On Tuesday, the Supreme Court is set to hear Gonzalez v. Google and examine the extent to which Section 230 protects “interactive computer services” (i.e. internet platforms) from liability based on their presentation of third-party content to their users. Last month, TechNet joined the Computer & Communications Industry Association, NetChoice, Digital Media Association, the Information Technology Industry Council, and the Interactive Advertising Bureau in submitting an amicus brief to the Supreme Court highlighting why content organization is absolutely protected by Section 230.
It is clear that Section 230 has drawn outsized attention over its effect on social media and the “public square.” However, as the Supreme Court and Congress grapple with potential changes to this law, it is important to first recognize that the internet has been able to flourish because of, not in spite of, the enactment of Section 230 over two decades ago. Over 5 billion people, or 64 percent of the world, use the internet, with the internet economy accounting for over 10 percent of America’s economic output. That doesn’t even factor in how the internet has democratized access to information, made it easier for us to learn about and connect to products or services, and allowed people of all backgrounds to better communicate and connect with elected officials.
Back in the 1990s, before the internet became a larger part of our economy and everyday lives, internet platforms tried a variety of approaches to regulate the content posted online by their users. Two companies in particular, CompuServe and Prodigy, took opposing approaches. CompuServe did not attempt to manage the content on its site while Prodigy made efforts to regulate user-generated content through guidelines and screening software.
Each company faced costly litigation with divergent outcomes. In Cubby, Inc. v. CompuServe, Inc., the Southern District of New York found that CompuServe was not liable because it was merely a “distributor” and did not have reason to know that defamatory content was posted on its website. In Stratton Oakmont, Inc. v. Prodigy Services Co., Prodigy was found liable since they took on an editorial role with regard to user-generated content and were subjected to a heightened standard of strict liability for acting as a “publisher” due to their content screening efforts.
Due to the significant disincentives and contradiction created by the legal system imposing liability on a company that was trying to regulate the content posted on its website, while providing immunity to a company that chose to make no effort to review content, Congress passed what is now known as Section 230, including “the 26 words that made the Internet:”
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1)
This week, more than 25 years after Section 230 was enacted, the Supreme Court will have an opportunity to clarify how Section 230 immunity works in practice and in today’s more digitally-connected society.
In Gonzalez v. Google, the plaintiff’s argument is that Section 230 immunity does not apply to the organization of third-party content. In their view, the text of Section 230 limits liability for an online platform with respect to any information provided by third parties, but does not apply to “information” provided by the online platform itself, such as URLs and Notifications.
However, if the Supreme Court were to accept this argument, it would completely undermine Section 230. Any attempt by an internet company to organize the vast quantity of third-party content, and have a functional website that consumers have grown to expect, would eliminate the company’s Section 230 liability protections. In what way would an internet platform ever be eligible for Section 230 immunity? To quote the 2nd Circuit Court of Appeals in Force v. Facebook, accepting the plaintiff’s argument would “eviscerate Section 230(c)(1); a defendant interactive computer service would be ineligible for Section 230(c)(1) immunity by virtue of simply organizing and displaying content exclusively provided by third parties.”
Justice Clarence Thomas has already voiced concerns about how lower courts have interpreted Section 230. Will the other Justices share that view? How should the Supreme Court interpret a law written over 25 years ago, before many of America’s leading internet platforms were even created, let alone before newer types of content organization methods were implemented? Should the Court rely on the plain meaning of Section 230’s text as written in combination with American common-law principles of “publisher” versus “distributor” liability or defer to the legislative history and intent behind its drafting?
With respect to the legislative intent of Section 230, the co-authors of this law, Senator Ron Wyden (D-OR) and former Representative Chris Cox (R-CA), weighed in with their own amicus brief to argue that Section 230 was designed to protect platforms from liability for their “content moderation and curation activities.”
If the Court attempted to craft a narrower interpretation of Section 230 immunity, it would be engaging in the exact kind of policymaking that is best left to Congress. It is also unlikely that the Court could effectively craft a narrower interpretation of Section 230 immunity without causing unintended consequences to the broader internet.
Holding an internet platform liable based on how they organize third-party content could incentivize internet platforms to curtail user-generated content entirely. This could mean no more posting of pictures or status updates on your favorite platform without their legal department having time to review it to determine the risk of litigation. Why would an internet platform allow for the real-time transmission of user-generated content (as of 2022, more than 500 hours of video were uploaded to YouTube every minute), however innocuous, if they could be subject to the significant costs of endless litigation? If the Supreme Court were to find that the act of “organizing content” was not protected by Section 230, the internet as we know it would stop functioning.
Many of the technologies and services that Americans love and use every day exist because Section 230 has promoted, as intended, the “continued development of the Internet and other interactive computer services.” Social media networks are the most notable example, but any website that allows for user-generated content, such as online marketplaces, home-rental listings, and forums like Reddit and Wikipedia, would be subject to potential liability for words written or spoken by someone else, under a theory that the website’s organization of material was an endorsement of that material. This substantial risk would also apply to the more than 85 percent of U.S. businesses with websites that rely on user-created content, including over 70 percent of small businesses that maintain an internet presence. It would also impact larger, brick-and-mortar businesses that use a website to conduct e-commerce across the country.
Section 230 is the foundational law that has allowed the internet and our economy to thrive and Americans to benefit from its continued growth and innovation, just as Congress hoped it would. The Court should uphold Section 230, not undermine Congress’ intent when enacting Section 230. Anything less would fundamentally change how we communicate and interact online, and upend the internet as we know it.