Second Circuit revives government case over emissions ‘defeat devices’

MANHATTAN (CN) — A federal appellate court on Wednesday greenlit the U.S. government’s case against two companies that sell so-called “defeat devices,” which let drivers remove computerized emissions control from their vehicles and skirt environmental regulations.

In doing so, the Second Circuit reversed a lower court’s decision from 2024, which found that the two companies — EZ Lynk and Prestige Worldwide, both of which distribute the EZ Lynk System — have immunity under Section 230 of the Communications Decency Act, a federal law that shields online platforms from civil liability for what is posted on them.

The companies argued that they don’t write the third-party software designed to beat emissions control systems, known as “delete tunes” — they only publish the software and allow users to download it on their product, the EZ Lynk System.

But contrary to the lower court’s determination, the Second Circuit found the Justice Department plausibly argued that EZ Lynk and Prestige Worldwide had a hand in developing delete tunes, making them ineligible for immunity under the Communications Decency Act.

“In our view, the complaint adequately alleges that appellees ‘directly and materially contributed to’ the creation of delete tunes,” the appellate panel wrote, citing a 2019 Second Circuit ruling that bars civil terrorism claims against social media companies.

The panel pointed to the government’s claims that EZ Lynk worked with a delete tune creator in the early stages of testing the company’s product and that the same creator jointly administers the EZ Lynk Facebook group to help drivers troubleshoot the installation of the illegal software.

“Contrary to the District Court’s assessment, those allegations do not merely suggest ‘guilt-by-association,’” the judges ruled. “Instead, they raise the reasonable inference that appellees deliberately courted … delete tunes creators and ‘collaborated with’ them to ensure that their delete tunes would be compatible with and available to users of the EZ Lynk System.”

Barack Obama appointee U.S. Circuit Judge Gerard Lynch and Joe Biden appointees U.S. Circuit Judges Alison Nathan and Eunice Lee made up the three-judge panel behind Wednesday’s ruling.

The Communications Decency Act typically covers illicit content posted on social media platforms. In 2023, the Ninth Circuit allowed Twitter to duck liability for child pornography that was posted to its site, for example.

With the Second Circuit stripping EZ Lynk and Prestige Worldwide of that Communications Decency Act immunity, the government has the green light to make them liable for violations of the Clean Air Act, which regulates automobile emissions.

At oral arguments on April 29, EZ Lynk lawyer Elliot Scherker tried to convince the court that the EZ Lynk System was not explicitly produced to beat those federal regulations. He likened the product to “nothing more than a router” and a tool that vehicle owners could use for whatever they like.

But the judges disagreed, finding the Justice Department adequately claimed the sale of these devices was encouraged for the very purpose of defeating emissions controls. When announcing the lawsuit in 2021, the government said the following about the product’s functionality:

“EZ Lynk manufactures and sells a product permitting drivers to ‘delete’ computerized emissions controls in their vehicles, in violation of the Clean Air Act. Referred to as the ‘EZ Lynk System,’ this product consists of three components: the Auto Agent, which is a physical device that plugs into vehicle computer systems to install software designed to ‘delete’ emissions controls; the EZ Lynk Cloud, which is a cloud computing platform that stores the deletion software; and the Auto Agent App, a smartphone application that connects the Auto Agent to the EZ Lynk Cloud, allowing customers to acquire and install deletion software through their smartphones.”

The case has been remanded back to the Southern District of New York, where the government can get another stab at its case against EZ Lynk and Prestige Worldwide.

A spokesperson for the district didn’t immediately respond to requests for comment about Wednesday’s order and the resuming case, nor did the companies’ attorney.

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