TechFreedom Asks Supreme Court to Review Section 230 Case

June 12, 2020 — Left unchecked, a recent court decision on Section 230 might lead to the internet suffering what a 2008 ruling called “death by ten thousand duck-bites,” according to TechFreedom Senior Fellow Berin Szóka.

“Unless the Supreme Court reverses this decision, schools, libraries, and the developers of tools they use to filter content could all be sued — exactly the opposite of what Congress intended,” Szóka said in a press release.

On Friday, TechFreedom filed an amicus brief urging the Supreme Court to review the Ninth Circuit’s decision in Enigma Software v. Malwarebytes.

Most litigation surrounding Section 230 deals with Section(c)(1), which infamously protects online platforms from being treated as the publisher or speaker of third-party content.

But the Enigma case instead focuses on the next portion of the statute. Section(c)(2) shields providers of interactive computer services who restrict access to material considered in some way objectionable by either the provider or the user.

The Ninth Circuit’s ruling would open the door for costly and time-consuming litigation over the potential of filtering tools to be used for anti-competitive purposes, TechFreedom said.

“The near-absence of litigation about (c)(2)(B) simply proves how vital this provision has been,” Szóka argued. “For nearly a quarter of a century, this provision has done precisely what Congress declared to be a core purpose of Section 230: ‘to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools.’”

Although Enigma v. Malwarebytes deals with malware vendors, Szóka warned that the decision would set a precedent that could impact parental controls and other tools used to filter online content.

“A single lawsuit could bankrupt the developers of tools that allow users to block ads or remove content they don’t want to see from their social media feeds,” he said.

Szóka claimed that the ruling was based on a misunderstanding of the statute in question.

“The court worried that the law might protect ‘covert filtering’ of content unless the court added an implied exception for ‘anticompetitive animus,’” he said. “But that immunity applies only to providing filtering tools to others so that they can decide whether to ‘restrict access’ to content.”

Because the users of Malwarebytes and similar software are the ones with ultimate control over filtering, it makes no sense to allow the companies to be sued, Szóka said.

“The Enigma decision replaces legal clarity with vast uncertainty that will discourage the development of the very tools Congress wanted to flourish,” Szóka concluded. “We’re already starting to see such litigation in California; if it continues there, the tech capital of the planet, it could reshape the Internet for all Americans.”