Shady Anti-Spyware Developer Loses Lawsuit Against Competitor Who Flagged Its Software As Malicious

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Enigma Software makes Spyhunter, a malware-fighting program with a very questionable reputation. But the company isn't known so much for containing threats as it's known for issuing threats. It sued a review site for having the audacity to suggest its pay-to-clean anti-spyware software wasn't a good fit for most users… or really any users at all.Bleeping Computer found itself served with a defamation lawsuit for making fact-based claims (with links to supporting evidence) about Enigma's dubious product, dubious customer service tactics (like the always-popular "auto-renew"), and dubious lawsuits. Somehow, this dubious lawsuit managed to survive a motion to dismiss. Fortunately, Bleeping Computer was propped up by Malwarebytes' developers, who tossed $5,000 into Bleeping Computer's legal defense fund.The developers of this more highly-regarded anti-malware program soon found themselves facing the litigious wrath of Enigma, which apparently makes enough from its pay-to-clean, auto-renewing, subscription-based Spyhunter program to keeps lawyers busy all the damn time.Enigma decided to sue Malwarebytes for felony interference with a business model, a.k.a., "tortious interference." According to Enigma, it was unfair and retaliatory for Malwarebytes to treat its software as a threat to users and remove it from computers when performing scans.The judge, fortunately, did not agree. Malwarebytes has emerged victorious [PDF] in a lawsuit that began with unfair business practices allegations before somehow morphing into an argument about the limits of Section 230 immunity.Malwarebytes cited a Ninth Circuit Appeals Court decision which dealt with the actions of another anti-malware provider, Kaspersky. In that case, Kaspersky availed itself of Section 230 immunity to dismiss claims made by Zango, an adware pusher. As Malwarebytes points out, the Appeals Court found Kaspersky's blocking of Zango's adware to be immune from Zango's claims of interference, reasoning that the removal of objectionable software is pretty much equivalent to removing objectionable content. Efforts made to police software/content do not strip providers and publishers of immunity.Enigma argued the decision clearly stated the removed material must be "content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." It claimed its software fell under none of those headings. The district court disagrees:

Enigma overlooks Zango’s clear holding that § 230(c)(2)(B) immunity applies to “a provider of computer services that makes available software that filters or screens material that the user or the provider deems objectionable.”[...]This interpretation of Zango aligns with the plain language of the statute, which likewise states that immunity applies to “material that the provider or user considers to be . . . objectionable.” 47 U.S.C. § 230(c)(2)(A) (emphasis added). In Zango, the provider of the anti-malware software, Kaspersky, exercised its discretion to select the criteria it would use to identify objectionable computer programs. The Ninth Circuit held that malware, as Kaspersky defined it, was properly within the scope of “objectionable” material. In that respect, the Court agrees with Malwarebytes that Zango is factually indistinguishable from the scenario here.

Enigma’s argument fails because its complaint does not allege an intellectual property claim. The Lanham Act contains two parts: one governing trademark infringement (15 U.S.C. § 1114) and one governing unfair competition (15 U.S.C. § 1125(a)). The unfair competition provision, in turn, “creates two distinct bases of liability”: one governing false association (15 U.S.C. § 1125(a)(1)(A)) and one governing false advertising (15 U.S.C. § 1125(a)(1)(B)). Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014). Enigma’s complaint asserts a false advertising claim under § 1125(a)(1)(B). FAC ¶ 135.Enigma does not assert claims under the trademark provisions of the Lanham Act. The complaint does not allege that Enigma owns trademarks or any other form of intellectual property, nor does it allege that Malwarebytes has committed any form of intellectual property infringement, including misuse of its trademarks. Accordingly, the Court finds that Enigma’s false advertising claim under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), does not arise under a “law pertaining to intellectual property” under 47 U.S.C. § 230(e)(2).

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Texas National Guard Latest Agency To Be Discovered Operating Flying Cell Tower Spoofers

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More evidence of high-flying surveillance has been uncovered by public records requests. The Texas Observer reports it has obtained documents showing local National Guard units are in possession of airborne IMSI catchers.

The Texas National Guard last year spent more than $373,000 to install controversial cellphone eavesdropping devices in secretive surveillance aircraft.

Maryland-based Digital Receiver Technology Inc., or DRT, installed two of its DRT 1301C “portable receiver systems” in National Guard aircraft in partnership with the Drug Enforcement Administration, according to a contract between the Texas National Guard and the company. The contract states that the dirt boxes, as they’re often called after the company’s acronym, are for “investigative case analytical support” in counternarcotics operations and were purchased using state drug-asset forfeiture money.

These aren't the first DRT boxes to be exposed via public records requests. Law enforcement agencies in Chicago and Los Angeles are also deploying these surveillance devices -- with minimal oversight and no public discussion prior to deployment. The same goes for the US Marshals Service, which has been flying its DRT boxes for a few years now with zero transparency or public oversight.

The same goes for the National Guard in Texas. There doesn't seem to be any supporting documentation suggesting any public consultation in any form before acquisition and deployment. Not only that, but there's nothing in the documents obtained that clarifies what legal authority permits National Guard use of flying cell tower spoofers.

[T]he Texas National Guard is a military force under the governor’s command, not law enforcement. It’s unclear under what legal authorities the State Guard would be operating to conduct electronic eavesdropping. In 2015, the Justice Department issued guidelines for federal law enforcement agencies requiring that a probable cause warrant be obtained from a judge before using such technology. The Texas National Guard refused to explain to the Observer what steps, if any, it takes to secure a warrant prior to deploying the devices, or where the dirt boxes are being used.

No one knows what guidance the National Guard is operating under, much less what it does with all the cell phone data it hoovers up. It's a black hole and the National Guard refuses to discuss it. While it's undoubtedly true some law enforcement methods need to be kept under wraps, this doesn't mean agencies -- especially those like the National Guard which only play a supporting role in some law enforcement activities -- should deploy mass surveillance tools without some public discussion. Concerns definitely need to be addressed when a military agency gets into the domestic law enforcement business.

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