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Supreme Court hears case about a law that shields social media sites from lawsuits

ARI SHAPIRO, HOST:

A worried and wary Supreme Court heard arguments today in a case that could revolutionize the architecture of the internet and social media companies. At issue in the case is a 1996 law that shields internet platforms from being sued for material that appears on their sites. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: On one side of the case is the family of an American student killed in a terrorist attack in Paris. Her family claims that YouTube, owned by Google, aided and abetted in the attack by recommending ISIS videos to people who might be interested in them. The argument is that by recommending these videos, Google was promoting ISIS recruiting, propaganda and terrorist attacks. Joining Google on the other side of the case are some of the most valuable companies in the world - Facebook, Twitter - as well as lots of smaller companies, which together represent a huge portion of the U.S. economy. With the stakes in the case so high, the justices today seemed both cautious and skeptical of some of the arguments made by both sides with no clear liberal-conservative ideological divide. Justice Kagan seemed to sum up the countervailing winds when discussing how the EU deals with these issues, including levying a huge fine against Google. But Kagan noted that fine was not levied by any court.

(SOUNDBITE OF ARCHIVED RECORDING)

ELENA KAGAN: I think that that's my concern - is I can imagine a world where you're right, that none of this stuff gets protection. And why is it that the tech industry gets a pass? On the other hand, I mean, we're a court. We really don't know about these things.

TOTENBERG: And then gesturing to her colleagues on the bench, she added this.

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KAGAN: You know, these are not, like, the nine greatest experts on the internet.

(LAUGHTER)

TOTENBERG: That said, the justices tried their best repeatedly to try to find a line between what's permissible for internet providers to do in organizing content on their platforms. Justice Thomas asked whether algorithms are the same across the board for cooking videos or racing videos or ISIS videos. Lawyer Eric Schnapper, representing the family of the young woman killed in Paris, said the algorithms are the same. But when it comes to ISIS videos, the result is that companies are encouraging illegal conduct under the Federal Anti-Terrorism Act, a federal law which bars material aid to terrorist groups. And yet, observed Justice Thomas, the algorithm is the same across the board.

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CLARENCE THOMAS: If you're interested in cooking, you don't want thumbnails on, like, jazz.

TOTENBERG: Chief Justice Roberts pointed to an analogy made by Google.

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JOHN ROBERTS: A bookseller that has a table with sports books on it. And somebody comes in and says, I'm looking for the book about Roger Maris. And the bookseller says, well, it's over there on the table with the other sports books. Isn't that analogous to what's happening here?

TOTENBERG: Lawyer Schnapper said, no. There is a difference.

(SOUNDBITE OF ARCHIVED RECORDING)

ERIC SCHNAPPER: What's happening at YouTube is they're not doing that. I type in ISIS video, and there are going to be a catalog of thumbnails which they created.

TOTENBERG: The justices didn't seem to see a clear line in that. Justice Sotomayor - how do I draw a line between an algorithm and act of collusion? Justice Barrett - what about a retweet of a link to a terrorist video? Would Twitter be liable? Justice Gorsuch - should AI be treated differently than algorithms because it's actual content that's being created and provided by the platform? Justice Kavanaugh worried about the consequences of any broad decision in this case. It could, he said, crash the digital economy.

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: Lawsuits will be nonstop.

TOTENBERG: Defending Google lawyer Lisa Blatt agreed, arguing that the 1996 federal law at issue in this case was aimed at shielding internet platforms from lawsuits.

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LISA BLATT: But the basic features of topic headings - up next, trending now - those kinds of things we would say are core, inherent - they're no different than expressing what is implicit in any publishing.

TOTENBERG: But Chief Justice Roberts was skeptical.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERTS: Well, it seems to me that the language of the statute doesn't go that far.

TOTENBERG: While the justices indicated that it might be better for Congress to take on the task of modifying the 1996 law, at the same time, several fired some pointed shots across the bow, hinting at limited patience with the internet platform providers. Indeed, while today's case could well end in a fizzle, more cases are expected next term. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.