Ninth Circuit Grants Anti-Spyware Providers Safe Harbor Under Section 230
By Kevin Fayle on June 26, 2009 8:47 PM
Section 230 of the Communications Decency Act contains two important components. The first, 47 USC 230(c)(1), is the famous section that immunizes interactive computer services from liability for content that third parties submit.
The other provision, 47 USC 230(c)(2), offers the services safe harbor for any decision to remove content they make. Thus, a website can't get into trouble if it decides to remove an offensive comment or explicit materials.
230(c)(2) doesn't come up much in litigation, but the Ninth Circuit just dealt with an interesting lawsuit that centered around 230(c)(2) and ruled that an anti-spyware provider could enjoy the safe harbor contained in 230(c)(2) against claims by an adware company that the anti-spyware software improperly blocked its content.
The case, Zango, Inc. v. Kaspersky Lab, Inc., involved Zango, Inc. - an adware purveyor that has gone belly up - and Kaspersky Lab, inc. - a US distributor of Russian software. Kaspersky's software blocked Zango's products and Zango sued. The Ninth Circuit held that:
a provider of access tools that filter, screen, allow, or disallow content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable is protected from liability by 47 U.S.C. § 230(c)(2)(B) for any action taken to make available to others the technical means to restrict access to that material.
Eric Goldman at the Technology & Marketing Law Blog has an excellent summary of the case and its significance. According to Goldman, the case is important for two main reasons:
First, the Ninth Circuit's last two 230 opinions (Roommates.com and Barnes) have exhibited some hostility to expansive 230 readings. In refreshing contrast, this opinion gives a robust interpretation to 230's immunizations.
Second, this opinion is terrific news for vendors of anti-spam/anti-spyware/anti-virus services. Although we have long suspected that they would be protected under 230(c)(2), this opinion codifies their immunization as Ninth Circuit law.
The second point should seem pretty obvious to any user of a computer (how odd would it be if virus programmers could sue anti-virus software makers?) but things that are apparent in the real world aren't so obvious in the legal world, so it's good to see the Ninth Circuit set this precedent.