CDT and Technologists File SCOTUS Brief Urging Court To Rule that Section 230 Applies to Recommendations of Content

(WASHINGTON) — The Center for Democracy & Technology (CDT) and a coalition of technology experts in online recommendation systems filed an amicus brief today in Gonzalez v. Google, asking the U.S. Supreme Court to rule that the liability shield provided by Section 230 can apply to claims based on the recommendation of content. 

CDT President & CEO Alexandra Reeve Givens said:

“This decision could have a devastating impact on online expression. The Court should avoid making a false distinction between “recommending” content and “displaying” it – for online service providers that receive, sort, and display millions of uploads in a single day, there is no clear line between the two.

A Court decision excluding “recommendations” from Section 230’s liability shield would sweep widely across the internet, and cause providers to limit online speech to reduce their risk of liability, with harmful effects for users’ ability to speak and access information. The Court needs to understand how the technology underlying online speech actually works, in order to reach a thoughtful ruling that protects users’ rights.”

Jonathan Stray, a Senior Scientist at the Center for Human-Compatible AI, UC Berkeley who joined the brief, said:

“Our amicus brief is not saying platforms are never liable for their actions. Rather, we are urging the Court to think about harms based on an accurate understanding of the steps all online services must take in deciding what content to display and how to display it.

If liability is based on whether online service providers use ‘recommendations’ or whether recommendations are ‘targeted,’ then a variety of crucial tools for content moderation may become legally discouraged. Even search engines, music streaming, and online shopping services may become legally difficult to operate, because there is no clear technical difference between the algorithms they use to select and order content and what social media platforms do.”

Section 230 is a critical protection for online speech and it encourages interactive computer service providers to moderate content by ensuring they are shielded from liability for doing so. For many years, courts have interpreted Section 230 to apply to claims based on providers’ recommendation of content. This has helped ensure that providers can use novel ranking algorithms for content moderation and more generally to display content in ways that lets users find useful information.

CDT’s brief to the Supreme Court explains that Petitioners’ attempt to draw a distinction between the ‘recommendation’ and ‘display’ of content online is not workable or descriptive of genuine underlying technical differences. It argues that “recommending” content is functionally indistinguishable from selecting and ordering or ranking items for display, something every online service provider must do. The brief warns that a Court decision categorically excluding recommendations from Section 230’s liability shield would cause providers to limit online speech to reduce their risk of liability.

At the same time, the brief recognizes that online service providers can act in ways that threaten individuals’ rights and democratic discourse, and that providers should not be entirely free from legal responsibility. It notes that Section 230 allows for providers to be held liable when they materially contribute to the development of information, and other approaches in law and policy—such as comprehensive privacy legislation or competition law—can also hold providers accountable for their actions.

The coalition that signed the brief includes: CDT; Robin Burke, Professor of Information Science at the University of Colorado, Boulder; Matt Cutts, former Administrator of the United States Digital Service and former Distinguished Engineer at Google; Dean Eckles, Associate Professor at the MIT Sloan School of Management, where he is also affiliated with the Schwarzman College of Computing; Michael Ekstrand, Associate Professor of Computer Science at Boise State University; Brandie Nonnecke, Associate Research Professor at the Goldman School of Public Policy, UC Berkeley and Director of the CITRIS Policy Lab; and Jonathan Stray, Senior Scientist at the Center for Human-Compatible AI, UC Berkeley.

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CDT is a 27-year-old 501(c)3 nonpartisan nonprofit organization that fights to put democracy and human rights at the center of the digital revolution. It works to promote democratic values by shaping technology policy and architecture, with a focus on equity and justice.