Google Case Before Supreme Court Will Be Crucial Battle in Escalating War on Big Tech, Industry Observers Say

The logo for Google LLC at the Google Store Chelsea in Manhattan, New York, on Nov. 17, 2021. Andrew Kelly/Reuters

One of the most closely watched pending cases of the Supreme Court’s current term, Gonzalez v. Google, may result in a ruling that profoundly changes how online platforms operate and signals a broader societal shift against the excesses of big tech, legal experts and observers of the industry have told The Epoch Times.

Gonzalez v. Google originated in Paris in November 2015, when a coordinated series of attacks orchestrated by the terrorist group ISIS killed 129 people, including a young American woman, Nohemi Gonzalez. Her family contends that the perpetrators of the attack became radicalized at least partly by watching videos available on YouTube, which Google owns, and that the content-related liberties that tech platforms claim under Section 230 of the Communications Decency Act, which falls under Title V of the Telecommunications Act of 1996, does not shield Google from liability.

The case has obvious implications not just for Google and how it operates, but for the tech sector more broadly, given the role that the search engines offered by numerous platforms play in the uploading and dissemination of content to users around the world.

The Role of Section 230

While tech companies may be hoping for a Google victory and for the case to go away without having much of an impact, that is far from the likeliest outcome, says Jeffrey McCall, a professor in the communications department at DePauw University in Greencastle, Indiana.

“The case of Gonzalez v. Google has the potential to drastically change the functioning of social media platforms on the internet,” McCall told The Epoch Times.

Section 230 is not the all-purpose shield that some players in the industry would like it to be, and some citizens are tired of tech firms’ selective determinations as to what violates norms and guidelines, he suggested.

“Section 230 of the 1996 Communications Decency Act provides broad protections for these platforms from legal liability for the content posted. Some observers believe the social media giants have exploited that protection to allow crazy and harmful content to circulate while controlling content the platforms don’t support,” McCall observed.

In McCall’s analysis, Justice Clarence Thomas is at the forefront of the movement to revisit and reassess Section 230. Thomas is one of many people who have grown disenchanted with the “Wild West” of an online world lacking clear and consistent rules and guidelines, he said.

The outcome of the case may not be a positive one for those concerned with free speech, and may foster a preemptive drive by the online platforms to shield themselves from charges of being a conduit for actionable content, McCall noted.

“Depending on how the Supreme Court rules, these platforms could be held more responsible for the content circulating on their sites. That could become quite expensive to manage and open the platforms to litigation at every turn. It could also diminish the free expression climate in social media in that platforms would likely close off many avenues of expression as an overprotective step,” said McCall.

Nuanced Positions

McCall views the Supreme Court of Chief Justice John Roberts as generally supportive of First Amendment protections of free speech. But that does not mean that legislation enacted in 1996, when the internet was at a much different stage of development and functionality from today, is safe from reconsideration and potential adjustment, he argued.

“The Supreme Court will have a very tough balancing act, indeed, to maintain support for robust free expression protections, but at the same time try to force some accountability into social media companies that have allowed crazy content to circulate without shouldering any responsibility. My guess is that the Court will try to rule in a way that generally supports continued free expression for the platforms and the participants, but also puts up some guardrails. This will, of course, be a very tough needle to thread,” McCall stated.

“The Court might well also encourage Congress to provide legislative balancing of some sort. After all, it is Congress’s job to regulate, not the Court’s. One of the reasons for the current confusion in this matter is Congress’s inability or unwillingness to legislate updates to Section 230, even though it has been clear for some time that updates were needed,” he added.

Section 230 is the product of a very different time from the one we live in, and, as written, is likely to be increasingly subjected to challenges, concurred Lee Vinsel, a professor in the department of science, technology and society at Virginia Tech University in Blacksburg, Virginia.

“I’ve followed this general class of cases over the last couple of years. I think the heart of it is this Section 230 issue, and Section 230 of the Telecommunications Act was passed in the 1990s as a way to get the internet off the ground. You had firms worrying about being held liable for what people posted, and that was a kind of risky environment, so this Section 230 helped allow the internet to develop,” Vinsel told The Epoch Times.

“I think you can see the thinking here, it’s easy for me to build digital infrastructure where you can sign on and post whatever text, video, sound, or file you’re going to post, and then I’m not liable for it. I’m providing the infrastructure for users to do their thing, because if I were liable, that would really change things for the firms. Suddenly I would have to really police the content because I can be held responsible for what’s there,” he added.

