Amicus Curiae Brief — Google LLC, et al., Petitioners v. Epic Games, Inc., a Maryland Corporation

Supreme Court briefOct 31, 2025

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No. 25-521

IN THE

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

GOOGLE LLC, et al.,

v.

Petitioners,

EPIC GAMES, INC.,

________________

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________________

BRIEF OF COMPUTER SECURITY EXPERTS

JOHN MITCHELL, SERGE EGELMAN, KEVIN

BUTLER, AMIT ELAZARI, GUOFEI GU, AND

SHARAD MEHROTRA AS AMICI CURIAE

SUPPORTING PETITIONERS

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

ROBERT T. SMITH

Counsel of Record

NEAL S. MEHROTRA

KATTEN MUCHIN ROSENMAN LLP

1919 Pennsylvania Avenue, N.W.

Suite 800

Washington, DC 20006

robert.smith1@katten.com

202-625-3500

Counsel for Amici Curiae

i

Table of Contents

Table of Authorities .................................................... ii

Interests of Amici Curiae ............................................ 1

Summary of the Argument ......................................... 4

Argument ..................................................................... 8

I.

The injunctive relief the district court

awarded to Epic Games raises unprecedented

security issues for over one hundred million

Android users ........................................................ 8

A. The injunction will lead to a proliferation

of malicious weblinks, exposing millions

of users of Google’s Play Store to extensive

security risks ................................................ 11

B. The injunction will lead to an explosion of

scam app stores and weaken Android’s

security ecosystem worldwide ..................... 14

II. No court has considered the risks and benefits

of the remedies the district court ordered here,

escalating the need for review by this Court ..... 19

Conclusion ................................................................. 26

ii

Table of Authorities

CASES:

Granny Goose Foods, Inc. v. Bhd. of Teamsters &

Auto Truck Drivers Loc. No. 70,

415 U.S. 423 (1974) .......................................... 7, 21

La Quinta Worldwide LLC v. Q.R.T.M. S.A. DE

C.V., 762 F.3d 867 (9th Cir. 2014) ....................... 21

Mayo v. Lakeland Highlands Canning Co.,

309 U.S. 310 (1940). .................................... 7, 20-22

Purcell v. Gonzales,

549 U.S. 1 (2006) ............................................. 21-22

Trump v. Int’l Refugee Assistance Project,

582 U.S. 571 (2017) .............................................. 20

United States v. Merz,

376 U.S. 192 (1964) .............................................. 22

STATUTES:

28 U.S.C. § 455 .......................................................... 23

RULES:

Fed. R. Civ. P. 52(a)(1) .......................................... 7, 21

Fed. R. Civ. P. 52(a)(2) .............................................. 21

Fed. R. Civ. P. 53(a)(2) .............................................. 23

Fed. R. Civ. P. 65(d)(1) .......................................... 7, 21

iii

OTHER AUTHORITIES:

Admin. Office of the U.S. Courts, Electronic Filing

Scam Targets Attorneys (Nov. 6, 2024). ............... 5

Admin. Office of the U.S. Courts, Information

Systems and Cybersecurity – Annual Report

2022 ..................................................................... 13

Bitdefender, Unveiling Mobile App Secrets: A 6Month Deep Dive into Surprising Behavior

Patterns, Jan. 8, 2024 ................................... 11, 15

Eduardo Blázquez, et al., Trouble Over-The-Air:

An Analysis of FOTA Apps in the Android

Ecosystem, 2021 IEEE Symposium on Security and Privacy 1606 (2021) .......................... 8, 16

Epic Games Store,

Browse ............................................................ 25-26

Federal Bureau of Investigation, On the Internet:

Be Cautious When Connected ........................ 13-14

Federal Bureau of Investigation,

Sextortion ............................................................ 19

Federal Bureau of Investigation,

Spoofing and Phishing .................................. 11-12

Cassidy Gibson, et al., Analyzing the Monetization

Ecosystem of Stalkerware, 2022 Proceedings

on Privacy Enhancing Technology Symposium

105 (2024 Issue 4) ............................................... 18

Global Anti-Scam Alliance,

Global State of Scams – 2023 ............................. 13

Google,

Device and network abuse .................................. 11

iv

Julie Jargon, ‘Sextortion’ Scams Involving Apple

Messages Ended in Tragedy for These Boys,

Wall St. J., June 7, 2025 ..................................... 19

Platon Kotzias, et al., How Did That Get In My

Phone? Unwanted App Distribution on Android Devices, 2021 IEEE Symposium

on Security and Privacy 53 (2021) .......9-10, 12-13

Arthur R. Miller, et al., 9C Federal Practice and

Procedure (3d ed. 2025) ................................. 21-22

Nikita Samarin, et al., The Medium is the Message: How Secure Messaging Apps Leak Sensitive Data to Push Notification Services, 2024

Proceedings on Privacy Enhancing Technology Symposium 967 (2024 Issue 1) ......... 16, 18-19

Silviu Stahie, Google Blocked More than 2 Million

Apps from Being Published in Google Play,

Bitdefender, May 2, 2024 ................................... 17

Byron Tau, Apple and Google to Stop X-Mode

From Collecting Location Data From Users’

Phones, Wall St. J., Dec. 9, 2020 ........................ 17

U.S. Dist. Ct., N.D. Cal.,

Beware of Fake Court E-mails.............................. 5

The Verge,

Uber tried to fool Apple and got caught,

Apr. 23, 2017 ....................................................... 24

Interests of Amici Curiae *

Amici curiae are computer security experts—current and former academics who have studied and researched in the areas of computer security and privacy, and who have extensive experience analyzing

the security and privacy risks of mobile applications.

