Website Operator Permitted to Revoke Access of Previously Authorized User Under the Computer Fraud and Abuse Act

by Holland & Knight LLP
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The Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) levies penalties on a person who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains... information from any protected computer." In recent years, a number of circuit courts have dealt with the precise meaning of the phrase "without authorization" as they endeavor to delineate the powers website operators possess to effectively block problematic users. Further, courts have wrestled with the question of whether operators can revoke previously authorized access, and if so, how they must proceed to do so.

Another case in this lineage came down recently from the Ninth Circuit as it denied defendant's motion to dismiss in Craigslist, Inc. v. 3Taps, Inc., 2013 WL 4447520 (N.D. Cal. Aug. 16, 2013). The plaintiff, the popular classified advertising website Craigslist, alleged that the defendant routinely collected Craiglist's content and then published it in real time to separate servers so as to allow it to replicate the site at its own domain name, craiggers.com. Additionally, the defendant was alleged to have created and marketed an application that allowed third parties to access copious quantities of the data, such as classified advertisements for housing and employment, present on Craigslist at any given time. Upon learning of defendant's activities, the plaintiff attempted to prevent further access by both sending a cease and desist letter, and by blocking access to its servers. The latter was particularly unsuccessful, as defendant continued to access plaintiff's site via proxy servers. As a result, the instant suit ensued. Though defendant admitted to unauthorized use of Craigslist, it argued that the claims  brought by the plaintiff under the CFAA should be dismissed because (a) the website was open for public use, and (b) the plaintiff had previously authorized defendant to access its site; therefore, it never accessed the site without authorization under the meaning of the CFAA.

In denying the motion, the court found both of these arguments unavailing. To defendant's first argument, the court responded that the issue of public use was outside the scope of the question presented to the court. With respect to defendant's second argument, the court rejected it on a number of grounds. First, it referred to a previous case in the same circuit that had explicitly held that the phrase "without authorization" confirms computer and network owners had the power to revoke previously granted access. Second, the court cited the Second Circuit's conclusion that "without authorization" had an "unambiguous and plain" meaning as referring to an authorization emanating from "permission or power granted by an authority." Accordingly, since the plaintiff had clearly revoked the permission to access its site by sending a cease and desist letter and blocking access, continuing access by defendant constituted access "without authorization," and as a result the claims pursuant to the CFAA could proceed.

A separate case in the Ninth Circuit from last year, United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc), was also cited by defendant in Craigslist, Inc. as standing for the proposition that it could not be held liable under the CFAA. In Nosal, the government brought criminal charges against the named defendant for inducing corporate employees to access their employer's computer system and steal confidential information on his behalf.  Ultimately, the court held that "without authorization" in the language of the CFAA referred to restrictions on access to information, not on the use of any information. The defendants in Craigslist, Inc. argued that Nosal represented a significant curtailment of the scope of the CFAA, and that specifically, the actions of plaintiff in the case represented merely a "creatively labeled" use restriction that thus could not spur liability. In rebutting that claim, the court in the instant case noted that Nosal applied to situations in which a user has legitimate access in the first place, and therefore, since defendant had been banned from plaintiff's website, it could categorically not claim to have legitimate access. Therefore, Nosal was inapposite to the disposition of the CFAA analysis in the instant case.

Going forward, companies may be able to seek damages under the CFAA not only against users that were never granted access to a website, but also against those who were once authorized but lost such a privilege due to changed circumstances. This flexibility should help in obtaining redress for theft of trade secrets, data, or other important types of intellectual property.

- See more at: http://www.hklaw.com/DigitalTechBlog/Website-Operator-Permitted-to-Revoke-Access-of-Previously-Authorized-User-Under-Computer-Fraud-and-Abuse-Act-08-28-2013/#sthash.K96ZHRkg.dpuf

The Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) levies penalties on a person who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains... information from any protected computer." In recent years, a number of circuit courts have dealt with the precise meaning of the phrase "without authorization" as they endeavor to delineate the powers website operators possess to effectively block problematic users. Further, courts have wrestled with the question of whether operators can revoke previously authorized access, and if so, how they must proceed to do so.

Another case in this lineage came down recently from the Ninth Circuit as it denied defendant's motion to dismiss in Craigslist, