A round-up of recent developments in CFAA litigation is in order. In the last three months, a series of cases have provided answers to important questions about the requirements for bringing a CFAA claim under the Computer Fraud and Abuse Act (CFAA). The recent cases address three general questions:
1. What kinds of activity are considered “unauthorized access” or “access exceeding authorization”?
2. What computers are subject to the protections of the CFAA?
3. What “losses” count toward the standing requirement to bring a civil claim under the CFAA?
What kinds of activity are considered “unauthorized access” or “access exceeding authorization”?
The CFAA prohibits various activities involving the access of a computer “without authorization” or “exceeding authorized access.” Whether the defendant’s actions constitute wrongful access is frequently litigated in CFAA cases. The recent cases are no exception. The cases considered three different factual situations and found that two of them satisfied the wrongful access requirements.
Downloading Information From a Publicly Accessible Website
Downloading information from a website that any member of the public could access via a hyperlink posted on another site does not constitute access “without authorization,” according to CollegeSource, Inc. v. AcademyOne, 2012 WL 5269213 (E.D. Pa. Oct. 25, 2012). The case involved two competing business that offered online access to college catalogs. One of the plaintiff’s (CollegeSource) services was CataLink, which provides subscribing schools with a link to CollegSource’s digital archive of the school’s course catalogs. The link could be inserted into the school’s homepage. If a person browsing on the school’s homepage clicked on the link, he or she would be sent to CollegeSource’s website without being told that they were leaving the school’s web domain. Unlike CollegeSource’s other offerings, CataLink is not a subscription-based service.
The defendant (AcademyOne) maintained an online course description database. To populate its database, AcademyOne hired a company to collect college catalogs available on the Internet. AcademyOne’s contractor obtained over 700 catalogs through CataLink.
The court was not persuaded by CollegeSource’s argument that AcademyOne accessed the CataLink service “without authorization” given that CataLink is available to anyone with an Internet connection. The court also did not accept CollegeSource’s argument that AcademyOne exceeded its authorization to use CataLink because it violated the terms of use governing the CollegeSource website. The terms of use were not binding on AcademyOne because the link to CataLink material appeared on the webpage of a school, and clicking on the link did not trigger a notice that the user was leaving the school website and being forwarded to the CataLink page.
Enlisting the Aid of a Person With Authorized Access to Obtain Restricted Information
Asking others to get you information that you’re not entitled to have will get you in trouble. In Synthes, Inc v. Emerge Medical, Inc., 2012 WL 4205476 (E.D. Pa. Sept. 19, 2012), former employees of a medical devices company who formed a competing business obtained the company’s proprietary information from current employees of the company. Inducing those with authorization to access a computer to retrieve and give information to a person who is not entitled to access such information constitutes access of a computer “without authorization,” the court held.
Hacking Into an Employees’ Email Account
This seems fairly obvious, but hacking into an employee’s email account could constitute a violation of the CFAA. The litigants in Mintz v. Mark Bartelstein & Associates, Inc., 2012 WL 5391779 (C.D. Cal. Nov. 1, 2012), didn’t even bother to fight over whether the defendant-employer violated the CFAA by ordering an employee to hack into the plaintiff’s Gmail account. The wrongfulness of the act was undisputed. The parties instead dueled over whether the plaintiff sustained “loss” as a result of the unauthorized access (see below).
What constitutes a “protected computer”?
Various prohibitions in the CFAA are tied to the accessing of a “protected computer,” which has two definitions. A “protected computer” could be a computer used exclusively by a financial institution or the U.S. government, or if not exclusively, then for a use affected by the conduct that violated the CFAA. A “protected computer” could also be a computer “which is used in or affecting interstate or foreign commerce or communication ….” 18 U.S.C. § 1030.
In Freedom Banc Mortgage Services, Inc. v. O’Harra, 2012 WL 3862209 (S.D. Ohio Sept. 5, 2012), the court held that a computer with a connection to the Internet is enough to satisfy the definition of a “protected computer” because of its use in or effect on interstate commerce. If a computer is connected to the Internet (and an allegation that the computer is used for email communications sufficiently establishes that fact), no additional link to interstate commerce needs to be shown.
What “losses” count toward meeting the standing requirement?
A claimant must have suffered “damage or loss by reason of a violation of” the CFAA to maintain a civil action under the CFAA. 18 U.S.C. § 1030(g). One way to meet this standing requirement is to establish loss during any 1-year period aggregating at least $5,000. § 1030(c)(4)(A)(i)(I). What costs qualify toward the threshold amount, and how they can be aggregated to meet the threshold, is a common issue.
The court in CollegeSource held that the costs to conduct an internal investigation, hire a computer expert, and implement subsequent security measures in response to an incident of unauthorized access count as qualifying “losses.” To that list, Synthes added expenses to conduct damage assessments; identify and trace the information that has been misappropriated; and restore data, programs, systems, and information to the condition they were in before the defendant engaged in CFAA violation. Legal expenses, however, are not “losses” unless necessary to remedy the harm caused by the violation. So in Mintz, attorneys’ fees incurred by the plaintiff to issue subpoenas to confirm the identity of the person who hacked into his email account were not “losses” because the plaintiff already knew who the hacker was before the subpoenas issued. The Mintz court contrasted another case (SuccessFactors, Inc. v. Softscape, Inc., 544 F. Supp. 2d 975 (N.D. Cal. 2008)) in which the victim of a hacked email account had to hire attorneys to identify the recipients of the victim’s confidential information that the hacker obtained and distributed. The attorneys’ fees in that case were “losses” because the plaintiff needed to know whom it had to contact to mitigate the damage caused by the hacker.
In regards to whether losses can be aggregated, the Freedom Banc court held that qualifying “losses” need not flow from a single wrongful act. Losses stemming from multiple CFAA violations could be added together to meet the threshold $5,000 amount.