They have a substantial interest in ensuring that

courts make informed, rational decisions about data

security and privacy. **

John Mitchell is the Mary and Gordon Crary Family Professor, professor of computer science, and by

courtesy professor of electrical engineering and professor of education at Stanford University. He was

previously chair of the Computer Science Department. Professor Mitchell’s research focuses on programming languages, computer security and privacy,

blockchain, machine learning, and technology for education. With over 250 publications and over 30,000

citations, he has led research projects on a range of

topics, been a consultant or advisor to many companies, and served as editor-in-chief of the Journal of

Computer Security.

* Counsel for amici curiae provided notice to the counsel of record

for all parties more than ten days before the filing of this brief.

No counsel for any party authored this brief in whole or in part.

No person or entity—other than amici or their counsel—made a

monetary contribution specifically for the preparation or submission of this brief.

** Although amici are affiliated with various academic and busi-

ness institutions, they lend their support to this brief in their

individual capacities only. Nothing in this brief should be construed as the position of the academic institutions and businesses with which they are affiliated.

2

Serge Egelman is the Research Director of the Usable Security and Privacy group at the International

Computer Science Institute, which is an independent

research institute affiliated with the University of

California, Berkeley. He also holds a position as a research scientist within the Electrical Engineering and

Computer Sciences Department at the University of

California, Berkeley. He is a co-founder and Chief Scientist of AppCensus, Inc., which builds tools to test

the privacy behaviors of mobile applications. He received his Ph.D. from Carnegie Mellon University’s

School of Computer Science; his research has been

cited over 14,000 times; and he has testified before

Congress on issues relating to the privacy and security of mobile applications.

Kevin Butler is the director of the Florida Institute

for Cybersecurity and a professor of computer and information science and engineering at the University

of Florida. Professor Butler’s research focuses on the

security of computers—from embedded and mobile devices to cloud computing systems—and the data they

generate. He has led a research team that uncovered

smartphone vulnerabilities that would allow hackers

to take control of phones and extract private information without user knowledge. In response to his

groundbreaking findings, LG and Samsung promptly

developed a security patch. Professor Butler is a Senior Member of the Association of Computing Machinery (ACM) and the Institute of Electrical and Electronics Engineers (IEEE), and he serves on the Computing Research Association Computing Community

Consortium as an expert in computer security and privacy. According to Google Scholar, his work has been

cited over 6,000 times, and he has received the

3

National Science Foundation’s prestigious CAREER

Award. He received his Ph.D. in Computer Science

and Engineering from the Pennsylvania State University.

Amit Elazari is a co-founder and the chief executive officer of OpenPolicy, the world’s first tech-enabled policy intelligence and engagement platform,

which aims to democratize access to policy to entities

of all sizes. Dr. Elazari teaches at the School of Information and Cybersecurity at the University of California, Berkeley, and at Reichman University, and

serves as a member of the External Advisory Committee for the UC Berkeley Center of Long-Term Cybersecurity. Prior to OpenPolicy, she was Head of Global

Cybersecurity Policy at Intel Corporation, responsible

for shaping and executing Intel’s global security policy

and government affairs engagement across all of Intel

Technologies. She holds a Doctoral Degree in the Law

(J.S.D.) from the University of California Berkeley

School of Law.

Guofei Gu is a professor, the holder of the Eppright

Professorship in Engineering, and the Director of the

Secure Communication and Computer Systems

(SUCCESS) Lab in the Department of Computer Science and Engineering at Texas A&M University. His

research interests are in network and systems security, including software-defined programmable security, malware and intrusion detection, Artificial Intelligence security, and security related to mobile devices. Professor Gu is also an IEEE Fellow and an

ACM Distinguished Member. According to Google

Scholar, his work has been cited over 20,000 times. He

received his Ph.D. in Computer Science from the

4

College of Computing at the Georgia Institute of Technology.

