Speaker 1: Yes, this is Bloombird Law with June Brusso from Bloomberg Radio.
Speaker 1: It's been the subject of controversy for years. Section two
Speaker 1: thirty of the Communications Decency Act a legal shield for
Speaker 1: social media platforms, and Congress has been debating whether it
Speaker 1: should be reformed or revoked. Repealing the law may be
Speaker 1: the one thing that President Joe Biden and former President
Speaker 1: Donald Trump agree on, of course, not for the same reasons.
Speaker 1: We must hold social media platforms accountable for the national
Speaker 1: experiment they're conducting on our children for profit. The big
Speaker 1: tech persists in coordination with the mainstream media. We must
Speaker 1: immediately strip them of their Section to thirty protection. There's
Speaker 1: been no action in Congress in the face of partisan differences,
Speaker 1: and now the Supreme Court has decided to step into
Speaker 1: the middle of this politically fraught debate or whether some
Speaker 1: of the world's most powerful tech companies should continue to
Speaker 1: be protected or should be held accountable for third party content.
Speaker 1: My guest is Eric Goldman, a professor at Santa Clara
Speaker 1: University School of Law and co director of the school's
Speaker 1: High Tech Law Institute. So Eric tell us about Section
Speaker 1: to thirty, Section two three. He says, that websites aren't
Speaker 1: liable for third party content. It's a really simple premise.
Speaker 1: The idea is that people who post content take responsibility forward,
Speaker 1: but the services that they used to post that content don't.
Speaker 1: Both cases the court is going to consider involve terrorist
Speaker 1: attacks abroad, one in Paris in and another in istanbul In.
Speaker 1: Tell us about the plaintiffs arguments against Google and Twitter, Well,
Speaker 1: really both of them involved pretty much the same set
Speaker 1: of facts. They involved terrorist attacks abroad that were allegedly
Speaker 1: related to social media, and the relationship can vary based
Speaker 1: on the facts, but the general gist is that the
Speaker 1: terrorist organizations recruited and radicalized readers online, and because of that,
Speaker 1: the services now take responsibility for the actions that are
Speaker 1: done by these terrorists organizations or the people that they radicalized.
Speaker 1: So are the plaintiffs in these cases complaining about the
Speaker 1: algorithm generator recommendations. Well, on the part of it, you
Speaker 1: could look at it a little bit more broadly that
Speaker 1: I think the starting premise is that the terrorist organization
Speaker 1: should never be online in the first instance, and if
Speaker 1: they are online, then the social media services giving them
Speaker 1: that support now take responsibility for any of the consequences
Speaker 1: that flow from the visibility that they gain online. So
Speaker 1: it's really one of these situations where social media services
Speaker 1: is just one of many possible contributors to the outcome,
Speaker 1: and we don't hold everyone who has that kind of
Speaker 1: tenuous connection to a terrorist attack responsible for the attack.
Speaker 1: In the first instance. Isn't it a leap for the
Speaker 1: plane gifts to go from showing social media postings to
Speaker 1: proving that the platforms were responsible for international terrorism. It
Speaker 1: is a leap, and it really gets to the core
Speaker 1: of the underlying social question here. Assuming that a terrorist
Speaker 1: attack is done by an individual who has had many
Speaker 1: relationships in life. They have a landlord, or they have
Speaker 1: a home dssociations, they have a job, they took the
Speaker 1: bus to work, or they have an internet access provider
Speaker 1: who allowed them to connect to the internet. All of
Speaker 1: those people in theory are all some very indirect contributor
Speaker 1: to the activities of this individual, but we don't hold
Speaker 1: them responsible. So we make a distinction in the law
Speaker 1: between what we call bus for causation could never have
Speaker 1: happened without this person doing what they did, and what
Speaker 1: we call proximate causation, the people who actually are close
Speaker 1: enough to the outcome that they could have changed the outcome.
Speaker 1: And it's that last piece. The idea that social media
Speaker 1: services are the pros in the cause of a distant
Speaker 1: terrorist attack just doesn't really pass the sanity check. We
Speaker 1: look at them, we say that's too far, that doesn't
Speaker 1: make sense. And a number of the related cases to
Speaker 1: the ones that are going to Supreme Court have failed
Speaker 1: for that rare reason. The course said, we cannot hold
Speaker 1: social media services as the cause of these unfortunate events.
