Who Will Decide the Limits on Internet Filters?And Who Cares?

Recent events may impact the ability to manage website content posted by users. Initially Internet service providers (ISPs) were potentially subject to liability for online pornography or other harmful content published by users. Passive service providers were not responsible for user provided content. See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (SDNY 1991)(mere distributor of information not liable). This created an incentive not to actively filter user content.

Immunity Under the Good Samaritan Statute. In response, Congress enacted the Communication Decency Act of 1996 (CDA), including 47 USC §230 (the “Good Samaritan” statute). The Good Samaritan statute covers “Interactive Computer Services,” including ISPs and providers of computer security software. This statute has two subsections. The first subsection immunized action “taken in good faith to restrict access to . . . material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable”. 47 USC §230(c)(2)(A)(emphasis added). The second subsection immunized providing “technical means to restrict access” to the material described in subsection A. Id. §230(c)(2)(B).

The “otherwise objectionable” language extended immunity beyond pornography. For example, immunity for ISPs that offered less than perfect filtering services could extend to defamation.  See e.g., Zeran v AOL, 129 F3d 327 (4^th Cir 1997). The express statutory language extends to whatever the “provider or user considers. . . objectionable”.

The Ninth Circuit Limits a Provider’s Determination of What is Objectionable. In Enigma Software Group USA, LLC v. Malwarebytes.com, Inc., 946 F3d 1040 (9th Cir. 2019), the court was faced with a Defendant’s  allegedly imperfect filter that blocked Plaintiff’s competing software. The Complaint alleged Defendant’s filter “quarantined” Plaintiff’s software for anticompetitive motives and caused damages due to lost customers. The District Court dismissed the complaint under the Good Samaritan statute. The Court of Appeals, however, concluded the Defendant provider’s alleged anticompetitive conduct was not immunized without qualification.

The Ninth Circuit relied on the Congressional policy expressed in the Good Samaritan statute. First, an explicit goal  was to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services”. 47 USC §230(b)(2). Anticompetitive conduct would be antithetical to that purpose. A second explicit goal of the CDA was to “encourage the development of technologies which maximize user control.” 47 USC   Anticompetitive applications would discourage not “encourage the development of technologies”. Whether the Defendant’s filtering was driven by anticompetitive animus remained to be determined and dismissal without making that determination was improper.

The Petition to the Supreme Court. Defendant and supporting amici (including competitors offering filtering software) petitioned for Supreme Court review arguing the Ninth Circuit inserted a limitation in the Good Samaritan statute that is not supported by the statutory language. Indeed subsection A has an explicit ‘good faith” requirement, but subsection B does not. Defendant also argues requiring litigation over anticompetitive animus will discourage the development and use of online filtering tools, contrary to the legislative intent. Finally, Defendant argues users decide which content to block, not Defendant.

The Ninth Circuit is the first Court of Appeals to address this issue. The Supreme Court usually waits for multiple Courts of Appeals to consider an issue before accepting review. Defendant argues the filtering industry will suffer anticompetitive effects if forced to wait for further appeals to clarify the scope of immunity.

Legislative Activity. An amendment to the CDA has occurred in the recent past. In 2018 Congress amended the CDA to remove immunity from state laws prohibiting sex trafficking. 47 USC §230(e)(5). Critics contend this amendment has had unintended deleterious consequences for user free speech. Supreme Court Amicus Brief of Electronic Frontier Foundation in Enigma Software Group USA, LLC v. Malwarebytes.com, Inc.

In May, President Trump signed an Executive Order seeking to limit the scope of the Good Samaritan statute to prevent censorship. In response the Department of Justice recommended legislation to, among other revisions, define “good faith” and “objectionable content” to narrow the statutory protection and enable users to flag unlawful conduct.

Several Republican Senators have proposed legislation requiring ISPs to promise they will operate in good faith in their terms of use and agree to pay damages for breach of this promise in return for immunity under the Good Samaritan statute.

This scrutiny of the Good Samaritan statue comes at the same time Congress is considering changes proposed by the US Copyright Office that would alter 17 USC §512, the statutory “safe harbor” protecting ISPs from copyright infringement claims.

Impact. It remains to be seen if either the Supreme Court or Congress will address the scope of the Good Samaritan statute. If neither body acts, the Ninth Circuit decision allowing inquiry into anticompetitive motives will remain in effect. Other Courts of Appeals may or may not follow the decision of the Ninth Circuit, but website operators and cybersecurity companies  will remain exposed to liability for filtering website user content based on anticompetitive animus. If you own a website that publishes user generated content, now is a the time to review your policies and procedures and reevaluate the business risk of managing third party content.

Internet users (i.e. almost everyone) should watch for changes to terms of use, new user tools, and changes in online content in reaction to changing legal obligations of ISPs.