Supreme Court Could Break the Internet

experiment they're conducting on our children for profit. The big tech persists in coordination with the mainstream media. We must

immediately strip them of their Section to thirty protection. There's been no action in Congress in the face of partisan differences, and now the Supreme Court has decided to step into the middle of this politically fraught debate or whether some of the world's most powerful tech companies should continue to be protected or should be held accountable for third party content. My guest is Eric Goldman, a professor at Santa Clara University School of Law and co director of the school's

High Tech Law Institute. So Eric tell us about Section to thirty, Section two three. He says, that websites aren't liable for third party content. It's a really simple premise. The idea is that people who post content take responsibility forward, but the services that they used to post that content don't. Both cases the court is going to consider involve terrorist attacks abroad, one in Paris in and another in istanbul In.

Tell us about the plaintiffs arguments against Google and Twitter, Well, really both of them involved pretty much the same set

of facts. They involved terrorist attacks abroad that were allegedly related to social media, and the relationship can vary based on the facts, but the general gist is that the terrorist organizations recruited and radicalized readers online, and because of that, the services now take responsibility for the actions that are done by these terrorists organizations or the people that they radicalized. So are the plaintiffs in these cases complaining about the

algorithm generator recommendations. Well, on the part of it, you could look at it a little bit more broadly that I think the starting premise is that the terrorist organization should never be online in the first instance, and if they are online, then the social media services giving them that support now take responsibility for any of the consequences

that flow from the visibility that they gain online. So it's really one of these situations where social media services is just one of many possible contributors to the outcome, and we don't hold everyone who has that kind of tenuous connection to a terrorist attack responsible for the attack. In the first instance. Isn't it a leap for the plane gifts to go from showing social media postings to

proving that the platforms were responsible for international terrorism. It is a leap, and it really gets to the core of the underlying social question here. Assuming that a terrorist attack is done by an individual who has had many relationships in life. They have a landlord, or they have a home dssociations, they have a job, they took the bus to work, or they have an internet access provider

who allowed them to connect to the internet. All of those people in theory are all some very indirect contributor to the activities of this individual, but we don't hold them responsible. So we make a distinction in the law between what we call bus for causation could never have happened without this person doing what they did, and what we call proximate causation, the people who actually are close enough to the outcome that they could have changed the outcome.

And it's that last piece. The idea that social media services are the pros in the cause of a distant terrorist attack just doesn't really pass the sanity check. We look at them, we say that's too far, that doesn't make sense. And a number of the related cases to the ones that are going to Supreme Court have failed for that rare reason. The course said, we cannot hold social media services as the cause of these unfortunate events. So is the Supreme Court going to decide that question?

I don't think they're likely to address the causation piece, but it's impossible to ignore. It's the same instinct that you had when you ask the question. The Supreme Court justices are going to look at this case and say, wait, why are they the defendant? Why are we talking about the social media services when there's all these other people who are equally situated and no more responsible. However, the legal question in front of the court doesn't reach that

causation question, so they may not talk about it. They may not even feel like they have the authority to do so. So the Nine Circuit, in the same ruling that it absolved Google, basically for the Paris attacks, said that Twitter, Google, and Facebook had to face claims that they played a role in the Istanbul attack. Explain the difference there. So, some of it's just based on the

way in which the arguments are made. These cases have each had their own unique twist to them, and so in that particular case, the question is actually a technical statutory question. Congress enacted liability for people who might have played a role in contributing to terrorist attacks and indapted

their case. So the court said that the statute didn't apply, and so the way that the case was framed for the Ninth Circuit, the Ninth Circuit said that statute could apply, we need to go and ask more questions about it. And that's now what Twitter is appealing up to the Supreme Court to ask the question whether or not the statute even reaches the activity. If it doesn't, then Twitter is not liable because the statute never created liability. Is

it happenstance that both these involved terrorist attacks on foreign soil? No, I don't think it's happened stance, because, in fact, many of the cases that have been brought in this genre, and they're about twenty of them, that have been foiled across the country, have involved foreign terrorist activity, somemin that have involved domestic activity. Ultimately, I don't think that it

really matters from a legal standpoint. There's so many legal reasons why the services should be liable regardless of where the terrorist activity took place. So these cases are the first guest of Section two thirty at the Supreme Court. What does it tell you that the Supreme Court agreed to hear them when, like so many other cases this term, it didn't have to, meaning there was no circuit split

that it had to resolve. Yeah. So one of the most common reasons of Supreme Court takes the case is because of circuit splits, where two federal courts are in disagreement with each other and they need Supreme Court to weigh in and resolve the dispute. The problem, and this fits their case, is that the nine Circuit Court of Appeals opinion had its own intrinsic split. There were three judges on a panel and they wrote three different opinions

that were wildly different from each other. They were not in sync with each other. So though there wasn't a circuit split, there was an intra panel split. Now Normally those get resolved by what's called an on bond procedure. The Federal Appeals Court can say, we need to have more judges listened to this case so that we can figure out how to come up with a more harmonized resolution.