Sharad Mehrotra is a Distinguished Professor of

Computer Science at the University of California, Irvine. He is a fellow of ACM and of IEEE. Professor

Mehrotra’s research expertise spans database management, distributed systems, and secure databases,

including computer and cloud security, data privacy,

cryptography, software engineering, and machine

learning. He has received numerous awards and honors, including the 2011 SIGMOD Best Paper Award,

the 2007 DASFAA Best Paper Award, DASFAA tenyear best paper award for 2013, the 1998 CAREER

Award from the National Science Foundation, ACM

ICMR Best Paper Award for 2013, IEEE SRDS Best

paper award 2018, IEEE NCA best paper award 2019,

and IEEE Percom 2022 Best Paper Award. His over

500 articles have been cited over 28,000 times according to Google Scholar. His pioneering contributions to

the field include his work on encrypted search on database as a service that was recognized through the

prestigious SIGMOD Test of Time award in 2012 and

DASFAA ten-year best paper award in 2014. Prior to

entering academia, Professor Mehrotra was a Scientist at Panasonic Technologies. He received his Ph.D.

from the University of Texas at Austin in Computer

Science.

Summary of the Argument

The Internet can be a scary place—take the federal

judiciary’s recent experience. Lawyers and parties

who had signed up for electronic filing notifications

started receiving seemingly legitimate e-mail notifications with a link to access case documents on court

5

websites. As it turned out, scammers were behind the

e-mails; the websites they were directing people to

were malicious; and some people were unwittingly

surrendering sensitive personal information and installing malware on their computers. See Admin. Office of the U.S. Courts, Electronic Filing Scam Targets

Attorneys (Nov. 6, 2024). 1

To avoid being a victim of the scam, the federal judiciary advised users to “[n]ever download attachments or click on links from unofficial or questionable

sources.” Id. And users were instructed to validate emails and “case documentation directly through

[their] local federal court’s CM/ECF system.” Id.; see

also U.S. Dist. Ct., N.D. Cal., Beware of Fake Court Emails (providing similar advice). 2

The Administrative Office of the United States

Courts drew upon two sound practices when it comes

to computer and information security. First, downloading questionable attachments or clicking on unverified links can present a serious security risk. Second, where there is a legitimate, centralized repository of information, users can use that source to verify

that a specific communication is not a scam.

In this case, however, the district court issued a

permanent injunction that violates these principles as

applied to the more than one hundred million users

whose devices run on Google’s Android operating system. First, Google was ordered to permit app

1 https://www.uscourts.gov/news/2024/11/06/electronic-filing-

scam-targets-attorneys.

2 https://www.cand.uscourts.gov/notices/beware-of-fake-court-

emails/.

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developers to include external weblinks (known as

linkouts) in apps available for download on Google’s

Play Store—links that send users to unknown and potentially untrustworthy websites. Second, the injunction mandates that Google provide the Play Store’s

full catalog of two-million-plus apps to anyone who

wishes to run a rival app store, and it compels Google

to list on the Play Store the third-party-app-store app

of these third-party app stores. These provisions will

lead to an explosion of external weblinks displayed

within apps downloaded on Google’s Play Store or

through Play Store listings, increasing the likelihood

that users will be directed to websites where they

might inadvertently install malware onto their devices or surrender highly sensitive personal and financial information. And the injunction will lead to

the proliferation of scam app stores, which will increase the prevalence of pirated and malicious apps

on Android devices and impair the ability of users to

verify the legitimacy of the apps that they might wish

to download.

Remarkably, no court—neither the district court

nor the Court of Appeals for the Ninth Circuit—has

considered the risks and benefits of the remedies the

district court awarded here. That screams out for this

Court’s intervention.

When it came to the security interests of over one

hundred million Android users, the district court

threw up its hands:

As Google has suggested, there are potential security and technical risks involved in making

third-party apps available, including rival app

7

stores. The Court is in no position to anticipate

what those might be, or how to solve them.

App.89a (emphasis added). Punting, the court left

some of these issues to a technical committee to sort

out on the backend. Id. And even then, there are critical gaps in this process that make it impossible for

Google to fully mitigate the risks presented by the injunction.

Compounding these errors, the Ninth Circuit

blessed the district court’s award of unprecedented injunctive relief, not on the strength of any “findings” on

how the injunction would affect the security interests

of tens of millions of non-parties, but instead by mere

dint of the fact that the district court had before it a

“robust record.” App.63a. That contravened this

Court’s precedents and the Federal Rules of Civil Procedure.

As this Court has recognized, when it comes to the

equities of an injunction, district courts are required

to make “findings of fact upon these vital issues”—not

leave those tasks to someone else. Mayo v. Lakeland

Highlands Canning Co., 309 U.S. 310, 316 (1940).

Rules 52(a)(1) and 65(d)(1) of the Federal Rules of

Civil Procedure demand no less. And the remedy in

this situation is equally clear—“where the required

findings of fact and conclusions of law have not been

set forth, the order is invalid.” Granny Goose Foods,

Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc.

No. 70, 415 U.S. 423, 443 n.17 (1974) (explaining the

requirement of vacatur in the context of a preliminary

injunction).

8

This Court’s review is therefore urgently needed—

to protect one hundred million Android users from unprecedented security risks, and to emphasize the importance of judicial factfinding before federal courts

award injunctive relief, particularly at the scope and

scale awarded here.

