
EFF Urges Court to Reconsider Decision That Harms Internet Users - DiabloD3
https://www.eff.org/deeplinks/2019/11/eff-urges-court-reconsider-decision-harms-internet-users-ability-protect
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akersten
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.

~~~
rayiner
> 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.

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zentiggr
Why does it seem like it's the Ninth Circuit that wants to contradict / ignore
/ destroy the legal environment around online technology in general?

Location? Especially clueless judges? Failure of due diligence in research?
Malicious hijacking by business interests?

~~~
tvanantwerp
What I hear from my lawyer friends is that the Ninth Circuit is the oddball on
basically any topic.

~~~
Vordax
I've heard it called the "Ninth Circus".

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mikece
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.

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rayiner
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.

~~~
snagglegaggle
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.

~~~
rayiner
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.

~~~
snagglegaggle
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.

