of the responsibility of large platforms like Google or Facebook on the content published by users, but did not clearly indicate whether it thinks that the law needs to be rewritten or not.
“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.
The hearing focused on a 1996 law, known as “Section 230”, providing legal immunity to digital companies which, unlike “publishers”, “host” content uploaded by users of their platforms. .
But many voices have been demanding for years that this law be modified or withdrawn, considering that Google, YouTube, Facebook or Twitter should be held responsible when they facilitate the propagation of so-called “problematic” content that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.
The nine judges of the instance took up a complaint filed by the relatives of Nohemi Gonzalez, a young American killed in the November 2015 attacks in Paris, against Google, the parent company of YouTube.
They accuse him of having supported the growth of the Islamic State (IS) group by suggesting his videos to certain users.
Their complaint has so far been rejected by the courts in the name of section 230. But in their appeal to the Supreme Court, they believe that Google is not a “publisher” protected by this device since the algorithms it has created “recommended” ISIS videos.
“Dying Slowly”
“When you click on a video, YouTube systematically offers you others that you did not request,” said Eric Schnapper, on behalf of the Gonzalez family.
But according to Lisa Blatt, who represented Google on Tuesday, the term “recommendation” is abusive.
“There are 3.5 billion queries on the search engine every day. [Les réponses] are different for each person and could all be considered recommendations, ”assessed the lawyer.
“The internet would never have taken off if everyone could sue all the time,” she continued. “The web would slowly die”.
The idea of parliamentarians in the 1990s was indeed to protect the then embryonic sector from cascading lawsuits, to allow it to flourish, while encouraging it to remove problematic content.
But this provision no longer enjoys a consensus: 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.
By agreeing to take up the case, while it dismisses the vast majority of cases submitted to it, the high court has hinted that it was ready to change case law.
“Not the greatest experts”
The judges expressed their doubts about the validity of Section 230 today, but also their frustration with a complex subject, while artificial intelligence has taken another leap in recent months with interfaces like ChatGPT.
“In a post-algorithmic world, AI can generate content, including by following neutral rules. It can generate poetry, it can generate controversy, ”said Judge Neil Gorsuch.
“You don’t have the nine greatest internet experts here,” noted Elena Kagan, prompting laughter from the congregation.
“If we ever take your side, all of a sudden Google is no longer protected. And maybe that’s what Congress wants, but isn’t it up to Congress to decide that rather than this court? “, she pointed out.
Changing the case law could “bring the digital economy to a standstill, with all sorts of consequences for workers and pension funds etc”, noted Judge John Roberts, in reference to the argument attached to the file of Google.
The prospect is causing cold sweats in the tech world.
On Wednesday, the temple of American law will continue its reflection with a very close file: if section 230 did not exist, could the platforms be condemned under anti-terrorism laws, even without direct support for an attack?
The court must render both decisions before June 30.