Speaker 1: So is the Supreme Court going to decide that question?
Speaker 1: I don't think they're likely to address the causation piece,
Speaker 1: but it's impossible to ignore. It's the same instinct that
Speaker 1: you had when you ask the question. The Supreme Court
Speaker 1: justices are going to look at this case and say, wait,
Speaker 1: why are they the defendant? Why are we talking about
Speaker 1: the social media services when there's all these other people
Speaker 1: who are equally situated and no more responsible. However, the
Speaker 1: legal question in front of the court doesn't reach that
Speaker 1: causation question, so they may not talk about it. They
Speaker 1: may not even feel like they have the authority to
Speaker 1: do so. So the Nine Circuit, in the same ruling
Speaker 1: that it absolved Google, basically for the Paris attacks, said
Speaker 1: that Twitter, Google, and Facebook had to face claims that
Speaker 1: they played a role in the Istanbul attack. Explain the
Speaker 1: difference there. So, some of it's just based on the
Speaker 1: way in which the arguments are made. These cases have
Speaker 1: each had their own unique twist to them, and so
Speaker 1: in that particular case, the question is actually a technical
Speaker 1: statutory question. Congress enacted liability for people who might have
Speaker 1: played a role in contributing to terrorist attacks and indapted
Speaker 1: their case. So the court said that the statute didn't apply,
Speaker 1: and so the way that the case was framed for
Speaker 1: the Ninth Circuit, the Ninth Circuit said that statute could apply,
Speaker 1: we need to go and ask more questions about it.
Speaker 1: And that's now what Twitter is appealing up to the
Speaker 1: Supreme Court to ask the question whether or not the
Speaker 1: statute even reaches the activity. If it doesn't, then Twitter
Speaker 1: is not liable because the statute never created liability. Is
Speaker 1: it happenstance that both these involved terrorist attacks on foreign soil? No,
Speaker 1: I don't think it's happened stance, because, in fact, many
Speaker 1: of the cases that have been brought in this genre,
Speaker 1: and they're about twenty of them, that have been foiled
Speaker 1: across the country, have involved foreign terrorist activity, somemin that
Speaker 1: have involved domestic activity. Ultimately, I don't think that it
Speaker 1: really matters from a legal standpoint. There's so many legal
Speaker 1: reasons why the services should be liable regardless of where
Speaker 1: the terrorist activity took place. So these cases are the
Speaker 1: first guest of Section two thirty at the Supreme Court.
Speaker 1: What does it tell you that the Supreme Court agreed
Speaker 1: to hear them when, like so many other cases this term,
Speaker 1: it didn't have to, meaning there was no circuit split
Speaker 1: that it had to resolve. Yeah. So one of the
Speaker 1: most common reasons of Supreme Court takes the case is
Speaker 1: because of circuit splits, where two federal courts are in
Speaker 1: disagreement with each other and they need Supreme Court to
Speaker 1: weigh in and resolve the dispute. The problem, and this
Speaker 1: fits their case, is that the nine Circuit Court of
Speaker 1: Appeals opinion had its own intrinsic split. There were three
Speaker 1: judges on a panel and they wrote three different opinions
Speaker 1: that were wildly different from each other. They were not
Speaker 1: in sync with each other. So though there wasn't a
Speaker 1: circuit split, there was an intra panel split. Now Normally
Speaker 1: those get resolved by what's called an on bond procedure.
Speaker 1: The Federal Appeals Court can say, we need to have
Speaker 1: more judges listened to this case so that we can
Speaker 1: figure out how to come up with a more harmonized resolution.
