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Speaker 1: Yes, this is Bloombird Law with June Brusso from Bloomberg Radio.

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Speaker 1: It's been the subject of controversy for years. Section two

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Speaker 1: thirty of the Communications Decency Act a legal shield for

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Speaker 1: social media platforms, and Congress has been debating whether it

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Speaker 1: should be reformed or revoked. Repealing the law may be

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Speaker 1: the one thing that President Joe Biden and former President

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Speaker 1: Donald Trump agree on, of course, not for the same reasons.

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Speaker 1: We must hold social media platforms accountable for the national

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Speaker 1: experiment they're conducting on our children for profit. The big

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Speaker 1: tech persists in coordination with the mainstream media. We must

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Speaker 1: immediately strip them of their Section to thirty protection. There's

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Speaker 1: been no action in Congress in the face of partisan differences,

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Speaker 1: and now the Supreme Court has decided to step into

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Speaker 1: the middle of this politically fraught debate or whether some

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Speaker 1: of the world's most powerful tech companies should continue to

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Speaker 1: be protected or should be held accountable for third party content.

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Speaker 1: My guest is Eric Goldman, a professor at Santa Clara

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Speaker 1: University School of Law and co director of the school's

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Speaker 1: High Tech Law Institute. So Eric tell us about Section

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Speaker 1: to thirty, Section two three. He says, that websites aren't

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Speaker 1: liable for third party content. It's a really simple premise.

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Speaker 1: The idea is that people who post content take responsibility forward,

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Speaker 1: but the services that they used to post that content don't.

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Speaker 1: Both cases the court is going to consider involve terrorist

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Speaker 1: attacks abroad, one in Paris in and another in istanbul In.

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Speaker 1: Tell us about the plaintiffs arguments against Google and Twitter, Well,

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Speaker 1: really both of them involved pretty much the same set

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Speaker 1: of facts. They involved terrorist attacks abroad that were allegedly

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Speaker 1: related to social media, and the relationship can vary based

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Speaker 1: on the facts, but the general gist is that the

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Speaker 1: terrorist organizations recruited and radicalized readers online, and because of that,

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Speaker 1: the services now take responsibility for the actions that are

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Speaker 1: done by these terrorists organizations or the people that they radicalized.

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Speaker 1: So are the plaintiffs in these cases complaining about the

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Speaker 1: algorithm generator recommendations. Well, on the part of it, you

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Speaker 1: could look at it a little bit more broadly that

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Speaker 1: I think the starting premise is that the terrorist organization

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Speaker 1: should never be online in the first instance, and if

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Speaker 1: they are online, then the social media services giving them

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Speaker 1: that support now take responsibility for any of the consequences

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Speaker 1: that flow from the visibility that they gain online. So

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Speaker 1: it's really one of these situations where social media services

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Speaker 1: is just one of many possible contributors to the outcome,

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Speaker 1: and we don't hold everyone who has that kind of

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Speaker 1: tenuous connection to a terrorist attack responsible for the attack.

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Speaker 1: In the first instance. Isn't it a leap for the

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Speaker 1: plane gifts to go from showing social media postings to

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Speaker 1: proving that the platforms were responsible for international terrorism. It

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Speaker 1: is a leap, and it really gets to the core

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Speaker 1: of the underlying social question here. Assuming that a terrorist

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Speaker 1: attack is done by an individual who has had many

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Speaker 1: relationships in life. They have a landlord, or they have

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Speaker 1: a home dssociations, they have a job, they took the

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Speaker 1: bus to work, or they have an internet access provider

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Speaker 1: who allowed them to connect to the internet. All of

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Speaker 1: those people in theory are all some very indirect contributor

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Speaker 1: to the activities of this individual, but we don't hold

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Speaker 1: them responsible. So we make a distinction in the law

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Speaker 1: between what we call bus for causation could never have

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Speaker 1: happened without this person doing what they did, and what

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Speaker 1: we call proximate causation, the people who actually are close

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Speaker 1: enough to the outcome that they could have changed the outcome.

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Speaker 1: And it's that last piece. The idea that social media

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Speaker 1: services are the pros in the cause of a distant

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Speaker 1: terrorist attack just doesn't really pass the sanity check. We

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Speaker 1: look at them, we say that's too far, that doesn't

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Speaker 1: make sense. And a number of the related cases to

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Speaker 1: the ones that are going to Supreme Court have failed

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Speaker 1: for that rare reason. The course said, we cannot hold

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Speaker 1: social media services as the cause of these unfortunate events.

