Will the Communications Decency Act Create an App War in Your Computer?

The YouTube app squaring off against Vimeo. Netflix taking up “digital arms” against Hulu. WebMD pulling the proverbial plug on Medscape. UberEats taking a bite out of Grubhub and so many other examples of potential tortious interference in the marketplace may seem far-fetched but under the reasoning that some software companies have already employed, these examples may become real.

Don’t believe it? Well just this week, new reports were published regarding social networking app Snapchat submitting documents that it contends demonstrated Facebook improperly blocking Snapchat content on Instagram searches.

Furthermore, due to flawed arguments advanced under the Communications Decency Act of 1996, and the subsequent interpretation of this law, this type of behavior has also occurred in the world of anti-malware software and was actually legally protected by a decision rendered in Federal Court in the Northern District of California in Enigma Software Group vs. Malwarebytes, Inc.

Most readers will recognize the legislation and its many flaws from the tireless efforts of Senator Josh Hawley (R-MO) to bring awareness to the fact that tech and social media giants like Google, YouTube, Facebook, and Twitter have been hiding behind it as they have restricted, censored and/or demonetized conservative personalities including Steven Crowder, Alex Jones, Laura Loomer and political street artist Sabo.

But there was perhaps an even more important reason to call the CDA into review, as some questionable wording within the law had allowed for the legal protection of the practice of tortious interference and anti-competitive tactics between businesses that offer similar services. Of course, anti-competitive, predatory business practices have been outlawed in America for good reason.

That all changed last week, when the 9th Circuit Court of Appeals overturned the lower court decision originally rendered in the Enigma vs. Malwarebytes case.

In the original case, Enigma Software Group argued that Malwarebytes had purposely listed for anti-competitive reasons, their competitor’s anti-malware software as a “Potentially Unwanted Program (PUP),” and blocked access to Enigma’s software from the computers of its paid subscribers. This designation essentially presented Enigma’s “Spyhunter” program as a potential virus to the millions of subscribers of their competitors, Malwarebytes’ software.

The lower court ruled that Malwarebytes had protection under The Communications Decency Act to engage in such activities despite the fact that they were attacking a direct competitor whose software has been highly rated in independent testing, and which protected consumers from cyber attacks and data breaches on their devices.

This, of course, is tantamount to a kiss of death in the highly competitive world of computer security. The 9th Circuit Court’s decision allows Enigma to proceed with its suit for damages, but more importantly, may potentially dissuade further instances of this type of anti-competitive practice that amount to “school yard bullying” by larger businesses against their rivals.

While some may attempt to frame Malwarebytes’ position as a constitutionally protected opinion, the fact that their rival’s software cannot be considered a virus, spam, adware, or any other traditional “PUP” strongly suggests the true intent they had in flagging Enigma’s program.

In a day and age where people are carrying around their lives in handheld devices that are programmed with upwards to 100 applications that provide services ranging from data and home security, to food delivery, to even entertainment, the government should not stand by silently and provide legal cover for companies willing to attack their competitors in this manner.

It’s unethical, it runs contrary to free market principles, and it’s just plain un-American. It remains to be seen what Senator Hawley and his colleagues can succeed in doing to address this still very dangerous and lingering threat to consumer choice.

The specific flaw in the law in found in CDA § 230(c)(2), entitled "Protection for 'Good Samaritan' blocking and screening of offensive material. In that section it states, "No provider or user of an interactive computer service [“ICS”] shall be held liable on account of: (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 1."

Subsection "B" is directly tied to Subsection "A." Congress however made a grammatical mistake in Subsection "B" in stating that, “any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 1." It should have stated, "any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph A."

So, if it wasn’t clear enough, which it obviously isn’t for some businesses, "Paragraph A" states that if you restrict access, it must be in "good faith." "Subsection B" is tied to the type of content listed in "Paragraph A" where good faith is a requirement. So logically, “Subsection B” also requires good faith.

This is a matter that should be immediately addressed by Congress. The potential ramifications of inaction could be so far-ranging that it could forever taint one of the last free frontiers of capitalism — the internet.

Julio Rivera is a small business consultant, political activist, writer and Editorial Director for Reactionary Times. He has been a regular contributor to Newsmax TV and columnist for Newsmax.com since 2016. His writing, which is concentrated on politics, cybersecurity and sports, has also been published by websites including The Hill, The Washington Times, LifeZette, The Washington Examiner, American Thinker, The Toronto Sun and PJ Media and many others. For more of his reports, Go Here Now.