Gonzalez v. Google Liveblog, in Progress

Moderated by Kate Klonick, with Mary Anne Franks, Mike Godwin, James Grimmelmann, Gus Hurwitz, Jeff Kosseff, Emma Llanso, Alan Rozenshtein, Benjamin Wittes, Jonathan Zittrain, and me.

From the Institute for Rebooting Social Media, right here and right now! (It's all text, so if you arrive in the middle of the argument, or after it, you can see all that had been said.)

Comments

[SRG]

Great fun!

Thus Kagan, about herself and her colleagues: “These are not the nine greatest experts on the Internet”

[Bored Lawyer]

Neither was Congress that passed a law in 1996 that is supposed to deal with 2023 technology. But such is the life of the law.

[OtisAH]

That’s a funny point to make here at the Volokh Conspiracy where we insist that using mid- to late-18th century meanings, morals, and motivations to govern a nation of 330 million people in the 21st century is what the Founding Fathers (All hail!) always intended.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes, it is what they intended. They also included amendment instructions.

[OtisAH]

“Yes, it is what they intended.”

[Citation needed.]

[defaultdotxbe]

"[Citation needed.]"

The lack of an expiration date in the Constitution, and the clear process by which is can be changed as time goes by.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Are you saying they did not write what they wrote, or that someone forged their signatures?

[Sarcastr0]

Originalism is not textualism.

It is not self evident the Constitution's text is directive in areas where it is ambiguous, with the direction being 'do what we're doing right now in the late 1700s.'

[Brett Bellmore]

The problem has always been that people who see 'ambiguity' as a license to re-write the Constitution outside Article V see 'ambiguity' everywhere.

[Sarcastr0]

The problem is you can’t handle people not agreeing with you on the interpretation of the Constitution.

No one is lying. No one sees license. The Constitution is full of ambiguity. By design.

[Brett Bellmore]

You're the guy who couldn't just admit a 25 year can't be a Senator.

[Sarcastr0]

Not what I said.

Lots of ambiguity doesn’t mean all ambiguity. Don’t make up things I never said.

[Bored Lawyer]

What a silly comment. Kagan's point is that the Internet is a technology that the justices are not experts on. My point is that it is evolving. That does not mean that the law is inapplicable. If it does not fit the technology of 2023, then Congress has to change it.

The Constitution, OTOH, deals with general principles of government. That is within the ken of SCOTUS justices. And these principles do not change the way technology changes.

[John F. Carr]

The server is falling down under the load.

[Brett Bellmore]

"Plaintiff's response: Search engines aren't liable for stories they post. Kagan: Why not, since they prioritize them?"

I think this is kind of the heart of the issue: Platforms and search engines can engage in two different activities that may superficially look the same, but are really quite different in nature:

On the one hand, they may enable you to find things YOU are looking for.

On the other hand, they may direct you to things THEY want you exposed to.

Both fall under "what is presented to you", but the former is essentially dictated by the user, the latter by the platform. Maybe the latter is best treated as platform created content?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Think Google could get around this dilemma by letting users set their own prioritization rules? That would be a lot of fun to experiment with, and probably way too embarrassing for them.

[Brett Bellmore]

Maybe, but their business model depends on NOT always showing you what you're looking for, but instead sometimes showing you what somebody has paid them to show you. So giving you complete control would break their business model.

[F.D. Wolf]

Would search engines be liable if Section 230 didn’t exist? It depends on the cause of action. In a defamation case, I doubt it. If you asked X for a book on John Smith, and the book happened to contain something defamatory, X wouldn’t be liable for defamation for merely recommending the book. However, if Google were placing products in which it had a financial interest at the top of an internet search (and even perhaps hiding competitor’s products altogether), would 230 give it complete immunity from antitrust statutes?

[Bored Lawyer]

As I have pointed out before, even if the Plaintiffs here prevail on their Section 230 argument, they still face very high hurdles to show that Google was the cause of their daughter being slaughtered by ISIS in Paris.