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Speaker 1: So is the Supreme Court going to decide that question?

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Speaker 1: I don't think they're likely to address the causation piece,

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Speaker 1: but it's impossible to ignore. It's the same instinct that

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Speaker 1: you had when you ask the question. The Supreme Court

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Speaker 1: justices are going to look at this case and say, wait,

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Speaker 1: why are they the defendant? Why are we talking about

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Speaker 1: the social media services when there's all these other people

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Speaker 1: who are equally situated and no more responsible. However, the

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Speaker 1: legal question in front of the court doesn't reach that

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Speaker 1: causation question, so they may not talk about it. They

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Speaker 1: may not even feel like they have the authority to

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Speaker 1: do so. So the Nine Circuit, in the same ruling

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Speaker 1: that it absolved Google, basically for the Paris attacks, said

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Speaker 1: that Twitter, Google, and Facebook had to face claims that

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Speaker 1: they played a role in the Istanbul attack. Explain the

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Speaker 1: difference there. So, some of it's just based on the

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Speaker 1: way in which the arguments are made. These cases have

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Speaker 1: each had their own unique twist to them, and so

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Speaker 1: in that particular case, the question is actually a technical

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Speaker 1: statutory question. Congress enacted liability for people who might have

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Speaker 1: played a role in contributing to terrorist attacks and indapted

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Speaker 1: their case. So the court said that the statute didn't apply,

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Speaker 1: and so the way that the case was framed for

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Speaker 1: the Ninth Circuit, the Ninth Circuit said that statute could apply,

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Speaker 1: we need to go and ask more questions about it.

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Speaker 1: And that's now what Twitter is appealing up to the

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Speaker 1: Supreme Court to ask the question whether or not the

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Speaker 1: statute even reaches the activity. If it doesn't, then Twitter

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Speaker 1: is not liable because the statute never created liability. Is

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Speaker 1: it happenstance that both these involved terrorist attacks on foreign soil? No,

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Speaker 1: I don't think it's happened stance, because, in fact, many

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Speaker 1: of the cases that have been brought in this genre,

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Speaker 1: and they're about twenty of them, that have been foiled

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Speaker 1: across the country, have involved foreign terrorist activity, somemin that

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Speaker 1: have involved domestic activity. Ultimately, I don't think that it

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Speaker 1: really matters from a legal standpoint. There's so many legal

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Speaker 1: reasons why the services should be liable regardless of where

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Speaker 1: the terrorist activity took place. So these cases are the

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Speaker 1: first guest of Section two thirty at the Supreme Court.

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Speaker 1: What does it tell you that the Supreme Court agreed

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Speaker 1: to hear them when, like so many other cases this term,

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Speaker 1: it didn't have to, meaning there was no circuit split

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Speaker 1: that it had to resolve. Yeah. So one of the

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Speaker 1: most common reasons of Supreme Court takes the case is

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Speaker 1: because of circuit splits, where two federal courts are in

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Speaker 1: disagreement with each other and they need Supreme Court to

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Speaker 1: weigh in and resolve the dispute. The problem, and this

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Speaker 1: fits their case, is that the nine Circuit Court of

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Speaker 1: Appeals opinion had its own intrinsic split. There were three

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Speaker 1: judges on a panel and they wrote three different opinions

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Speaker 1: that were wildly different from each other. They were not

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Speaker 1: in sync with each other. So though there wasn't a

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Speaker 1: circuit split, there was an intra panel split. Now Normally

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Speaker 1: those get resolved by what's called an on bond procedure.

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Speaker 1: The Federal Appeals Court can say, we need to have

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Speaker 1: more judges listened to this case so that we can

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Speaker 1: figure out how to come up with a more harmonized resolution.

