This article first appeared in The Edge Malaysia Weekly on March 13, 2023 - March 19, 2023

ON Feb 21, the US Supreme Court began hearing oral arguments in a case that has become known as Gonzalez v Google. The case involves the family of an American woman killed in the 2015 terrorist attacks by ISIS in Paris. The family claims that Google, which owns YouTube, bears responsibility for the automated process that recommends videos. That includes videos that could contribute to radicalisation.

A day later, on Feb 22, America’s highest court heard arguments in another case, Twitter v Taamneh. A terrorist attack on the Reina nightclub in Istanbul had killed Nawras Alassaf, a Jordanian. His relatives, including Mehier Taamneh and others, sued microblogging platform Twitter in the US, saying it had the ability to remove the tweets and accounts of the terrorist but did not do so proactively.

Both cases examine whether internet firms should be liable under a federal ­anti-terrorism law when they fail to purge terrorist content from their sites, or promote content that radicalises terrorists. At the centre of both cases is Section 230, a 26-word 1996 US law that “created the internet as we know it” and has until now shielded internet firms such as Google, Facebook, Twitter and Instagram from liability for content on their sites.

Why is it such a big deal? In 1996, the US Congress passed the Communications Decency Act to provide limited federal immunity to internet companies. Section 230 of the act basically allows users and providers of “interactive computer services” or internet platforms to make their own content moderation decisions, while still permitting liability in certain limited contexts. Section 230 treats internet firms like telephone companies, in that they are not liable for the content that they carry. If you telephone a friend on the other side of town or indeed the other side of the world and say something rude about me, or for that matter any other person, the phone company can’t be sued for carrying whatever you may have said, irrespective how rude or libellous or wrong it was. The phone companies are just message carriers. They can’t be blamed for the content. Section 230 basically updated the 1934 Communications Act and included the immunity for internet companies that began to emerge in the mid-1990s. The idea behind Section 230 was that the internet platforms were far better suited to come up with the rules of the new road than the government.

I am no legal expert but in recent weeks, I have been speaking to a bunch of lawyers who specialise in communications law. What Section 230 effectively does is it allows internet players like Alphabet Inc, which owns search giant Google as well as video sharing platform YouTube, or social media behemoth Meta Platforms Inc, which owns Facebook, Instagram and WhatsApp, to become media companies without the onerous responsibilities of traditional media players like publishers of newspapers or the owners of TV channels or radio stations.

And, oh, while Section 230 precludes internet firms from being held legally responsible for any information provided by a third-party user, it does not prevent them from being held responsible for information that they may have developed on their own or for activities unrelated to third-party content. But then again, Facebook doesn’t produce any content itself and YouTube doesn’t make its own videos. They only provide a platform on which users can upload videos or post content.

The videos on YouTube and photos on Instagram do not make them media companies in the eyes of the law. Section 230 specifies that internet firms may not “be treated as the publisher or speaker of any information provided by another information content provider” and bars all “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content”. It also clearly states that internet firms and users cannot be held liable for voluntarily acting in good faith to restrict access to “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material. Lastly, Section 230 applies only to good-faith takedowns of objectionable materials.

I can’t write anything in the traditional media to malign anyone or indeed publish obscene, lewd, violent, harassing or objectionable materials. Indeed, even if I did try, the editor and the publisher would remove words, photos or illustrations that they believe are malicious, objectionable or that promote violence because they themselves would likely be sued.

However, any­­one can freely post any­­thing on YouTube, Facebook, Instagram or TikTok, which are all immune from any kind of lawsuit. There are, of course, some minor caveats. Immunity generally does not apply to some cases like things related to national security or sex trafficking. But in general, Section 230 has enabled platforms like Facebook and YouTube, as well as third-party users like you and me, to get away with literally anything on the internet.

It is important to understand how we got here. In the early 1990s, the internet spread like wildfire only because anybody could put just about anything online. With a newspaper or a TV programme, there are always a bunch of reporters, editors and producers picking what is fit to publish and trying to sanitise content to protect themselves and their organisations from legal harm. The internet, on the other hand, was from the very start a free-form, anything goes platform that was tailor-made for the new attention economy.

