The CFAA Does Not Apply To Facebook Photo Theft

by Holland & Knight LLP
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The Computer Fraud and Abuse Act (CFAA), codified at 18 U.S.C. § 1030 et seq, is a criminal statute that forbids, among other things, "intentionally access[ing] a protected computer, without authorization" when the access "recklessly causes damage" or "causes damage and loss."

In an interesting recent case from the Southern District of New York, Tan v. Doe, No. 14-cv-2663 (ALC), 2014 WL 1779048 (S.D.N.Y. May 5, 2014), a married couple found themselves bringing a claim under this statute based on the defendant's use of a photo from the couple's wedding alongside purported defamatory statements. As background, one of the plaintiffs had formerly co-founded a digital music company with the defendant. This relationship ultimately soured, and litigation between the two co-founders ensued. Ultimately, the parties reached a settlement. However, the plaintiffs eventually discovered that the defendant had been posting accusations of unethical and dishonest conduct by the plaintiffs on various blogs. Specifically, the defendant alleged that the plaintiffs had siphoned money out of the digital music company. Within at least one of the posts, a wedding photo of the plaintiff's acquired by the defendant from Facebook appeared.

In their pro se complaint, the plaintiffs alleged that these defamatory blog posts spread across social media, thereby damaging both their professional and personal reputations in the process. For redress, the plaintiffs brought causes of action alleging copyright infringement, defamation, tortuous interference, and violations of the CFAA.

After dispensing with the state law claims for lack of jurisdiction, the court also dismissed the CFAA claim for failure to state a claim.  It listed three reasons for doing so. First, the plaintiffs failed to comport with the CFAA requirement that a "protected computer" was either accessed or damaged as a result of the defendant accessing the Facebook to procure a wedding photo of the plaintiff's. Though the court rejected the claim on the technical ground that there was no evidence that the computer satisfied the requirement that it be used in "interstate or foreign commerce or communication," and therefore did not constitute a "protected computer" under the CFAA, the plaintiff's claim is problematic in other ways. See 18 U.S.C. § 1030(e)(2)(B) (defining "protected computer"). For example, given that individuals can access photos of others via Facebook from their own computer depending on the privacy settings of the particular user, it's difficult to see how the defendant's culling of a Facebook photo via the browser on his own computer could constitute access "without authorization."

As for the court's rationale, the second reason it dismissed the CFAA claim was because the plaintiff could not prove that accessing a Facebook page could result in subsequent damage to the computer. Assuming arguendo that the computer utilized to retrieve the wedding photo was accessed without authorization, the plaintiffs would nonetheless be unable to feasibly allege sufficient damage to that computer, as it did not result in "destruction or the impairment to the integrity of the underlying data." See Del Monte Fresh Produce, N.A., Inc. v. Chiquita Brands Int'l Inc., 616 F. Supp. 2d 805, 811 (N.D. Ill. 2009). Finally, the court held that the plaintiffs failed to "plead the type of loss contemplated by the statute." In particular, the plaintiffs damages were not cognizable under the CFAA because those damages did not involve a need to restore any data, programs, or other component of the accessed computer.

The court dismissed this claim without prejudice with 30 days leave to replead. In an interesting footnote, though the plaintiffs were technically proceeding as pro se litigants, one had graduated from law school. As a result, the court noted that these plaintiffs were not "entitled to the special solicitude and latitude courts traditionally afford to pro se litigants." See also Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010) ([A] [L]awyer representing himself ordinarily receives no such solicitude at all.").

 

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