The Supreme Court is finally taking up Section 230

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The moment all of tech policy has been waiting a quarter century for is finally here: The Supreme Court will take up Section 230 … but in a way few of us tech-watchers quite expected. The stakes for the legal status quo underpinning the entirety of modern social media are potentially huge, and the outcome is far from certain.

The Supreme Court on Monday said it will hear a case involving terrorist content on YouTube and whether or not Section 230 immunizes platforms’ algorithms.

• Section 230, of course, says that web platforms, from newspaper comment sections and email providers to Big Tech platforms like Google, can’t be sued over posts that are “provided by another” — a.k.a., by users.
• One of the many, many questions swirling around this law is, when do platforms become so involved with the content that they cease to be separate from users, and can be sued?
• Is it when they were alerted to content by user reports? How about when they promote the content through algorithms? When they add their own warning about it?

Up until now, federal districts and appeals courts have basically ruled “no” to all of the above, reasoning that if any were the case, platforms would have to either check almost every single post or ignore all of them.

• Both extremes would be bad for business — a big concern at the dawn of the internet age, in 1996, when the law passed.
• Checking every post (and taking down all the ones that raise any worry of even frivolous litigation) obviously would be bad for free speech.
• But creating a free-for-all would make platforms intensely toxic. The moderation that platforms do do is both arguably both insufficient and also the only thing making some platforms tolerable.

Under that legal approach, the algorithms that order and recommend content — which, from a technological point of view, are basically the entire point and purpose of social media — don’t create lawsuit risk for the platforms.

• Nor do fact-checks, labels, failures to act on warnings, and lots of other things.
• It’s not just takedowns and other forms of moderation: Leaving content up and doing nothing with it is also completely fine, under the law.

Of course, there’s bipartisan anger that this setup creates huge levels of harm without recourse for those who got hurt, even as some tech companies have gotten very rich.

• Much of that anger focuses on harm that happens at algorithmic scale — whether it’s the spread of child sexual abuse material or mass harassment — because of boosting by Big Tech companies’ very own designs.
• The case — and an additional case the Supreme Court will hear involving Twitter — involves terrorist content and attacks, and could offer SCOTUS the ability to narrow court interpretation about just how free social services are to be, well, what they are.
• There may be real appetite for that kind of narrowing, in fact: The justices appear to have taken up the issue despite the lack of any disagreement in circuit courts, which is more often what prompts them to hear a case.

By the way, if you thought it was a different issue that touched on Section 230 and seemed destined for the Supreme Court — namely, whether states can require platforms to host conservative content — the justices still could take that up too.

Both sets of cases create huge uncertainty for tech, though of course a ruling confirming the status quo is possible in both.

• The court may also decide to rule narrowly and only find a small loophole for existing statutes on terrorist content.
• Maybe the justices will follow the framing of the Twitter case and sidestep algorithms altogether, focusing instead on liability in anti-terrorism law.
• But the breadth of potential questions is staggering here, including free speech and design.

And unlike most of the contentious issues, where the ideological lineup of the court is a good predictor of the outcome, Section 230 has foes and defenders on both sides, and for the most part, we don’t know where the nine justices fall.

• The one exception is arch-conservative Justice Clarence Thomas, who has repeatedly called for narrowing when companies get to benefit from the law and for expanding the circumstances where they’re responsible for content.

I wrote a few weeks ago that the possibility of the Supreme Court taking up the Florida and Texas laws had a real “season finale” vibe — no one knows what’s going to happen and seemingly everything is on the table. What worries tech is that the decision to bring Section 230, and the sector’s very architecture, more squarely into the justices’ next term is that this will actually prove more like a series finale from which there’s no coming back.

— Ben Brody (email | twitter)

In Washington

The Supreme Court declined to take on Apple’s case against Qualcomm. While Apple and Qualcomm settled their patent dispute in 2019, Apple had wanted the Supreme Court to hear its argument in anticipation of another Qualcomm suit over licensing agreements.

Sen. Chuck Schumer called for greater scrutiny of data breaches after a spree of high-profile attacks. In a press conference Sunday, Schumer called on the Federal Trade Commission and Justice Department to step up efforts to track down cyberattackers and trace the compromised data, pointing to recent attacks including the Uber breach and the Suffolk County attack.

In the states

Social media platforms are trying to find ways to live with the Florida and Texas social media laws, according to The Washington Post. Among the measures being considered, tech platforms are considering completely getting rid of political content (which opens its own can of worms), shutting down service in those states (unlikely and difficult to enforce), and allowing users to opt in to moderation (which likely won’t satisfy Texas or Florida).

Gov. Gavin Newsom signed a law banning services that charge prisoners for calls. The FCC and advocates have for years accused the for-profit prison telecom industry of keeping call rates unreasonably high. Prison reform advocates hope California will set an example for other states.

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On Protocol

The Securities and Exchange Commission fined Kim Kardashian for her crypto endorsements. The $1.26 million fee is meant to penalize Kardashian for promoting EMAX tokens on Instagram without disclosing her financial interest in them.

If steel and aluminum decided World War II, computing power may decide whatever comes next, claims Chris Miller, author of the upcoming book “Chip War: The Fight for the World’s Most Critical Technology.” In a Q&A with Protocol, Miller discussed the evolving military applications of semiconductors and Russia’s chip procurement troubles.

Around the world

Alphabet shuttered Google Translate in China. The company cited low usage as the reason for ending one of the final few Google services that operated in the country.

Duolingo wants to serve as the language test administrator for U.K. visa applicants. It’s reportedly in talks with the U.K. government to replace the existing system, which requires applicants to go to testing sites.

In data

$110 million to $130 million: That’s how much profit China’s ENN Natural Gas Company is expected to make by delivering a single shipment of natural gas from Louisiana to Europe, according to The Wall Street Journal. Chinese firms have reportedly been supplying more gas to Europe — which faces the ongoing and worsening energy crisis — while also increasing their own imports from Russia.

Californiacation comes for Austin

Remember when all those tech companies were moving to Texas and Texans were worried they’d bring all the bad parts of Silicon Valley (and California) with them? Well, astronomical rents have landed in Austin. The median monthly rent in Austin in August hit $2,930, up a whopping 86% from the year prior, per Dwellsy data cited by Axios. The increase catapulted Austin into the top five metros with highest rents, wedged between San Francisco and San Diego.

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From a VC investor: Advice for Web3 startup founders: The VC correction is proving once again that valuations are not an indicator of success. While money continues to flow, the crypto winter and VC slowdown have forced even the most committed Web3 venture capitalists (and their investors) to proceed with more caution.

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