CFAA and SCA Do Not Prohibit Creation Of A Fake Facebook Page

10 07 2015

The defendants in a case pending in Chicago federal court were accused of contravening Facebook’s terms of use by accessing its computers in order to create a phony page and then using it to ridicule someone. In Bittman v. Fox, Case No. 14 C 8191 (N.D.Ill., June 1, 2015) (Holderman, J.), the court held that those allegations do not state a cause of action under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, or the Stored Communications Act, 18 U.S.C. § 2707.

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Judge overturns conviction of former Goldman Sachs programmer

10 07 2015

The New York State Supreme Court has overturned the second conviction of Sergey Aleynikov, a former programmer accused of stealing high-frequency trading source code after leaving Goldman Sachs in 2009.

The Russian-American programmer, who was featured in the book Flash Boys, was previously convicted in federal court in 2010 on one count of stealing trade secrets and one count of transporting stolen property.

He was released from prison when the United States Court of Appeals for the Second Circuit overturned the conviction in 2012.

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Feds arrest “most hated man on the Internet” in revenge porn hacking case

11 02 2014

As the founder of one of the first highly profitable sites to post nude photos of people against their will, 27-year-old Hunter Moore had already been branded the most hated man on the Internet. On Thursday, he was arrested on federal charges claiming that he paid a man to break into the e-mail accounts of hundreds of victims and steal sexually explicit images that later showed up on Moore’s notorious isanyoneup.com site.

According to an indictment filed in federal court in Los Angeles, Moore paid $200 or more per week for images that he knew were obtained by illegally accessing the e-mail accounts. To cover his tracks, he used PayPal accounts that weren’t linked to his identity and at one point created new e-mail addresses and deleted data tied to past hack attacks. Moore’s arrangement with Charles “Gary” Evens, who is now 25, began at an unknown date and lasted until about May 2, 2012, prosecutors alleged in the 15-count charging document.

According to the indictment:

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Creating Parody Social Media Accounts Doesn’t Violate Computer Fraud & Abuse Act – Matot v. CH

1 10 2013

[Post by Venkat Balasubramani]

Matot v. CH, et al, 13-cv-153-TC (D.Or.) (Report and Recommendation, Aug. 19, 2013) (Order Dismissing Lawsuit, Sept. 26, 2013)

This is a strange lawsuit brought by high school principal who alleged that defendants (students) created social media accounts using the principal’s name and likeness. Defendants allegedly posted materials, including some which were obscene, that caused his reputation to be diminished.  He brought suit against defendants and their parents, alleging claims under the Computer Fraud and Abuse Act and for defamation and negligent supervision.

On a motion to dismiss brought by one of the defendants, the court finds that plaintiff failed to adequately allege a cause of action under the CFAA. Reviewing the CFAA case law, the court says that plaintiff’s cause of action is premised on defendants’ use of protected computers beyond the scope of authorization (i.e., use in a way that “exceeded authorized access”). Finding that Nosal, Brekka, and US v. Drew all frowned upon this as a legal theory (particularly when restrictions are contained in terms of use agreements), the court rejects the claim. In front of the magistrate judge, plaintiff requested leave to add a RICO claim, but the judge rejects this:

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Ex-Employee’s Access/Misuse of Employer Files States CFAA Claim — Weingand v. Harland Financial

13 08 2012

[Post by Venkat Balasubramani with comments by Eric]

Weingand v. Harland Financial Solutions, C 11 3109 EMC (N.D. Cal.; June 19, 2012)

Weingand involves claims brought by an employee, and proposed counterclaims brought by the employer against the employee. Nor surprisingly, the employer tried to assert claims under the Computer Fraud and Abuse Act (and California Penal Code section 502, a state anti-hacking statute). The court grants the employer’s motion for leave to amend, finding that the counterclaims would survive a 12(b)(6) motion.

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4th Circuit Limits the Reach of the Computer Fraud and Abuse Act – WEC Carolina Energy Solutions v. Miller

29 07 2012

[Post by Venkat Balasubramani, with comments from Eric]

WEC Carolina Energy Solutions LLC v. Miller, et al., 2012 WL 3039213 (4th Cir.; July 26, 2012)

We’ve blogged about the Computer Fraud and Abuse Act being stretched by plaintiffs in civil (particularly employment) cases. The Ninth Circuit in Nosal recently gave the statute a more limited interpretation, although it left some things unclear. (Here’s our blog post on the Nosal en banc panel opinion: “Comments on the Ninth Circuit’s En Banc Ruling in U.S. v. Nosal.”) The Fourth Circuit recently followed Nosal’s approach and went one step further. Both of these rulings make it much more difficult for employers to use the Computer Fraud and Abuse Act against departing employees.

