Supreme Court justices in Google case express hesitation about upending Section 230
People wait in line outside the US Supreme Court in Washington, DC, on February 21, 2023 to hear oral arguments in two cases that test Section 230, the law that provides tech companies a legal shield over what their users post online.
Jim Watson | AFP | Getty Images
Supreme Court Justices voiced hesitation on Tuesday about upending a key legal shield that protects tech companies from liability for their users’ posts, and for how the companies moderate messages on their sites.
Justices across the ideological spectrum expressed concern with breaking the delicate balance set by Section 230 of the Communications Decency Act as they rule on the pivotal case, Gonzalez v. Google, even as some suggested a narrower reading of the liability shield could sometimes make sense.
The current case was brought by the family of an American killed in a 2015 terrorist attack in Paris. The petitioners argue that Google, through its subsidiary YouTube, violated the Anti-Terrorism Act by aiding and abetting ISIS, as it promoted the group’s videos through its recommendation algorithm. Lower courts sided with Google, saying Section 230 protects the company from being held liable for third-party content posted on its service.
The petitioners contend that YouTube’s recommendations actually constitute the company’s own speech, which would fall outside the bounds of the liability shield.
But the justices struggled to understand where the petitioner’s counsel, Eric Schnapper, was drawing the line on what counts as content created by YouTube itself.
Conservative Justice Samuel Alito at one point said he was “completely confused” by the distinction Schnapper tried to draw between YouTube’s own speech and that of a third party.
Schnapper repeatedly pointed to the thumbnail image YouTube shows users to display what video is coming up next, or is suggested based on their views. He said that thumbnail was a joint creation between YouTube and the third party that posted the video, in this case ISIS, because YouTube contributes the URL.
But several justices questioned whether that argument would apply to any attempt to organize information from the internet, including a search engine results page. They expressed concern that such a broad interpretation could have far-reaching effects the high court may not be prepared to predict.
Conservative Justice Brett Kavanaugh noted that courts have applied Section 230 consistently since its inception in the 1990s and pointed to the amici briefs that warned overhauling that interpretation would cause massive economic consequences for many businesses, as well as their workers, consumers and investors. Kavanaugh said those are “serious concerns” Congress could consider if it sought to rework the statute. But the Supreme Court, he said, is “not equipped to account for that.”
“You’re asking us right now to make a very precise predictive judgment that ‘Don’t worry, that it’s really not going to be that bad,'” Kavanaugh told U.S. Deputy Solicitor General Malcolm Stewart, who was arguing the high court should send the case back to the lower court for further consideration. “I don’t know that that’s at all the case. And I don’t know how we can assess that in any meaningful way.”
When Stewart suggested that Congress could amend 230 to account for changes in the reality of the internet today, Chief Justice John Roberts pushed back, noting “the amici suggests that if we wait for Congress to make that choice, the internet will be sunk.”
Even conservative Justice Clarence Thomas, who has openly written that the court should take up a case around Section 230, seemed skeptical of the petitioners’ line in the sand. Thomas noted that YouTube uses the same algorithm to recommend ISIS videos to users interested in that kind of content, as it uses to promote cooking videos to those interested in that subject. Plus, he said, he sees those as suggestions, not affirmative recommendations.
“I don’t understand how a neutral suggestion about something that you’ve expressed an interest in is aiding and abetting,” Thomas said.
The justices had tough questions for Google too, wondering if the liability protections are quite as broad as the tech industry would like to believe. Liberal Justice Ketanji Brown Jackson, for example, had a long back and forth with Lisa Blatt, counsel arguing on behalf of Google, about whether YouTube would be protected by Section 230 in the hypothetical scenario in which the company promotes an ISIS video on its homepage in a box marked “featured.”
Blatt said publishing a homepage is inherent to operating a website so should be covered by Section 230, and that organization is a core function of platforms, so if topic headings can’t be covered, the statute basically becomes a “dead letter.”