Argument

I. The injunctive relief the district court

awarded

to

Epic

Games

raises

unprecedented security issues for over one

hundred million Android users.

Google’s Android software is “the most used operating system ever”—more than Microsoft Windows or

Apple Mac OS. Eduardo Blázquez, et al., Trouble

Over-The-Air: An Analysis of FOTA Apps in the Android Ecosystem, 2021 IEEE Symposium on Security

and Privacy 1606, 1606 (2021). 3 Worldwide, over 2.5

billion devices—from smartphones to tablets and even

some computers—are running on Android daily. Id.

Among its many virtues, Android’s system is open.

Unlike Apple, which forces its users to use Apple’s

App Store to download apps on Apple devices, Google

does not force Android users to download and install

apps using the Play Store, Google’s online store for

downloading Android apps. To the contrary, Android

users may also download apps from third-party app

stores or websites—referred to as sideloading. And

unlike Apple, which is the exclusive manufacturer of

devices that run Apple’s iOS operating system

3 https://ieeexplore.ieee.org/stamp/stamp.jsp?tp=&ar-

number=9519485.

9

(namely, iPhones and iPads), Google allows other

manufacturers to produce devices that run Android.

The result is a robust marketplace for both Android

apps and the devices that run those apps.

Although Android’s openness should be heralded

for providing choice to consumers, promoting competition, and forcing Apple to make enhancements to its

own offerings, this openness creates unique security

challenges that Google has attempted to mitigate

within one of the ecosystems that it controls: Google’s

Play Store. Google’s approach to the Play Store is multifaceted, but two aspects warrant further explanation

here. First, Google makes developers who wish to

make their apps available on the Play Store adhere to

a variety of security parameters, which include forbidding developers from including linkouts in apps available on the Play Store—linkouts that could misdirect

users to malicious and unwanted websites. Second,

Google invests substantial resources to prevent problematic apps from appearing in Google’s Play Store in

the first place; it removes apps when further investigation reveals that they are malicious or subject to security vulnerabilities; and it helps implement millions

of updates each year to improve the quality of apps

available on Android devices.

Outside the Play Store and a handful of well-run

third-party app stores like Amazon’s Appstore and

Samsung’s Galaxy Store, it’s the Wild West. One

study found that, globally, alternative markets are

“on average five times riskier (3.2% VDR) than the

Play market (0.6%).” Platon Kotzias, et al., How Did

That Get In My Phone? Unwanted App Distribution on

Android Devices, 2021 IEEE Symposium on Security

10

and Privacy 53, 54 (2021). 4 Some stores, like Amazon’s, “are almost as safe as the Play market, but users of other top alternative markets have up to 19

times higher probability of encountering an unwanted

app.” Id. And that just focuses on third-party app

stores. Downloads directly from the web are currently

rare “but have significantly higher risk (3.8% VDR)

than downloads from markets, even alternative ones

(3.2%).” Id.

In this case, however, the district court awarded a

single private party, Epic Games, sweeping injunctive

relief that will weaken the security of Google’s app

ecosystem in two significant ways, adversely affecting

more than one hundred million users based in the

United States and others worldwide. First, it ordered

Google to allow linkouts within apps and listings

available on Google’s Play Store. Second, it mandated

that Google provide the Play Store’s full catalog of

apps—more than two million of them—to anyone who

wishes to run a rival app store, and it compelled

Google to list on the Play Store the third-party-appstore apps of rival third-party app stores. As explained

below, the benefits of these provisions to Epic are not

obvious, let alone to consumers at large, and the

harms to the security of Android users are drastic and

cannot reasonably be limited through risk-mitigation

strategies.

The Court should grant Google’s petition to address the critical security flaws in the district court’s

injunction order.

4 https://ieeexplore.ieee.org/stamp/stamp.jsp?tp=&ar-

number=9519429.

11

A. The injunction will lead to a proliferation

of malicious weblinks, exposing millions

of users of Google’s Play Store to extensive

security risks.

Under paragraph 10 of the injunction, Google may

not prohibit developers from embedding within the

apps they distribute through the Play Store external

links to download apps outside the Play Store. See

App.69a. This is a recipe for disaster.

Google prohibits developers from including external links in any app the developer distributes through

the Play Store because such links pose a serious security risk. See Google, Device and network abuse. 5

Links can direct users to anywhere on the Internet.

As the federal judiciary knows all too well, if links

direct users to sites that are malicious but appear legitimate, they could lead to a variety of security risks.

On Android devices, that could include tricking users

into installing malware, directing users to provide

sensitive financial and personal information, stealing

users’ data, tracking users’ activities on the Internet,

and even accessing a device’s location, text messages,

microphone, and camera. See Bitdefender, Unveiling

Mobile App Secrets: A 6-Month Deep Dive into Surprising Behavior Patterns, Jan. 8, 2024 6; see also Federal

Bureau of Investigation, Spoofing and Phishing (describing the process by which cybercriminals can use

5 https://support.google.com/googleplay/android-developer/an-

swer/16273414?hl=en&sjid=11373020642207796491-NA#.

