Google Case Heads to Supreme Court With Powerful Internet Shield Law at Stake
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Google Case Heads to Supreme Court With Powerful Internet Shield Law at Stake

Company’s defence against liability in 2015 Paris terrorist attack invokes ‘Magna Carta of the internet’

By JOHN D. MCKINNON
Tue, Feb 21, 2023 8:33amGrey Clock 4 min

WASHINGTON—Google goes before the U.S. Supreme Court this week to defend what is widely regarded as a pillar of the online economy—and one that is also being blamed for a proliferation of harmful content.

The law at issue, known as Section 230, gives internet platforms legal immunity for almost all third-party content hosted on their sites. A decision to limit that immunity could scramble the business models of the internet’s biggest companies—especially social media platforms such as Instagram, TikTok and Google’s YouTube that rely heavily on recommendation algorithms.

“Unless they reaffirm the status quo, they’re going to cause a huge disruption,” said Alan Rozenshtein, a University of Minnesota law professor, at a Brookings Institution panel discussion about the case last week, where he described Section 230 as “the Magna Carta of the internet.”

There is widespread support in Congress for overhauling Section 230, but legislative efforts to do so have stalled amid partisan disagreements over the diagnosis and the cure.

Lawmakers in both parties worry that the immunity law has helped spread promotion of harmful content to vulnerable groups such as children. Democrats also say the immunity has allowed companies to ignore false and dangerous information spreading online, while Republicans say it has enabled liberal-leaning tech companies to block conservative viewpoints.

That has put the Supreme Court in position to potentially rewrite a legal cornerstone of the internet. The case, Gonzalez v. Google, was brought by the family of an American college student, Nohemi Gonzalez, who was among more than 100 people killed during the 2015 Paris terrorist attacks.

The plaintiffs allege that YouTube failed to take down some ISIS terrorist videos and even recommended them to users. They say that makes Google liable for damages under the Anti-Terrorism Act, although they haven’t presented evidence that the terrorists involved saw those videos. In essence, the plaintiffs and their allies argue that Section 230 protection shouldn’t apply to platforms’ algorithmic recommendations of harmful content.

Google, a unit of Alphabet Inc., prevailed in lower courts by arguing that it is protected by Section 230 of the 1996 Communications Decency Act. The law is often known as a shield because it prevents platforms from being sued for hosting harmful user posts, a measure that has been credited with paving the way for internet platforms to prosper economically.

Section 230 also shields platforms from suits for blocking objectionable content. Lawmakers at the time hoped this would encourage internet companies to block harmful content such as sexual images of children, but detractors say tech platforms have used it to censor conservative viewpoints.

Groups supporting the plaintiffs, including some child-safety advocates and conservative free-speech proponents, say the case is a long-overdue chance to right a fundamental legal imbalance that has given the online platforms an unhealthy amount of power and influence.

They say the internet ecosystem has become a breeding ground for a range of social ills, from hate speech to eating disorders, largely because of the 1996 immunity shield for online platforms.

In friend-of-the-court briefs, several allies of the plaintiffs focused on the potential harms done to children online by algorithmic recommendation systems that aim to maximize minors’ engagement.

“We’ve all woken up 20 years later and the internet’s not great,” said Hany Farid, a computer science professor at the University of California, Berkeley, at the recent Brookings panel. “And maybe it’s time to start thinking about how to make the internet a more civilised place.”

But the prospect that Section 230 could be scaled back by the high court has caused a wave of worry in the internet industry.

Companies and others filing friend-of-the-court briefs in support of Google include Meta Platforms Inc., owner of Instagram and Facebook, and NetChoice, a trade group that includes TikTok, which is owned by China’s ByteDance Ltd.

Microsoft Corp. also took Google’s side, saying that platforms “inevitably will have to dramatically cut down on the content they allow on their services—even content they have no reason to believe falls afoul of any law.”

A number of conservative pro-business groups have sided with Google, along with the American Civil Liberties Union and the Progressive Policy Institute.

Limiting Section 230 would stifle the internet’s creative ferment by making platforms wary about recommending personalised content—the technology that has made platforms such as TikTok and Instagram so popular, said Jeff Kosseff, author of “The Twenty Six Words That Created the Internet,” a book about the Section 230 immunity law.

Also filing a brief in support of Section 230 were the sponsors of Section 230, Sen. Ron Wyden (D., Ore.) and former Rep. Christopher Cox (R., Calif.).

A ruling against Google “would subject platforms to liability for all of their decisions to present or not present particular third-party content—the very actions that Congress intended to protect,” the two wrote.

But in a worrisome development for internet companies, the Biden administration argues that expansive readings of the federal immunity law threaten to erode other legal protections.

“An overly broad reading of [the immunity law] would undermine the enforcement of other important federal statutes by both private plaintiffs and federal agencies,” the U.S. Solicitor General wrote in a friend-of-the-court brief.

The Supreme Court decided last fall to hear the case. Many legal scholars believe that Justice Clarence Thomas likely led the push to review the Gonzalez case, since he had previously suggested in court statements and opinions that the federal courts’ current interpretation of Section 230 could be too broad.

The case is scheduled for oral arguments before the court Tuesday, with a decision expected by the end of the high court’s term in late June or early July.

