The framing of this as an “antitrust exception” to section 230 is probably not the most correct one. Here is the statutory provision in question:
> (2) Civil liability
> No provider or user of an interactive computer service shall be held liable on account of—
> (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;
The question is: what is “otherwise objectionable?”
The Ninth Circuit’s Zongo case held that “providers of computer security software can benefit from § 230 immunity, and that such providers have discretion to identify what online content is considered ‘objectionable.’”
Of the bat, the Ninth Circuit is dealing with a self-created problem. Under ordinary principles of statutory construction, “otherwise objectionable” must be interpreted consistently with the preceding elements of the list, which relate to pornography or violence. Maybe Nazi material would qualify, but Congress probably didn’t intend the statute to cover malware or spyware. Had the Ninth Circuit limited “otherwise objectionable” to such content, the antitrust issue would never have arisen, because other filtering tools wouldn’t fall within the scope of “otherwise objectionable” content.
Regardless, Ninth Circuit precedent is what it is. But that still doesn’t support calling this an antitrust exception. As the Court itself says, it’s about the scope of the “discretion” to define what is “otherwise objectionable” content. It’s about whether the safe harbor applies at all, not carving out an exception for the safe harbor when it would otherwise clearly apply.
I see no reason that whether material is objectionable only applies to pornography. However typically when someone tries to call something not pornography objectionable whatever the case is about is thrown out, eventually, on first amendment concerns.
> Regardless, Ninth Circuit precedent is what it is.
Careful. Bad precedent should not stand just because it is precedent.
The statute creates a safe harbor for filtering “material” that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” One of the rules of interpreting statutes is that you interpret the scope of catch-all terms in a list consistently with the preceding elements. The preceding elements refer to pornographic or violent content. That would suggest that you shouldn’t interpret “otherwise objectionable” to include things like adware or spyware.
You don't think adware and spyware could be considered akin to "harassing" material? Obscenity and violence aren't the only categories explicitly called out in that list.
4 of the 6 explicit criteria given are not inherently sexual in nature, and only 2 of those 4 are in any way related to violence (but even harassing is not necessarily violent, so it may be 1). Like I said, the only case law that exists relates to pornographic material as it is the most unpopular. That wording was ripped from other anti-obscenity laws that have had a hard time in court but have not yet been entirely struck down.
So if a company can block access to URLs/sites that host competitive content, wouldn't that authorize Google to block damn near everything on the internet? There are very few areas in which they aren't competing with someone... maybe Amazon's online grocery delivery -- except that's powered by AWS which competes with GCP.
Maybe Google would be able to legally block everything if you installed software from them on your computer.
Woaaah, this is really ridiculous. The Ninth Circuit thinks that not only are there "anti-competitive" exceptions to Section 230 (there aren't), but that Section 230 applies to actions that a user-installed software takes on that users own computer?!
How do I file a brief with the court too, to tell them how horribly wrong they are? This seems like a ham-fisted attempt to weaken Section 230 in any way that they can.
This ruling opens the door for advertisers to sue authors of adblockers for blocking their ads, because it's "anti-competitive." Terrible, terrible, ruling.
> but that Section 230 applies to actions that a user-installed software takes on that users own computer?!
Malwarebytes was the one trying to invoke Section 230's "safe harbor" for filtering software because it would immunize Malwarebytes even if its conduct was illegal under New York competition law. (And it would allow dismissing the case at an early stage, without resolving whether Malwarebytes' conduct was in fact legal.)
If you're correct that Section 230 doesn't apply at all, then the result is the same as what the Ninth Circuit held: the claims against Malwarebytes can go forward.
11 comments
[ 2.7 ms ] story [ 38.0 ms ] thread> (2) Civil liability
> No provider or user of an interactive computer service shall be held liable on account of— > (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;
The question is: what is “otherwise objectionable?”
The Ninth Circuit’s Zongo case held that “providers of computer security software can benefit from § 230 immunity, and that such providers have discretion to identify what online content is considered ‘objectionable.’”
Of the bat, the Ninth Circuit is dealing with a self-created problem. Under ordinary principles of statutory construction, “otherwise objectionable” must be interpreted consistently with the preceding elements of the list, which relate to pornography or violence. Maybe Nazi material would qualify, but Congress probably didn’t intend the statute to cover malware or spyware. Had the Ninth Circuit limited “otherwise objectionable” to such content, the antitrust issue would never have arisen, because other filtering tools wouldn’t fall within the scope of “otherwise objectionable” content.
Regardless, Ninth Circuit precedent is what it is. But that still doesn’t support calling this an antitrust exception. As the Court itself says, it’s about the scope of the “discretion” to define what is “otherwise objectionable” content. It’s about whether the safe harbor applies at all, not carving out an exception for the safe harbor when it would otherwise clearly apply.
> Regardless, Ninth Circuit precedent is what it is.
Careful. Bad precedent should not stand just because it is precedent.
Location? Especially clueless judges? Failure of due diligence in research? Malicious hijacking by business interests?
Maybe Google would be able to legally block everything if you installed software from them on your computer.
How do I file a brief with the court too, to tell them how horribly wrong they are? This seems like a ham-fisted attempt to weaken Section 230 in any way that they can.
This ruling opens the door for advertisers to sue authors of adblockers for blocking their ads, because it's "anti-competitive." Terrible, terrible, ruling.
Malwarebytes was the one trying to invoke Section 230's "safe harbor" for filtering software because it would immunize Malwarebytes even if its conduct was illegal under New York competition law. (And it would allow dismissing the case at an early stage, without resolving whether Malwarebytes' conduct was in fact legal.)
If you're correct that Section 230 doesn't apply at all, then the result is the same as what the Ninth Circuit held: the claims against Malwarebytes can go forward.