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Brief of Internet Law Scholars to US Supreme Court in Gonzalez v. Google

Amicus Brief 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 . . .

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.

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Innovation & the New Economy

Fragile Giants: Reassessing Market Power in Platform Economics

Scholarship It is widely assumed that platform technology markets are inherently prone to monopoly outcomes in which a single firm or a handful of firms enjoy . . .

It is widely assumed that platform technology markets are inherently prone to monopoly outcomes in which a single firm or a handful of firms enjoy market power due to network effects and switching costs.  This assumption supports dramatic changes, both proposed and enacted, to the application of competition and antitrust law in platform markets.  Remarkably, this assumption rests on weak empirical support.  The history of technology markets shows that incumbent platforms have been repeatedly challenged successfully by innovative entrants.  Consistent with this pattern, a close examination of the cloud computing market finds little evidence to support assertions of platform entrenchment or user lock-in that would justify intervention by competition regulators.

Read the full piece here.

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Antitrust & Consumer Protection

Does the DOJ’s Approach in Gonzalez Point the Way Toward Section 230 Reform?

TOTM 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 . . .

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.

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Innovation & the New Economy

GDPR Decision Against Meta Highlights that Privacy Regulators Don’t Understand ‘Necessity’

TOTM The €390 million fine that the Irish Data Protection Commission (DPC) levied last week against Meta marks both the latest skirmish in the ongoing regulatory war on . . .

The €390 million fine that the Irish Data Protection Commission (DPC) levied last week against Meta marks both the latest skirmish in the ongoing regulatory war on the use of data by private firms, as well as a major blow to the ad-driven business model that underlies most online services.

Read the full piece here.

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Data Security & Privacy

DMA Begins

Scholarship Introduction The year 2022 of 12 October marks the official birth of the Digital Markets Act (DMA). As with the General Data Protection Regulation, the European Union . . .

Introduction

The year 2022 of 12 October marks the official birth of the Digital Markets Act (DMA). As with the General Data Protection Regulation, the European Union sets itself as a forerunner in digital economy rulemaking, attempting to strengthen its global regulatory leadership, through the so-called and well-described Brussels effect. The new Regulation is, indeed, complemented by other relevant interventions addressing the role of data and digital intermediaries such as the Data Governance Act, the Digital Services Act, and the proposal for a Data Act, which will shape the European digital policy.

Against the emergence of large online platforms, several proposals have been advanced by policymakers around the world to tame digital gatekeepers, including public utilities-style regulations, break-ups, bans on vertical integration, and reforms of competition laws. Despite such different approaches, however, the envisaged solutions share the same premise, namely the urgent need for bespoke interventions because of the distrust towards current antitrust rules to face effectively the challenges of the brave new world.

The DMA endorses this view stating that, although antitrust rules apply to the conduct of gatekeepers, the scope of these provisions is “limited to certain instances of market power” (e.g., dominance on specific markets and of anti-competitive behaviour) and its “enforcement occurs ex post and requires an extensive investigation of often very complex facts on a case-by-case basis.” Moreover, competition law does not address, or does not address effectively, the challenges to the well-functioning of the market posed by the conduct of gatekeepers, which are not necessarily dominant in competition law terms.

According to this line of reasoning, given that competition law alone is unfit to tackle systemic problems posed by the platform economy, a regulatory intervention is enacted to introduce a set of ex ante obligations for digital gatekeepers dispensing enforcers from the standard antitrust analysis (i.e., relevant market definition, proof of dominance, and assessment of anticompetitive effects) and restraining gatekeepers from even providing an efficiency defence.

Against this background, the paper provides an overview of the critical aspects of the DMA to investigate whether the European Union will effectively benefit from a first-mover advantage. Section II illustrates the main features of the DMA highlighting some mismatches between its declared justification and the way in which the new Regulation will be effectively applied. Section III questions the coherency of an intervention that ostensibly disregard the ecosystem-based approach, even if it was intended to address the specific issues related to the fact that the competition in the digital economy is increasingly a competition among ecosystems. Section IV concludes.

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Antitrust & Consumer Protection

The FTC’s Misguided Case Against Meta

Popular Media Lina Khan has been an outspoken critic of Big Tech since her law school days, demonstrating a singular focus on the big bad guys—first Amazon . . .

Lina Khan has been an outspoken critic of Big Tech since her law school days, demonstrating a singular focus on the big bad guys—first Amazon and then others. Now, as the chairwoman of the Federal Trade Commission, she has the chance to test her antitrust theories in court. But the FTC’s ongoing challenge against Meta, the parent company of Facebook, reveals the weakness of going after Big Tech in any way possible.

Read the full piece here.

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Antitrust & Consumer Protection

What Do Twitter’s Struggles with CSAM Mean for Section 230 Reform?

TOTM Twitter has seen a lot of ups and downs since Elon Musk closed on his acquisition of the company in late October and almost immediately . . .

Twitter has seen a lot of ups and downs since Elon Musk closed on his acquisition of the company in late October and almost immediately set about his initiatives to “reform” the platform’s operations.

One of the stories that has gotten somewhat lost in the ensuing chaos is that, in the short time under Musk, Twitter has made significant inroads—on at least some margins—against the visibility of child sexual abuse material (CSAM) by removing major hashtags that were used to share it, creating a direct reporting option, and removing major purveyors. On the other hand, due to the large reductions in Twitter’s workforce—both voluntary and involuntary—there are now very few human reviewers left to deal with the issue.

Read the full piece here.

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Innovation & the New Economy

European Commission Tentatively Finds US Commitments ‘Adequate’: What It Means for Transatlantic Data Flows

TOTM Under a draft “adequacy” decision unveiled today by the European Commission, data-privacy and security commitments made by the United States in an October executive order signed by . . .

Under a draft “adequacy” decision unveiled today by the European Commission, data-privacy and security commitments made by the United States in an October executive order signed by President Joe Biden were found to comport with the EU’s General Data Protection Regulation (GDPR). If adopted, the decision would provide a legal basis for flows of personal data between the EU and the United States.

Read the full piece here.

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Data Security & Privacy

What are your thoughts regarding start-up acquisitions? – David Teece

Presentations & Interviews Competition Policy International interviewed ICLE Academic Affiliate David Teece in September 2022. In the video embedded below, he discusses the concept of “potential competition” and . . .

Competition Policy International interviewed ICLE Academic Affiliate David Teece in September 2022. In the video embedded below, he discusses the concept of “potential competition” and the consumer-welfare effects of startup acquisitions.

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Antitrust & Consumer Protection