More from The Supreme Court hears arguments for two cases that could reshape the future of the internet
Supreme Court justices are notoriously clever about the questions they ask, and they’ll often ask questions during oral arguments that belie their true feelings about the subject matter. But, so far today, each member of the court who has asked questions has seemed pretty skeptical about the idea that Section 230 should be obliterated because of YouTube’s thumbnails.
We’ll see what happens, of course, but today’s arguments have been exceptional in the sense that the government seems to be employing more wisdom than we usually see when interrogating technology. (Adi says she’s reserving judgment until she sees how weird their questions to Google are.)
Kavanaugh notes that the court received a lot of concern in amicus curiae briefs that meddling with Section 230 would have devastating effects on the economy — something he says the court needs to take quite seriously. Plaintiffs didn’t have a great answer for this, vaguely noting that lots of things would still be protected if they get their way.
Plaintiffs:
Most recommendations just aren’t actionable. there is no cause of action for telling someone to look at a book that has something defamatory in it.
The Supreme Court is likely to face battles over AI search in the future, and today we’ve gotten our first signal that it’s already on the court’s radar. Justice Gorsuch noted that AI is already capable of creating new things based on the wealth of content already available on the internet.
I love this honesty from Justice Kagan, who is expressing extreme skepticism on the suggestion that the court ought to strip protection from companies operating on the internet.
“Isn’t that something for Congress, not the court?”
Correction: The line in question was from Justice Kagan, not Justice Sotomayor, as originally attributed.
Justice Sotomayor asks:
If you write an algorithm for someone that in its structure ensures the discrminiation between people, a dating app, for example. … someone says “i’m going to create an algorithm that inherently discriminates against people.” you would say that internet provider is discriminating, correct?
Apparently this stumped the plaintiffs, who declared this hypothetical too abstract to respond to. Strange, considering the YouTube algorithm is probably more complicated than this scenario.
That’s it. That’s the whole post.
Justice Thomas sanely rebuts the plaintiff’s argument that simply providing a phone number of a terrorist in a search result constitutes “aiding and abetting” an enemy. Even the creation of URLs seems up for grabs here, according to plaintiffs. Talk about blowing up the internet!
Justice Sotomayor asks a pointed question about whether recommending content is the same as helping people connect via chatrooms — basically an interrogation of whether algorithms, intentionally, connect people with radicals. This question will likely be explored in more detail in tomorrow’s case. Here’s Justice Sotomayor:
I can really see that an internet provider who was in cahoots with ISIS provided them with an algorithm that would take anybody in the world and find them for them, and do recruiting of people by showing them other videos that would lead them to ISIS, that’s an intentional act, and I could see 230 not going that far. The question is, how do you get yourself from a neutral algorithm to an aiding and abetting? An intent, knowledge… there has to be some intent to aid and abet.
Justice Elena Kagan does a good job of summing up the big question here after the opening question from Clarence Thomas. “This was a pre-algorithm statute, and everyone is trying their best to figure out how this statute applies,” Kagan notes. “Every time anyone looks at anything on the internet, there is an algorithm involved.”
Asking about whether the algorithm is the same for cooking videos as all other content, Justice Thomas is first up in today’s questioning. A long-silent member of the Supreme Court, The New York Times pointed out in 2021 that he has become far more vocal.
The court is hearing Gonzalez v. Google, one of the biggest tech law cases in years, at 10am ET. You can livestream the audio if you want to tune in — and we’ll have coverage of Gonzalez and its sister case Twitter v. Taamneh over the coming day and week.
[www.supremecourt.gov]