ArentFox Schiff Submits Amicus Brief on Behalf of Developers Alliance in Supreme Court Internet Liability Case

The amicus brief can be found here.

In the Gonzales brief, the Developers Alliance argues that content moderation has been a fundamental part of multi-user networks since before the internet was born and that Congress sought to protect internet companies’ ability to moderate content when they drafted Section 230. The brief outlines how search, moderation, and recommendation systems work, how they are related, and specifically argues that the unique language of computer science and the concepts it captures must be taken into account when the law and the internet collide.

“The Gonzales case involves recommendations that are generated by algorithms based on content provided by others. No humans are involved in generating the recommendations,” said James. “Because of the absence of human involvement and decision-making, the law needs to develop a new paradigm in evaluating the conduct here. Traditional notions of human intent or purpose are irrelevant. Requiring human intervention into the operation of the algorithms is not feasible given the volume of data that is involved.”

“Section 230 does just enough, and not too much, to allow the machinery of the internet to maintain order without suppressing participation,” states the amicus brief. “It lifts the burden of inapt common law and First Amendment analogies, leaving room for the law to develop new rules for a new medium. Above all, it makes clear that an interactive service provider is not liable for third-party content, and equivalently, for third-party inputs in content recommendations.”

“Since the internet was born, courts have struggled to map real-world legal principles into the virtual world. When courts go astray, it’s up to lawmakers to put them on the right path, as Congress did in safeguarding moderation with Section 230,” said Bruce Gustafson, CEO of the Alliance. “Supreme Court procedure welcomes voices like the developer community to help inform them as they consider questions that reverberate far beyond the litigants in the courtroom. Content moderation is a fundamental part of how the internet has always operated. Without it, the internet is just another TV station.”