Online platforms embroiled in Supreme Court cases on content moderation spend millions lobbying on internet legislation • OpenSecrets

A smart phone with the icons for the Facebook, Twitter, Google applications is seen in Ankara, Turkey on September 5, 2018. (Photo by Emin Sansar/Anadolu Agency/Getty Images)

The Supreme Court heard arguments last week in two cases that could drastically change current regulations on online content moderation. Google, Twitter and Facebook are being sued for allowing terrorist content and activity on their platforms.

The lawsuits are the latest battle in the war over regulation of platform content moderation that has played out in courts and in Congress. Over the last few years, these tech giants have spent millions lobbying the federal government on legislation that attempts to strip away online platform immunity appearing frequently in lobbying reports. 

Families of ISIS victims sue media platforms

In Gonzalez v. Google, the Supreme Court is faced with challenging regulations that typically grant online platforms legal immunity when hosting third-party content.

The family of Nohemi Gonzalez seeks to hold Google liable for a 2015 ISIS attack at a Paris concert hall that killed Nohemi. The Gonzalez family alleges that Google should be held accountable for algorithmically recommending ISIS videos to YouTube users.

Section 230 of the Communications Decency Act of 1996 ensures that online platforms are not treated as publishers and generally grants them immunity from being held liable for not removing offensive content. It also allows platforms to voluntarily restrict access to objectionable material.

The core question the Supreme Court is tasked with answering is whether or not recommendation systems like YouTube’s also fall under the purview of Section 230’s protection. 

In a 2021 opinion, the Ninth Circuit agreed with Google that under Section 230, the company is not liable for removing content from third parties. The Supreme Court heard the case last Tuesday and reportedly seems hesitant to weaken Section 230 despite its supposed drawbacks. 

The Supreme Court also heard oral arguments in Twitter v. Taamneh, in which the social media platform is being sued for allegedly failing to remove — and even promoting — ISIS content. After an ISIS gunman killed 39 people in Istanbul including Nawras Alassaf, the Jordanian citizen’s American relatives sued Twitter, Google and Facebook over ISIS’ alleged use of the platforms for recruitment and messaging. 

The U.S. District Court for the Northern District of California dismissed Taamneh v. Twitter in 2018. Rather than applying Section 230 immunity, the judge ruled that the actions of the tech giants failed to meet the standards of the Anti-Terrorism Act. But the Ninth Circuit reversed Taamneh v. Twitter three years later, leading the companies to petition the Supreme Court. 

The case gives the Supreme Court an opportunity to determine whether online platforms can be held liable for violating the Anti-Terrorism Act if they could have taken more “meaningful” or “aggressive” action to prevent terrorists from using their services.

Meta, Alphabet and Twitter lobby on legislation attacking Section 230  

Alphabet, parent company of Facebook, Meta, parent company of Google, and Twitter spent a combined total of nearly $100 million lobbying the federal government since 2020, according to OpenSecrets data. Meta spent $59 million, and Alphabet spent $34 million. Twitter spent $4.6 million. 

Based on lobbying reports analyzed by OpenSecrets, some of these efforts involved legislation that would reduce the immunity granted by Section 230. None of them became law.

The EARN IT Act of 2020 was introduced with bipartisan support in the Senate and House of Representatives. The act would have created the National Commission on Online Child Sexual Exploitation Prevention, which would be tasked with developing “best practices for interactive computer services providers (e.g., Facebook and Twitter) to prevent, reduce, and respond to the online sexual exploitation of children.”

The bill would have also directly weakened Section 230 immunity, exposing service providers to civil and criminal lawsuits for child sexual abuse material posted by users. 

The EARN IT Act of 2020 showed up six times in lobbying reports for Alphabet, making it the second most listed bill that year. Lobbyists for Twitter and Meta also disclosed lobbying activity related to the bill throughout 2020. 

After failing to come to a vote before the end of the 116th Congress, the bill was reintroduced again in 2022. The EARN IT Act of 2022 appeared in the three companies’ lobbying reports. It also failed to pass before Congress’s last session ended.

The PACT Act, which was reintroduced in the Senate after failing to pass in 2020, showed up both in Twitter and Meta’s lobbying reports. The act would have required online platforms to publish a policy “explaining the types of content permissible on the service and provide a system for users to submit complaints about content that may violate the policy or involve illegal content.” 

In 2021, Meta’s lobbyists also reported lobbying related to the SAFE TECH Act, which would have weakened Section 230 protections in cases of “civil rights law; antitrust law; stalking, harassment, or intimidation laws; international human rights law; and civil actions for wrongful death.” 

The Kids Online Safety Act showed up in all three technology companies’ lobbying reports last year. The bill would have mandated that platforms provide safeguards for minors using their site and provide parents “tools to supervise the minor’s use of a platform.” 

Alphabet and Twitter did not respond to OpenSecrets’ requests for comment. Meta declined to comment on the company’s lobbying. 

At least two bills that failed to pass previously have already been reintroduced this year by both Democrats and Republicans. 

In late January, Sen. Joe Manchin (D-W.Va.) reintroduced the See Something, Say Something Online Act that would revoke Section 230 immunity if an online platform failed to report suspicious activity, like terrorism, to law enforcement. 

Also in January, Rep. Greg Steube (R-Fla.) reintroduced the CASE–IT Act, which would remove a platform’s immunity if it “facilitates (1) illegal online content; (2) certain exploitive contact between adults and minors; or (3) content that is indecent, obscene, or otherwise harmful to minor.”

Prior iterations of the bills did not make it to vote in either the 116th or 117th Congress, and none of the three tech giants reported lobbying on them in either session. 

Liberty groups lobby to safeguard Section 230

Tech companies are not the only ones opposed to weakening Section 230 immunity. 

The American Civil Liberties Union filed amicus briefs in Twitter v. Taamneh and Gonzalez v. Google, supporting the online service providers in each case.

“In order to facilitate the free exchange of ideas on the Internet, Section 230 provides critical immunity to social media platforms,” the ACLU wrote in its Gonzalez v. Google amicus brief. 

The ACLU and Americans For Prosperity both lobbied against the EARN IT Act. The groups publicly raised concerns over the erosion of privacy and online speech that undermining Section 230 and encryption technology could lead to. 

“The measure would lead to a “backdoor” in encrypted services, thereby jeopardizing the security of every individual. Technology experts and civil society organizations have repeatedly warned that backdoors could be exploited by bad actors and that no backdoor could guarantee only law-abiding officials have access,” the ACLU wrote in a joint statement with the AFP. 

The ACLU also lobbied against the Kids Online Safety Act. Along with more than 90 LGBTQ and human rights organizations, the ACLU argued that the bill’s mandates are overly vague, censorial and invasive. 

“In short, while KOSA has laudable goals, it also presents significant unintended consequences that threaten the privacy, safety, and access to information rights of young people and adults alike,” the ACLU wrote in a letter to Congress. 

The ACLU spent nearly $1.5 million on lobbying the federal government last year and over $4.5 million since 2020. The ACLU did not respond to OpenSecrets’ request for comment.

The Supreme Court is expected to deliver its decisions in Gonzalez v. Google and Twitter v. Taamneh before the end of the term in June. 

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