During Tuesday's oral arguments in Gonzalez v. Google before the Supreme Court, Justice Elena Kagan asked whether it should be up to Congress to address the liability concerns of tech companies and quipped, "These are not the nine greatest experts on the internet," referring to the justices of the Supreme Court.
ELENA KAGAN: You know, 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. You know, these are not, like, the nine greatest experts on the internet.
And I don't have to-- I don't have to accept all Ms. Black's "the sky is falling" stuff to accept something about, boy, there is a lot of uncertainty about going the way you would have us go, in part just because of the difficulty of drawing lines in this area and just because of the fact that once we go with you, all of a sudden we're finding that Google isn't protected. And maybe Congress should want that system. But isn't that something for Congress to do, not the court?
ERIC SCHNAPPER: Well, I think the line-drawing problems are real. No one minimizes that. I think that the task for this court is to apply the statute the way it was written. And if I might return to a point that Justice Alito made, much of what goes on now didn't exist in 1996. The statute was written to address one or two very specific problems about defamation cases, and it drew lines around certain kinds of things and protected those.
It did not and could not have written-- been written in such a way to protect everything else that might come along that was highly desirable. Congress didn't adopt a regulatory scheme. They protected a few things. It will inevitably happen. It has happened that companies have devised practices which are maybe highly laudable, but they don't fit within the four walls of the statute.