6 https://www.bitdefender.com/en-us/blog/labs/unveiling-mobile-

app-secrets-a-6-month-deep-dive-into-surprising-behavior-patterns/.

12

links to cause users to “download malicious software,

send money, or disclose personal, financial, or other

sensitive information”). 7

The dangers of the district court’s injunction are

particularly significant because users would encounter these links in a previously trusted environment.

Because Google has spent years cultivating a secure

user experience within the Play Store and apps available on Play, users will be more prone to trust these

links, exposing them to all the risks outlined above.

See, e.g., How Did That Get In My Phone?, supra, at

61. And whereas Google can vet the apps that it makes

available through the Play Store, mitigating the risk

of malware and quickly removing malicious and unwanted apps from the Play Store and users’ devices

through centralized mechanisms, Google cannot possibly track every app available for download on the Internet that would be accessible through the kinds of

linkouts mandated by the district court.

As noted, Google does not force Android users to

download apps through Google’s Play Store; they are

free to download apps from external sources, including

from third-party app stores. But for those users who

elect to use Google’s Play Store, many prefer Play’s security features. Academic research suggests that, outside of Google Play and a handful of other well-run app

stores, users of other top alternative markets are substantially more likely to encounter malicious apps,

and the risks posed by web-downloads are

7 https://www.fbi.gov/how-we-can-help-you/scams-and-

safety/common-frauds-and-scams/spoofing-and-phishing.

13

significantly higher still. How Did That Get In My

Phone?, supra, at 54.

Cybercriminal organizations, state-sponsored actors, and freelancers are already highly successful at

tricking people over insecure forms of communication,

including e-mails, text messages, and telephone calls.

According to one study, 78 percent of mobile users experienced at least one scam in a given year, and those

scams are usually initiated by sending links to get users to install malicious applications. Global Anti-Scam

Alliance, Global State of Scams – 2023, at 12-13. 8

Moreover, these risks are not limited to an individual user’s Android device; they could expose business

and governmental networks to illicit attacks. Among

other things, cybercriminals could gain access to passwords and other sensitive information that Android

users also use to access their work accounts. That, in

turn, could expose State secrets and third-party intellectual property to theft or destruction. Likely for

these reasons, the Administrative Office of the United

States Courts recognizes the “threat” posed to its networks by court personnel accessing “malicious websites.” Admin. Office of the U.S. Courts, Information

Systems and Cybersecurity – Annual Report 2022 9; see

also Federal Bureau of Investigation, On the Internet:

Be Cautious When Connected (warning Internet users

8 https://www.scribd.com/document/679758338/Global-State-of-

Scams-Report-2023-Global-GASA-final.

9 https://www.uscourts.gov/statistics-reports/information-sys-

tems-and-cybersecurity-annual-report-2022.

14

not to access unverified links that could steer users to

spoofed websites). 10

Allowing malicious actors to communicate through

linkouts embedded in apps available for download on

Google’s Play Store will only exacerbate these problems, reducing those few regions of the Internet that

users can generally trust.

B. The injunction will lead to an explosion of

scam app stores and weaken Android’s

security ecosystem worldwide.

Under paragraphs 11 and 12 of the injunction,

Google must distribute competitor app stores through

its Play Store and provide those competitors with access to Play’s entire catalog of apps. App.69a-70a.

These paragraphs present a host of problems that

threaten to weaken Android’s app ecosystem worldwide.

To start, paragraphs 11 and 12 will lead to the proliferation of scam and substandard app stores that can

rely upon Google’s backend work to hawk their wares.

An app store requires investment and technical knowhow to attract users and gain legitimacy. But under

the injunction, Google must provide its full catalog of

apps to any applicant who requests access, App.69a70a, meaning anyone can quickly populate an app

store with over 2 million apps. Through this mechanism, the injunction makes it too easy for malicious

and shoddy app stores to feign legitimacy.

10 https://www.fbi.gov/how-we-can-help-you/scams-and-

safety/on-the-internet.

15

The risks associated with scam and substandard

app stores are already very real, and the district

court’s injunction threatens to make the problem

worse. Scam app stores lure users by appearing legitimate, but they can fake and clone apps that wreak

havoc on unsuspecting users. For example, one app

disguised itself as a movie streaming service:

Bitdefender, supra, n.6. This app was actually malware that “can access contacts data, calendar data,

sensor data, send and receive [text messages], read

and write on external storage, access the device[’s] location, read or write [telephone] call logs or even redirect [calls] to a different number, initiate or answer

phone call[s], record audio [using the device’s microphone], recognize physical activity [from the device’s

proximity and other sensors],” and “access the

16

camera” on the device. Id. Although this app was removed by Google from the Play Store, it is “still likely

available to download from other sources.” Id.

