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The United States Supreme Court recently heard a case that could allow technology companies like Google to be sued for content their algorithms recommend to users. 

Family members of Nohemi Gonzalez, who was one of the 100 victims in the 2015 ISIS attack in Paris, are bringing the suit against Google. They argue that YouTube, a Google subsidiary, aided ISIS’s attack through its algorithm, which recommended the terrorist organization’s content to users. 

Under Section 230 of the Communications Decency Act of 1996, services like Google are not held liable for content posted by third parties on their platforms, but they can remove content they consider objectionable as long as they are acting in good faith. 

As technology has rapidly progressed since Section 230 was passed, it has come under scrutiny from lawmakers on both sides of the aisle, according to the Wall Street Journal. Some people are concerned that the liability shield enables companies to ignore “false and dangerous” content, while others are concerned that companies use the “good faith” provision to justify political censorship. 

Associate Professor of Politics Joseph Postell said modern internet technology has rendered Section 230 obsolete. 

“In 1996, Congress really had no clue what the internet was going to become,” Postell said. “I think Congress needs to go back and rewrite Section 230 to deal with the realities of where we are now with the internet as opposed to where we were 25 years ago.” 

Senior Gabriel Powell said, partly because of Section 230’s liability shield, five tech companies have come to control more than 90% of the flow of information. In light of this situation, which is somewhat like a government-created monopoly, he said Associate Justice Clarence Thomas’s argument that Google ought to be treated like a “common carrier” makes sense. 

The concept of a common carrier goes back to English Common Law and includes essential communication and transportation services. The Supreme Court has held that common carriers are “bound to serve all customers alike, without discrimination.”

Thomas argued in a 2021 concurring opinion that, “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.” 

“In that case you would be applying just First Amendment government standards to them,” Powell said. “Limitations on what they could and couldn’t censor would be what the government could and couldn’t censor, which is a lot less than they can censor now.” 

Powell said companies like Google should lose their liability shield when they go further in censoring content than the government is permitted to do. 

“Once they start to editorialize on these posts — banning, adding context — they’re no longer strictly a public platform,” Powell said. “Then they’re exerting their own control over what people are posting, so then Section 230’s liability protection shouldn’t apply.” 

Junior Lucas Joyce also said tech companies should have to choose between protection from liability for their content and the right to censor it aside from general guidelines. 

“I am in favor of tech companies choosing to be one or the other: either they should be able to censor whatever goes on there, in which case they can be liable for what is put on there, or apart from the basic guidelines they should not be able to censor what is on there,” Joyce said.

Postell said he thinks the best outcome in Gonzalez v. Google would be for the court either to issue a narrow ruling in favor of the plaintiffs or to rule in favor of Google. 

“My fear would be that a broad ruling for the plaintiffs would actually revamp Section 230 in such a way that would cause a lot of harmful consequences, where a lot of things would be taken off of YouTube because Google would be too afraid to allow those things to remain on the platform,” Postell said. 

He said that Congress should clarify companies’ responsibilities under Section 230, but that repealing the liability shield protections altogether could result in more censorship. 

“Google would have to be very careful about what it allowed onto its platform,” Postell said, “and that actually might censor a lot of good free speech.”