Time to Take Up Immunity for Internet Platforms, High Court Justice Warns

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — Justice Clarence Thomas on Tuesday urged his colleagues to soon tackle the issue of immunity for internet platforms after the Supreme Court decided not to hear a dispute over a cybersecurity software company blocking its rival.

The denial of review will keep in place a rare crack in the shield offered by Section 230 of the Communications Decency Act, which otherwise creates a nearly impenetrable wall of civil liability protections for internet companies that offer tools allowing users to filter certain content.

The case at issue is a dispute between Malwarebytes Inc. and Enigma Software Group USA LLC, two companies that offer the same service: software to block unwanted online content.

To that end, Malwarebytes used its own software to block users from accessing Enigma products, flagging them as potential threats. Enigma sued, saying the block amounted to monopolistic abuse. A federal judge in California rejected the claim based on immunity offered by Section 230, but the Ninth Circuit reversed last year.  

“Immunity under that section does not extend to anticompetitive conduct,” U.S. Circuit Judge Johnnie B. Rawlinson, a Bill Clinton appointee, wrote in a September 2019 opinion

Critical of the appellate ruling, digital rights group Electronic Frontier Foundation filed an amicus brief with the U.S. Supreme Court calling for the justices to hear Malwarebytes’ appeal and reverse the Ninth Circuit’s decision.

Sophia Cope, EFF’s counsel of record, wrote the Communications Decency Act’s anticompetitive loophole was “unmoored from the plain language of the law and Congress’ purpose in enacting it.” 

The group pointed to content-blocking software it published which aims to block so-called stalkerware, apps that are used to “perpetuate domestic violence and harassment.” EFF said it could face similar challenges to its app if the high court did not step in.  

While the Supreme Court declined to take up the case Tuesday, Justice Clarence Thomas penned a concurring opinion in which he opened the door for the court to hear a broader challenge to Section 230 and decide “whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by internet platforms.”

“Courts have long emphasized nontextual arguments when interpreting §230, leaving questionable precedent in their wake,” wrote Thomas, a George H. W. Bush appointee who is among the more conservative voices on the bench.

“Extending §230 immunity beyond the natural reading of the text can have serious consequences,” he added. “Before giving companies immunity from civil claims for ‘knowingly host[ing] illegal child pornography,’… or for race discrimination… we should be certain that is what the law demands.”

The Washington-based firm Hogan Lovells, which represents Malwarebytes, as well as the Pennsylvania-based Budd Law PLLC, representing Enigma, did not return requests for comment by press time. 

Tuesday’s Supreme Court order list also denied review in a case filed by House Democrats who claimed President Donald Trump has violated the so-called emoluments clauses of the U.S. Constitution. 

The denial keeps in place a D.C. Circuit ruling which found the lawmakers lacked standing to sue the president over claims he was illegally profiting from his office. 

The justices did not give a reason for the denial, but other emoluments cases against Trump are ongoing, including one filed by the state of Maryland and the District of Columbia that the en banc Fourth Circuit revived earlier this year. Another suit filed by business owners in the D.C. area is also pending.  

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