Anyone who has ever shopped online or browsed social media recognizes what might be called the headwaiter or sommelier function—the algorithm suggesting that if you liked this product, or post, or video, or website, you might also like these others. Gonzalez v. Google, which will be heard by the U.S. Supreme Court this term, raises the question of whether the sommelier algorithm creates a loophole in the immunity that internet service provides enjoy under Section 230 of the Communications Decency Act.

Section 230, enacted in the 1990s, is the legal foundation of the modern internet. Its subsection (c)(1) states, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." By treating the provider or re-poster as merely the conduit for third-party content instead of a responsible publisher, subsection (c)(1) has protected search engines, bulletin boards, buyer-seller exchanges and social media against civil liability for what third-party creators post, turning the internet into the cheapest and most accessible form of publishing ever known. Along with the hundred blooming flowers that the drafters of Section 230 hoped for, it has generated a bumper crop of noxious weeds. It has opened the door to the broadcasting to a global audience of threats, fraud, defamation, and lies, constrained only by the ability of states and private victims to find and hold responsible the original creator, with effects that are, to put it mildly, not uniformly welcomed.