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Speaker 1: The Ninth Circuit didn't do that. So because the Ninth

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Speaker 1: circum opinion was so messy and the Ninth Circuit didn't

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Speaker 1: clean it up, it created the possibility for the Supreme

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Speaker 1: Court to say, there's a mess here that we need

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Speaker 1: to resolve. Two of the opinions also basically said we

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Speaker 1: think Section two thirties a problem, and so it created

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Speaker 1: a flag for the Supreme Court to pay attention, there's

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Speaker 1: a statutory problem here that needs attention. Maybe you ought

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Speaker 1: to take a look. So it was a combination of

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Speaker 1: the messy opinion plus what the judges said that I

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Speaker 1: think in fact of the Supreme Court interest. Justice Clarence

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Speaker 1: Thomas had already expressed interest and indicated that he's willing

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Speaker 1: to change the law if Congress isn't. Well, we have

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Speaker 1: to assume that Justice Thomas was in favor of hearing

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Speaker 1: this case because he's basically begged plaintiffs to bring Section

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Speaker 1: to three cases to him so he can find a

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Speaker 1: way to try and invistrate it. So we know that

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Speaker 1: Justice Thomas is already coming in as an extreme Section

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Speaker 1: to three skeptic. He's literally told us when nobody asked

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Speaker 1: him to. Google's chief executive officer told lawmakers last year

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Speaker 1: that revoking Section to thirty would mean that platforms would

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Speaker 1: either over filter content or not be able to filter

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Speaker 1: content at all. Do you agree with that? I do,

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Speaker 1: and it's a very well known phenomenon with online content.

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Speaker 1: It's something that I call the moderator's dilemma. The idea

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Speaker 1: is that if you're liable for trying and failing, then

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Speaker 1: either you don't try it all so that you can't fail,

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Speaker 1: so you just let everything go through, therefore you haven't

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Speaker 1: intervened at all, or you overrespond and make sure you

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Speaker 1: don't fail, which is impossible, but it leads to lots

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Speaker 1: of collateral damage as well. There is, of course, the

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Speaker 1: third option, which Google is unlikely to do but many

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Speaker 1: other services will, which is to exit the industry and

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Speaker 1: say that it's not profitable to do nothing or to

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Speaker 1: be perfect, and therefore we have to simply find another

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Speaker 1: line of business. Let's say Section two thirty is gone.

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Speaker 1: What effect would that have on social media companies? It's

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Speaker 1: not just social media companies that the entire Internet. So

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Speaker 1: much of the Internet is driven by user generated content,

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Speaker 1: us talking to each other, and Section two thirty is

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Speaker 1: the legal foundation that enables those conversations to take place

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Speaker 1: without the services being liable for facilitate. They're enabling those conversations.

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Speaker 1: So without Section to thirty, many of those conversations will

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Speaker 1: simply stop. They won't be possible to do anymore because

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Speaker 1: of the fact that the legal liability will overwhelm the benefit. Now,

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Speaker 1: some of the services that are existing today are big

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Speaker 1: enough and powerful enough that they will either find a

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Speaker 1: way to thread the legal needle and accept whatever collateral

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Speaker 1: image comes from that, or they will move towards professionally

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Speaker 1: produced content. They'll stop letting users talk to each other.

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Speaker 1: They'll pay some people who they trust to submit content

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Speaker 1: that they will accept the legal risk for, and as

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Speaker 1: a result, it becomes a lot more of the Internet

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Speaker 1: being people talking to us, not us talking to each other.

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Speaker 1: As I understood, this was about algorithm generated recommendations. Could

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Speaker 1: the court just eliminate those in theory one one solution

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Speaker 1: is that the Supreme Court could say that quote, algorithmic

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Speaker 1: recommendations are excluded from Section two thirty, but Section two

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Speaker 1: thy otherwise remains attacked. That would be a massive strategic

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Speaker 1: loss for the Internet. And the reason why is because

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Speaker 1: there's no principled way to distinguish between algorithmic recommendations and

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Speaker 1: any other promotional or curatorial functions that Internet services perform.

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Speaker 1: So basically saying that algorithmic recommendations are out of secret

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Speaker 1: to theory say there's no way to promote or encourage

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Speaker 1: readers to look at particular types of content and still

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Speaker 1: stay within Section two thirty. That would lead to an

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Speaker 1: Internet that looks a lot more like Google Drive or dropbox.

