WASHINGTON — President Joe Biden and some of his most prominent Republican opponents in Congress have become allies, of sorts, in an upcoming Supreme Court showdown between Big Tech and its critics.
The Biden administration is roughly on the same page as prominent Republicans, such as Sens. Ted Cruz of Texas and Josh Hawley of Missouri, in arguing for limits on internet company immunity under a provision in the 1996 Communications Decency Act called Section 230.
The 26 words of the legislative text, which has been credited with fueling the rise of social media, have largely shielded companies from defamation claims and many other lawsuits over user-posted content.
Both senators, who craved attention from the Republican Party’s populist wing, have been prominent thorn in Biden’s side even before he took office. The both objected to the certification of the 2020 election results as part of former President Donald Trump’s ill-fated campaign to stay in power that culminated in the January 6 riot at the Capitol.
But the loose alliance in a case involving YouTube that the court hears Tuesday illustrates how resistance to the broad immunity companies receive for their decisions about content moderation and what content users post cut across ideological boundaries. There are also unusual bedfellows supporting YouTube owner Google, with the left-leaning American Civil Liberties Union, the libertarian Cato Institute and the corporate giant US Chamber of Commerce all taking their side.
The target aims at a central features of the modern internet: the targeted recommendation. Apps like YouTube want to keep users on their sites, so they try to show them related content that entices them to click. But opponents argue that the company should be responsible for that content. If consumers could sue apps for the consequences of those decisions, tech companies might have to change how they design their products — or at least be more careful about the content they promote.
Samir Jain, vice president of policy at the Center for Democracy and Technology, a tech-aligned group that supports Google, said that while Biden, Cruz and Hawley have all criticized Section 230, they differ on what to replace it with. Democrats would like to see companies take a stronger hand in moderating content, while Republicans, who perceive an anti-conservative bias, want fewer restrictions overall.
“There is common cause in the sense of thinking that Section 230 is too broad but not common cause in what they are trying to accomplish at the end of the day,” Jain said.
The trial before the Supreme Court on Tuesday concerns claims that YouTube’s actions contributed to the death of an American woman in the 2015 Islamic State terrorist attacks in Paris by recommending certain videos. Family members to Nohemi Gonzalez, one of 130 people killed in the series of linked attacks in Paris carried out by the militant Muslim group commonly known as ISIS, is seeking to sue the company under an anti-terrorism law. YouTube says it is not responsible for these deaths.
The court is hearing a related case on Wednesday there relatives of Nawras Alassaf, a Jordanian national who was killed in an Islamist attack in Istanbul in 2017, accuses Twitter, Google and Facebook of aiding and abetting the spread of militant Islamic ideology, which the companies deny. The judges will not raise Section 230 in that case.
In the Google case, Principal Deputy Solicitor General Brian Fletcher, representing the Biden administration, took a similar position in his card to the one that Cruz and other Republicans brought in theirs own card. Hawley submitted one separate card opposes Google. Cruz and Hawley are both attorneys who once served on the Supreme Court.
In all three briefs, the unlikely allies argue that Section 230 does not provide immunity to claims involving recommendation algorithms, the key issue in the case, although the substance of the legal arguments differ.
The lawsuit targets YouTube’s use of algorithms to suggest videos to users based on content they’ve previously viewed. YouTube’s active role goes beyond the type of behavior Congress intended to protect with the 27-year-old law, the family’s lawyers argue. Prosecutors do not allege that YouTube had any direct role in the murder.
The stakes are high because endorsements are now an industry norm. Apps like Instagram, TikTok, Facebook and Twitter long ago started relying on recommendation engines, or algorithms, to determine what people see most, rather than emphasizing chronological feeds or content that people have reviewed.
Biden took a shot at tech companies in his State of the Union address earlier this month, though he did not mention Section 230. He was more specific in a Wall Street Journal op-ed last month when he called for reforms, saying companies must “take responsibility for the content they spread and the algorithms they use.” A White House spokesman declined to comment on the administration’s position on the case.
Cruz said in an interview that while there may be common ground for legislation to overhaul Section 230, the Biden administration is mostly OK with companies “censoring” views they don’t agree with.
“Big Tech engages in blatantly anticompetitive activities. They enjoy monopoly profits. And they use that power to, among other things, censor and silence the American people, and I believe we should use every tool at our disposal to stop it,” he said.
Hawley said Section 230 is “almost entirely a creation of the courts” and that Congress had not intended it to provide blanket immunity.
“I think this is an opportunity for the Supreme Court to untie some of the knots that the courts themselves have woven into the law here,” he said in an interview.
Mukund Rathi, a lawyer at the Electronic Frontier Foundation, said it was disappointing but not surprising from his perspective that Biden joined the Republicans and weighed in against Google.
He warned of broad ramifications if Google loses, noting that volunteer moderators on Reddit, for example, could be held accountable for their actions, a point the company made in a short.
“The rhetoric is that these are bad powerful tech companies that are hurting ordinary people and causing a lot of harm and injustice,” Rathi said. In reality, if Section 230 is weakened, “you will hurt the common people.”
But even some people in the tech industry have floated the idea of rolling back Section 230. Roger McNamee, a venture capitalist who was an early investor in Facebook, said in an interview that companies should not be given immunity for their decisions to amplify certain content.
“This is the first opportunity the Supreme Court has to stand up for the American people in the face of a tech industry that has undermined public health, democracy and public safety,” he said.