• by Wendy Davis  @wendyndavis, May 15, 2020

Web security company Malwarebytes has asked the Supreme Court to review a decision that allowed rival security company Enigma Software to proceed with claims it was wrongly flagged as a potential threat.

In a petition filed Monday with the Supreme Court, Malwarebytes argues that the lower-court ruling will expose companies that develop filtering tools “to a flood of retaliatory litigation.”

The battle dates to 2016, when Enigma alleged that its programs -- including SpyHunter or RegHunter -- were wrongly tagged as threats and blocked by Malwarebytes. The complaint alleged that Malwarebytes was “unilaterally disrupting” Enigma's relationship with customers.

Malwarebytes countered that Enigma “uses deceptive scare tactics” to “trick” consumers into purchasing subscriptions.

Malwarebytes also argued it was protected by Section 230 of the Communications Decency Act, which contains a provision that protects computer services from liability for restricting objectionable material.

A district court judge sided with Malwarebytes and dismissed Enigma's lawsuit. Enigma then appealed to the 9th Circuit, which reinstated Enigma's claims by a 2-1 vote. The two judges in the majority said Malwarebytes wasn't protected by Section 230 because the company competes with Enigma.

“Section 230 does not provide immunity for blocking a competitor’s program for anticompetitive reasons,” Circuit Judge Mary Schroeder wrote in an opinion joined by Judge Robert Lasnik. They sent the case back to the trial court for further hearings.

Malwarebytes now argues those judges' reasoning is inconsistent with the language of the Communications Decency Act.

“The court never explained how its reading bears any relationship to the operative text of the statute,” Malwarebytes writes. “Instead, it relied exclusively on its own policy concerns (which were themselves questionable). Unsurprisingly, that fundamentally flawed approach led the court to the wrong outcome in this case.”