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ICLE President Geoffrey Manne was cited by Matt Perault of the Center on Technology Policy at the University of North Carolina at Chapel Hill during Perault’s recent appearance on The Lawfare Podcast. His comments are quoted here and the full episode is embedded below.

I saw Geoff Manne give the Hayek lecture at Duke last week and he presented a case that was actually very critical of Section 230 along these lines, making the case that there’s meritorious litigation that because of 230 never gets its day in court and that there are a variety of social harms that tech platforms, at least in some cases, don’t bear any of the costs for.

The Senate Judiciary Committee’s Subcommittee on Privacy, Technology, and the Law will host a hearing this afternoon on Gonzalez v. Google, one of two terrorism-related cases currently before the U.S. Supreme Court that implicate Section 230 of the Communications Decency Act of 1996.

We’ve written before about how the Court might and should rule in Gonzalez (see here and here), but less attention has been devoted to the other Section 230 case on the docket: Twitter v. Taamneh. That’s unfortunate, as a thoughtful reading of the dispute at issue in Taamneh could highlight some of the law’s underlying principles. At first blush, alas, it does not appear that the Court is primed to apply that reading.

Read the full piece here.

It seems that large language models (LLMs) are all the rage right now, from Bing’s announcement that it plans to integrate the ChatGPT technology into its search engine to Google’s announcement of its own LLM called “Bard” to Meta’s recent introduction of its Large Language Model Meta AI, or “LLaMA.” Each of these LLMs use artificial intelligence (AI) to create text-based answers to questions.

Read the full piece here.

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast to discuss the U.S. Supreme Court’s Gonzalez v. Google LLC case, the court’s first opportunity in a quarter century to construe the limits of Section 230 of the Communications Decency Act.

Other topics included likely U.S. Justice Department challenges to Adobe’s $20 Billion Figma deal and to JetBlue’s proposed acquisition of Spirit; the Federal Trade Commission’s (FTC) proposed ban on noncompete clauses; the FTC’s challenge to the Meta-Within merger; a European Union consultation designed to make U.S. platforms pay more of European telecom networks’ costs; Apple’s progress in devising a blood glucose monitor; and whether artificial intelligence is coming for lawyers’ jobs.

The full episode is embedded below.

The topic of social media’s impact on childhood mental health has rapidly emerged as a hot-button political debate, becoming the subject of a hearing of the Senate Judiciary Committee and earning a mention in President Biden’s State of the Union address. And indeed, there is a growing body of research that shows children are increasingly struggling with mental-health issues. That is a real problem, but it’s one that shouldn’t be unfairly conflated with the practice of data collection for targeted advertising.

Read the full piece here.

Abstract

Although most studies of major communications reform legislation focus on the merits of their substantive provisions, analyzing the political dynamics behind the legislation can yield important insights. An examination of the tradeoffs that led the major industry segments to support the Telecommunications Act of 1996 (the “1996 Act”) provides a useful illustration of a political bargain. Analyzing the current context identifies seven components that could form the basis for the next communications statute: (1) universal service; (2) pole attachments; (3) privacy; (4) intermediary immunity; (5) net neutrality; (6) spectrum policy; and (7) antitrust reform. Assessing where industry interests overlap and diverge and the ways that the political environment can hinder passing reform legislation provides insights into how these components might combine to support the enactment of the next Telecommunications Act of 1996.

In our previous post on Gonzalez v. Google LLC, which will come before the U.S. Supreme Court for oral arguments Feb. 21, Kristian Stout and I argued that, while the U.S. Justice Department (DOJ) got the general analysis right (looking to Roommates.com as the framework for exceptions to the general protections of Section 230), they got the application wrong (saying that algorithmic recommendations should be excepted from immunity).

Read the full piece here.

