Several Supreme Court justices said Tuesday they were wary of allowing lawsuits against YouTube and other social media firms over algorithms they use to direct users to related content — even if that encourages terrorists or promotes illegal conduct.
The justices had agreed for the first time to hear a challenge to Section 230, the federal law that shields websites from being sued over content posted by others. That set off alarms at Big Tech firms.
But during Tuesday’s arguments, Justices Elena Kagan and Brett M. Kavanaugh said Congress, not the court, should decide whether to change the law.
“These are not the nine greatest experts on the internet,” Kagan said to laughter, referring to the nine justices.
She said it was very difficult to draw a line between ordinary algorithms that tell users they may be interested in similar videos and those involving illegal content that would justify a lawsuit against YouTube.
Isn’t drawing that line “something for Congress, not the court?” she asked.
Kavanaugh said some feared it “would crash the digital economy” if websites were suddenly subject to all manner of lawsuits. He said social media firms have developed based on the 1996 legal shield written by Congress that protected them from lawsuits for posting content provided by others.
“Are we really the right body to draw back from that understanding?” he asked, strongly suggesting he thought the answer was no.
Chief Justice John G. Roberts Jr. sald he too was wary of opening the door to lawsuits. While the case before the court concerned terrorism, he said it could lead to a wave of lawsuits based on personal or business complaints.
Other justices admitted they were confused and uncertain about the arguments before them.
It did not sound as if a majority were ready to rule for the California parents suing Google and YouTube over the death of their daughter in a 2015 terrorist attack in Paris.
The case, Gonzalez vs. Google, asked whether YouTube could be held liable for using computerized programs that “recommended” Islamic State videos to potential recruits.
A federal judge and the 9th Circuit Court of Appeals threw out that claim on the grounds that Section 230 shielded online sites from being sued over content posted by others.
A lawyer for the family of Nohemi Gonzalez argued Tuesday that Google, which owns YouTube, should be subject to a lawsuit because of its own actions. It was “encouraging people to look at ISIS videos,” said Eric Schnapper, a University of Washington law professor.
He was joined by Malcolm Stewart, a deputy U.S. solicitor general, who stressed that social media sites could not be sued over ISIS videos appearing on their platforms, but should be liable for “targeted recommendations” that encourage potential recruits to view similar videos.
However, both ran into mostly skeptical questions from the justices.
The outcome may become clearer on Wednesday, when the justices hear a related case involving a 2016 law that allowed victims of international terrorism to sue those who knowingly aided or abetted the terrorists. That in turn led to several lawsuits against YouTube, Facebook and Twitter that arose from ISIS-sponsored terrorist incidents.
The plaintiffs in that case said the social media sites helped ISIS by posting videos that encouraged new recruits.
