Supreme Court ruling in Twitter, Google cases puts Congress in bind

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The Supreme Court on Thursday declined to take up questions about the tech industry’s liability protections in two high-profile cases, effectively putting the ball back in Congress’s court to hash out whether or how to revamp the law known as Section 230.

In a pair of unanimous rulings, the court opted against wading into the debate over whether social media platforms, including YouTube and Twitter, should be immunized from liability for recommending or failing to take adequate steps to crack down on terrorist content. The cases, Gonzalez v. Google and Twitter v. Taamneh, were the first times it directly took on the issue.

The move marked a major victory for Silicon Valley companies, which have fiercely defended the protections amid a growing onslaught from critics in and outside of Washington who argue the law has shielded platforms from accountability for not policing and at times supercharging harmful posts.

And it puts the pressure back on Congress, which has grown increasingly critical of the law over the past half-decade, to settle any lingering concerns about Section 230 by itself.

Lawmakers said the decisions put an onus on Congress to pare back the legal shield, which protects digital services from lawsuits over user content. But their many competing visions for how to remake the law cloud the prospects for action.

Sen. Sheldon Whitehouse (D-R.I.), who like President Biden has called for repealing Section 230 altogether, said he didn’t have high hopes that the court would do “any broad unwinding” of the law. “I think it’s always been on us to do that,” he told The Washington Post on Thursday.

He added, “What I make of it is that Section 230 is a provision whose utility has expired.”

Yet while there’s broad bipartisan support on Capitol Hill for chipping away or revoking Section 230 protections, there’s been limited agreement about how to do it.

Congress has passed only one carve-out to Section 230 — a controversial 2017 law opening platforms up to liability for knowingly facilitating sex trafficking, which digital and human rights groups say has backfired by exposing sex workers to more dangerous conditions.

But lawmakers have since introduced dozens more bills to weaken the legal shield, including Democratic efforts to combat misinformation, Republican attempts to tackle charges of an anti-conservative “bias” on social media and bipartisan bids dealing with other harmful content.

None of those bills, however, have made it out of either the House or Senate, even as lawmakers have increasingly fixated on targeting Section 230 as a means to rein in Big Tech. Partisan disagreements over whether platforms take down too much or too little misleading content has helped to ground down talks.

Several lawmakers said that the court’s decision not to narrow interpretations of Section 230 leaves a broken system in place and called on Congress to fix it.

The court held that the underlying complaints against the tech companies lacked sufficient merit and therefore they did not need to weigh in on Section 230, which has come under fire from critics who argue it has shielded Silicon Valley companies from accountability over their actions.

“One reason [the court did not take it up] might be that they want the Congress to do our job,” said Sen. John Cornyn (R-Tex.). “It’s a complex issue and I hope we take them up on it.”

Sen. Mark R. Warner (D-Va.), who has proposed legislation to open platforms up to liability in cases of civil rights abuse and online harassment, said generating consensus about what to do about Section 230 has been a “big hill to climb.” “Obviously [efforts to put] any kind of guardrails on any social media, Congress has flunked miserably. … Our record stinks,” he said.

Warner said other legislative efforts targeting the tech industry, including to create new guardrails for children online and to develop standards around artificial intelligence, may have a better chance to gain steam in the “short term.”

Not everyone in Washington is on board. Sen. Ron Wyden (D-Ore.), who co-wrote Section 230 as a member of the House decades ago, said he appreciated the court’s “thoughtful rulings that even without Section 230, the plaintiffs would not have won their lawsuits.”

“Despite being unfairly maligned by political and corporate interests that have turned it into a punching bag for everything wrong with the internet, the law … remains vitally important to allowing users to speak online,” he said in a statement.

Still, the Supreme Court punting on the issue could create new momentum for critics looking to advance proposals to strip down or strike Section 230 entirely.

Whitehouse, for one, said he is drafting a new bill with Sen. Lindsey O. Graham (R-S.C.), the top Republican on the Senate Judiciary Committee, to repeal the law after a “sunset period.”

“I would prefer to just accomplish the general repeal and … return to rule of law,” he said.

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