Washington D.C. – On Feb 21 and 22 the United States Supreme Court heard oral arguments in two cases, Gonzalez v. Google and Twitter Inc. v. Taamneh.
The Supreme Court decisions in these cases could determine what user generated content is found on the internet in the future.
Gonzalez v. Google
On Nov. 13, 2015 Nohemi Gonzalez, a student at California State University, Long Beach was killed by Islamic State terrorists while at a restaurant in Paris, France. Her family filed a lawsuit against YouTube, alleging that its recommendation system helped the terrorist group recruit new members.
Gonzalez v. Google deals with section 230 of the Communications Decency Act of 1996.
The Communications Decency Act was designed to make sending indecent or obscene material to minors a criminal offense.
Section 230 created a federal immunity to any cause of action that would make internet service providers or websites liable for information generated by users of the service.
In a pre-internet world, content providers were classified into two types, publishers and distributers.
Publishers, for example, would be a person or business that writes, edits, or prints a book. Because publishers would have knowledge of the content they were publishing, they could be held liable or any illegal content in the material.
Distributors, on the other hand, were entities like libraries or bookstores. They might sell or lend the published material, but would not be aware or have a hand in editing the information it contained and for this reason they were not liable for the content of the materials they sold.
This framework had created a problem for ISPs that wanted to moderate the material posted by users. Two cases involving early ISPs, CompuServe and Prodigy, had set the precedent for liability. ISPs that moderated content were to be treated as publishers and were thus liable for content posted by users. ISPs that did not moderate content were treated as distributors and were not liable.
Due to the CompuServe and Prodigy decisions, ISPs were disincentivized to moderate this content as they would be legally liable if they did.
This led to the creation of Section 230, which classifies ISPs, websites and search engines as distributors. This allowed them to moderate the content the bill was created to block.
Flash forward to the present, where Youtube now utilizes algorithms to sort and deliver relevant videos based on user preferences and watch history.
Gonzalez v. Google will determine whether these recommendations change YouTubes classification from a distributor to publisher, moving it out of section 230’s liability protection.
Aiding and Abetting
Oral arguments in Twitter, Inc. v. Taamneh were heard by the Supreme Court on Feb. 22.
On Jan. 1, 2017, Abdulkadir Masharipov, operating as an Islamic State of Iraq and Syria operative, conducted a mass shooting at the Reina nightclub in Istanbul, Turkey. Thirty-nine people were killed and 69 injured. ISIS officially claimed responsibility for the killings.
One of the victims relatives, who are citizens of the United States, filed a lawsuit against Twitter, Facebook and Google. They allege that the platforms aided and abetted ISIS by helping recruit, radicalize, and instruct terrorists.
This case deals with Section 230 immunity claims by Twitter in liability stemming from the use of its service by terrorists to organize and recruit.
Under Section 2333 of the Anti-Terrorism Act, United States citizens who are injured by an act of international terrorism are able to sue any person who “aid and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism”.
Oral arguments in this case center on whether Twitter is aiding and abetting terrorist organizations, and if so, whether Section 230 provides immunity from suit.
If the Supreme Court rules that the selecting and suggestions made by algorithms on YouTube removes its Section 230 immunity status, many sites on the internet would have to drastically change their business model.
YouTube, Facebook, Twitter and other sites utilize algorithms to suggest content to users that will increase “engagement” by stoking emotional responses.
“Engagement” is a social media marketing metric of how actively involved the audience is with a piece of content.
Content that generates engagement can be intense, violent or offensive.
Engagement is then in turn sold to advertisers, who want to place their products before attentive eyes.
This, along with the collection and sale of users’ personal data, are the two main revenue streams for these types of websites.
Without these algorithm’s ability to target content to user groups based on preferences, engagement and by extension advertiser revenue would drastically decrease.
YouTube argues these algorithms are necessary to sort and organize the massive amounts of content uploaded every day, and without them the user experience would be much more unpleasant. In reality, it is advertising revenue that would be most harmed by an unfavorable Supreme Court decision.
This decrease in ad dollars could damage the profitability of these sites to the point where they may have to shut down. A more likely result would be a return to user recommendation and sharing systems. It would also create a substantial increase in moderation cost with some of those duties being placed on users of the service.
Mvskoke Media’s three main methods of publishing the news are the physical paper, the website Mvskokemedia.com and our social media channels, such as YouTube and Facebook.
It is possible that if algorithms cannot be utilized by these websites in the future to direct people interested in news associated with the Muscogee (Creek) Nation to our social media channels, Mvskoke Media could see a drop in our new online subscriber base.
If these sites ultimately shut down, Mvskoke Media would have to host digital news content itself, instead of utilizing the free infrastructure provided by YouTube or Facebook.
This would result in a cost increase for the distribution of our digital content to provide for the necessary I.T. services and server utilization.