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Court Smacks Down Koch Industries’ Attempt to Shut Down Satirical Website — Koch Industries v. Does

2 06 2012

[Post by Venkat Balasubramani]

Koch Industries, Inc. v. Does, 10CV1275DAK (D. Utah; May 9, 2011) [.pdf]

EFF, Public Citizen and other similar organizations have excellent resources for creators of parody and satire on the internet. A recent case (litigated by Public Citizen) illustrated a few pitfalls a plaintiff–who is seeking to shut down such non-commercial content–may face. A commercial motivation does not automatically doom a parody or satire defense, but the total absence of a commercial motive will neutralize a plaintiff’s claims.

Other coverage:

Utah Court Strikes Blow for Free Speech, Dismisses Trademark and CFAA Claims Against Political Activists” (EFF)
Court Protects Hoax Press Release” (Bill McGeveran)
In Which We Lose Our Funding And Are Reduced To Eating Gravel” (Popehat)
In Koch spoof case, judge favors First Amendment” (CitizenVox)

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Runescape Publisher Denied Preliminary Injunction Against Maker of Auto-Player Software — Jagex Ltd. v. Impulse Software

2 09 2010

[Post by Venkat]

Jagex Ltd. v. Impulse Software, et al., Case No. 10-10216-NMG (D. Mass.) (Aug. 16, 2010)

Jagex operates “Runescape,” a popular and free online role-playing game. The game has over 130 million accounts, and users spend a significant amount of time “rising through the levels of the game”:

as of October, 2009, the three highest-ranking players had each spent an average of approximately 20,000 hours [!] involved in a game, e.g., 50 hours per week for almost eight years.

Impulse (along with the individual defendants) operate websites offering “cheat” tools – i.e., software that allows users to advance their characters without actually playing the game. Defendants’ software downloads a copy of Runescape and “uses a process called ‘reflection’ to examine the game’s internal operation which is normally hidden from users.” The software then “plays the game for its owner while she is away from her computer.”

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EFF Weighs in on Facebook v. Power Ventures — Facebook v. Power Ventures

8 06 2010

[Post by Venkat]

Facebook v. Power Ventures, Case No. 5:08-cv-05780 JW (N.D. Cal.) (Facebook Motion) (EFF Amicus Brief)

Facebook and Power Ventures have been locked in a dispute over whether Power Ventures can access Facebook’s website and network outside of Facebook’s authorized developer channels. The dispute yielded an interesting ruling on Power.com’s motion to dismiss. The parties are both seeking summary judgment on the issue of whether Power.com’s conduct violates California Penal Code section 502(c). EFF recently weighed in with an amicus brief which makes the already interesting dispute even more interesting.

The Dispute: Facebook brought Computer Fraud and Abuse Act claims and copyright claims (along with a slew of other claims) against Power.com. Setting aside the peripheral trademark and CAN-SPAM claims, Facebook’s key allegations are that (1) Power.com accessed Facebook’s network “without authorization” in violation of the Computer Fraud and Abuse Act (and section 502(c), the California computer crime statute); (2) Power.com accessed Facebook’s network in violation of the Facebook terms of use; and (3) Power.com copied the copyrighted portions of the Facebook website in the process of allowing Facebook users to access Facebook through Power.com’s interface. (There’s also an anti-circumvention claim tied to the unauthorized copying claim.) The court denied Power.com’s motion to dismiss. (See coverage of the court’s initial ruling on Power.com’s motion to dismiss from Tom O’Toole, Jeff Neuburger, and Cyberlaw Cases.)

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Craigslist Wins $1.3M Default Judgment Against Autoposting Facilitator — craigslist v. Naturemarket

25 03 2010

[Post by Venkat]

craigslist, Inc. v. Naturemarket, Inc., Case No. C 08-05065 PJH (MEJ) (N.D. Cal. March 5, 2010) [scribd] (report and recommendation adopted on February 5, 2010)

Craigslist obtained a 1.3 million dollar default judgment against defendants Naturemarket, Inc. and Igor Gasov.

Naturemarket (doing business as powerpostings.com [typical bad choice of name]) sold software which allowed its customers to automatically post listings to craigslist. As advertised by defendants, the software made “the difficult craigslist posting process child’s play and [helped users] manage and multi-post . . . ads.” Defendants also advertised “posting agent” services where defendants would post ads on behalf of customers. Finally, defendants sold software that scraped email addresses from the craigslist site.

Craigslist sued alleging claims under (1) copyright; (2) DMCA; (3) the Computer Fraud and Abuse Act; (4) trademark; (5) breach of contract/terms of use. Defendants failed to contest the suit. The court granted default judgment against defendants:

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