Speaker 1: The Ninth Circuit didn't do that. So because the Ninth
Speaker 1: circum opinion was so messy and the Ninth Circuit didn't
Speaker 1: clean it up, it created the possibility for the Supreme
Speaker 1: Court to say, there's a mess here that we need
Speaker 1: to resolve. Two of the opinions also basically said we
Speaker 1: think Section two thirties a problem, and so it created
Speaker 1: a flag for the Supreme Court to pay attention, there's
Speaker 1: a statutory problem here that needs attention. Maybe you ought
Speaker 1: to take a look. So it was a combination of
Speaker 1: the messy opinion plus what the judges said that I
Speaker 1: think in fact of the Supreme Court interest. Justice Clarence
Speaker 1: Thomas had already expressed interest and indicated that he's willing
Speaker 1: to change the law if Congress isn't. Well, we have
Speaker 1: to assume that Justice Thomas was in favor of hearing
Speaker 1: this case because he's basically begged plaintiffs to bring Section
Speaker 1: to three cases to him so he can find a
Speaker 1: way to try and invistrate it. So we know that
Speaker 1: Justice Thomas is already coming in as an extreme Section
Speaker 1: to three skeptic. He's literally told us when nobody asked
Speaker 1: him to. Google's chief executive officer told lawmakers last year
Speaker 1: that revoking Section to thirty would mean that platforms would
Speaker 1: either over filter content or not be able to filter
Speaker 1: content at all. Do you agree with that? I do,
Speaker 1: and it's a very well known phenomenon with online content.
Speaker 1: It's something that I call the moderator's dilemma. The idea
Speaker 1: is that if you're liable for trying and failing, then
Speaker 1: either you don't try it all so that you can't fail,
Speaker 1: so you just let everything go through, therefore you haven't
Speaker 1: intervened at all, or you overrespond and make sure you
Speaker 1: don't fail, which is impossible, but it leads to lots
Speaker 1: of collateral damage as well. There is, of course, the
Speaker 1: third option, which Google is unlikely to do but many
Speaker 1: other services will, which is to exit the industry and
Speaker 1: say that it's not profitable to do nothing or to
Speaker 1: be perfect, and therefore we have to simply find another
Speaker 1: line of business. Let's say Section two thirty is gone.
Speaker 1: What effect would that have on social media companies? It's
Speaker 1: not just social media companies that the entire Internet. So
Speaker 1: much of the Internet is driven by user generated content,
Speaker 1: us talking to each other, and Section two thirty is
Speaker 1: the legal foundation that enables those conversations to take place
Speaker 1: without the services being liable for facilitate. They're enabling those conversations.
Speaker 1: So without Section to thirty, many of those conversations will
Speaker 1: simply stop. They won't be possible to do anymore because
Speaker 1: of the fact that the legal liability will overwhelm the benefit. Now,
Speaker 1: some of the services that are existing today are big
Speaker 1: enough and powerful enough that they will either find a
Speaker 1: way to thread the legal needle and accept whatever collateral
Speaker 1: image comes from that, or they will move towards professionally
Speaker 1: produced content. They'll stop letting users talk to each other.
Speaker 1: They'll pay some people who they trust to submit content
Speaker 1: that they will accept the legal risk for, and as
Speaker 1: a result, it becomes a lot more of the Internet
Speaker 1: being people talking to us, not us talking to each other.
Speaker 1: As I understood, this was about algorithm generated recommendations. Could
Speaker 1: the court just eliminate those in theory one one solution
Speaker 1: is that the Supreme Court could say that quote, algorithmic
Speaker 1: recommendations are excluded from Section two thirty, but Section two
Speaker 1: thy otherwise remains attacked. That would be a massive strategic
Speaker 1: loss for the Internet. And the reason why is because
Speaker 1: there's no principled way to distinguish between algorithmic recommendations and
Speaker 1: any other promotional or curatorial functions that Internet services perform.
Speaker 1: So basically saying that algorithmic recommendations are out of secret
Speaker 1: to theory say there's no way to promote or encourage
Speaker 1: readers to look at particular types of content and still
Speaker 1: stay within Section two thirty. That would lead to an
Speaker 1: Internet that looks a lot more like Google Drive or dropbox.
