Legal Docket: Big Tech and terrorism

MARY REICHARD, HOST: It’s Monday February 27th. We’re so glad to have you along for today’s edition of The World and Everything in It. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket. Well, Mary, glad to have you back. We should let the listener in on your whereabouts. Most recently, you were on a busy trip to D.C. with your legal-beagle partner, Jenny Rough. How’d it go?

Really well, thank you. This job has such variety to it,  it’s impossible to get bored. So last Wednesday, you know we’ve got our DC headquarters right next to the Supreme Court building, and it's so convenient! Jenny and I caught oral argument that morning, along with other reporters with whom we were crammed into a little tiny space.

But the next day we found ourselves in rural Virginia walking in muck and scratching the backs of pigs. So from the crowded capital city to wide-open spaces.

EICHER: Mary, I see what you’re doing here, just asking for me to make a connection between the Swamp and the Swine,  all the mental images, and that would just be wrong. Nevertheless, I hope you brought your farm boots with you to DC.

REICHARD: Haha, oh, we learned the hard way about the very different footwear requirements. Bottom line is we can’t wait to tell you these stories!

EICHER: Very good, well, I just got back from a WORLD board meeting in Montgomery, Alabama, and was able to meet up with some great listeners down there, and the weather was so warm, we enjoyed a meal outdoors. It was great!

You know, I introduce myself as the guy who gets to work with Myrna and Mary. But I did specifically have a listener ask about the Legal Docket case stories, and I showed one of the pictures Jenny snapped of you appearing to interview a farm animal. Photographic proof!

REICHARD: Yes, the handsome pig was expressing contentment with his life in the Virginia countryside.  Roughly translated, of course, Jenny Rough does not speak swine. That’s my own interpretation!

EICHER: Well, let’s get to this week’s business. We’ve got an oral argument. But also starting to get some opinions coming in and we have three of those.

Let’s start with Helix Energy Solutions Group, Inc v Hewitt. In this one, a highly-paid employee wins his bid for overtime pay. His employer pointed to the Fair Labor Standards Act … and the reason is that the Act exempts from overtime pay executives such as Michael Hewitt, who earned more than $200,000 a year.

You can hear the eventual ruling in this comment from Justice Ketanji Brown Jackson during argument last fall:

JACKSON: What he has to know is how much is coming in at a regular clip so that he can get a babysitter, so that he can hire a nanny, so that he can pay his mortgage. It's about, I think, the predictability and the regularity of payment.

REICHARD: Predictability and regularity are what make all the difference. By a 6-3 vote the justices found Hewitt’s earnings were calculated as a daily rate. If he took a sick day, he would not be paid for that day. Hence, he is not a salaried employee, but instead a daily wage worker (granted, he earns a high wage), therefore entitled to overtime pay.

EICHER: Ok, second opinion: this one is a victory for a man on death row in Arizona.

Under that state’s law, convicted killer John Cruz could have received either the death penalty or a life sentence without parole.

But the jury may not have known that because it was denied notification of that critical fact: that if it chose a life sentence instead of the death penalty, he would still never get out of prison. It’s possible the jurors might have inferred the death penalty was the only option that would keep him from possible release someday.

A split 5-4 bench agreed with Cruz, with an interesting ideological breakdown: the Chief Justice and Justice Brett Kavanaugh joining the liberal justices, and now Cruz will receive a new sentencing hearing.

REICHARD:  Alright, final opinion, this one couched in bankruptcy law. Buckley v Bartenwerfer. The court rejected a wife’s bid to use bankruptcy as a way to wipe out debts incurred through fraud, even though it was her husband who deceived creditors. He’d not disclosed defects in a house he remodeled that the couple owned together. The wife argued that because she was not aware of the deception, that she should be able to discharge that debt.

Justice Clarence Thomas underscored the text of the bankruptcy law in question:

THOMAS: It focuses on the debt. And it is in the passive voice, but it's talking about money or debt that's obtained by fraud. How do you convert that into a statute that is focusing on the debtor?

EICHER: Well, you don’t. The law is clear: money obtained by fraud cannot be discharged in bankruptcy. It’s not who did the fraud; it’s how the money was obtained. So a unanimous victory for the home-buyer.

Alright, now on to the Big Tech cases heard last week involving Section 230 of the Communications Decency Act. That gives Internet platforms legal immunity for online content.

REICHARD: Right, but let me say at the outset: oral arguments ran nearly six hours total between the two cases over two different days, and they went all over the place. So I’m giving you the super skimmed version!

Also, I’m going to mingle soundbites from both cases, even though the legal questions are different. One asks the contours of a Section 230 defense, by that I mean the immunity Big Tech enjoys from liability of what users say on their platforms. The other goes to the specific question, what does it mean for an internet platform to aid and abet terrorists

EICHER: So different questions but similar facts: each involves a family who sued Big Tech platforms after terrorist attacks in which a loved one was killed. One attack was in Paris, the other at a nightclub in Istanbul, Turkey.

