WASHINGTON D.C.  Today, TechFreedom asked the Supreme Court to review the Ninth Circuit’s decision in Enigma Software v. Malwarebytes, which opens the door to unprecedented litigation against both developers and users of technologies that filter content online — including schools and libraries. If that decision is allowed to stand, parents will find it harder to protect their children from harmful material on the Internet and everyone will have less control over their Internet experience.

“Unless the Supreme Court reverses this decision, schools, libraries, and the developers of tools they use to filter content could all be sued — exactly the opposite of what Congress intended,” said Berin Szóka, Senior Fellow at TechFreedom. “Since 1996, Section 230 has allowed filtering tools to flourish. But the Ninth Circuit decision would allow expensive litigation over whether such tools were used for anti-competitive purposes. This case is about malware vendors, but the precedent puts at risk the developers and users of parental controls and any other tool used to filter Internet content. A single lawsuit could bankrupt the developers of tools that allow users to block ads or remove content they don’t want to see from their social media feeds.” 

In 2008, the Ninth Circuit warned that, lest websites face “death by ten thousand duck-bites,” the law “must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.” In 2009, the court ruled that the plain text of Section(c)(2)(B) — which protects developers and users of filtering tools — did not depend on a showing of “good faith.” But last year, in Enigma, the Ninth Circuit reversed itself, allowing Enigma’s lawsuit against Malwarebytes, one of its competitors for anti-malware software, to proceed to determine whether Malware acted with “anticompetitive animus” when it flagged Enigma’s software as harmful malware. With nearly every Section 230 case resolved on (c)(1) grounds, a completely separate immunity, this was the first appellate decision interpreting (c)(2)(B). TechFreedom’s amicus brief asks the Supreme Court to correct the Ninth Circuit’s error and dismiss Enigma’s lawsuit. 

“The Ninth Circuit thought it needed to rewrite the statute to protect consumers but it simply did not understand how Congress had already addressed that concern,” continued Szóka. “The court worried that the law might protect ‘covert filtering’ of content unless the court added an implied exception for ‘anticompetitive animus.’ But that immunity applies only to providing filtering tools to others so that they can decide whether to ‘restrict access’ to content. Ultimately, control over filtering rests with users of Malwarebytes’ software. By the same token, it’s up to parents, school and libraries to decide whether to use tools like Net Nanny or YouTube’s Restricted Mode. It makes no sense to allow those companies to be sued when they’re not the ones choosing to filter content.”

“Generally, the Supreme Court is reluctant to take cases absent a circuit split, but this case just can’t wait,” concluded Szóka. “The near-absence of litigation about (c)(2)(B) simply proves how vital this provision has been. For nearly a quarter of a century, this provision has done precisely what Congress declared to be a core purpose of Section 230: ‘to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools.’ The Enigma decision replaces legal clarity with vast uncertainty that will discourage the development of the very tools Congress wanted to flourish. We’re already starting to see such litigation in California; if it continues there, the tech capital of the planet, it could reshape the Internet for all Americans. The Court must correct the Ninth Circuit’s error immediately.”

TechFreedom is represented pro bono by the international law firm of O’Melveny & Myers LLP, with Ian Simmons, Co-Chair of the firm’s Antitrust and Competition Practice, as counsel of record.

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Find this release on our website, and share it on Twitter. We can be reached for comment at media@techfreedom.org. See more of our work on free speech and Section 230 on our website, including: 

  • A coalition letter by 27 civil society organizations and 53 academics a set of seven principles to guide conversation about amending Section 230 of the Communications Decency Act of 1996
  • Our Twitter thread breaking down the White House Executive Order on Section 230
  • President Berin Szóka’s testimony before the House Judiciary Committee on the filtering practices of social media platforms
  • Our statement on the passage of SESTA
  • Our statement on the takedown of Backpage and its implications for Section 230 and recent sex trafficking legislation

About TechFreedom:TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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