Criminals already target unsuspecting users by

cloning popular apps like Netflix, Instagram, Spotify,

and others to pry users of their passwords, infect their

devices with malware, and obtain access to sensitive

personal and financial information, id.—an unfortunate practice that occurs within the Android ecosystem. Paragraphs 11 and 12 would hand cybercriminals the tools needed to make more effective storefronts for listing such reverse-engineered apps.

Even benevolent but substandard app stores pose

security and safety risks for consumers. Operating

systems and apps require frequent updates to ensure

that they run properly and to eliminate security and

safety vulnerabilities. See, e.g., Nikita Samarin, et al.,

The Medium is the Message: How Secure Messaging

Apps Leak Sensitive Data to Push Notification Services, 2024 Proceedings on Privacy Enhancing Technology Symposium 967, 967 (2024 Issue 1). 11 Yet research has “demonstrated that many software privacy

issues”—for example, “the inappropriate disclosure of

sensitive user information”—occur because developers, like all humans, make mistakes. Id. Substandard

stores—the kinds propped up by the district court’s injunction—risk disseminating out-of-date apps with

critical security deficiencies and not updating them on

a timely basis. See Trouble Over-The-Air, supra, at

1606.

11 https://petsymposium.org/popets/2024/popets-2024-0151.pdf.

17

In contrast, well-run app stores improve the supply chain of apps by investing in the resources and

technical know-how necessary to help block and remove malicious apps from the top down, benefitting

millions upon millions of users quickly and efficiently.

In 2023 alone, “Google stopped 2.28 million policyviolating apps from being published on Google Play,”

and it blocked 333,000 bad accounts for confirmed security violations. Silviu Stahie, Google Blocked More

than 2 Million Apps from Being Published in Google

Play, Bitdefender, May 2, 2024. 12

There are numerous examples where well-run app

stores have removed dangerous apps. For example, a

company known as X-Mode had secretly embedded location-tracking software in a variety of apps, and the

company then sold data of Americans’ movements—

which could include seeking care at medical providers

or attending political events. Soon after this scheme

was revealed, Google and Apple were successful in removing X-Mode’s tracking software from any application present in their app stores. See, e.g., Byron Tau,

Apple and Google to Stop X-Mode From Collecting Location Data From Users’ Phones, Wall St. J., Dec. 9,

2020. 13 That kind of coordinated action is simply not

available at fly-by-night app stores.

As another example, Google took actions to ban

from the Play Store “stalkerware” apps, which

12 https://www.bitdefender.com/en-us/blog/hotforsecurity/google-

blocked-more-than-2-million-apps-from-being-published-ingoogle-play.

13 https://www.wsj.com/articles/apple-and-google-to-stop-x-

mode-from-collecting-location-data-from-users-phones11607549061.

18

covertly track the location of targets who have unknowingly had such apps installed on their phones,

leading to a significant reduction of available stalkerware on Android devices. Cassidy Gibson, et al., Analyzing the Monetization Ecosystem of Stalkerware,

2022 Proceedings on Privacy Enhancing Technology

Symposium 105, 119 (2024 Issue 4). 14 Meanwhile, outside the Play Store, many new stalkerware apps have

been discovered. Id. This example shows how Google

has improved the electronic and physical safety of mobile-app users in a manner that has proven ineffective

outside of well-run app stores.

The need for well-run apps stores is even more critical because of the virtues and vices of democratized

app development. As the authors of one article noted,

the Internet has allowed anyone to “become a software

engineer and distribute software worldwide,” which is

by and large “a good thing,” but it also “raises issues

of professional responsibility that have long been addressed by other more mature branches of engineering.” The Medium is the Message, supra, at 977. “In

most jurisdictions, one cannot simply decide to become a civil engineer and erect a multistory building.”

Id. Plans are checked against building codes; the

building is inspected at various stages of construction;

and even after it is complete, the building can be condemned if it is no longer safe for habitation. Id. Outside of well-run app stores, no comparable entities operate in the space of computer software.

The stakes here are alarmingly high. Malicious

and poorly developed apps may “pose risks to user

14 https://petsymposium.org/popets/2022/popets-2022-0101.pdf.

19

safety—even lethal ones.” Id. For example, “online

messaging apps are increasingly used by activists living in oppressive regimes, who may find themselves

in serious jeopardy if their communications are inappropriately revealed.” Id. (internal footnote omitted).

Closer to home, there has been a troubling surgency

of “sextortion” whereby criminals have pried young

users of sensitive photographs and other information

and targeted them for blackmail—leaving many

young Americans so distraught they have taken their

own lives as a direct result of the stress this has inflected. E.g., Federal Bureau of Investigation, Sextortion 15; Julie Jargon, ‘Sextortion’ Scams Involving Apple Messages Ended in Tragedy for These Boys, Wall

St. J., June 7, 2025. 16

The district court’s injunction would make it too

easy for people to set up app stores who, quite frankly,

have no business doing so. And the results are predictable: The Android ecosystem will become significantly

less safe and secure for users worldwide if the district

court’s injunction is implemented.

