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.
“You know these are not, like, 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 that encourage certain individuals to look at suspect or harmful content.
Isn’t drawing that line “something for Congress, not the court?” she asked.
Kavanaugh said he too thought this might be a time for judicial restraint. He said dozens of tech firms and business groups had warned that changing Section 230 “would crash the digital economy, with all sorts of effects on workers and consumers, retirement plans and what have you, and those are serious concerns.”
He said Congress was in a better position to revise its own law if needed, particularly when courts have upheld Section 230 as a broad legal shield since 1996.
“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. was also 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 explained he was referring to YouTube feature that shows a list of similar or related videos to the one on the screen.
Deputy Solicitor General Malcolm Stewart, representing the Justice Department and the Biden administration, took the side of the plaintiffs, but stressed that social media sites could not be sued over ISIS videos appearing on their platforms.
Rather, they should be liable for “targeted recommendations” that encourage potential recruits to view similar ISIS videos.
Both ran into mostly skeptical questions, including from Justice Clarence Thomas.
In the past, Thomas has argued that websites should not be shielded from liability if they knowingly post illegal or defamatory conduct and refuse to remove it. But that issue was not presented in Tuesday’s case.
He said Tuesday he was not convinced by the plaintiff’s argument that YouTube recommends videos to users. Someone interested in cooking is shown other videos related to cooking. “I see those as suggestions, not recommendations,” he said.
The outcome may become clearer on Wednesday, when the justices hear a related case involving a 2016 law that allows 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 argue that social media sites aided the terrorist who carried out an attack in Istanbul.
Lawyers for Twitter said the suit should be dismissed because there was no evidence that Twitter postings had any effect on the terrorist who carried out the crime.