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The case that would upend internet regulation already fizzling at high court

Lawmakers as well as some justices have long shown contempt for a law that protects internet providers, but a case for reform did not gain any steam at Tuesday arguments. 

WASHINGTON (CN) — Without shutting the door to moves that would curb a liability free-for-all enjoyed by internet providers, the Supreme Court appeared uninterested Tuesday in creating a broad new precedent that would upend internet regulation. 

The justices devoted nearly three hours this morning to what kind of immunity internet providers should be granted but arguments on where the line should be drawn appeared to confuse them. 

“Well that’s a response but I don’t understand it,” Justice Clarence Thomas said after hearing an explanation of why internet providers should be liable for content their algorithms recommend to users. 

Justice Samuel Alito said he was “completely confused,” while Justice Ketanji Brown Jackson said she was “thoroughly confused.” 

Some of the justices wondered if the court was out of its depth in examining complex technology with only limited briefing on the topic. 

“These are not the nine greatest experts on the internet,” Justice Elena Kagan said. 

The case centers on Section 230 of the Communications Decency Act, a 1996 law that extends immunity to internet providers for what third parties post on their platforms. In the intervening years, however, as the internet has changed, so too have lawmakers' opinions on Section 230. Calls for accountability for what internet providers allow on their platforms have come from liberals and conservatives alike, but Congress has yet to come to an agreement on what reform should look like. 

Congressional inaction left the Supreme Court to intervene, taking up Gonzales v. Google, which would limit Section 230. The case stems from the 2015 terrorist attacks in Paris, France, carried out by the Islamic State group. One of the 129 victims was 23-year-old U.S. citizen Nohemi Gonzales. Gonzales’ family wants Google held liable as the owner of YouTube, which failed to stop ISIS from promoting recruitment videos that apparently reached the Paris attacker. 

The case rests on the recommendation system Youtube uses to organize videos for users. Algorithms — a complex system of programmed recommendations based on user behavior — are used by all internet providers. Youtube uses its algorithm to suggest videos based on what a user previously watched. 

Gonzales claims that YouTube not only allowed ISIS to post videos but that it recommended those videos to users through its algorithm. By recommending ISIS videos, Gonzales alleges the platform helped incite the terrorist attacks and violated the Antiterrorism Act. 

Google persuaded a federal judge to quash the suit under Section 230, and the Ninth Circuit affirmed, sending the case to the justices. 

Eric Schnapper, an attorney at the University of Washington School of Law representing the Gonzales family, told the justices this morning that it's true Google is not liable under Section 230 for content posted on Youtube. Where it should be liable, he said, is for the catalog of recommendations it creates with those videos. 

The argument did not appear to convince the high court. Justice Brett Kavanaugh said it would mean Section 230 foreclosed the essence of the internet’s interactive nature. Chief Justice John Roberts said algorithms are just a modern iteration of what sellers have been doing forever. 

“It’s really just a 21st-century version of something that’s been happening for a long time,” Roberts said. 

Kagan worried curbing Section 230 in this way would make it moot altogether. 

“Does your opinion send us down a road where 230 doesn’t apply at all,” the Obama appointee asked.

Google stressed the importance of Section 230 the functioning of the internet. Algorithms, Google argues, allow users to find relevant information.

“Section 230’s 26 words created today’s internet,” said Lisa Blatt, an attorney for Google with Williams & Connolly. 

Blatt said a ruling from the justices against Section 230 could call into question every search recommendation.

While appearing unconvinced of arguments from Gonzales, the justices were also skeptical of fully embracing Google’s view. 

Roberts said whatever internet providers' liability may be, they should not have complete immunity. Kagan said the court was in a predicament reviewing a statute written for a different time. 

“Should 230 be taken to go that far,” Kagan questioned. 

Justice Amy Coney Barrett and Justice Neil Gorsuch — the latter participated remotely due to an illness — seemed open to giving the lower courts another shot at addressing the issue before creating a new ruling on Section 230. Kavanaugh and Kagan seemed interested in leaving the issue to Congress. 

“Isn’t that something for Congress to do, not the court,” Kagan asked. 

While appearing unmoved by arguments in this case, the justices could give themselves the opportunity to tackle Section 230 from a different angle next term. Gonzales looks at the algorithms internet providers use, however, other cases challenge content moderation used on social sites. Conservative states like Texas and Florida have created laws targeting social media moderation. The justices signaled an interest in these suits last month, asking the government to weigh in on the issue. 

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