At the Supreme Court: Section 230 of The Communications Decency
Act of 1996;
The AI Debacle Calls Out for Congress To Act
source:
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1333_p8k0.pdf
The arguments at the Supreme Court center around whether or not YouTube
"aided and abetted" ISIS in allowing ISIS videos to be posted on
YouTube. Google, who owns YouTube, is the Respondent in the Appeal
and the Defendant in the original case. The arguments herein, pro and
con, are from the Amicus Briefs filed by various people and
entities. The Amicus Briefs are well summarized and can be accessed at
JustSecurity.org, February 17, 2023. This
article draws from the JustSecurity publication, as well as the Briefs
themselves.
What the
Justices are tasked with deciding in the case is a dichotomy between two laws passed
by Congress in vastly different time periods that have come into
conflict. The question before the court is, as stated in the US
Solicitor General's brief in favor of vacating Section 230:
Whether 47 U.S.C. 230(c)(1), which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” bars petitioners’ claims alleging that Google LLC violated the Antiterrorism Act of 1990, 18 U.S.C. 2331 et seq., by hosting on its YouTube platform, and providing targeted recommendations for, videos created by a foreign terrorist organization.
As the government said in its Amicus filed:
Section 230 . . . protects an online platform from claims premised on its dissemination of third-party speech, but the statute does not immunize a platform’s other conduct, even if that conduct involves the solicitation or presentation of third-party conduct.
In a separate brief filed by Mary McCord, on behalf of Advocacy and Protection Georgetown University Law Center and signed by 21 former national security officials:
Petitioners do not seek to hold Internet platforms responsible for someone else’s content; rather, they seek to hold them accountable for their own content (the algorithms that the platforms develop and use to decide which content reaches which online users). Amici refer to this as “respondent’s own affirmative amplification of that content for targeted users whom the platform’s algorithms identify as likely to view it.”
The argument in favor of the Petitioner here is clearly laid out in McCord's brief. The question is not simply one of videos posted on YouTube, but YouTube's amplification of ISIS propaganda via its "algorithms." In short, did Google, as YouTube parent company, in effect, violate the 2016 Justice Against Sponsors of Terrorism Act, which McCord argues in effect, amended Section 230? (p. 20.)
Whatever the merits of petitioners' claims, amici believe that the Court of Appeals was wrong to invoke Section 230(c)(l) to deny them their day in court. Section 230(c)(l) protects internet platforms only from claims seeking to hold them liable as publishers or speakers of someone else's content. But petitioners' claims are not based on respondent's publication of terrorist content; they are based on respondent's own affirmative amplification of that content for targeted users whom the platform's algorithms identify as likely to view it. Because the decision below extends Section 230 beyond the scope of its language and well past what Congress intended, this Court should reverse. Alternatively, this Court should reverse because the 2016 Justice Against Sponsors of Terrorism Act (JASTA) impliedly repealed Section 230 to the extent that it shields respondent from liability for petitioners' claims based on the algorithmic amplification of terrorist content.
In other words, as Senator Josh Hawley stated in his Amicus, Google
knew its technology was in effect disseminating ISIS hate filled
propaganda, "Google continued to promote that content by
operating recommendation algorithms tailored to disseminate content in a
manner that would drive maximum engagement. Section 230 has never
immunized platforms from liability for such conduct.”
JusticeSecurity.org.
Some of the arguments
in defense of the Respondent, Google, are, in my opinion, factually wrong, and therefore
seem less serious than do those of the Petitioner. The attorney for
Google, Jonathan Y. Ellis, declares that "Section 230 is not a
perfect law, but it is the law that created the internet—and its vast
array of free speech—as we know it." (pg 7) Well, no.
The Internet was created by the US Military. Once Arpanet was no
longer useful, legislation written by Al Gore turned the
military Arpanet into the public network we know today. As Senator, Gore
introduced "The
High Performance Computing Act of 1991 (HPCA)." In
promoting this new technology Gore coined the phrase "Information
Superhighway." The Gore Bill, as it came to be called, brought
into popular usage a web browser called Mosaic. The Web browser
was
first developed in 1990 by Tim Berners-Lee.
