Los Angeles, 1950. Eleazar Smith owned a bookstore where he stocked unread books for sale. Everyone knows that, although the good advice of a trusted bookseller is always expected, it is impossible to pretend that he has read everything on his shelves, even before the news tables overflow. Eleazar lives in the USA during the cold war and the rise of McCarthyism, a time in which undemocratic techniques such as guilt by association, indiscriminate violation of privacy and unsubstantiated accusations were used to censor the general population. Eleazar would probably watch on his paid-for black-and-white television the sessions of the House Un-American Activities Committee that launched thousands of investigations into potentially communist activities and led to the famous Hollywood blacklist.
The city of Los Angeles was no stranger to this state of affairs and issued a municipal ordinance that prohibited “anyone from having in their possession any obscene or indecent writing, [o]…in any business establishment where…books are sold or held for sale.” This is how Mr. Smith was sentenced for violating this ordinance when books considered obscene were found in his establishment. California municipal and superior courts upheld criminal liability of him for mere possession of the obscene material, even though he had no knowledge of the book’s contents, since intent and knowledge were not required for punishment to be imposed. Smith appealed to the US Supreme Court. (SCOTUS).
He was neither the first nor the last to use freedom of expression and of the press in these turbulent years to defend himself against the hostility of manifestly intrusive governments. The Court found him right in 1956. The publication and distribution of books are protected by the rights to freedom of the press where booksellers play a key role not only for their publication but also in their distribution, approval is not acceptable regulations that have the effect of making the right to freedom of expression impossible. Failure to do so, according to SCOTUS, would de facto make booksellers afraid or reluctant to exercise such freedoms.
If this were not important enough, the sentence establishes the following principle, in fact the one that brings us here today: if we accept that booksellers are criminally responsible without knowledge of the content of the books they sell, they would only put in their windows those that personally inspected, inevitably reducing the number of works available to the public. So we make them irresponsible. This is what is known in law as the protection of the “good Samaritan” against civil and criminal liability. Since Smith v. California Librarians and Booksellers are not responsible for the books, creative works, or any content they store, distribute, or sell.
At the birth of the commercial internet, the protection of the Good Samaritan was brought to intermediation services through the famous Section 230 of the Communication Decency Act. If a librarian did not know what was in all the books in his library, how a provider of communications services, hosting, a proxy, a search engine or a network of blogs was going to have the slightest notion of everything that flew from byte to byte through its network.
Therefore, they could not be required to filter the content, which is almost technically impossible and financially expensive. Of course, it had to have a complaint system enabled in case any content infringed someone’s intellectual property. That is why it is so easy to remove a video with a Mariah Carey song from YouTube and so complicated if the one that comes out is your son attacked by his schoolmates.
This principle was dragged into European legislation, which transferred it to the Electronic Commerce Directive, and ended up in our Information Society Services Law (LSSI). I leave the Sinde Law that came later for the old people of the place to tell you.
The famous DSA (Digital Services Regulation in Spanish) published last year, which replaces and repeals the directive and, incidentally, the LSSI, maintains the protection of the Good Samaritan because it has had no other choice, although it has imposed a series of controls and audits that are a nuisance, the big technology companies that base their entire business model on the irresponsibility of content can well afford it. And this is what the case is really about Gonzalez v. Google which was seen on Tuesday, February 21, in a public hearing, again, before the US Supreme Court. And also, Twitter vs. taamneh which was seen on February 22 before the same Court.
Both cases stem from similar circumstances: the 2015 terrorist attack in Paris, which killed, among others, an American student named Nohemi González; and the 2017 terrorist attack on a nightclub in Istanbul, in which a Jordanian national named Nawras Alassaf was killed. Following the Paris attack, González’s father sued Google, alleging that he had aided and abetted a terrorist group by allowing not only members of ISIS to post videos on YouTube but also to have their algorithms recommend them.
On Twitter vs. Taamneh, Alassaf’s relatives accused Twitter, Facebook and Google of “collaborating” in the Istanbul bombing by allowing ISIS propaganda to spread on the internet. In Gonzalez v. Google, SCOTUS will have to decide if Section 230 protects the platforms from liability not only for the publications of their users, but also when their recommendation algorithms intervene in the dissemination of that content. In Taamneh, the court will set aside Section 230 and assess whether an internet platform can really be charged with complicity in terrorism.
The two issues have raised dozens of amicus curiae (interventions by people who are not parties to the procedure but who support one of them in the process) from technology companies, civil liberties groups and even the authors of Section 230 themselves, who have alerted the court about the danger of cutting back or eliminating the protection of the Good Samaritan which is based, as the reader already knows, on the protection of freedom of expression and of the press. Others, including conservative lawmakers, law enforcement advocates, children’s rights groups and Frances Haugen, have taken the opposite stance, advocating a restrictive interpretation of Section 230. A third group have turned to the court , without taking sides, but detailing the ramifications of the reform or repeal of the law.
As we see, the question is not simple. Big tech profits from a 67-year-old doctrine that applied to technology and under radically different conditions than today. Not to mention that, indeed, the first Internet operators did not have the capacity to comprehensively read all the content they hosted and transported, but this, too, has changed radically. Facebook, Twitter, Google or Instagram have the capacity to “read” the content and we know this because they select it and present it to us as an editor would do.
Hence their fierce resistance to moderating the contents because it would be to recognize that they have editorial capacity over them, which would jeopardize the protection of the Good Samaritan, which is what the González family proposes. What we know so far from the hearing is that the justices on the court seemed puzzled by their arguments (Kagan and Kavanaugh conceded that the court may not be up to the technical knowledge required on the matter and that Congress had better deal with it). legislate), but several of them suggested with their interventions that the protection granted by Section 230 should be redesigned, distinguishing between the content and what the platform does with it, which would open a door to liability in the case of using algorithms of recommendation. If this position is accepted, many things will change on the internet.
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