SUMMARY OF ARGUMENT

An interactive computer service’s automated recommendations qualify for statutory immunity under Section 230(c)(1). Congress enacted this policy choice in clear text, supported by powerful statutory context, including express findings and purposes that it wrote into the statute itself. And Congress did so in service of a national policy favoring free and open discourse on the still developing internet—a policy that has proved enormously successful in the years since. This Court should resist Petitioners’ invitation to impose sweeping changes on the Nation’s internet policy, and instead leave any such changes if they ever prove necessary—to Congress.

Section 230’s text should decide this case. Section 230(c)(1) immunizes the user or provider of an “interactive computer service” from being “treated as the publisher or speaker” of information “provided by another information content provider.” And, as Section 230(f)’s definitions make clear, Congress understood the term “interactive computer service” to include services that “filter,” “screen,” “pick, choose, analyze,” “display, search, subset, organize,” or “reorganize” third-party content. Automated recommendations perform exactly those  functions, and are therefore within the express scope of Section 230’s text.

Section 230(c)(1)’s use of the phrase “treated as the publisher or speaker” further confirms that Congress immunized distributors of third-party information from liability. At common law, a distributor of third-party information could be held liable only when the doctrine permitted the distributor to be treated as the publisher. As Petitioners and the United States agree, Congress understood and incorporated that common-law meaning of “treated as the publisher” into Section 230(c)(1). Given that a distributor cannot be “treated as the publisher” of certain third-party information, however, there is no alternative mechanism for holding the distributor liable based on the improper character of the information. Indeed, Congress enacted Section 230(c)(1) specifically to avoid the sweeping consequences that the common-law regime of knowledge-based distributor liability would inflict on the developing internet.

Section 230(c)(1)’s surrounding and subsequent statutory context bolsters this conclusion. Section 230(c)(1) provides the same protection to “user[s]” as to “provider[s]” of interactive computer services. Petitioners do not defend the position that users who like, retweet, or otherwise amplify third-party content should be held liable for the character of that content, but Section 230(c)(1)’s text renders that an inescapable consequence of their argument. The better inference is that Congress chose to protect a wide range of speech and speech-promoting conduct for providers and users of interactive computer services alike. In addition, other statutory enactments illustrate that Congress knew how to impose liability on distributors when it wanted to—such as in the Digital Millennium Copyright Act, for example, where Congress also wrote a detailed notice-and-takedown framework into the statute to ensure that distributors received adequate procedural protections as well.

Petitioners’ and the United States’ attempts to distinguish between mere automated recommendations (for which distributors purportedly could be liable) and the recommended content (for which they could not) find no support in the text. To the contrary, the text makes clear that even a bare automated recommendation constitutes “pick[ing]” or “choos[ing]” content, an activity expressly contemplated by Section 230. Moreover, to hold a distributor liable based in part upon the improper content of information created by a third party would conflict with the common-law meaning of the terms Congress chose.

Congress enacted Section 230(c)(1) to protect the continuing development of the internet and ensure that it would remain a national forum for the free exchange of ideas. This is a case where the statutory text successfully implements Congress’s purposes by providing broad protections to automated recommendations of third-party information. But this Court need not guess at Congress’s purposes here, as it might be reluctant to do in a different case, because Congress enacted its purposes into the statute itself. Those purposes are part of the statutory text like any other statutory text, and deserving of the respect this Court would give to any text that passed through bicameralism and presentment into law. If any changes to our Nation’s statutory regulation of the internet are necessary, this Court should leave them to Congress.

Read the full brief here.

Later next month, the U.S. Supreme Court will hear oral arguments in Gonzalez v. Google LLC, a case that has drawn significant attention and many bad takes regarding how Section 230 of the Communications Decency Act should be interpreted. Enacted in the mid-1990s, when the Internet as we know it was still in its infancy, Section 230 has grown into a law that offers online platforms a fairly comprehensive shield against liability for the content that third parties post to their services. But the law has also come increasingly under fire, from both the political left and the right.

Read the full piece here.