[Brett Bellmore]

OTOH, if they did prevail, Google would be subject to a lot of "the process is the" punishment that the current interpretation of Section 230 currently spares it.

[defaultdotxbe]

You can beat the rap, but you can't beat the ride.

[John F. Carr]

I don't have any problem with excluding Google from section 230 protection in this case. I do want a manageable standard distinguishing "I want to see" and "you want me to see", or "content" and "algorithms." If plaintiffs only need to plead "algorithms!" to make the defendant liable then the immunity disappears. There has to be something negligent about the algorithms. Something specific enough that the plaintiff can't simply plead "negligent algorithms!" What duties can be imposed by state law consistent with federal law, and what allegations must be in the complaint to survive a motion to dismiss?

[Jason Cavanaugh]

"I don’t have any problem with excluding Google from section 230 protection in this case."

Why? What exactly did Google *do* that makes you think they're liable for anything?

[John F. Carr]

I didn't say Google should be liable. I said the allegations should be unprotected by section 230 if a workable standard can be devised to distinguish "showing them what they asked for" from "steering them to actionable content."

[ReaderY]

I think that’s the critical distinction. Google didn’t simply provide search results. It recommended certain sites. That recommendation is Google’s independent action, not a simple response to the user’s search.

Google might apply simple, neutral, prestated criteria in ordering the results, like putting the sites with the closest match or the most hits first. But Google went well beyond neutral criteria. It allowed advertisers to influence what came first, for example.

[David Nieporent]

A Barnes & Noble puts some books in the window, some on the tables in front, some in a New/Noteworthy/bestsellers display near the front, some on a remainders table, some on a display at the end of a shelving aisle, and some just shelved alphabetically in the middle of the book rows. They don't do this at random; they do it based on what they think their customers will want to buy.

Does the fact that they do so make them liable for the contents of those books that they show more prominently?

[Brett Bellmore]

Well, if they deliberately put a defamatory book in their window, and made the book refuting the defamation available to order, but only if you knew of it? Maybe.

[F.D. Wolf]

But that's not the issue before the Supreme Court. The Court is not deciding whether Google is liable for its recommendations. It is deciding whether Section 230 forecloses a court from even entertaining the question.

[David Nieporent]

I understand that; it's tomorrow's case that will address liability. I'm just trying to get ReaderY to explain why he thinks there shouldn't be immunity for recommendations.

[Bored Lawyer]

Because that is not what the immunity was enacted for. It was enacted to allow ISPs to remove offensive content, without incurring liability for either the removal or what they decided not to remove. None of which has anything to do with making recommendations.

[David Nieporent]

Making recommendations is a basic function of a publisher.

[Bored Lawyer]

One, I don't think so. Two, assuming that's true, so what? That's not what the statute says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Nothing there applies to making recommendations. Just because publishers do things, does not mean that any such activity is immune under Section 230. In fact, the whole point of the immunity is NOT to be treated as a publisher.

And for that matter, I am dubious that Google fits the definition of an ICS:

Interactive computer service
"The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

[David Nieporent]

One, you're wrong. What do you think the New York Times does when it puts some stories on page A1 and some on D13? (Of course, that's its own content, not third-party content, but that doesn't change the fact that it — in its role as publisher — recommends some content and buries other content.)

In fact, the whole point of the immunity is NOT to be treated as a publisher.

Yes, that's the point of the CDA. ICSs can do the things publishers do but will nevertheless not be treated as publishers for liability purposes.

And for that matter, I am dubious that Google fits the definition of an ICS:

You don't think that YouTube is an information service or an access software provider that enables computer access by multiple users to a computer server?

In particular, as to both of your points, I suggest you look at the definition of an access software provider:

(4) Access software provider The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

[MaddogEngineer]

From the live blog commentary (linked above) of today’s arguments, I learned there is a line of case law that covers your example. (Bookstore window display) Don’t know enough to judge whether analogy is apt.

