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Freedom of speech on the Internet in the United States: everything is allowed

Her name was Nohemi Gonzalez and she was 23 years old. She was an industrial design student in California and dreamed of discovering Paris. His life came to an abrupt end on the evening of November 13, 2015, on the terrace of a café in the 11th arrondissement under the bullets of the killers of Daesh, the Arabic acronym for the Islamic State. Nohemi was among the 130 victims counted that night. His mother Beatriz had emigrated from Mexico in 1989 to settle in the suburbs of Los Angeles. Working as a hairdresser 13 hours a day for years, she had allowed her daughter, born three years later, to pursue higher education and flourish. In 2017, Beatrice Gonzalez, supported by pro bono lawyers, decided to sue Google and its subsidiary Facebook for violating US anti-terrorism laws by distributing and monetizing Islamic State tweets and videos. The case rejected in the first instance has just been judged by the Supreme Court, at the same time that the case brought by Mehier Taamneh, close to another victim of terrorism (killed during the attack on a night club in Istanbul in 2017), was again conveyed. on the networks.

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Until now, the web giants have had total immunity thanks to the so-called Decent Communications Act from 1996, signed by Bill Clinton. The now famous “Section 230″ of this law provides in three lines that platforms cannot be prosecuted for the content they broadcast, unlike, for example, press publishers. Impunity and impunity were considered 25 years ago as the primary conditions for the development of this new industry, which was thus shielded from all legal or criminal proceedings. The icing on the cake, the libertarian principle of total free speech for all, dear to ” technicians Californians, was therefore also fully guaranteed. The brave new world, in a sense: maximum profit for a few and unlimited freedom for others, including terrorists and other pedophiles.

Since then, the giants of the web have become the rich planetary powers that we know, literally dominating the entire earth by ruling over all types of exchanges between billions of individuals worldwide. A situation that has led to fears of seeing these giants establish impregnable dominant positions in the United States itself, and therefore several lawsuits have arisen involving many federal states, the Department of Justice or the FTC, the Federal Trade Commission, which is responsible for regulating trade . All aim to limit mergers and anti-competitive practices as a priority. Some proposals even go so far as to propose liquidation of large corporations on the model of the two major antitrust laws of 1890 (Sherman Act) and 1914 (Clayton Act). Others are finally aiming to ban the annoyances of Chinese competitors like TikTok.

American model

In Europe, the same fear led to the drafting of a directive regulating GAFAM’s abuse of a dominant position, the Digital Market Act of 14 September 2022, supplemented by another directive on the protection of internet users and thus the beginning of coordinated monitoring of the content between Member States: Act on digital services of 19 October 2022. The latter comes into force this summer, on 25 August. It allows for various measures to inform internet users, the possibility to report problematic or illegal content, the obligation for platforms to quickly block this content. In addition, the platforms are supposed to carry out risk analysis, regular audits to respect their “ compliance » with the European rules. Financial penalties of up to 6% of global turnover are planned, and even bans from the European market in case of repeated violations. Therefore, if we witness the beginning of government control of content, at least in Europe, this remains essentially subject to the cooperation between platforms and seems to exclude direct questioning of operators, e.g. for complicity in terrorism, the only real deterrent in my opinion. Indeed, the immunity of GAFAM and their leaders is therefore still the rule. Consequence: these platforms have recently allowed themselves to police thoughts by filtering or banning such and such content, or such and such Internet user. The most famous of them is Donald Trump, reincarnated, if we dare say, by Elon Musk since his takeover of Twitter.

In a context where the regulation of content – ​​and of the tech giants – has become a major political issue in Congress, as in the European institutions, the web industry therefore anxiously awaited a possible rewriting of the famous Article 230 of the Supreme Court. But miraculously! Not only did the Court not touch or mention the 1996 law in its decision, but it went further by unanimously ruling that the platforms did not need additional special protection in the event of terrorist organizations’ exploitation of social networks. Written by Justice Clarence Thomas, the judgment blandly notes that “ of course, there may be times when evil actors, such as the Islamic State, may use platforms to engage in illegal and sometimes even horrific acts “. But adds the court, the same applies to mobile phones, e-mail and the internet more generally. However, we do not believe that the Internet or cell phone companies are guilty of providing their services to the public. “. Circulate, there is therefore nothing to see. Even less to regulate.

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However, a few days earlier, before a US Senate committee, Sam Altman, the founder of OpenAI, himself came to request Congress to legislate to introduce a minimum of regulations regarding the outbreak of ChatGPT and the intelligence in the world of communication and social network . The least that can be said is that the Supreme Court’s judgment does not fall precisely in this direction, which is nevertheless as urgent as it is significant. In the name of liberty, and if we properly understand the rulings of the US Supreme Court, we can broadcast calls for murder on the Internet with impunity, let every citizen grab and even walk around with machine guns, but we can also limit women’s right to abortion by leave it to the discretion of the individual federal state. All this in the name of the democratic world leader’s principles that the rest of the world is being asked to adopt.

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