concurring:
I concur with my colleagues that the plain language of the Communications Decency Act’s “good Samaritan” immunity provision, 47 U.S.C. § 230(c)(2)(B), given the way Zango has framed its appeal, compels us to affirm the district court’s judgment that Kaspersky is immune from liability. Nonetheless, extending immunity beyond the facts of this case could pose serious problems if providers of blocking software were to be given free license to unilaterally block the dissemination of material by content providers under the literal terms of § 230(c)(2)(A). The risk inheres in the disjunctive language of the statute — which permits blocking 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” — and the unbounded catchall phrase, “otherwise objectionable.” See § 230(c)(2)(A), (B).
Kaspersky is an “access software provider that provides or enables computer access by multiple users to a computer server,” § 230(f)(2), and its sale of blocking software is an “action taken to enable or make available to information content providers or others the technical means to restrict access” to Zango, which Kaspersky considers “otherwise objectionable,” § 230(c)(2)(A), (B). Arguably, Zango’s software is not “otherwise objectionable” under § 230(c)(2), but Zango waived that argument here.1 Congress plainly intended to give computer users the tools to filter the Internet’s deluge of material users would find objectionable, in part by immunizing the providers of blocking software from liability. See § 230(b)(3). But under the generous coverage of § 230(c)(2)(B)’s immunity language, a blocking software provider might abuse that immunity to block content for anti-competitive purposes or merely at its malicious whim, under the cover of considering such material “otherwise objectionable.” Focusing for the moment on anticompetitive blocking, I am concerned that blocking software providers who flout users’ choices by blocking competitors’ content could hide behind § 230(c)(2)(B) when the competitor seeks to recover damages. I doubt Congress intended § 230(c)(2)(B) to be so forgiving. Cf. Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir.2003) (“Why should a law designed to eliminate ISPs’ liability to the creators of offensive material end up defeating claims by the victims of tortious or criminal conduct?”).
When presented at oral argument with the possibility § 230(c)(2)(B) could immunize covert blocking of content the user *1179would want to access — if the user knew about it — Kaspersky emphasized that its software, Kaspersky Internet Security (“KIS”), when properly functioning, warns the user that KIS is about to block content. A pop-up window appears, and the user may “allow” the content over KIS’s warning by clicking the appropriate button. But Kaspersky conceded that immunity under § 230(c)(2)(B) does not depend on the presence of such a warning or override option. Other blocking software might be less accommodating to the user’s preferences, either not providing an override option or making it difficult to use. Consider, for example, a web browser configured by its provider to filter third-party search engine results so they would never yield websites critical of the browser company or favorable to its competitors. Such covert, anti-competitive blocking arguably fits into the statutory category of immune actions — those taken by an access software provider to provide the technical means to block content the provider deems objectionable.2 Unless § 230(c)(2)(B) imposes some good faith limitation on what a blocking software provider can consider “otherwise objectionable,” or some requirement that blocking be consistent with user choice, immunity might stretch to cover conduct Congress very likely did not intend to immunize.3
Computer users are of course always free to replace their blocking software with software more in line with their preferences, and this market-based solution finds support in the statute. See § 230(b)(2). But my concern is that blocking software providers — providers of web browsers being the most convenient and familiar example — could employ their software to block content for anticompetitive purposes without the user’s knowledge. If users are unaware of undesired blocking, they would not know to switch to different software or even to complain to the blocked provider that they are having trouble accessing its material, thereby tipping off the content provider such as Zango alleges happened here when its users complained.
In Congress’ judgment, immunity is necessary to facilitate users’ access to blocking software that makes Internet use “safer” than it otherwise would be. See § 230(b)(4). It would be an abuse of this immunity to apply it to blocking activity of *1180the kind I have hypothesized here. Nevertheless, until Congress clarifies the statute or a future litigant makes the case for a possible limitation, I agree that Kaspersky , qualifies for immunity under this broadly worded statute.
. Amici for both parties, listed above, Op. at 1172 n. 4, argued for some limitation on Kaspersky’s ability to declare Zango’s product objectionable. Zango’s amicus argued that the principle of ejusdem generis requires us to define “otherwise objectionable” by reference to the statute’s other descriptions of objectionable material. By Zango’s amicus' reading, Zango’s software could be "otherwise objectionable” only if it were akin to "obscene, lewd, lascivious, filthy, excessively violent, [or] harassing” material. 42 U.S.C. § 230(c)(2)(A). Zango did not adopt this argument. Kaspersky's amici argued for an implicit good faith limitation, such that providers of access software like Kaspersky would be immune for blocking material they consider objectionable only when that blocking is in good faith. Zango made this argument only in reply and thus waived it.
. Not every software provider is an "access software provider" under the statute, but it seems the provider of a web browser would be; most web browsers come equipped with a filtering function, i.e., the technical means to "filter, screen, allow, or disallow content.” § 230(f)(4)(A).
. The parties cite legislative history suggesting that one of § 230's chief purposes was to facilitate parents’ and employers’ efforts to control the influx of online content into the home and workplace by removing legal barriers to private filtering technologies, especially with respect to a provider’s status as speaker or publisher under defamation law. See, e.g., 141 Cong. Rec. H8470 (daily ed. Aug. 4, 1995) (statements of Rep. Cox and Rep. Wyden); see generally Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995) (unpublished) (finding PRODIGY liable to plaintiff for libel because PRODIGY exercised editorial control over its online message boards). We recently reaffirmed that protecting Internet companies from liability arising out of their status as a speaker or publisher is at the heart of § 230 immunity. See Barnes v. Yahoo!, Inc., 565 F.3d 560, 564-66 (9th Cir.2009) (construing § 230(c)(1)).
As today’s opinion makes clear, however, immunity under § 230(c)(2)(B), as opposed to (c)(1), is aimed at providers of blocking software and does not hinge on the defendant’s speaking or publishing content. Thus, the legislative history the parties cite is not helpful in determining the exact boundaries of what Congress intended to immunize. Whatever those exact boundaries, I doubt Congress intended to leave victims of malicious or anti-competitive blocking without a cause of action, and no party has affirmatively argued that it did.