Some scholars believe that the justices could yet stop short of deciding the Gonzalez case. That is because the plaintiffs’ underlying claims under the Anti-Terrorism Act could be rejected by the justices in a similar case, Twitter Inc. v. Taamneh, which is set for arguments Wednesday.

The Twitter case was brought by family members of Nawras Alassaf, who was killed in an ISIS attack at an Istanbul nightclub in 2017. Mr. Alassaf’s relatives allege that Twitter, Google and Meta provided material support to ISIS and are “the vehicle of choice in spreading propaganda.”

Lawyers for Twitter, Google and Facebook have said in court filings that they have made extensive efforts to remove ISIS content and that there is no direct causal link between the websites and the Paris and Istanbul attacks.



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The bequests benefit charities, distant relatives and even pets

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Charities, distant relatives and even pets are benefiting from surprise inheritances. They can thank people without children.

Not having children is becoming more common, both among millennials and older people. A July Pew Research Center analysis found that 20% of U.S. adults age 50 and older hadn’t had children.

And many of these people don’t have wills. An AARP survey found half of childless people age 50-plus who live alone have a will, compared with 57% of others that age. Those without wills have less control over what happens to their money, which often ends up in the hands of people who don’t expect it.

This phenomenon of a surprise inheritance is common enough that it has a name: the laughing heir .

“All they do is get the money and go, ‘Ah ha ha, look at that,’ ” said Michael Ettinger , an estate lawyer in New York.

Kelley Gilpin McKeig, a 64-year-old healthcare-industry consultant in Ridgefield, Wash., received a phone call several years ago saying her cousin Nick Caldwell left behind money in a savings account. They hadn’t been in touch for 20 years.

“I thought it was a scam,” she said. “Nobody else in our family had heard that he had passed.”

She hunted down his death certificate and a news article and learned he had died about a year and a half before in a workplace accident.

Caldwell, who was in his 50s, had died without a will. His estate was split among cousins and an uncle. It took about two years for the money to be distributed because of the paperwork and court approval involved. Gilpin McKeig’s share was $2,300.

Afterward, she updated her will to make sure what she has doesn’t go to “just anybody down the line, or cousins I don’t care about.”

Who inherits

There are trillions of dollars at stake as baby boomers age.

Most people leave their money to spouses and children when they die. A 2021 analysis of Federal Reserve survey data found that 82% of heirs’ inheritances came from parents.

People with no children say they want to leave a greater share of their estates to charity, friends and extended family , according to research by two Yale law professors that surveyed 9,000 U.S. adults.

Rebecca Fornwalt, a 33-year-old writer, created a trust after landing a book deal. While her heirs are her parents, her backup heirs include her sister and about a half-dozen close friends. She set aside $15,000 for the care of each of her two dogs.

Susan Lassiter-Lyons , a financial coach in Florence, Ariz., said one childless client is leaving equal interests in her home to her two nephews. Another is leaving her home to a man she has been friends with for a long time.

“She broke his heart years ago and she feels guilted into leaving him property,” Lassiter-Lyons said.

A client who is a former escort estranged from her family is leaving her estate to two friends and to charity.

Lassiter-Lyons, who doesn’t have children, set up a trust for her two dogs should she and her wife die. The pet guardian, her wife’s sister, would live in their house while taking care of the dogs. When the dogs die, she inherits the house.

In the Yale study, people without descendants—children or grandchildren—intended to give 10% of their estates to charity, on average, more than triple the intended amount of those with descendants.

The Jewish Community Foundation of Los Angeles, which manages $1.3 billion of assets, a few years ago added an “heirless donors” section to its website that profiles donors and talks about building a legacy.

“Fifteen years ago, we never talked about child-free donors at all,” said Lew Groner , the foundation’s vice president for marketing.

In the absence of a will, heirs are determined by state law . Assets can wind up in the state’s hands. In New York, for example, $240 million in unclaimed funds over the past 10 years has arrived from estates of the deceased, not including real estate, according to the state comptroller’s office. In California, it is $54.3 million.

Hard questions

Financial advisers say a far bigger concern than who gets what is making sure there is enough money and support for a comfortable old age, because clients without children can’t call on them for help.

“I hope there is something left to leave,” said Stephanie Maxfield, a 43-year-old therapist in southern Colorado. “But if there isn’t, I think that’s OK, too.”

She said she would like to leave something to her partner’s nieces and nephews, as well as animal shelters and domestic-violence shelters. Her best friend is a beneficiary.

Choosing an estate executor and who would handle money and health decisions on your behalf can be difficult when you don’t have children, financial advisers say. Using a promised inheritance as a reward for taking care of you when you are older isn’t a good solution, said Jay Zigmont , an investment adviser focused on childless people.

“Unfortunately, it is relatively common to see family members who are in the will decide to opt for cheaper medical care (or similar decisions) in order to protect what they will be inheriting,” he said in an email.

Kirsten Tompkins, who is from Birmingham, U.K., and works in consulting, along with her husband divided their estate among their dozen nieces and nephews.

Choosing heirs was the easy part. What is hard is figuring out whom to ask for help as she and her husband get older, she said.

“A lot of us are at an age where we are playing that role for our parents,” the 50-year-old said, referring to tasks such as providing tech support and taking parents to medical appointments. “Who is going to do that for us?”

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