FEBRUARY NEWSLETTER

Next Week at the Supreme Court

Next week, oral arguments will take place before the U.S. Supreme Court in Gonzalez v. Google, the high-stakes case in which the Court will interpret bedrock online intermediary liability law Section 230 for the first time, and companion case Twitter v. Taamneh. In both cases, plaintiffs sued social media companies under the Anti-Terrorism Act (ATA) for allegedly aiding and abetting an act of international terrorism.

The issue before the Court in Gonzalez is whether Section 230 shields online service providers from liability for claims based on their recommendations of third-party content. In Taamneh, the Court will consider whether providers’ failure to remove terrorist content violates the ATA, if Section 230 does not apply.

In CDT’s amicus brief in Gonzalez, we urge the Court to hold that Section 230 protects online service providers from being held liable for such recommendations. Petitioners in the case say Section 230 only shields intermediaries from liability for “publishing” third-party content, and not for “recommending” it, but we argue that “recommendation” is functionally indistinguishable from selecting and ordering items for display — something every provider must do.

CDT and Technologists File SCOTUS Brief Urging Court To Hold that Section 230 Applies to Recommendations of Content. White document with black text.

We also argue that protection under Section 230 does not prevent providers from being held liable under privacy and antitrust laws, and that Section 230 does not apply when a provider “develops” information so that it becomes an “information content provider.”

In Taamneh, we urge the Court to hold that a speech intermediary cannot be held liable under the Anti-Terrorism Act unless it has knowledge that a specific piece of user-generated content on its platform provides substantial assistance to a terrorist act. Liability based on a provider’s general knowledge that terrorists use their service would, perversely, discourage some providers from moderating terrorist content at all.

The Court’s decisions in Gonzalez and Taamneh could affect the way many services across the internet operate, far beyond large social media companies, putting them at increased risk of liability unless they restrict speech by limiting the content they host. Companies could protect themselves by barring discussion of controversial topics, more aggressively removing content, or even abandoning content moderation systems that improve user experience.

The degree to which users can express themselves and find information online is at stake in Gonzalez and Taamneh, making it critically important for the Court to interpret Section 230 to shield providers from claims based on online recommendations, and limit claims from being brought against them under the Anti-Terrorism Act.

In Case You Missed It

A CDT issue brief proposes five key reforms of Section 702 of the Foreign Intelligence Surveillance Act (FISA) — a law set to expire at the end of 2023 — that Congress should make to better protect civil rights and civil liberties, and guard against abuse of its powerful authority to conduct warrantless surveillance.

CDT submitted comments to the Consumer Financial Protection Bureau (CFPB) in support of the agency’s efforts to increase consumer financial data access and portability, which will allow consumers to share historical financial data with new financial institutions. While the proposal stands to benefit competition, it may also pose risks to privacy.

Black and orange logo for the Coalition for Independent Technology Research.

CDT and the other members of the Coalition for Independent Technology Research called on Twitter to reverse its misguided decision to cut off free access to its application programming interface (API), and to ensure that APIs for studying public content on Twitter remain easily accessible for journalists, academics, and civil society.

CDT welcomed the Equal Employment Opportunity Commission (EEOC)’s explicit commitment to addressing discriminatory tech practices in targeted job advertising, recruitment, and hiring decisions. The EEOC named the issue among its key focus areas in its 2023-2027 Strategic Enforcement Plan, which also affirmed the agency’s commitment to addressing inaccessible application processes and qualification standards that discriminate against disabled workers.

CDT in the Press

CDT’s Matthew Scherer and Ridhi Shetty authored an op-ed in Slate on the impact of automated employment decision tools, and why a New York City law and the rules for enforcing it will not effectively address those harms.
“If Twitter is making mistakes in Chinese-language Twitter, then it’s very possible that they’re making mistakes in other languages,” Gabriel Nicholas, CDT Research Fellow, told the New York Times about efforts by U.S. social media companies to moderate content in languages other than English.
CDT’s Elizabeth Laird spoke with Reuters about the dangers of student activity monitoring software: "It's being used far more commonly for disciplinary purposes... and we're seeing a discrepancy falling along racial lines," she said.

Graphic for CDT’s 2023 Inaugural Spring Fling. Green and blue text are surrounded by light pink blossoms and bright red bulbs.

CDT "in Person"

Save the Date! Join CDT on April 3 for our inaugural Spring Fling, a celebration during IAPP’s Global Privacy Summit that will bring together privacy leaders from industry, civil society, and government for cocktails and good company. We hope you’ll join us — for more information, visit www.cdt.org/springfling or email Elizabeth Remy at [email protected].
On Tuesday, February 21, join CDT for a discussion of our recent report on disability discrimination and surveillance technologies, with a specific focus on mass criminalization. Learn more about our Accessible Revolution or Carceral Technologies? Automating Ableism and Mass Criminalization event on our events page.
Join CDT at AcademyHealth’s 2023 Health Datapalooza, where our Vice President of Policy, Samir Jain, will sit on a panel discussing digital health post-Dobbs. Find out more about Health Datapalooza and register on our events page.

Image of Nick Doty. Nick Doty is a Research Fellow at the Center for Democracy & Technology.

Staff Spotlight
Nick Doty, Senior Fellow, Internet Architecture

How long have you been working in digital rights? After a couple years in tech, I went back to graduate school in 2008 to study information organization. But once there, I encountered the challenging technical and policy issues around online privacy and saw the importance of digital rights. I've been studying and working on internet privacy ever since, including writing a dissertation on privacy and security in internet standard-setting, and working at the World Wide Web Consortium and now CDT.

What is your proudest moment while here at CDT? When the Dobbs decision was announced, I was devastated by the rolling back of rights and access to health care. But I've also been proud to help with CDT's organization-wide response to protect access to and information about reproductive health. Location and web privacy are particular issues where I've been able to contribute, but it's been inspiring to see CDT colleagues bring experts in law, technology, and health care together.

What is the best book you've read recently? I enjoyed Beautiful World, Where Are You not least of all for its integration of long emails between friends into the narrative, which felt both novel and so familiar. Vauhini Vara's multi-generational science fiction novel is a must read for tech policy folks. In it she paints a picture of a very real near tech future where governments cede control to private technology giants and these companies shape our lives, relationships to each other, and even our thoughts!

Cats or dogs? Allergies have made it hard to keep either as pets, so I've been getting my nature fix by identifying wildlife on hikes and neighborhood walks. Most recently, I've gotten a pair of binoculars and am having fun bird watching.

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