Analysis – Big Techs want regulation when it suits – 02/26/2024 – World

A well-known English proverb says that a person cannot eat his slice of cake and still have cake. The aphorism perfectly describes what social networks are trying to do to free themselves from regulation. When it suits them, they want to be regulated like newspapers and TVs — but when it doesn’t suit them, they ask to be treated like telephone companies or railroads.

In response to laws approved in the states of Texas and Florida in 2021, entities representing big techs claim that they are not similar to telephone or railroad companies, providers of essential services that must be neutral and cannot discriminate against their users. These laws prevent big techs from moderating content as they see fit — removing or reducing the visibility of posts and expelling users who violate their usage rules without giving explanations.

In reality, say big techs, they function more like newspapers, which have editorial freedom to decide what will be circulated and how prominent it will be. The platforms say that the laws in Florida and Texas violate the First Amendment of the American Constitution – the freedom of expression of companies to decide what speech they want, or not, to disseminate through the platforms.

This is the core of the internet platforms’ argument to overturn the Florida law, which prohibits social networks from banning candidates for political office and “hiding” their publications, and the Texas law, which prohibits discrimination against users for “their points of interest.” View”.

The actions of the platforms questioning the validity of the laws began to be analyzed this Monday (26) by the Supreme Court.

However, to repel other attempts at regulation, big techs used the opposite argument. In two cases heard by the Supreme Court in 2023, the companies argued that they are only distributors of content published by third parties and do not make any editorial decisions, therefore they cannot be held responsible for the impacts these publications may have.

In the case Gonzalez versus Google, judged by the Supreme Court in May 2023, the family of a woman murdered in a terrorist attack in Paris in 2017, sued YouTube, which belongs to Google. The reasoning was that YouTube’s recommendation algorithm had recommended videos that “radicalized” terrorists. Therefore, Google should be held responsible for the consequences.

Along with this action, Twitter v Taamneh was judged, in which the parents of a man killed in a terrorist attack in Istanbul in 2017, asked that Twitter, Facebook and Google be held responsible under anti-terrorism laws, because they had recommended and served advertisements together with Islamic State recruitment and training content.

At the center of the discussion is Section 230 of the Communications Decency Act of 1996, which allowed the growth of the internet in the US. It establishes that platforms cannot be held responsible for third-party content, since they are not considered publishers like newspapers and TVs, they are just distributors.

At the time the law was signed, it was necessary to create this immunity, otherwise there would be no way for social networks to prosper – they could be sued for any content posted by third parties. Now, there is an oligopoly of gigantic companies, and a discussion about the need to review this law.

In the Gonzalez case, the family’s lawyers argued that YouTube, under Section 230, is not responsible for third-party terrorist content — but the recommendation algorithm is authored by Google, so the company can be held liable.

In Taamneh, the lawyers took the same line.

The companies responded by reinforcing that they had the protection of section 230. In other words, the opposite of what they are now arguing before the Supreme Court. This year, they cannot suffer a violation of freedom of expression when making editorial decisions about what should be on the platforms, as newspapers do. Last year, they could not be held responsible for third-party posts, because, precisely, they do not function as newspapers, as they do not exercise editorial discretion.

In Brazil, this is questioned by the Supreme Court minister, Alexandre de Moraes. He wants big tech to be regulated in the same way as media outlets, with the same responsibilities for content. The platforms are opposed.

In last year’s cases, the Supreme Court ruled in favor of big tech, but did not address the scope of Section 230.

Now, if the Supreme Court decides to invalidate the Texas and Florida laws because they violate companies’ freedom of speech, the consequences will be enormous.

Jurist Tim Wu, from Columbia University, presented a statement as amicus curiae stating that he is not in favor of the laws, but saying that validating big tech’s freedom of expression argument will make it impossible to implement any type of regulation on these companies. “Tech giants are defending the simplistic position that any conduct [de moderação] is ‘speech,'” Wu wrote in an article in the New York Times.

“If the justices accept this argument, they would be granting constitutional protection to virtually everything a social media platform does. [Isso] would create a kind of immunity bordering on sovereignty.” According to him, the decision in this sense could make attempts to regulate the digital environment for children and artificial intelligence unfeasible, which could be classified as violations of companies’ freedom of expression.