[David Nieporent]

No, that's not right. Search engines do not blindly pattern match what you input. They also direct you to results they think you will want to see.

And content created by a third party is by definition not "platform created content."

[Brett Bellmore]

"They also direct you to results they think you will want to see."

And also to results THEY want you to see, whether or not you're likely to want to see them. That's the basis of their business model, after all, as well as of the power they have to influence society.

Frequently the results would actually be more useful if they DID blindly pattern match what you input.

[David Nieporent]

And also to results THEY want you to see, whether or not you’re likely to want to see them.

No, Brett. They make money by showing ads. Their goal is to increase engagement. Showing you things you’re not likely to want to see is a great way to get you to close the browser window and do something else.

[Brett Bellmore]

And you've never had the experience of having to page through a couple dozen useless search results to get to the one that's actually pertinent, because of all the sponsored results? Fifteen or twenty search aggregators when you're just looking for a business's website?

For anybody who knows how to compile a search string, Google has gotten a LOT worse over the past decade, and it's largely because they don't lead with the organic search results anymore.

[Sarcastr0]

I’ve not found Google has gotten worse. Quite a subjective bit of evidence you got there.

[Brett Bellmore]

"For anybody who knows how to compile a search string,"

[Sarcastr0]

You think I went to an engineering school in the early 2000s and didn't get some regex?

But I don't see why that's relevant. Google's purpose is parsing common language. And for ordinary search results, I don't see how knowing rudimentary search commands would give insight into it's quality.

[myself]

Frequently the results would actually be more useful if they DID blindly pattern match what you input.

Then you'd have Altavista.

Google became the giant company who utterly dominates online search precisely because they did something much cleverer than "blindly pattern match" user inputs.

[myself]

On the one hand, they may enable you to find things YOU are looking for.

On the other hand, they may direct you to things THEY want you exposed to.

So how do you classify combating disinformation?

If someone searches for "do COVID vaccines contain aborted fetuses?" should the search engine assume they want an accurate answer and direct them to a debunking of conspiracies. Or based on user history should it assume they want their biases confirmed and send them to some conspiracy theorist?

And I can certainly see a strong business case for the former over the latter, even at the risk of pissing off some users. Just like a news organization, an information curator like Google wants to maintain a reputation as an authoritative and reliable source of information. Forcing them to serve up disinformation undercuts this reputation.

[David Nieporent]

It's tangentially related here, and nowhere else, so I'll drop it here: to the shock of nobody sane, Joachim Martillo's ("Jonathan Affleck's") loony cert petition to SCOTUS was rejected today. It turns out the comment section of a newspaper is not a common carrier.

[Brett Bellmore]

Blind people saw that one coming.

[ReaderY]

It looks likethe damn-Congress’-intent textualism of Bostock was short-lived. Justice of both left and right seemed unreceptive to both Gonzlwz’ amd Google’s follow-the-text-and-don’t-worry-ahout-intent argument. Instead, they seemed very concerned that textual literalism could lead to absurd or at least destabilizing results in the vastly changed technological environment since 1996. They seem very open to consider both ways to effect the original intent and ways to avoid unpredictable and destabilizing consequences. In short. Bostock is out the door and less textualist methods of interpretation seem to be in.

Perhaps Bostockian textualism was a one-off where the court’s liberals accepted Justice Gorsuch’s opinion because it led to the result they wanted and permitted a majority, but never intended to apply Gorsuch’s method of interpretation elsewhere.

The Justices seemed to be searching for some sort of interim position between Gonzalez’s and Google’s. They seemed to reject Gonalez’s postion that almost any method of presenting results creates new content, but also seemed to reject Google’s position that no promotion or recommendation of results can ever be considered new content.

[David Nieporent]

I don't agree with your assessment of the dialogue, but even if I did, I would reject your argument, because oral argument is not an opinion. Oral argument is questions. What they "seem to be searching for" is not what the opinion they actually issue is.