It’s ridiculous to think that freedom of expression protects companies, says lawyer who participates in lawsuit against Google – 03/11/2023 – Market

Children and adolescents are more vulnerable to extremist content and that is why social networks need to be held accountable for what is posted on the platforms.

This is the argument of lawyer Jolina Cuaresma, senior adviser for privacy and technology policies at Common Sense Media, an entity that acted as amicus curiae (friends of the Court, when someone who is not a party to the action asks to participate in the discussion of the case) against Google in the US Supreme Court case that discusses whether platforms and social networks should be held responsible for content posted by users.

For her, changing the current rule is not a restriction on freedom of expression because all industries are regulated by the government. Cuaresma also argues that people will need to bear the burden of going to court against the platforms, which should not lead to the removal of mass content from the internet.

The US Supreme Court hears the case of Gonzalez v. Google, in which the relatives of a university student murdered in a terrorist attack in Paris in 2015 sued big tech. The family wants Google held responsible because its recommendation algorithm suggested numerous videos of extremism that may have radicalized the terrorists.

What is your position on Supreme Court cases? Google is not a publisher when its business is collecting billions of data from its users and profiling it with algorithms and machine learning. [aprendizado de máquina]. The argument that they are only making recommendations based on algorithms and have no responsibility for the content is dishonest given the massive data collection and profiling they do.

In addition, we want to draw the attention of judges to the safety of children and adolescents. My brain structure is fundamentally different from my 15 year old daughter’s brain structure. The prefrontal cortex of her brain is not fully developed, she uses more the part of her brain that controls emotions, more impulsive, than the part that uses logic. And you’re recommending content for kids who don’t have full autonomy to make choices.

Does the argument then go beyond exposure to terrorism? It’s not just terrorism, but harmful content online that leads to eating disorders and self-harm. The algorithm is a predictive analytical tool. When it collects all this data about you, it makes assumptions about your preferences and tastes and it will give you more of certain content because it wants you to stay online longer, because companies depend almost entirely on ad revenue.

But the interests of teenagers are still developing. A Guardian report showed that Facebook allowed advertisers to profile children who enjoyed gambling. Why characterize this profile? And then they recommend content with dynamics very similar to gambling. This is unfair because they are still in the process of formation and should be allowed to grow up as children without having their entire lives documented. There is no federal way to prevent this.

Do you disagree with the argument that this hurts freedom of expression? The First Amendment [da Constituição americana, que garante liberdade de expressão] it didn’t even cover commercial speech until 1942. Today that protection exists, but no court says it’s absolute. The government’s interest in the mental health of adolescents must be taken into account. Protection of commercial speech is very different from political speech, which does not allow for any government restrictions. To think that companies also have this protection is ridiculous. We have regulations, we put nutrition labels, warnings on cigarettes, all that stuff, and nothing violates the First Amendment.

There is also the argument that it will lead to a mass removal of legitimate content from social networks. There needs to be consistency. Today there is already content moderation, now companies will go bankrupt because they will need to do this effectively? Does not make sense. We’re talking programming, not manufacturing. And those who sue the companies will need to prove causality in court, they will still have that burden.

When they decided in the 1990s that there should be this protection for published content, they argued that it was necessary to protect a nascent industry and prevent companies from being sued, otherwise the internet would never take off. I understand, but aren’t we there already? How much longer do we have to protect companies? Big tech is the only industry that has immunity. If you pave the way for accountability, companies will build up financial reserves to deal with lawsuit risk. What big techs like Google have done is use the law as a way to bar any case of this type in court. And this is wrong.

Google made a profit of $13.6 billion (R$70.469 billion) in the fourth quarter of 2022. People ask me if the internet will break if Google loses this stock. I don’t see how that would break the internet. Google can decide what risk it will take. You can go ahead and not change anything, reserve US$ 1 billion (R$ 5.18 billion) for legal expenses.

In the end, if you strip the Section 230 immunity, you still have to prove cases in court. The Gonzalez family has yet to prove Google wrong, and that is a heavy burden. If companies fail to comply with laws, they can be held accountable. I just don’t see why the government needs to step in and protect them. They are no longer an incipient industry, we even have a metaverse.

Do you disagree that the lawsuit will change the internet as we know it? It’s not that sky-fall scenario, no. Each company will carry out its risk analysis, they should already be thinking about that. You can think of limited protections, protecting new companies for five years. But the time has come to regulate this industry.

Most academics will tell you that there is no real solution to this problem because there are always new entrants to the technology market. If you completely remove immunity today, then you will only consolidate current market participants and further bury competitiveness, creating high barriers to entry for new companies. But at the same time, they need to be held accountable and today there is no incentive for them to change the way they act.

---

X-RAY | Jolina Cuaresma
Senior Advisor for Privacy and Technology Policy at Common Sense Media, the children’s media policy advocate and amicus curiae against Google in the Supreme Court proceeding. She holds degrees in economics and business from Boston University and in law from the University of California at Berkeley. She holds a Master of Laws from Georgetown University.