Tammy Cowart, PhD - associate professor of business law and business ethics at UT Tyler - discusses the Gonzales v. Google internet rules case that will determine whether social media platforms that exercise editorial control over content will be treated as publishers subject to liability, or will continue to be treated as neutral platforms.
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Mike Landess: For UT Tyler Radio, 99.7 KVUT, I’m Mike Landess, the CNN Business headline, read “How the Supreme Court could reshape the internet as you know it.” It was referring to the case Gonzalez vs. Google, which made it to the US Supreme Court recently, and Justice Samuel Alito asked, would Google collapse and the internet be destroyed if YouTube and therefore Google were potentially liable for the content its users posted. With us to discuss this case and its ramifications is UT Tyler associate professor of accounting, finance, and business law, Dr. Tammy Cowart. Welcome!
Tammy Cowart: Thank you.
Mike Landess: Quick background here. Now the issue is Section 230 of the Communications Decency Act of 1996. For decades, it’s protected companies ranging from AOL to Twitter to thwart user content issues in the button. Now at stake is whether or not social media companies can be held liable for recommending terrorist content to users. The Gonzalez family of Gonzalez v. Google lost a daughter in the 2015 Paris terrorist attacks. This is what they’re basing this on. It went through the Ninth Circuit Court of Appeals, and now it’s before the justices. Thoughts on what you see and hear with this and the future of the internet.
Tammy Cowart: Well, thank you Mike. It’s, it is a very interesting case. It’s gonna be very interesting to see if the justices decide to weigh into this matter at all. I’ve listened to most of the oral arguments of the court, and they, they do seem a little bit reticent, at least some of them do, about whether or not they want to, really, step into this or whether really Congress is the, the, branch that’s best able to address this.
Mike Landess: I, I thought it was kind of funny that, the Supreme Court Justice, Ellen Kagan, said, you know, these are not like the nine greatest experts on the internet.
Tammy Cowart: Yes. Yes. And that drew a lot of laughter from, from the other justices and from the gallery as well, and some of the other justices really.
Justice Kagan obviously is considered one of the more liberal justices, but some of the conservative justices also expressed some hesitation about,whether or not they, they should, alter or, take away the protections of the Communications Decency Act, or whether or not, again, congress is the, the branch that’s best suited to do this.
Mike Landess: On, February 26th, the Dallas Morning News, editorial headline read, “Social Media Needs to be Policed, just Not by the Supreme Court.” It proposed a congressional response to reforming Section 230 of the Communications Decency Act. Thoughts on that?
Tammy Cowart: Well, actually, Mike. there have been several bills introduced in Congress over the last, at least two years, maybe three to reform, to revise Section 230 of the Communications Decency Act.
And,not to be overly political, Congress just doesn’t seem to be in a place where they can get a lot accomplished, at least in this area. And so none of the bills. , that I mentioned in the last couple of years have actually made it out. There’s one that’s pending right now, that has some bipartisan support, but I think it, you know, just gonna remain to be seen as to whether or not it actually is voted upon.
Mike Landess: The internet’s been described as the wild, wild west. Is there ever going to be a sheriff to come along and clean things up in this town.
Tammy Cowart: Well, that’s a really good question, and if I could, could go back in time and do a little bit of, a historical review of this issue, if you’ve been around for a while and I have.
Mike Landess: Me too.
Tammy Cowart: Okay. . You remember when really the internet began and, and it really was like the wild, wild west, and congress made several attempts actually to control what could and could not be posted on the internet. And the one that probably most of us remember had to do with pornography.
Mike Landess: Yes.
Tammy Cowart: Or access to, you know, indecent material. and, and its access to children and congress tried at least three times and passed laws that restricted content on the internet that had to do with, you know, the, the, the famous Supreme Court opinion about, you know, what’s obscene and what’s not obscene, and just …
Mike Landess: I know it when I see it.
Tammy Cowart: Yes. Ju Justice Potter Stewart.
Yes. who said that? So, the Congress tried several times to sort of say you can’t have obscene material on the internet, and the US Supreme Court struck it down every single time and said, no, the government cannot engage in restrictions of speech to this level. Obviously the government can regulate speech, but they can’t, prevent speech.
So the Communications Decency Act and Section 230 was actually an allowable way for Congress to encourage these internet service providers so it’s the, the idea that they’re providing the service to us,
Mike Landess: I’m sorry, is encourage -air quotes,
Tammy Cowart: per, perhaps Yes. to allow them, them, because the government cannot do it under the First Amendment, but these internet service companies, Could, because when we get onto the internet, when we download an internet browser, we agree to abide by their terms of service, and we’re entering into a contract with Google and YouTube and Twitter and Snapchat, we’re entering into a contract with them just like we would any other kind of service.
So they’re not necessarily bound by the restrictions of speech in the First Amendment, but congress wanted them to be good citizens nonetheless. And so in section two 30, congress said, okay, if you internet service companies, if you’re gonna sort of make sure that there’s no bad content on the internet, You’re just gonna act to remove it and, and take it away, then we’ll say that you’re not liable for any of those actions.
And so it, it was sort of like deputizing, perhaps to kind of use your analogy, deputizing, these internet service companies to say, if, if you’ll sort of police the main street, then we’ll say that you can’t be held liable for that. At that time, the internet was fairly new. I mean, it’s 27 years ago, 27 years ago when the Communications Decency Act was passed.
Obviously these internet service companies have become much more savvy and they’ve developed these algorithms that now we’re all familiar with, and so really the big issue in the Gonzalez case is, when these internet service companies use their algorithm to promote specific content to us that they know that we like because we click on it, then have they gone beyond just being sort of a service provider and are they now essentially publishing information to us?
I predict that the Supreme Court will decline, to intervene in this particular, case and that congress really should be the body, the branch that should, amend and revise Section 230. And I think there should be some avenues, for consumers to take action against these large companies.
Mike Landess: Our guest has been UT Tyler, associate professor of accounting, finance, and business law, Dr. Tammy Cowert. To hear this interview again or to share it, go to KVUT.org. I’m Mike Landess for UT Tyler Radio, 99.7 KVUT.