The Ninth Circuit didn't do that. So because the Ninth circum opinion was so messy and the Ninth Circuit didn't clean it up, it created the possibility for the Supreme Court to say, there's a mess here that we need to resolve. Two of the opinions also basically said we think Section two thirties a problem, and so it created a flag for the Supreme Court to pay attention, there's a statutory problem here that needs attention. Maybe you ought

to take a look. So it was a combination of the messy opinion plus what the judges said that I think in fact of the Supreme Court interest. Justice Clarence Thomas had already expressed interest and indicated that he's willing to change the law if Congress isn't. Well, we have to assume that Justice Thomas was in favor of hearing this case because he's basically begged plaintiffs to bring Section to three cases to him so he can find a

way to try and invistrate it. So we know that Justice Thomas is already coming in as an extreme Section to three skeptic. He's literally told us when nobody asked him to. Google's chief executive officer told lawmakers last year that revoking Section to thirty would mean that platforms would either over filter content or not be able to filter content at all. Do you agree with that? I do, and it's a very well known phenomenon with online content.

It's something that I call the moderator's dilemma. The idea is that if you're liable for trying and failing, then either you don't try it all so that you can't fail, so you just let everything go through, therefore you haven't intervened at all, or you overrespond and make sure you don't fail, which is impossible, but it leads to lots

of collateral damage as well. There is, of course, the third option, which Google is unlikely to do but many other services will, which is to exit the industry and say that it's not profitable to do nothing or to be perfect, and therefore we have to simply find another line of business. Let's say Section two thirty is gone. What effect would that have on social media companies? It's

not just social media companies that the entire Internet. So much of the Internet is driven by user generated content, us talking to each other, and Section two thirty is the legal foundation that enables those conversations to take place without the services being liable for facilitate. They're enabling those conversations. So without Section to thirty, many of those conversations will simply stop. They won't be possible to do anymore because

of the fact that the legal liability will overwhelm the benefit. Now, some of the services that are existing today are big enough and powerful enough that they will either find a way to thread the legal needle and accept whatever collateral image comes from that, or they will move towards professionally produced content. They'll stop letting users talk to each other.

They'll pay some people who they trust to submit content that they will accept the legal risk for, and as a result, it becomes a lot more of the Internet being people talking to us, not us talking to each other. As I understood, this was about algorithm generated recommendations. Could the court just eliminate those in theory one one solution is that the Supreme Court could say that quote, algorithmic recommendations are excluded from Section two thirty, but Section two

thy otherwise remains attacked. That would be a massive strategic loss for the Internet. And the reason why is because there's no principled way to distinguish between algorithmic recommendations and any other promotional or curatorial functions that Internet services perform. So basically saying that algorithmic recommendations are out of secret to theory say there's no way to promote or encourage readers to look at particular types of content and still

stay within Section two thirty. That would lead to an Internet that looks a lot more like Google Drive or dropbox. The services could only provide dumb storage lockers and a u r L that the users go out and promote, and that would be the only thing that that would be covered by Section two thirty. Everything else will be gone, and I don't think we want in their netfall of

Google drives. Besides Justice Thomas, are there other justices who have expressed displeasure with section to thirty and might be willing to tamper with it. You know, it's it's a little hard to read the judges nowadays because every speech related question is intrinsically linked with the culture wars that

have Royal the Supreme Court. So it's unclear whether or not judges who in the past has stood for less government and intervention into private activity still stand for that, or judges to believe that in other services should doing more to remove uh content will feel that way when it comes to the implications of that. So we're actually kind of in an a limbo with the other judges. We don't really know where they're likely to come out.

And this is a substantial import because not only are they going to brustle with the questions in the section to thirty contexts, but there will be another appeal of laws coming from Florida and Texas that will ask the judges to weigh in further on the ability of their own services to moderate content from users. So they're going to be having to answer this question, and we don't know what they're going to answer in their decisions are

likely to shape the future of the Internet. So two thousand twenty three is going to be a very scary time for the future of the Internet because it's the room Court is going to decide it and we don't know what they're gonna say. And Eric, the cases involving Texas is social media law and Florida social media law, where there's a split in the circuits involving similar laws. You think the Court will take that. I do think

they're going to take the case. And the reason why, impart is because of a opinion that came out of the Texas Law on the Supreme Court's shadow docket, where three judges led by Justice Toledo, said that they think that these cases should be granted surtiari. You only need four votes, so if any one of the other sticks think that they should take this case, then the votes are there. So I'm highly confident that the Supreme Court is going to take the case, and when they do,

we have another battle royale over the future of the Internet. Finally, Section two thirty. Do you think it's something that Congress should take up and work on or do you think it should just be left alone? We benefit every day, hour by hour, off a minute by minute from section to thirty. Though, times that we're talking to each other in line are some of the most important and common

moments that we have used in the Internet. So even small changes to Section two there you could have dramatic effects on the way that we spend our time, the way that we enjoy our lives, and the things that we're able to do. So I think we actually have it pretty good from that respect in the sect that there's a lot of things that are taking place today that only are possible because Section two three enables them.

So if Congress wants to take a look an section to thees, that is their prerogative, and they have asked questions about algorithmic recommendations in some of their draft bills. However, the Supreme Court should not be the ones that reshaped Section two thirty. If they think that Section two there's miscalibrated, they should tell Congress that, but they shouldn't go and

change it. So the fact that the Supreme Court might change section too therey is what really panics me because then it creates the possibility that unelected justices are making decisions that will affect our daily lives in ways that it's really impossible to contemplate. So the sticks are so high. So the Court is stepping into yet another controversial area this term. In addition to voting rights, affirmative action, and gay rights, the environment, to name just a few. It's

going to be quite a term. Thanks so much. Eric. That's Professor Eric Goldman of Santa Clara University Law School. He's also co director of the school's High Tech Law Institute. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them wherever you get your favorite podcasts. I'm June Grosso and you're listening to Bloomberg