Now that the freedom to do so is subject to a challenge before the nation’s highest court, the issue has become an existential one for the big media companies, Vinsel said, and this explains why Reddit, the Wikimedia Foundation, and other internet-based firms have taken Google’s side.

“It’s not just Google, it’s Facebook, it’s Twitter, it’s Wikipedia, it’s Reddit, it’s all these companies. I think these firms are signing on to Google’s side because they realize what a threat this is to their business model,” he added.

A Broad Coalition

Not all the tech firms are averse to the reworking of Section 230, Vinsel was quick to add, but they would generally prefer to see it done through a legislative process than by judicial fiat.

What makes the Supreme Court showdown particularly interesting to watch is the bipartisan character of the forces arrayed against Big Tech, he said.

“You can see it’s a bipartisan issue. You have the Squad being anti-Big Tech, and then you’ve got Senators Tom Cotton [(R-Ark.)] and Josh Hawley [(R-Mo.)] being anti-Big Tech. Their understanding of the problems is diametrically opposed, but there’s broad unhappiness with these companies at the moment,” he said.

Vinsel described this dissatisfaction as consistent with a historical model, where products and companies that enjoyed enormous popularity for a time come to face a shift in popular sentiment, as the problems associated with them stir frustration and anger. The auto industry is one example, he said. At the same time, it is important not to underestimate the financial and legal resources that the tech firms are able to put to use.

“A lot of people were saying a year or two ago that there might be antitrust cases, successful ones, to break up Google or Facebook, but that’s actually not going well in the Biden administration. The Federal Trade Commission and other groups have not really successfully pushed through an antitrust case, and judges have been chiding them for doing a sloppy job,” said Vinsel.

Voluminous Critiques

In the view of William Kovacic, a professor of law and director of the Competition Law Center at Georgetown University in Washington, the proliferation of articles critical of Big Tech, appearing in popular newspapers and magazines as well as academic journals, has contributed to a broad shift in sentiment.

“I have, on the shelves of my office, many linear feet of critiques which are all less than 10 years old. The authors include more traditional academic commentators but also op-ed writers such as Rana Foroohar at the Financial Times,” Kovacic told The Epoch Times.

Kovacic also noted the bipartisan opposition to Big Tech firms.

“It includes legislators like [Sens.]Amy Klobuchar [(D-Minn.)] and Josh Hawley, not people you would necessarily see at a dining table together. But you have the popular and academic literature, building up over a 10-year period, that pointed to problems in the competition sphere and in data protection that arise from the ascent of these companies,” Kovacic said.

Nor have the tech firms benefited from humiliating incidents like the controversy over Cambridge Analytica, the UK-based consulting firm revealed in 2018 to have collected the data of Facebook users without obtaining their permission.

“The companies, in some instances, engaged in behavior that drew very negative attention to their operations. I see Cambridge Analytica as being an analogue to the Exxon Valdez oil spill,” he said, referring to the disaster in March 1989 that stirred up furious popular opposition to the company, Exxon, owner of the vessel that leaked nearly 11 million gallons of crude oil into waters off the Alaskan coast.

“Whether or not the Cambridge Analytica lapse was inadvertent, it suggested that these companies are out of control. If it was the result of conscious decision-making, it suggested that element of indifference, or the absence of a moral core,” Kovacic said.

Growing Dependency

During the Covid-19 pandemic, he observed, Facebook and other platforms grew all the more powerful and ubiquitous in the lives of users stuck indoors a good part of the time, and their outsized role in society became that much harder to ignore.

“Their importance as social binding mechanisms, as ‘essential’ communications devices, their apparent indispensability to the functioning of the economic system and the very society itself, was elevated in a dramatic way. With that ascent of authority came political implications that I doubt any of the creators of those enterprises ever envisioned,” Kovacic continued.

“They were not just a conduit, but were performing editorial functions, deciding whose information gets transmitted about what topics,” he said.

Some Republicans view Facebook and other social media as having contributed to Donald Trump’s loss in the 2020 election, and this helps explain why legislators such as Sen. Hawley are on board with the anti-tech forces, Kovacic added.

If Gonzalez v. Google results in a ruling that issues a blow to the tech platform, it will not only be a groundbreaking case on its own terms but will signify a broader shift and possible future litigation against Big Tech, the experts concur.

The Epoch Times has reached out to Google for comment.