A group of former national security officials and scholars is urging the U.S. Supreme Court to stay the district court injunction requiring Google to distribute third-party app stores and allow app developers to provide alternate payment links directly to users, saying the order creates serious national and cybersecurity risks.

In an amicus brief filed Wednesday, the former high-ranking officials and security scholars told the justices that courts are institutionally ill-equipped to dictate cybersecurity management, arguing that the district judge who handed down the injunction after Epic Games beat Google at trial in 2023 may be opening up users to malware attacks and even spying by foreign adversaries.

"Requiring Google to allow developers to provide links directly to users would create inherent security risks, since Google does not have the capability to monitor linked websites for security, and users would be left to trust app developers of varying sophistication," the officials said in their brief on Wednesday. "Doing so also hinders the ability to identify and respond to threats because Google would lose visibility into activity at the app level, hindering integrated cybersecurity risk management."

Last year, U.S. District Judge James Donato in the Northern District of California issued a three-year injunction ordering Google to "tear the barriers down" within its app store, allowing developers to get around the tech giant's commissions on app and in-app purchases. Judge Donato granted the injunction over Google's claims that doing so would create serious cybersecurity risks and after a California federal jury ruled that Google had illegally monopolized the Android app distribution and billing market.

The search giant asked the high court to stay the injunction, which is currently scheduled to take effect Oct. 20, pending a full appeal of Epic's victory at trial last month.

According to the amicus experts, just one "mis-clicked link" or nefarious app download can have "catastrophic results, allowing malicious actors to access Android devices and data." The signatories of Wednesday's amicus brief include Paul Lekas, the former deputy general counsel at the U.S. Department of Defense; retired Lieutenant General Joseph Anderson of the U.S. Army; Tatyana Bolton, a former cyber policy lead at the Cybersecurity and Infrastructure Security Agency; and Joel Brenner, a senior research fellow at Massachusetts Institute of Technology's Center for International Studies and the former inspector general at the National Security Agency.

In the brief, the experts claim that the technical committee established by the injunction — with one member chosen by Epic and one by Google — is a misguided form of oversight. According to the brief, the committee's focus will be on whether Google's security measures hinder competition, rather than whether they make the Android app distribution network safer. And, they said, the committee will likely slow Google's response to fast-moving threats.

"Given the speed at which large volumes of app stores could appear and the complex and verified security risks each app could pose, the Technical Committee — which may be predisposed to view any measures as a potential threat to competition — and district court are unlikely to be able to move quickly enough to protect users from grave threats," the experts said Wednesday. "The threats are far from hypothetical. Hostile nations and other malicious actors increasingly target Americans through app-based attacks."

And more fundamentally, they say, the core issue is that courts are simply not well-equipped to assess and weigh the technical risks of orders like Judge Donato's.

The brief invokes U.S. Supreme Court Justice Antonin Scalia's 2004 majority opinion in Verizon Communications v. Law Offices of Curtis V. Trinko , in which he wrote that "No court should impose a duty to deal that it cannot explain or adequately and reasonably supervise."

But that is just what the district court has done here, the amicus experts said Wednesday.

"The district court's injunction, upheld by the Ninth Circuit, flies in the face of Trinko," the brief reads. "It places the district court at the center of managing day-to-day operations of a platform with millions of apps used by millions of people every day ... The district court is woefully ill-equipped to fill that role: Judges are selected for their legal expertise, not their cybersecurity skills."

Epic Games did not immediately respond to Law360's request for comment Thursday.

Epic Games is represented by Gary A. Bornstein, Antony L. Ryan, Yonatan Even, Lauren A. Moskowitz, Justin C. Clarke, Michael J. Zaken and M. Brent Byars of Cravath Swaine & Moore LLP, and Paul J. Riehle of Faegre Drinker Biddle & Reath LLP.

Google is represented by Glenn D. Pomerantz, Kuruvilla J. Olasa, Justin P. Raphael, Jonathan I. Kravis and Dane P. Shikman of Munger Tolles & Olson LLP, Brian C. Rocca, Sujal J. Shah, Michelle Park Chiu and Leigha M. Beckman of Morgan Lewis & Bockius LLP, Reedy C. Swanson, Jessica L. Ellsworth, Natalie Salmanowitz, Johannah Cassel-Walker and Katherine B. Wellington of Hogan Lovells, and Neal K. Katyal of Milbank LLP.

The experts are represented by Roy T. Englert Jr., Ariel N. Lavinbuk and Shikha Garg of Herbert Smith Freehills Kramer LLP.

The stay application is Epic Games Inc. v. Google LLC et al., case number 25A354, before the U.S. Supreme Court.