Speaker 1: The services could only provide dumb storage lockers and a
Speaker 1: u r L that the users go out and promote,
Speaker 1: and that would be the only thing that that would
Speaker 1: be covered by Section two thirty. Everything else will be gone,
Speaker 1: and I don't think we want in their netfall of
Speaker 1: Google drives. Besides Justice Thomas, are there other justices who
Speaker 1: have expressed displeasure with section to thirty and might be
Speaker 1: willing to tamper with it. You know, it's it's a
Speaker 1: little hard to read the judges nowadays because every speech
Speaker 1: related question is intrinsically linked with the culture wars that
Speaker 1: have Royal the Supreme Court. So it's unclear whether or
Speaker 1: not judges who in the past has stood for less
Speaker 1: government and intervention into private activity still stand for that,
Speaker 1: or judges to believe that in other services should doing
Speaker 1: more to remove uh content will feel that way when
Speaker 1: it comes to the implications of that. So we're actually
Speaker 1: kind of in an a limbo with the other judges.
Speaker 1: We don't really know where they're likely to come out.
Speaker 1: And this is a substantial import because not only are
Speaker 1: they going to brustle with the questions in the section
Speaker 1: to thirty contexts, but there will be another appeal of
Speaker 1: laws coming from Florida and Texas that will ask the
Speaker 1: judges to weigh in further on the ability of their
Speaker 1: own services to moderate content from users. So they're going
Speaker 1: to be having to answer this question, and we don't
Speaker 1: know what they're going to answer in their decisions are
Speaker 1: likely to shape the future of the Internet. So two
Speaker 1: thousand twenty three is going to be a very scary
Speaker 1: time for the future of the Internet because it's the
Speaker 1: room Court is going to decide it and we don't
Speaker 1: know what they're gonna say. And Eric, the cases involving
Speaker 1: Texas is social media law and Florida social media law,
Speaker 1: where there's a split in the circuits involving similar laws.
Speaker 1: You think the Court will take that. I do think
Speaker 1: they're going to take the case. And the reason why,
Speaker 1: impart is because of a opinion that came out of
Speaker 1: the Texas Law on the Supreme Court's shadow docket, where
Speaker 1: three judges led by Justice Toledo, said that they think
Speaker 1: that these cases should be granted surtiari. You only need
Speaker 1: four votes, so if any one of the other sticks
Speaker 1: think that they should take this case, then the votes
Speaker 1: are there. So I'm highly confident that the Supreme Court
Speaker 1: is going to take the case, and when they do,
Speaker 1: we have another battle royale over the future of the Internet. Finally,
Speaker 1: Section two thirty. Do you think it's something that Congress
Speaker 1: should take up and work on or do you think
Speaker 1: it should just be left alone? We benefit every day,
Speaker 1: hour by hour, off a minute by minute from section
Speaker 1: to thirty. Though, times that we're talking to each other
Speaker 1: in line are some of the most important and common
Speaker 1: moments that we have used in the Internet. So even
Speaker 1: small changes to Section two there you could have dramatic
Speaker 1: effects on the way that we spend our time, the
Speaker 1: way that we enjoy our lives, and the things that
Speaker 1: we're able to do. So I think we actually have
Speaker 1: it pretty good from that respect in the sect that
Speaker 1: there's a lot of things that are taking place today
Speaker 1: that only are possible because Section two three enables them.
Speaker 1: So if Congress wants to take a look an section
Speaker 1: to thees, that is their prerogative, and they have asked
Speaker 1: questions about algorithmic recommendations in some of their draft bills. However,
Speaker 1: the Supreme Court should not be the ones that reshaped
Speaker 1: Section two thirty. If they think that Section two there's miscalibrated,
Speaker 1: they should tell Congress that, but they shouldn't go and
Speaker 1: change it. So the fact that the Supreme Court might
Speaker 1: change section too therey is what really panics me because
Speaker 1: then it creates the possibility that unelected justices are making
Speaker 1: decisions that will affect our daily lives in ways that
Speaker 1: it's really impossible to contemplate. So the sticks are so high.
Speaker 1: So the Court is stepping into yet another controversial area
Speaker 1: this term. In addition to voting rights, affirmative action, and
Speaker 1: gay rights, the environment, to name just a few. It's
Speaker 1: going to be quite a term. Thanks so much. Eric.
Speaker 1: That's Professor Eric Goldman of Santa Clara University Law School.
Speaker 1: He's also co director of the school's High Tech Law Institute.
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law Podcast. You can find them wherever you
Speaker 1: get your favorite podcasts. I'm June Grosso and you're listening
Speaker 1: to Bloomberg