US Supreme Court Justice flames lower courts for giving 'sweeping immunity' to Facebook, YouTube, etc when it comes to harmful content
- Reference: 1602714551
- News link: https://www.theregister.co.uk/2020/10/14/section_230_supreme_court_thomas/
- Source link:
In a [1]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 [2]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. The internet giants would rather not have to 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. By not acting as publishers, they retain their Section 230 immunity from legal action, and thus the companies would prefer to keep it that simple.
The situation has grown more confused and heated in recent months after the issue was turned into a partisan matter, with conservatives claiming that their voices were being censored by left-leaning platforms and President Trump taking exception to warning labels [3]applied to some of his most inaccurate tweets and posts.
As well as an [4]attempt to get the nation's communications watchdog, the FCC, to interpret Section 230 differently, there are at least four pieces of [5]legislation that seek to change the law, Department of Justice [6]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 [7]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 [8]READ MORE
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 though the top court refused to hear the case, meaning the appeals court decision will stand. But Thomas used that 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. ®
Get our [9]Tech Resources
[1] https://www.supremecourt.gov/orders/courtorders/101320zor_8m58.pdf
[2] https://www.theregister.com/2020/06/25/section_230_authors/
[3] https://www.theregister.com/2020/05/27/twitter_fact_checks_trump_tweets/
[4] https://www.theregister.com/2020/09/02/section_230_reform_fcc/
[5] https://www.theregister.com/2020/09/10/section_230_law/
[6] https://www.theregister.com/2020/09/23/doj_section_230_proposals/
[7] https://www.theregister.com/2019/09/13/malwarebytes_enigma_blocking/
[8] https://www.theregister.com/2020/09/02/section_230_reform_fcc/
[9] https://whitepapers.theregister.com/
It can be viewed as a warning shot (I'm viewing it this way; whether actual Supreme Court justices and scholars view it this way is a different matter).
There are eight other justices that may or may not agree though, and of course legislative action may change everything before any argument reaches the court.
Do It Right
Yes it is a warning shot. It's a message to the lower courts to start interpreting Section 230 correctly or the Supreme Court will do it for you. Section 230 is meant to provide online content providers like Facebook & Twitter legal immunity from member's posted content & actions. Section 230 does not provide the same protection to content & actions taken by the content provider itself , including posts by officers of the company posting on their own website as well as moderation actions. The lower courts have been providing broad immunity by misinterpreting Section 230 to include all actions taken by the content providers. What Judge Thomas is doing is warning the lower courts to interpret Section 230 properly, as it is written, and not play textual words games to grant corporate immunity where it does not belong.
The reason for the warning & not ruling from the bench is nowadays it's not good for a judge's reputation to have the Supreme's overturn your decision - for example, it gives ammunition to defense attorneys. They're probably teased by their fellow judges too ("Hey, Walter! Wanna overturn those pancakes for me? Hahahaha!").
It also affects the stocks of the affected companies if the Supreme's are forced to set a hard precedent by interpreting Section 230 correctly, as opposed to having an appellate court rule against the same company.
No legal weight, but it does send a message to the lower courts on what might happen if one of their decisions is appealed.
And as Mr McCarthy points out, it might be seen by congress as raising an issue that may need to be addressed in legislation.
"that may need to be addressed in legislation"
Or rather, may be addressed by the Supreme Court. In other words, if Congress can't figure out how to write and pass an updated communications law, the Supremes could mull it over and set a precedent. Justice Thomas didn't think the Malwarebytes case was suitable for that purpose.
C.
Publishers?
“By not acting as publishers, they retain their Section 230 immunity from legal action, and thus the companies would prefer to keep it that simple.”
But surely, some like Facebook are acting as publishers. For example, if I submitted a letter to a newspaper’s readers letters page that was hate speech and they printed it they would be deemed the publisher of it. Facebook is no different they get paid for what is on their site through advertising the more views the more they get paid.
If they charged the user for the page they can argue like hosting companies that they are not a publisher. Facebook makes it money from the content a hosting company makes it money from the space it rents.
Re: Publishers?
The publisher vs platform thing is 100% a myth. Techdirt has a good article debunking common 230 related myths.
https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act.shtml
Does this kind of "statement" have any actual legal weight?