• by Wendy Davis  @wendyndavis, May 22, 2020

A recent decision in a battle between two security vendors “seriously threatens” Privacy Badger, an anti-tracking and ad-blocking tool offered by the Electronic Frontier Foundation, the digital rights organization is telling the Supreme Court.

The EFF makes the claim in a friend-of-the-court brief urging the judges to review a decision that allowed Enigma Software to proceed with allegations that its programs were wrongly deemed potential threats by rival Malwarebytes.

That lower-court decision, issued last year by the 9th Circuit Court of Appeals, reflects a “misreading of the law” that will discourage “the development of effective online filtering tools, to the detriment of Internet users,” the EFF writes in papers filed Thursday.

The 9th Circuit ruling allows Enigma to proceed with a lawsuit alleging that Malwarebytes acted anti-competitively and engaged in false advertising by flagging Enigma's SpyHunter and RegHunter as potentially unwanted programs.

The battle dates to 2016, when Enigma sued Malwarebytes for allegedly engaging in a “bad faith campaign of unfair competition” in order to interfere with Enigma's relationships with its customers.

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

Malwarebytes also argued 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.

A trial judge dismissed the lawsuit, but a panel of the 9th Circuit voted 2-1 to reinstate Enigma's complaint. The appellate panel ruled Malwarebytes wasn't entitled to immunity because it competes with Enigma.

Malwarebytes recently asked the Supreme Court to take up the case. The company says the 9th Circuit's decision is inconsistent with the language of Section 230.

The EFF agrees, arguing that the 9th Circuit ruling effectively creates a new exception to the law's broad grant of immunity. What's more, the organization adds, this new exception poses risks for providers of filtering tools.

The digital rights group specifically argues that its own anti-tracking tool, Privacy Badger, “directly benefits” from the Communications Decency Act's immunity provisions.

“Should EFF face lawsuits alleging that it has somehow acted in 'bad faith' by blocking third-party trackers and the ads they serve online, EFF’s ability to continue providing free privacy-enhancing tools to Internet users will be seriously threatened,” the group writes.

Enigma plans to file a response with the Supreme Court within the next two months, according to court papers.