In a statement on Tuesday, the powerful conservative justice said he thinks the high court should weigh in soon on the sweeping interpretations of Section 230 emerging from lower courts. He argued the courts have interpreted the statute too broadly, allowing internet companies to shirk any responsibility for the content posted on their platforms.
"Extending §230 immunity beyond the natural reading of the text can have serious consequences," Thomas wrote, in response to a Section 230 case before the court, Malwarebytes, Inc. v. Enigma Software. He agreed with his fellow justices that Malwarebytes is not the right case to take on. But he added, "in an appropriate case, it behooves us to do so."
He raised multiple high-profile examples, including Jane Doe v. Backpage.com, in which a court determined Backpage could not be held liable for the design decisions that enabled sex trafficking on its site, and Jones v. Dirty World Entertainment Recordings LLC, which determined online websites cannot be held liable for defamatory posts even if they select, edit and "prominently" feature that content.
"Adopting the too-common practice of reading extra immunity into statutes where it does not belong, courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms," Thomas wrote.
Thomas believes the original intention of the law is a "far cry from what has prevailed in court."
Elizabeth Baker, the deputy general counsel for the Internet Association, said Thomas's interpretation of Section 230 "would create an inferior, less safe online experience for all." She pointed out that the opinion was presented only by Thomas, "and not the entire court."