To attract maximum attention, all you needed was to post something provocative. The more provocative it was, the more attention it got, and more attention it got, the more advertisers got lured in and the more money the platforms made, which in turn meant they had more money to plough back into growing the ever-expanding attention economy. Alphabet had revenues of US$282 billion (RM1.23 trillion) last year (84% of it from advertising), making it the 14th largest listed company on earth measured by revenues. Meta’s revenues topped US$116 billion (with over 95% from advertising) in 2022. Ironically, Alphabet is barely growing its revenues and Meta’s revenues actually declined last year. (TikTok’s ad revenues were US$9.9 billion last year, almost all of which came from advertising.)

Let me give all this some perspective. Total global newspaper advertising last year was estimated at just under US$28 billion. Alphabet alone rakes in about 10 times the advertising revenues of all of the newspapers in the world combined. That includes advertising newspapers generate from their websites as well as their print editions.

YouTube and Facebook are able to attract a hell of a lot more attention than your hometown newspaper. Media owners, newspaper publishers, and TV channel and radio station owners will tell you that they have lost readers, viewers, listeners and advertisers over the past two decades because Section 230 protects social media but not the traditional media. Clearly, it’s not a level playing field.

If you have been following the US Supreme Court hearings you are probably aware that the nine judges in their remarks remain hesitant to break the delicate balance set by Section 230, which has until now protected the internet players from liability for their users’ posts. If judges are unwilling to intervene, the ball will fall back into the court of legislators in the Republican-controlled US House of Representatives and the US Senate, which is controlled by the Democrats. The problem is that both have very slim majorities in the legislatures they control.

But politicians on both sides of the aisle hate Section 230 — for different reasons. Republicans believe the law gives tech companies too much say over what speech people see online while Democrats have moaned about the fact that it gives tech firms a licence to allow hate speech and disinformation.

One big impediment in amending Section 230 is the Free Speech clause of the First Amendment to the US Constitution, which limits the government’s ability to regulate speech. Any amendment to Section 230 should not infringe the constitutionally protected speech of either the internet firms or users of internet platforms.  Moreover, even if Section 230 is somehow repealed, whether entirely or partly, the First Amendment of the US Constitution will still prevent the government or private litigants from holding internet firms liable for hosting a user’s content. So, if Congress amends Section 230, Facebook can go to the Supreme Court and say the new law violates the First Amendment of the Constitution.

On Feb 28, a bipartisan group of US senators and members of the House tabled two separate but fairly similar bills in the two legislatures to reform Section 230. The amendment to Section 230 called Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms (or SAFE TECH) would allow internet firms to be held accountable for enabling cyber-stalking, online harassment and discrimination. “For too long, Section 230 has given cover to social media companies as they turn a blind eye to the harmful scams, harassment, and violent extremism that run rampant across their platforms,” Democratic senator Mark Warner of Virginia, one of the bill’s sponsors, said in a statement. “When Section 230 was enacted over 25 years ago, the internet we use today was not even fathomable,” he added. “This legislation takes strides to update a law that was meant to encourage service providers to develop tools and policies to support effective moderation and allows them to finally be held accountable for the harmful, often criminal behaviour that exists on their platforms.”

The way Warner sees it, while the Supreme Court is debating the future of Section 230, there is a solution in Congress in the form of the legislation. “This legislation will hold platforms accountable for the ads and content they peddle that have real-world consequences. Regardless of the Court’s findings, it’s clear that we need to act to rein in these companies that have used Section 230 as a shield for far too long.” Warner said that the act would force online service providers to deal with improper use of their platforms. Those that don’t could now face civil liability, something that wasn’t possible previously.

The SAFE TECH Act also clarifies and updates Section 230 in other ways. Advertising and other paid content are not protected, eliminating the cover that misleading content, scams and fraud had until now. It also makes clear that injunctive relief is also not protected, allowing consumers to take legal action when content on a provider’s site is likely to cause irreparable harm.

So what will happen now? It is unlikely that the US Supreme Court will outlaw Section 230 because its focus would be on the Free Speech clause of US Constitution. The court could, however, focus narrowly on whether exceptions should be made for terrorism. It is also highly unlikely that Congress will pass any landmark amendment to Section 230 at any point soon. The narrow majority in the legislatures means that there will be too many compromises in both the Senate and House watering down the original bills. A more far-reaching amendment to govern the internet may probably have to wait until after the 2024 US presidential elections.

Assif Shameen is a technology writer based in North America

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