The families argue that Google and Twitter allowed terrorist content online and didn’t take aggressive enough action to stop it. They say algorithms used by Big Tech pushed people into watching ISIS videos online, inspiring some viewers to carry out terrorist acts.

Lisa Blatt was Google’s lawyer. She argued practicalities:

BLATT: All search engines work the same way...It has to be displayed somehow…. So, yeah, they're having to make choices because there could be…a billion hours of videos watched each day on YouTube and 500 hours uploaded every minute, so it's a lot of content on YouTube.

REICHARD: It all has to be organized somehow or else nobody could find anything. Blatt argued surely Google can’t be liable for generally available service that someone somewhere might act upon in an egregious way.

Schnapper for the families argued Google should be responsible for its own algorithms. Those take a person’s viewing habits and then recommend videos based on that information.

SCHNAPPER: Encouraging people to go look at ISIS videos would be aiding and abetting ISIS.

REICHARD: But where’s the limiting principle in that? In other words, think of the precedent.

Schnapper suggested that it would be aiding and abetting terror to give someone the phone number of al-Baghdadi, the former leader of ISIS. 

Justice Thomas followed up:

THOMAS: If you called Information and asked for al-Baghdadi's number and they give it to you, I don't see how that's aiding and abetting. And I don't understand how a neutral suggestion about something that you've expressed an interest in is aiding and abetting. I just don't -- I don't understand it. And I'm trying to get you to explain to us how something that is standard on YouTube for virtually anything that you have an interest in suddenly amounts to aiding and abetting because you're in the ISIS category.

REICHARD: Hypotheticals came fast and furious in both cases.Justice Samuel Alito grappled with how specific the online information would need to be to hold Big Tech liable:

ALITO: It’s not necessary that they know there’s going to be an attack on the Reina nightclub, would it matter if it was a different nightclub, would it matter if it was a bombing at some facility in Istanbul during a particular period of time when people would be present and people would be killed? But, at a certain point, it becomes too attenuated to support aiding and abetting. So that's a difficult -- that's a line-drawing problem. Substantiality is also a line-drawing problem. So what is substantial assistance? What's the difference between substantial and insubstantial assistance?

REICHARD: And Justice Elena Kagan:

KAGAN: Suppose this set of facts: That many terrorist organizations use the social media services provided by your client, that they do so to recruit other members…for purposes of enhancing their terrorist activities, that your client knows this because government officials, journalists, other people have pointed it out. Now I'm going to change one fact…. which is that instead of having a policy against this and trying to remove…this various terrorist content, that Twitter had just said, “Let a thousand flowers bloom, we're not going to touch a thing.” But, you know, it knows that all of this is happening, but it…does not have a policy of trying to remove. Then do you fall within the language of the statute?

WAXMAN: I don't think so.

REICHARDThe lawyers representing Big Tech warned against messing up a good thing with Section 230’s protection against lawsuits for online content.

Justices of all stripes seemed quite reluctant to step into this. Again, Justice Thomas:

THOMAS: if we're not pinpointing cause and effect or proximate cause for specific things, then -- and you're focused on infrastructure or just the availability … of these platforms, then it would seem that every terrorist act that uses this platform would also mean that Twitter is … an aider and abettor in those instances?

SCHNAPPER: I think, as you phrase it, the answer would probably be yes, and they would agree the way you phrased it. Let me phrase it differently because I understand the point you’re trying to make.

REICHARD: But lawyer for Twitter, Seth Waxman, ended his time with this reminder:

WAXMAN: Walmart is the largest gun dealer, I believe, in the United States. They know for a certainty that some of the people that buy guns are criminals. Some of them are drug gangs. Some of them are terrorists … . They know that they're there. There's been a newspaper report. The State Department has issued a pronouncement. Nobody would say that they are aiding and abetting particular crimes that happen to be committed by somebody who bought a gun at Walmart.

REICHARD: Guns aside, Justice Kagan asked why Big Tech is treated specially:

KAGAN: Every other industry has to internalize the costs of misconduct. Why is it that the tech industry gets a pass? A little bit unclear. On the other hand, I mean, we're a court. We really don't know about these things. These are not the nine greatest experts on the internet…(laughter)

REICHARD: Perhaps Justice Brett Kavanaugh expressed what most of the justices were thinking about these cases:

KAVANAUGH: You're asking us right now to make a very precise predictive judgment that, don't worry about it, it's really not going to be that bad. I don't know that that's at all the case, and I don't know how we can assess that in any meaningful way.

REICHARD: Court watchers [including me] thought these cases spelled big trouble for Big Tech, that they’d lose.

But now I don’t think so, at least not in a big way.

Yet, there’s Congress. A few years back, sex trafficking victims sued the classified ad website called Backpage. They argued Backpage made trafficking them easier and catered to pimps. But the victims lost in court because Section 230 shielded Backpage from liability. That is, until a bipartisan Congress removed sex trafficking from that protection. Backpage is now defunct.

And that’s this week’s Legal Docket.

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