The Cyberlaw Podcast

The Cyberlaw Podcast: A Group Autopsy of the Supreme Court’s Section 230 Oral Argument

By Stewart Baker
Tuesday, February 28, 2023, 12:33 PM

As promised, the Cyberlaw Podcast devoted half of this episode to an autopsy of Gonzalez v. Google LLC , the Supreme Court’s first opportunity in a quarter century to construe section 230 of the Communications Decency Act. And an autopsy is what our panel—Adam Candeub, Gus Hurwitz, Michael Ellis and Mark MacCarthy—came to perform. I had already laid out my analysis and predictions in a separate article for the Volokh Conspiracy, contending that both Gonzalez and Google would lose. All our panelists agreed that Gonzalez was unlikely to prevail, but no one followed me in predicting that Google’s broad immunity claim would fall, at least not in this case. The general view was that Gonzalez’s lawyer had hurt his case with shifting and opaque theories of liability, that Google’s arguments raised concerns among the Justices but not enough to induce them to write an opinion in such a muddled case. Evaluating the Justices’ performance, Justice Neil Gorsuch’s search for a textual answer drew little praise and some derision while Justice Ketanji Jackson won admiration even from the more conservative panelists. More broadly, there was a consensus that, whatever the fate of this particular case, the court will find a way to push the lower courts away from a sweeping immunity for platforms and toward a more nuanced protection. But because returning to the original intent of section 230 is not likely after 25 years of investment based on a lack of liability, this more nuanced protection will not have much grounding in the actual statutory language. Call it a return to the Rule of Reason.

In other news, Michael summed up recent developments in cyber war between Russia and Ukraine, including imaginative attacks on Russia’s communications system. I wonder whether these attacks—which are sexy but limited in impact—make cyber the modern equivalent of using motorcycles as a weapon in 1939. 

Gus brings us up to date on recent developments in competition law, including a likely Department of Justice's challenge to Adobe’s $20 Billion Figma deal, new airline merger challenge, the beginnings of opposition to the Federal Trade Commission’s (FTC) proposed ban on noncompete clauses, and the third and final nail in the coffin of the FTC’s challenge to the Meta-Within merger. 

In European cyber news, the European Union is launching a consultation designed to make U.S. platforms pay more of European telecom networks’ costs. Adam and Gus note the rent-seeking involved but point out that rent-seeking in U.S. network construction is just as bad, but seems to be extracting rents from taxpayers instead of Silicon Valley.

The EU is also getting ready to fix the General Data Protection Regulation (GDPR), in the sense that gamblers fix a prize fight. The new fix will make sure Ireland never again wins a fight with the rest of Europe over how aggressively to extract privacy rents from U.S. technology companies.

I am excited about Apple’s progress in devising a blood glucose monitor that could go into a watch. Adam and Gus tell me not to get too excited until we know how many roadblocks The Food and Drug Administration (FDA) will erect to the use and analysis of the monitors’ data.

In quick hits, 

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