Liberal Justice Elena Kagan suggested it’s not necessary to agree completely with Google’s assessment of the fallout from altering 230 to fear the potential consequences.
“I don’t have to accept all of Ms. Blatt’s ‘the sky is falling’ stuff to accept something about, ‘Boy, there’s a lot of uncertainty about going the way you would have us go,’ in part just because of the difficulty of drawing lines in this area,” Kagan told Schnapper, adding the job may be better suited for Congress.
“We’re a court, we really don’t know about these things,” Kagan said. “These are not like the nine greatest experts on the internet.”
Section 230 proponents are optimistic
Several experts rooting for Google’s success in this case said they were more optimistic after the arguments than before at a press conference convened by Chamber of Progress, a center-left industry group that Google and other major tech platforms support.
Cathy Gellis is an independent attorney in the San Francisco Bay Area who filed an amicus brief on behalf of a person running a Mastodon server, as well as a Google-funded startup advocacy group and a digital think tank. She told CNBC that briefs like hers and others seemed to have a big impact on the court.
“It would appear that if nothing else, amicus counsel, not just myself, but my other colleagues, may have saved the day because it was evident that the justices took a lot of those lessons on board,” Gellis said.
“And it appeared overall that there was not a huge appetite to upend the internet, especially on a case that I believe for them looked rather weak from a plaintiff’s point of view.”
Still, Eric Goldman, a professor at Santa Clara University School of Law, said while he felt more optimistic on the outcome of the Gonzalez case, he remains concerned for the future of Section 230.
“I remain petrified that the opinion is going to put all of us in an unexpected circumstance,” Goldman said.
On Wednesday, the justices will hear a similar case with a different legal question.
In Twitter v. Taamneh, the justices will similarly consider whether Twitter can be held liable for aiding and abetting under the Anti-Terrorism Act. But in this case, the focus is on whether Twitter’s decision to regularly remove terrorist posts means it had knowledge of such messages on its platform and should have taken more aggressive action against them.
Conservative Justice Amy Coney Barrett asked Schnapper how the decision in that case could impact the one in the Google matter. Schnapper said if the court ruled against Taamneh, the Gonzalez counsel should be given the chance to amend their arguments in a way that fits the standard set in the other case.
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Former U.S. Army intelligence analyst Chelsea Manning says censorship is still “a dominant threat,” advocating for a more decentralized internet to help better protect individuals online.
Her comments come amid ongoing tension linked to online safety rules, with some tech executives recently seeking to push back over content moderation concerns.
Speaking to CNBC’s Karen Tso at the Web Summit tech conference in Lisbon, Portugal, on Wednesday, Manning said that one way to ensure online privacy could be “decentralized identification,” which gives individuals the ability to control their own data.
“Censorship is a dominant threat. I think that it is a question of who’s doing the censoring, and what the purpose is — and also censorship in the 21st century is more about whether or not you’re boosted through like an algorithm, and how the fine-tuning of that seems to work,” Manning said.
“I think that social media and the monopolies of social media have sort of gotten us used to the fact that certain things that drive engagement will be attractive,” she added.
“One of the ways that we can sort of countervail that is to go back to the more decentralized and distribute the internet of the early ’90s, but make that available to more people.”
Nym Technologies Chief Security Officer Chelsea Manning at a press conference held with Nym Technologies CEO Harry Halpin in the Media Village to present NymVPN during the second day of Web Summit on November 13, 2024 in Lisbon, Portugal.
Horacio Villalobos | Getty Images News | Getty Images
Asked how tech companies could make money in such a scenario, Manning said there would have to be “a better social contract” put in place to determine how information is shared and accessed.
“One of the things about distributed or decentralized identification is that through encryption you’re able to sort of check the box yourself, instead of having to depend on the company to provide you with a check box or an accept here, you’re making that decision from a technical perspective,” Manning said.
‘No longer secrecy versus transparency’
Manning, who works as a security consultant at Nym Technologies, a company that specializes in online privacy and security, was convicted of espionage and other charges at a court-martial in 2013 for leaking a trove of secret military files to online media publisher WikiLeaks.
