US Supreme Court Justice flames lower courts for giving 'sweeping immunity' to Facebook, YouTube, etc when it comes to harmful content

Clarence Thomas reckons web giants need to do more to curb abuse

Analysis US Supreme Court Justice Clarence Thomas has unexpectedly weighed in on the debate over internet giants' legal protections from the consequences of user-posted content, arguing this litigation shield should be removed or limited in future.

In a statement [PDF] attached to the top court’s case list, where a related case citing Section 230 of the 1996 Communications Decency Act was rejected for consideration, Thomas noted on Tuesday that the Supreme Court has yet to interpret the legal provision, and criticized the lower courts for having “construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”

Section 230, the 26-word addition to America's Communications Decency Act, was designed to, plus or minus a few caveats, protect the nascent internet from being swamped with lawsuits triggered by contentious stuff created and shared online by people. It essentially allowed websites and apps to get on with the business of providing communications platforms without, by and large, being held responsible for the content sent via those platforms by individuals.

However, in recent years the flood of misinformation and abusive and offensive material on platforms like Facebook, YouTube, and Twitter has sparked a wave of complaints that the legal shield makes it too easy for mega-corps to avoid taking any responsibility at all for how their technology is used. And the internet giants would rather not moderate or edit people's content as employing armies of censors eats into profits and it's seemingly hard to evenly police massive online populations.

The situation has grown more confused and heated in recent months after the issue was turned into a partisan matter, with conservatives claiming, without much evidence, that their voices were being censored by left-leaning platforms, and President Trump taking exception to warning labels applied to some of his most inaccurate tweets and posts.

As well as an attempt to get the nation's communications watchdog, the FCC, to interpret Section 230 differently, there are at least four pieces of legislation that seek to change the law, Department of Justice advice for an overhaul, and a court case that invokes Section 230.

Reality bytes

It was that case, Malwarebytes v Enigma Software, that Justice Thomas used to make his observations. In September, the Ninth Circuit of Appeals overturned a district court decision that agreed with Malwarebytes when it said it was allowed to do pretty much whatever it wanted with its antivirus scanner, including deciding that rival Enigma’s software was a "potentially unwanted program.”

Malwarebytes argued Section 230 specifically offers immunity from litigation even if a platform decides to block content that is violent, of a sexual nature, or "otherwise objectionable.” Enigma argued that its Spyhunter software isn’t "objectionable" and that Malwarebytes was just trying to get back at its competitor after Enigma sued a tech support blog affiliated with Malwarebytes that published a bad review of the Spyhunter program.


Hold on to your hats, Net Neutrality version 2 is on its way courtesy of Trump and the FCC's moves on Section 230


Enigma won that appeal, with the circuit court noting that the Communications Decency Act's immunity is not “limitless,” and stated that the district court judge had used an “overly expansive interpretation of the provision that could lead to anticompetitive results.”

Malwarebytes appealed to the Supreme Court, and the top court refused to hear the case, meaning the appeals court decision will stand. But Thomas used the decision to turn down the case to show support for the Ninth Circuit and take things one step further.

“The decision is one of the few where courts have relied on purpose and policy to deny immunity under §230,” he wrote. “But the court’s decision to stress purpose and policy is familiar. Courts have long emphasized non-textual arguments when interpreting §230, leaving questionable precedent in their wake.”

Nevertheless, despite clearly flagging that he wants the Supreme Court to reverse some of that precedent, Thomas agrees that the Supreme Court should not hear the Malwarebytes case but, somewhat unusually, argues that “we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by internet platforms.”

Deep dive

He then gave a comparatively lengthy legal analysis of Section 230 and its history that clearly outline a case for limiting the legal liability that online platforms currently enjoy. That analysis included the assertion that courts have “departed from the most natural reading of the text by giving internet companies immunity for their own content." In other words, the law was supposed to cover material produced by users, whereas it seems to have been interpreted to protect content produced by the internet giants themselves, too.

Justice Thomas also addressed the obvious counterpoint that lifting Section 230's broad immunity would lead to an unmanageable flood of lawsuits against communications platforms by arguing that “paring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct.”

Instead, Thomas argued, “it simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail.” He concluded by saying the Malwarebytes case is not the right one to address the fundamental issue but that “in an appropriate case, it behooves us to do so.”

It is rare for a Supreme Court justice to weigh in on a legal matter in this way, though not unheard of. It’s also not entirely clear why Justice Thomas did so, although the issue has clearly been on his mind.

The easiest explanation is that he wanted to flag to Congress and whoever becomes president in January that it may not be necessary to change the current law to force tech platforms to act more responsibly; a Supreme Court re-evaluation may result in the same. ®

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