Top Google Lawyer Preps for Fights Over AI and Tech Censorship – Bloomberg Law

Google’s general counsel, Halimah DeLaine Prado, was with friends in the suburbs of Boston for some rare personal time when she learned that the US Supreme Court had reached a decision in Gonzalez v. Google LLC, the case that had dominated her life for a year. DeLaine Prado didn’t mind scrambling to respond from the road, given that the 9-0 ruling was largely what she’d been hoping for. “If it’s a day off, and you get a Supreme Court unanimous decision, I’m gonna happily offer up my vacation day,” she says.

The case—actually two separate lawsuits in which social media companies stood accused of violating federal law by hosting and recommending terrorist recruitment videos—was widely seen as a crucial test for the foundational law of the social media era: Section 230 of the 1996 Communications Decency Act. The law shields online services from lawsuits related to content posted by their users. Companies such as Alphabet Inc.’s Google have long argued that the modern internet couldn’t exist without it.

In recent years, critics of large tech companies have focused on Section 230, saying it gives platforms free rein to make destructive decisions about things like content moderation. With Congress in paralysis, the courts have seemed the most likely venue for major changes to the law, and the Supreme Court’s agreement to hear the terrorism cases was interpreted as an ominous sign.

Instead, the case proved to be an anticlimax. The justices declined to weigh in on the merits of Section 230, declaring instead that the underlying claims from the plaintiffs didn’t constitute a violation of antiterrorism laws. Just over a week later, the high court declined to hear another 230-centered case brought by victims of child pornography, who accused Reddit Inc. of knowingly facilitating and benefiting from images of child sexual abuse. Maybe the justices aren’t interested in rewriting the rules of the internet, after all. “The court indicated they don’t want to make a big mess,” says Evelyn Douek, a professor at Stanford Law School who studies online speech. “They are proceeding more cautiously than we anticipated.”

DeLaine Prado didn’t argue Google’s case in front of the court. But as the person in charge of the company’s 1,400 lawyers, her fingerprints were all over its strategy. “Tons of folks on my team spent hours and hours of work on these cases,” she says. “To see a decision that very much maps to some of the arguments we were trying to make is a really positive moment for our department.”

While the case was moving through the courts, DeLaine Prado warned publicly that an adverse decision could lead Google to begin preemptively removing a wider range of content from its YouTube video site. In an hourlong interview with Bloomberg Businessweek at her office shortly before the decision was announced, she explained how she’d pushed the company’s litigation and public policy teams to coordinate with activists who favor an open internet and with smaller internet companies to file amicus briefs explaining how they could be harmed if Section 230 were narrowed. “What Halimah did throughout the whole process, which I really appreciated, was broaden it beyond YouTube and Google,” says Neal Mohan, YouTube’s chief executive officer. “It’s about the impact of this case for the open internet that we’ve all appreciated for the last couple of decades.”

More than 45 digital rights activists, companies and tech groups ended up filing briefs in support of Google, and these seemed to resonate with the justices during oral arguments.

The issue could soon be back in front of the justices. Lower courts have offered conflicting decisions on controversial Republican-backed laws in Texas and Florida that prohibit social media companies from “censoring” political speech, with potential implications both for the First Amendment and Section 230. Legal experts say Google’s recent victory suggests it has a good chance of getting through those cases without any new restrictions on its content moderation decisions. Still, DeLaine Prado says, she lives in a constant state of low-level anxiety.

DeLaine Prado

Photographer: McNair Evans for Bloomberg Businessweek

DeLaine Prado’s boss, Google head of global affairs Kent Walker, calls her a “quiet diplomat” who’s affable and friendly, yet willing to mix it up when necessary. On a separate front, he commends DeLaine Prado’s work on dealing with Europe’s changing rules regarding tech, which he calls “the most complicated regulatory exercise we, as a company, have ever undertaken.”

DeLaine Prado is a powerful Black woman in an industry that has few of them, and she works for a company that faces a lawsuit from some Black employees who say they were subjected to racial discrimination at work. While DeLaine Prado is in charge of shaping Google’s response, she alludes—in general terms—to racially uncomfortable experiences during her 23-year legal career. She says that bringing the distinct experience of a Black woman to the office helps broaden the perspective of the company’s decision-makers. “I don’t wear a label that says general counsel of Google when I walk down the street,” she says.

The product of elite East Coast educational institutions, DeLaine Prado first came to Google in 2006 after a stint as a First Amendment lawyer. She worked initially as a product counsel, focused on products such as Blogger and Google Plus. She then spent years working in Google’s ads business, its main source of revenue, before becoming general counsel in 2020. A partial list of the issues that ended up on DeLaine Prado’s desk when she took on her new role included the company’s market power, its approach to privacy, the way Google affected the economics of online news media, and the algorithms YouTube used to recommend videos.

The thread connecting these issues, says DeLaine Prado, is Google’s need to accept that it’s no longer a startup. She sometimes compares the company to a child just grappling with the idea that it had to grow up. It’s a faintly absurd way to describe a $1.5 trillion operation that’s been publicly traded for almost two decades, but it’s a framing that’s familiar to Google insiders. Daphne Keller, Google’s former associate general counsel, interviewed DeLaine Prado when she joined. She says Google is “in the very earliest” stage of figuring out how to operate as a regulated company that’s closer to a financial institution than a tech company, and the tech industry is going through “horrible growing pains.”

For the past several months, DeLaine Prado has been teaching Google’s global affairs and product teams to train employees in their role in the so-called regulatory life cycle. That’s her description of how Google works to shape laws in its favor, then figures out how to adapt its current business to comply with them while designing future products to comply with them, too.

The company is already barreling toward a new set of challenges as the tech industry reshapes itself around generative AI, software that creates its own text, visuals and other content. DeLaine Prado was involved in Google’s launch of its Bard chatbot, and she’s deeply engaged in the company’s preparations to incorporate generative AI into all of its products. One thing she’s been emphasizing is the need to design products that make it clear to users when they’re receiving AI-generated content. Google has also been careful to describe its AI products as experimental, partially as a way to mitigate any legal liability and partially to differentiate itself as a “responsible” actor in AI—in contrast to other big companies like Microsoft. “We are putting a new technology into the world, and we have to acknowledge that it is still developing,” DeLaine Prado said in mid-May.

As the AI industry matures, DeLaine Prado may find herself pulled back to Section 230. Legal experts and technologists have been debating who should be considered to be speaking when a chatbot produces text. Is it Google, the company that created the model that generates the text? Or is the output of a chatbot simply a new way to present data posted elsewhere on the internet, in the same way a social media site is a way to display posts from its users?

This distinction, which has never been tested in court, could be important in determining whether Bard’s content is covered by Section 230. If it’s covered, then Google may have less to fear from lawsuits when Bard produces misleading, defamatory, or harmful information. If not, Google may have to develop a more conservative approach to its product development.

Sam Altman, CEO of OpenAI, told Congress in May that Section 230 may not protect the speech produced by generative AI. One of the statute’s authors, former Representative Chris Cox, a California Republican, has said definitively that the law does not.

DeLaine Prado hasn’t yet staked out a position on the issue for Google. It will probably be years before the Supreme Court weighs in on that particular wrinkle, if ever. But the unresolved debate indicates that her relationship with Section 230 is far from over.

To contact the author of this story:
Emily Birnbaum in Washington at ebirnbaum3@bloomberg.net

To contact the editor responsible for this story:
Joshua Brustein at jbrustein@bloomberg.net

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