II. No court has considered the risks and

benefits of the remedies the district court

ordered here, escalating the need for review

by this Court.

Beyond the critical importance of the issues raised

in Google’s petition as it relates to the security and

safety of millions of non-parties, there are critical

15 https://www.fbi.gov/how-we-can-help-you/scams-and-

safety/common-frauds-and-scams/sextortion.

16 https://www.wsj.com/tech/personal-tech/sextortion-scam-

teens-apple-imessage-app-159e82a8?gaa_at.

20

deficiencies of process that heighten this Court’s need

to intervene. Most notably, the district court should

have made factual findings related to the equities and

then drew conclusions balancing the jury’s findings of

alleged anticompetitive conduct, Epic’s claimed need

for the various remedies that were on the table, and

the potential benefits and harms associated with each

of those remedies—particularly to the consuming public. But that never happened here.

Despite ample record evidence of the security risks

discussed in this brief, the district court made no findings about those risks, let alone weighed them against

the perceived benefits of the remedies the district

court ultimately awarded. It just gave up, confessing

it was in “no position to anticipate what those [risks]

might be, or how to solve them.” App.89a. Instead, it

purported to leave these issues to a technical committee. Id.

Precedent and rule required more. Crafting an “injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case

as the substance of the legal issues it presents.”

Trump v. Int’l Refugee Assistance Project, 582 U.S.

571, 579 (2017) (reviewing preliminary injunction). In

this case, equitable factors like whether an injunction

will pose a serious security threat to tens of millions

of users are as relevant as the legal standards for

measuring liability under the Sherman Act. On top of

that, an aggrieved party is “entitled to have explicit

findings of fact upon which the conclusion of the court

was based,” Mayo, 309 U.S. at 317—and those concerns are heightened when a private-party injunction

poses risks for millions of non-parties. Indeed, precisely for these reasons, federal courts are obligated to

21

make factual findings before issuing preliminary and

permanent injunctive relief. Fed. R. Civ. P. 52(a)(1),

(2); see also Fed. R. Civ. P. 65(d)(1). And those “findings are obviously necessary to the intelligent and orderly presentation and proper disposition of an appeal.” Mayo, 309 U.S. at 317.

To make matters worse, the Ninth Circuit explicitly blessed the district court’s failure to make findings on critical issues of computer security affecting

millions of users. App.63a-64a. Instead, the Ninth Circuit said it was enough that the district court had before it a “robust record,” App.63a—without any obligation that the district court make findings and draw

conclusions based on that record. That, too, violated

this Court’s precedents.

Where, as here, “the required findings of fact and

conclusions of law have not been set forth,” this Court

has held that the injunction “order is invalid.” Granny

Goose Foods, 415 U.S. at 443 n.17 (explaining the requirement in the context of a preliminary injunction);

accord Purcell v. Gonzales, 549 U.S. 1, 6 (2006) (per

curiam) (vacating injunction where the district court

failed to make “any factual findings”). And at least until this case, the Ninth Circuit had not hesitated to vacate injunctions where the district court’s analysis did

“not discuss a fact [the court of appeals thought] relevant to weighing the equities.” E.g., La Quinta Worldwide LLC v. Q.R.T.M. S.A. DE C.V., 762 F.3d 867, 880

(9th Cir. 2014); see also Arthur R. Miller, et al., 9C

Federal Practice and Procedure § 2577 & n.2 (3d ed.

2025) (collecting cases where courts of appeals vacated judgments because district courts had “failed to

make findings when they are required by the rule”);

id. § 2576 (explaining that findings “must be made if

22

the grant or denial of a permanent injunction turns on

issues of fact”).

The requirements of findings of fact and conclusions of law are as much about promoting good process

as they are about securing good substance. Procedurally, faithful adherence to these requirements ensures

that district courts provide litigants and the public

with an explanation for the court’s actions, which, in

turn, facilitates appellate review. Mayo, 309 U.S. at

317; see also Purcell, 549 U.S. at 5 (noting that the

absence of findings can deprive the litigants and the

public of “the necessity for clear guidance”); 9C Federal Practice and Procedure, supra, § 2571 (explaining

that findings “afford litigants an understanding of the

basis for decision”). Substantively, the requirements

of findings and conclusions force district courts to

grapple with the relevant issues, which increases the

likelihood that the courts will exercise their discretion

appropriately. That makes sense. Judges “will give

more careful consideration to the problem if they are

required to state not only the end result of their inquiry, but the process by which they reached it.”

United States v. Merz, 376 U.S. 192, 199 (1964).

