Silicon Valley Boss Perverts Child Pornography Law


A little known legal loophole in the Communications Decency Act has been used in a malicious manner to severely limit consumer choice for one of the more vital industries in the digital age-Cybersecurity.

In a federal case originally filed in the Southern District of New York by Enigma Software Group USA, LLC vs. Malwarebytes, Inc., Enigma Software contends that Malwarebytes has intentionally and maliciously harmed it through unfair, predatory business practices.

In retaliation for Enigma Software filing a lawsuit against Bleeping Computer, LLC in which Malwarebytes was subpoenaed to produce documents that looked to establish the true business/commercial relationship between Bleeping Computer and Malwarebytes, according to the lawsuit, “Malwarebytes unilaterally revised the ‘criteria’ it uses to identify PUPs in October of 2016 and announced the revision to the public through a blog post by its CEO. This was Malwarebytes’ first announced change in its PUP criteria since 2013, and the new ‘policy’ included only subjective criteria that Malwarebytes could, and has, implemented at its own malicious whim to identify SpyHunter 4 and RegHunter as PUPs and ‘threats.’”

“PUPs” are Potentially Unwanted Programs which are automatically quarantined and disabled as “threats” by Malwarebytes for its users. Malwarebytes PUP criteria was changed to include various extremely arbitrary and vague terms, such as “diminished user experience.”

If you were a business owner in the software, or a number of many other industries, and a competitor had the legal recourse to exercise this type of power they could in theory and application exercise unlimited abusive power to damage competitors and severely limit customers’ choices.

The role of the Communications Decency Act (CDA § 230(c)(2), entitled “Protection for ‘Good Samaritan’ blocking and screening of offensive material) in the case:

The statute reads, “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.”

“Paragraph A” states that if you restrict access, it must be in “good faith”. Malwarebytes advocates that in their reliance on subsection “B” there is no good faith requirement because the words “good faith” are not in the sentence.

That argument fails for 2 reasons. First because “Subsection B” is tied to the type of content listed in “Paragraph A” where good faith is a requirement.

The second reason is Malwarebytes’ argument is illogical because it would mean that under the law “good faith” is a requirement of “Paragraph A” but under “Subsection B” could be allowed to act in bad faith-THAT MAKES NO SENSE!

That’s an argument that a lawyer only looking to avoid the plain meaning of the statute could come up with.

Adding to the unfairness in this matter is the fact that based on Malwarebytes’ logic, not only can Malwarebytes block any competing product, but any anti-virus software can block a competitor at will, giving customers effectively the option of only using one program to protect their devices. Such an arrangement would be contradictory to good practices within the cybersecurity industry where it is generally espoused that users are better protected by having multiple layers of anti-virus software.

In addition, the targeted product, Enigma Software’s SpyHunter 4, has scored high grades from independent testing laboratories in 3rd party testing for its effectiveness in blocking malware and threats on user’s computers.

With recent statistics showing 1.9 billion security breaches in the first half of 2017, (a 164% increase over the last 6 months of 2016) consumers should be appalled at this choice limiting position advocated by Malwarebytes.

Choice is always good. This message has apparently not gotten to all of the self-declared Silicon Valley bosses. Some, like Malwarebytes, are still attempting to operate as monopolists advocating unlimited and unchecked power. They don’t care about the concerns of the average consumer who desires to weigh the individual benefits of the variety of software choices available to them. Consumer advocates should also be asking for a good faith requirement surrounding any decision by software companies to block or disable software programs by a competitor.

The case is now headed to the Court of Appeals for the 9th Circuit.


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