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Speaker 1: The services could only provide dumb storage lockers and a

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Speaker 1: u r L that the users go out and promote,

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Speaker 1: and that would be the only thing that that would

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Speaker 1: be covered by Section two thirty. Everything else will be gone,

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Speaker 1: and I don't think we want in their netfall of

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Speaker 1: Google drives. Besides Justice Thomas, are there other justices who

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Speaker 1: have expressed displeasure with section to thirty and might be

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Speaker 1: willing to tamper with it. You know, it's it's a

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Speaker 1: little hard to read the judges nowadays because every speech

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Speaker 1: related question is intrinsically linked with the culture wars that

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Speaker 1: have Royal the Supreme Court. So it's unclear whether or

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Speaker 1: not judges who in the past has stood for less

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Speaker 1: government and intervention into private activity still stand for that,

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Speaker 1: or judges to believe that in other services should doing

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Speaker 1: more to remove uh content will feel that way when

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Speaker 1: it comes to the implications of that. So we're actually

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Speaker 1: kind of in an a limbo with the other judges.

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Speaker 1: We don't really know where they're likely to come out.

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Speaker 1: And this is a substantial import because not only are

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Speaker 1: they going to brustle with the questions in the section

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Speaker 1: to thirty contexts, but there will be another appeal of

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Speaker 1: laws coming from Florida and Texas that will ask the

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Speaker 1: judges to weigh in further on the ability of their

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Speaker 1: own services to moderate content from users. So they're going

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Speaker 1: to be having to answer this question, and we don't

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Speaker 1: know what they're going to answer in their decisions are

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Speaker 1: likely to shape the future of the Internet. So two

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Speaker 1: thousand twenty three is going to be a very scary

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Speaker 1: time for the future of the Internet because it's the

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Speaker 1: room Court is going to decide it and we don't

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Speaker 1: know what they're gonna say. And Eric, the cases involving

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Speaker 1: Texas is social media law and Florida social media law,

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Speaker 1: where there's a split in the circuits involving similar laws.

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Speaker 1: You think the Court will take that. I do think

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Speaker 1: they're going to take the case. And the reason why,

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Speaker 1: impart is because of a opinion that came out of

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Speaker 1: the Texas Law on the Supreme Court's shadow docket, where

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Speaker 1: three judges led by Justice Toledo, said that they think

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Speaker 1: that these cases should be granted surtiari. You only need

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Speaker 1: four votes, so if any one of the other sticks

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Speaker 1: think that they should take this case, then the votes

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Speaker 1: are there. So I'm highly confident that the Supreme Court

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Speaker 1: is going to take the case, and when they do,

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Speaker 1: we have another battle royale over the future of the Internet. Finally,

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Speaker 1: Section two thirty. Do you think it's something that Congress

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Speaker 1: should take up and work on or do you think

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Speaker 1: it should just be left alone? We benefit every day,

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Speaker 1: hour by hour, off a minute by minute from section

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Speaker 1: to thirty. Though, times that we're talking to each other

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Speaker 1: in line are some of the most important and common

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Speaker 1: moments that we have used in the Internet. So even

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Speaker 1: small changes to Section two there you could have dramatic

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Speaker 1: effects on the way that we spend our time, the

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Speaker 1: way that we enjoy our lives, and the things that

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Speaker 1: we're able to do. So I think we actually have

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Speaker 1: it pretty good from that respect in the sect that

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Speaker 1: there's a lot of things that are taking place today

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Speaker 1: that only are possible because Section two three enables them.

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Speaker 1: So if Congress wants to take a look an section

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Speaker 1: to thees, that is their prerogative, and they have asked

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Speaker 1: questions about algorithmic recommendations in some of their draft bills. However,

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Speaker 1: the Supreme Court should not be the ones that reshaped

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Speaker 1: Section two thirty. If they think that Section two there's miscalibrated,

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Speaker 1: they should tell Congress that, but they shouldn't go and

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Speaker 1: change it. So the fact that the Supreme Court might

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Speaker 1: change section too therey is what really panics me because

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Speaker 1: then it creates the possibility that unelected justices are making

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Speaker 1: decisions that will affect our daily lives in ways that

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Speaker 1: it's really impossible to contemplate. So the sticks are so high.

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Speaker 1: So the Court is stepping into yet another controversial area

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Speaker 1: this term. In addition to voting rights, affirmative action, and

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Speaker 1: gay rights, the environment, to name just a few. It's

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Speaker 1: going to be quite a term. Thanks so much. Eric.

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Speaker 1: That's Professor Eric Goldman of Santa Clara University Law School.

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Speaker 1: He's also co director of the school's High Tech Law Institute.

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Speaker 1: And that's it for this edition of the Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law Podcast. You can find them wherever you

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Speaker 1: get your favorite podcasts. I'm June Grosso and you're listening

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Speaker 1: to Bloomberg