Here, there is every indication that by declining to

make factual findings and draw legal conclusions related to the equities, the district court failed to consider at least three significant shortcomings associated with the relief it ordered:

First, even if it were permissible to defer findings

to a technical committee, the district court imbued

that committee with two serious procedural flaws that

will inhibit its ability to guard against the security

risks posed by the injunction. To start, the best

23

security practices are prophylactic and therefore err

on the side of protecting users from risks, but before

Google may impose security restrictions, it will “bear

the burden of proving that its technical and content

requirements and determinations are strictly necessary and narrowly tailored.” App. 70a. The district

court then left disputes about these issues to the technical committee and gave Google’s adversary, Epic

Games, a valuable seat at that three-person table. See

App.70a-71a. This differs markedly from the process

for appointing special masters under Rule 53 of the

Federal Rules of Civil Procedure. That rule specifies

that a “master must not have a relationship to the

parties, attorneys, action, or court that would require

disqualification of a judge under 28 U.S.C. § 455, unless the parties, with the court’s approval, consent to

the appointment after the master discloses any potential grounds for disqualification.” Fed. R. Civ. P.

53(a)(2). Here, in contrast, the district court baked a

conflict into its order over Google’s objection by mandating an Epic-appointed representative to the committee. Epic does not have any incentive to appoint a

representative who will act in the best interests of the

more than one hundred million Android users based

in the United States. Rather, Epic, a privately held

company, has a fiduciary obligation to appoint a representative who it believes will act in the best interests of its shareholders.

Second, the district court did not make sufficient

allowances for the technical committee to review the

obvious risks posed by the injunction. The district

court did not include any express provision authorizing Google to attempt to screen linkouts from the

standpoint of security or safety. App.69a. And the

24

injunction provides no standards for vetting candidates who request access to Google’s catalog of apps or

demand that Google list their app-store app on the

Play Store. App.69a-70a. Instead, Google is permitted

to impose security and safety standards only on the

third-party-app-store apps that it is forced to carry on

the Play Store. See id. Thus, there are glaring gaps in

the injunction’s security-review process.

Third, no amount of technical guidance can eliminate the risks posed by the injunction. For both

linkouts and apps hosted on third-party app stores,

Google would need to vet content on external web

servers (e.g., developers’ websites, third-party app

stores, etc.), which would involve a nearly infinite

amount of content at unknown locations. And even if

Google could undertake this Herculean task, there’s

no reason to believe the web address behind a link or

the third-party-app-store app vetted by Google will

serve the same content when it is visited at a different

time by someone else. For example, one prominent

app developer geofenced its app to appear to comply

with Apple’s App Store policies when that app detected that it was being run in Cupertino, California

(Apple’s headquarters), but it secretly violated those

policies when run elsewhere. The Verge, Uber tried to

fool Apple and got caught, Apr. 23, 2017. 17 As this episode illustrates, even if Google could vouch for the

content of third-party app stores at some location and

moment in time, malicious actors could serve “safe”

17 https://www.theverge.com/2017/4/23/15399438/apple-uber-

app-store-fingerprint-program-tim-cook-travis-kalanick.

25

versions of their apps when they are vetted and malicious versions when they are not.

Beyond the risks, there is no obvious benefit to the

remedies the district court awarded, underscoring the

court’s failure to fully assess the equities. Developers

are free to communicate directly with potential consumers and make their apps available for download

outside of Google’s Play Store—without the need for

them to embed external links in the apps they make

available on the Play Store. And although amici are

by no means experts on competition law, it is not obvious how consumers are served by allowing anyone

on the Internet to free-ride off Google’s backend work

to prop up an app store—particularly where there are

already credible alternatives to the Play Store, including Amazon’s Appstore, F-Droid, and Samsung’s Galaxy Store (for those with a Samsung device).

Nor are the benefits obvious when the focus is limited to Epic. As amici understand it, Epic’s principal

beef with Google was its policy that all Play Store apps

use Google Play Billing—a policy that the district

court remedied through other provisions of the injunction. Epic has not shown any need to embed links in

apps downloaded on the Play Store or within its Play

Store listing. Nor has Epic shown any need to access

the entire catalog of Google’s Play Store. To the contrary, Epic—one of the largest game developers on the

planet—has launched an app store for Android focused exclusively on mobile games, not broader apps

unaffiliated with gaming. See Epic Games Store,

26

Browse (Filter by Android) 18; accord 5-SER-974; 5SER-1194.

The upshot is no court has made factual findings

related to the risks and potential benefits of the injunction, let alone drawn conclusions based on these

factors. This Court’s review is therefore urgently

needed to reinforce the vital role these steps play in

awarding injunctive relief—particularly injunctive relief that poses a serious threat to the safety and security of millions of non-parties.

Conclusion

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ROBERT T. SMITH

Counsel of Record

NEAL S. MEHROTRA

KATTEN MUCHIN ROSENMAN LLP

1919 Pennsylvania Avenue, N.W.

Suite 800

Washington, DC 20006

robert.smith1@katten.com

202-625-3500

Counsel for Amici Curiae

October 31, 2025

18 https://store.epicgames.com/en-

US/browse?sortBy=releaseDate&sortDir=DESC&tag=Android&

count=40&start=0

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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