She was sentenced to 35 years in prison, but was later released in 2017, when former U.S. President Barack Obama commuted her sentence.
Asked to what extent the environment has changed for whistleblowers today, Manning said, “We’re at an interesting time because information is everywhere. We have more information than ever.”
She added, “Countries and governments no longer seem to invest the same amount of time and effort in hiding information and keeping secrets. What countries seem to be doing now is they seem to be spending more time and energy spreading misinformation and disinformation.”
Manning said the challenge for whistleblowers now is to sort through the information to understand what is verifiable and authentic.
“It’s no longer secrecy versus transparency,” she added.
Technology
SoftBank-backed fintech Zopa aims to double profit this year as it eyes 2025 current account launch
Jaidev Janardana, CEO of U.K. digital bank Zopa.
Zopa
LISBON, Portugal — British online lender Zopa is on track to double profits and increase annual revenue by more than a third this year amid bumper demand for its banking services, the company’s CEO told CNBC.
Zopa posted revenues of £222 million ($281.7 million) in 2023 and is expecting to cross the £300 million revenue milestone this year — that would mark a 35% annual jump.
The 2024 estimates are based on unaudited internal figures.
The firm also says it is on track to increase pre-tax profits twofold in 2024, after hitting £15.8 million last year.
Zopa, a regulated bank that is backed by Japanese giant SoftBank, has plans to venture into the world of current accounts next year as it looks to focus more on new products.
The company currently offers credit cards, personal loans and savings accounts that it offers through a mobile app — similar to other digital banks such as Monzo and Revolut which don’t operate physical branches.
“The business is doing really well. In 2024, we’ve hit or exceeded the plans across all metrics,” CEO Jaidev Janardana told CNBC in an interview Wednesday.
He said the strong performance is coming off the back of gradually improving sentiment in the U.K. economy, where Zopa operates exclusively.
Commenting on Britain’s macroeconomic conditions, Janardana said, “While it has been a rough few years, in terms of consumers, they have continued to feel the pain slightly less this year than last year.”
The market is “still tight,” he noted, adding that fintech offerings such as Zopa’s — which typically provide higher savings rates than high-street banks — become “more important” during such times.
“The proposition has become more relevant, and while it’s tight for customers, we have had to be much more constrained in terms of who we can lend to,” he said, adding that Zopa has still been able to grow despite that.
A big priority for the business going forward is product, Janardana said. The firm is developing a current account product which would allow users to spend and manage their money more easily, in a similar fashion to mainstream banking providers like HSBC and Barclays, as well as fintech upstarts such as Monzo.
“We believe that there is more that the consumer can have in the current account space,” Janardana said. “We expect that we will launch our current account with the general public sometime next year.”
Janardana said consumers can expect a “slick” experience from Zopa’s current account offering, including the ability to view and manage multiple account bank accounts from one interface and access to competitive savings rates.
IPO ‘not top of mind’
Zopa is one of many fintech companies that has been viewed as a potential IPO candidate. Around two years ago, the firm said that it was planning to go public, but later decided to put those plans on ice, as high interest rates battered technology stocks and the IPO market froze over in 2022.
Janardana said he doesn’t envision a public listing as an immediate priority, but noted he sees signs pointing toward a more favorable U.S. IPO market next year.
That should mean that Europe becomes more open to IPOs happening later in 2026, according to Janardana. He didn’t disclose where Zopa would end up going public.
“To be honest, it’s not the top of mind for me,” Janardana told CNBC. “I think we continue to be lucky to have supportive and long-term shareholders who support future growth as well.”
Last year, Zopa made two senior hires, appointing Peter Donlon, ex-chief technology officer at online card retailer Moonpig, as its own CTO. The firm also hired Kate Erb, a chartered accountant from KPMG, as its chief operating officer.
The company raised $300 million in a funding round led by Japanese tech investor SoftBank in 2021 and was last valued by investors at $1 billion.
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