Berners-Lee called this new fangled software a "web browser" and
Berners-Lee called his software invention the WorldWideWeb.
Mosaic, the first modern web browser, is based on Berners-Lee work.
We early web surfin' consumers called that product, Netscape.
I mention this history because Section 230 did not create the Internet.
It only created the hot mess we know as The Internet today. And it
is such hyperbole to say that YouTube videos of ISIS Terrorists is WHAT THE
INTERNET IS ALL ABOUT. To make such an assertion is to discount the infinite ways the
Internet is used. It's a specious argument.
The argument is
further made that a repeal of Section 230 would have an
"“obvious chilling effect” would be inevitable because service providers
could not screen the millions of postings made."
JusticeSecurity.org I think the advent of AI
would refute this assertion by the Google lawyer. If Google can
index all postings made, then Google knows all postings that were made.
Google could simply have its BARD AI scrape all the pages Google has
indexed for terrorist type language.
The amici continues with
arguments that just seem antiquated and indeed not all that relevant to
the issue at hand. Amici argues that if restricting
information disseminated by the likes of ISIS, then “a massive amount of
valuable speech” by virtue of platforms’ actions in response to their
increased exposure to liability, and much of today's content “that will
disappear or be obscured will disproportionately come from marginalized
or minority speakers.”
JusticeSecurity.org
It is as if amici
is arguing a different case than that before the court. ISIS is
not Black Lives Matter; nor is ISIS Planned Parenthood; nor is ISIS the Association of American Physicians and Surgeons, who campaigns actively
against abortion rights. Now, if this simpleton writer here can distinguish
between legitimate political discourse made by American entities and the
murderous rantings of foreign terrorists, then I am confident Google can
somehow manage the same hat trick.
Professor of Law, Professor
Eric Goldman, writing on behalf of the NYU Stern Center for Business and
Human Rights, seems to doubt the ability of Google to manage their own
content. And because Petitioner has no advice for Google on how to
better manage its content, and thus forcing Google to do so, is in Goldman's mind
an
impossible task. “Petitioners fail to identify any way to
meaningfully distinguish ‘recommendations’ from other approaches to
third-party content,” including "Google search results, URLs, and
notifications."
Ibid. Petitioner isn't a Computer Scientist. How could
Petitioner know such technical matters? Google, however, I am sure does
employ Computer Scientists that can work on Goldman's problem.
Ultimately, Goldman did frame the argument correctly.
This is not an issue for the courts. "Congress has the
exclusive authority to make those choices." Goldman Brief
(pg 7)
The issue of any kind of regulation of the Internet requires great study and the input of all the various stakeholders that would legitimately have an interest in if and how the Internet might be regulated. The need for a reexamination of the reasons for and against Section 230 is necessary now as we all come to grips — one way or the other — with the debacle that has been the rollout of AI technology.
AI is getting some very bad press from across the board. One headline that grabbed me is how with AI, the Big Techs have turned us unwitting users of the Language Models into their test subjects. We users have become Big Tech's "guinea pigs." It had crossed my mind that all of this hoopla and working with AI is free product development for its vendors. Another growing awareness about AI, is that the technology becomes obnoxious when a user is obnoxious with it. What is clear from the amateur investigators like to me, up to those right at the center of the inevitable adoption of AI throughout the political economy, is the AI Chatbots are the next "misinformation nightmare."
And those big brand names in cyberspace have proven their inability to
regulate themselves. In fact, no entity; no person; no industry
can regulate itself. History has proven that time and again.
Current events in East Palestine, OH, prove that to be true.
Moreover,
the morass of the Social Media world proves also industry
self-regulation fails.
In the widely quoted
Federalist 51, James Madison made the case for an
activist American form of government.
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.
