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flyingvon Up next: a lawsuit threatening your YouTube watch queue

Section 230 was written in 1996, and in using phrases like "interactive computer service" and "access software provider" is absolutely ambiguous in its application to a 2023 internet. If it were clear, this case wouldn't have made its way up to SCOTUS.

flyingvon Up next: a lawsuit threatening your YouTube watch queue

+1 -- SCOTUS even seems to agree that they wish Congress would just modernize 230 so they wouldn't be trying to interpret what the word "publisher" (conceived before the internet existed) means in a digital era. All SCOTUS can do is look at the law as currently written and try to apply it to current situations in a reasonable way. By contrast, Congress can wholly rewrite the law and introduce new terms/concepts into it.

flyingvon Up next: a lawsuit threatening your YouTube watch queue

If a distinction was drawn (by SCOTUS or Congress) between search results (where you ask the platform to produce a ranked list based on search criteria) and recommendations (where you theoretically didn't "instruct" the platform to show them), I could see platforms adding a little modal to the signup flow being like "please instruct us to show you recommendations" and maybe surfacing a few settings for that, so they could later argue the recommendations were only served at your request (and thus should get search-result-style protection).

flyingvon Up next: a lawsuit threatening your YouTube watch queue

>If YouTube's algorithm is deciding what to show me, then I (as the user) am asking for YouTube's opinion. So I think that there is a coherent argument that YouTube's recommendation algorithm is expressing an opinion, and is therefore YouTube's content.

To me it seems like a platform could easily skirt this by having users opt in to recommendations (and maybe even choose a sorting criteria option) at signup.

>Would it have 1st amendment protection though?

The 1st amendment only protects against government censorship, not private lawsuits for existing causes of action (e.g., defamation). It would be individuals (like the Gonzalez family) suing YT in a world where the recommendations were deemed to be YT's own content.

flyingvon Up next: a lawsuit threatening your YouTube watch queue

I think your distinction on push vs pull is a good one that Congress could consider incorporating if it chooses to revisit 230, though that approach is probably too far from the current text for SCOTUS to be willing to read it in when it rules on Gonzalez.

However, something worth noting: wherever 230 lands, there's not some regulator using discretion in enforcing it (like a prosecutor deciding when to charge someone with murder) -- this is a law that gives tech platforms a defense from the private lawsuits that could otherwise put them out of business (e.g., suits by indviduals/businesses for defamation because the algo ended up recommending a "John Smith is a lying fraud" video).

flyingvon Up next: a lawsuit threatening your YouTube watch queue

A quantity-driven test would mean that an algorithm that says "sort by number of mentions of ISIS" is safe, but an algorithm that says "sort by a score comprised of newness, number of upvotes, number of comments, and geographical proximity" would fail... It would also doom search engines, whose results pages are generated by multi-variate algorithms.

flyingvon Up next: a lawsuit threatening your YouTube watch queue

How would you respond to Google's argument that all content has to be ordered in _some_ manner to be displayed?

flyingvon Up next: a lawsuit threatening your YouTube watch queue

Some of their past internet-related cases have been worrisome, but if you listen to the oral arguments on this one they do ask some good questions... albeit that's probably partially due to their recent-law-school-grad clerks helping with prep.

flyingvon Up next: a lawsuit threatening your YouTube watch queue

The Twitter example is a really good one. Google obviously choose to take things to the extreme by arguing that even deliberately pro-ISIS algos should get protection, but one more moderate outcome could be something like "YT is only liable if they specifically designed their algo to recommend the problematic content".

flyingvon Up next: a lawsuit threatening your YouTube watch queue

Author here. Sounds like you and I agree that algo-generated recommendations of content are different from actual content itself. But the point of the article (and title) is that the plaintiffs in this case argue that each time YT generates recommendations, they're making new content that YT can be liable for.

I'm mostly just recapping what was said by each side at oral argument and the potential dramatic consequences if SCOTUS finds fully for Gonzalez -- not sure I follow where you're seeing bias.