A recent appellate decision in a lawsuit involving cybersecurity company
Malwarebytes could threaten ad-blocking tools, including the Electronic Frontier Foundation's “Privacy Badger,” the digital rights group argues.
The decision, issued last month by
the 9th Circuit Court of Appeals, allows Enigma to proceed with claims that Malwarebytes acted anti-competitively and engaged in false advertising, by flagging Enigma's SpyHunter and RegHunter as
potentially unwanted programs.
In its ruling, a panel of the 9th Circuit rejected Malwarebytes' argument that it was immunized from suit by Section 230 of the Communications Decency Act. That
law has a provision protecting computer services that offer tools to restrict objectionable material, but the appellate judges said the provision didn't apply because Malwarebytes is a competitor to
Enigma.
Malwarebytes recently asked the entire 9th Circuit to review that ruling.
The EFF is among a host of groups that are backing Malwarebytes' request.
Among other
arguments, the EFF says the decision threatens Privacy Badger, which allows users to prevent tracking by ad-tech companies.
“EFF’s ability to continue providing free
privacy-enhancing tools to Internet users will be seriously threatened if the panel’s incorrect interpretation ... stands,” the organization writes in a friend-of-the-court brief.
“The Enigma panel’s decision creates legal uncertainty for filtering tool providers that, in turn, promises to create a chilling effect to the detriment of Internet users,” the
group writes. “Should the decision stand, filtering tool providers will seek to minimize their legal exposure by creating weaker, less effective filtering tools for fear of sweeping in
competitors.”
A group of cybersecurity law professors also weighed in on Malwarebytes' behalf. They argue that the panel's ruling effectively paves the way for bogus lawsuits against
security vendors.
“The panel decision will foster spurious legal accusations of anti-competitive blocking of software programs that are, in fact, dangerous to businesses and
consumers,” they argue in a friend-of-the-court brief authored by Santa Clara University professor Eric Goldman and Seattle-based attorney Venkat Balasubramani. “These legal threats will
hinder the ability of anti-threat software vendors to properly classify threats to businesses and consumers, which will make the Internet less safe for everyone.”
The Silicon Valley
lobbying group Internet Association is also supporting Malwarebytes, arguing in a separate friend-of-the-court brief that the panel's “misguided” ruling “opens the door to new
attacks on self-regulatory tools that help make online communities safer and more accommodating.”