LOS ANGELES—Even as Congress, both presidential candidates, and the Department of Justice are preparing to roll back or even eliminate Section 230 of the 1996 Communications Decency Act — the “First Amendment of the Internet” — the United States Supreme Court this week passed up its first chance to review the law that allows free expression online.
Section 230 allows a wide range of controversial content, including porn, to appear online by shielding internet platforms that host the content from legal responsibility, as long as the material in question was posted by a third-party user. As a result, internet service providers, social media companies, and website owners are freed from needing to monitor and edit — or censor — every piece of content posted using their platforms.
In September of 2019, the U.S. Ninth Circuit Court of Appeals handed down a controversial ruling in the case of MalwareBytes Inc. v. Enigma Software Group USA, LLC. In the case, pitting two anti-virus software firms against each other, Enigma sued after rival MalwareBytes classified its software as “potentially unwanted program.” In other words, a possible security threat.
Enigma claimed that MalwareBytes was simply suppressing its software because the firms were business competitors in the digital security field. MalwareBytes claimed protection under Section 230, which provides protection for choices made by makers of filtering software. A 2009 Ninth Circuit decision had held exactly that — protecting the security firm Kaspersky from liability when it blocked a competitor’s software as “adware.”
But in MalwareBytes v. Enigma, the court for some reason reversed itself. This time, the court ruled that the filtering or content removal decisions must be made in “good faith,” and that even mere allegations that they were made for anti-competitive reasons would be enough to revoke Section 230’s protections for blocking or removing content.
The ruling could have broad implications beyond the computer security industry. In recent weeks, Donald Trump had repeatedly called for the repeal of Section 230 after social media platforms either blocked or attached warning labels to certain tweets posted by Trump, on the grounds that they contained misinformation about the 2020 election, or the coronavirus pandemic.
Democratic presidential candidate Joe Biden also favors repeal of Section 230, though on the grounds that it allows online platforms to spread misinformation, rather than block it.
MalwareBytes appealed the Ninth Circuit ruling to the Supreme Court, but earlier this week, the court stated that it would refuse to “grant certiorari,” in other words, it refused to hear the case at all — a decision that leaves the Ninth Circuit’s ruling intact, even though it appears to contradict an earlier ruling by the same court.
While SCOTUS typically offers no reason for its decisions on whether to hear cases or not, Justice Clarence Thomas issued a statement in the MalwareBytes case. In that statement, Thomas wrote that in his view, lower courts had interpreted Section 230 in overly broad fashion, leaving the door open for the Supreme Court to take up a future case that could lead to rolling back at least some of Section 230’s protections.
Photo By United States Department of Agriculture / Wikimedia Commons Public Domain