In
Federalist 10, Madison speaks directly to the issue
before us. "No man is allowed to be a judge in his own
cause, because his interest would certainly bias his judgment, and, not
improbably, corrupt his integrity." Yet, herein what the
Leviathans of the Deep Web want is to be their own watchdogs. And we
do not let the Foxes Guard the Henhouse in these US of A.
Representative government, like that practiced in these US of A, is based
on a simple piece
of logic expressed by English Political Philosopher, James Harrington.
In his most famous work,
Oceania, 1656. Harrington offers the solution to
the problem of equity in society that Madison speaks of in Federalist 10
and 51. Indeed, Harrington was a major intellectual force among
the Commonwealth faction that emerged in England as a check on the
absolute power of the Crown, and whose political thought and works were
inspiration for our Founders. Harrington makes an analogy of two girls and
one cake.
That such orders may be established ..., and this in a way of equal certainty and facility, is known even to girls, being no other than those that are of common practice with them in divers cases. For example, two of them have a cake yet undivided, which was given between them: that each of them therefore might have that which is due, “Divide,” says one to the other, “and I will choose; or let me divide, and you shall choose.” If this be but once agreed upon, it is enough; for the divident, dividing unequally, loses, in regard that the other takes the better half. Wherefore she divides equally, and so both have right. ...that which great philosophers are disputing upon in vain is brought to light by two harmless girls, even the whole mystery of a commonwealth, which lies only in dividing and choosing.
Further in Oceania, Harrington makes the case for divisions in government, again using the division of the cake antilogy.
But in a commonwealth consisting of a single council, there is no other to choose than that which divided; whence it is, that such a council fails not to scramble—that is, to be factious, there being no other dividing of the cake in that case but among themselves.
Technology is now rooted in our society so deeply that
technology now governs many of our everyday actions. That is real
power to influence what we buy; where we might go; how we speak about things.
The list of how the Internet affects us all is ever growing. It is
a first principle of our American form of government, now refined and
reinterpreted for the 21st century, that those whose business
is distribution of these technology products cannot be those who decide
the efficacy of the technology.
Ask the good people of East
Palestine, OH, if they think Norfolk Southern Railroad should be the
entity responsible for managing the cleanup and deciding reparations for
damages occurred because of the train derailment. There answer is
no, I am sure. They want the Department of Transportation
involved, as well as the EPA on site and in sight.
Those that create a mess cannot
be expected to voluntarily clean it up. The Large Language Model AI's are
poised by their proponents to transform in ways yet unknown many aspects of everyday life
and work. There are billions of dollars already invested, and
millions more to be made by the inevitable Snake Oil Sales Guys and
Gals that the IT industry seems to grow like weeds.
Congress needs
to step up and do its job. Suspend Section 230, as it relates to
AI — AI wasn't in the popular imagination when Section 230 came into being. Hold hearings. Invite all
the stakeholders to have a seat at the table. Write some
meaningful legislation, and then debate its merits. Stop
screaming. Start talking. And above all, start listening.
The Internet is here
to stay regardless of how any one technology is implemented. The
European Union has far stricter controls on technology than does the US.
But I am pretty sure the Internet still works in France and Germany.
All our Members of Congress need to do the job we elected them to do are
those three qualities that The Wizard of OZ teaches us are needed for success in any human undertaking. Dorothy had
them all.
✓ Brains
✓ Heart
✓ Courage
The wisdom of the few may be the light of mankind; but the interest of the few is not the profit of mankind nor of a commonwealth... But as the council dividing consists of the wisdom of the commonwealth, so the assembly or council choosing should consist of the interest of the commonwealth: as the wisdom of the commonwealth is in the aristocracy, so the interest of the commonwealth is in the whole body of the people.
— Oceania,
James Harrington, 1656*
* Thanks to the
Huntington Library, Cal State University, Long Beach, has an
original bound copy of Oceania in its rare books collection.
It's
scary working with something that old.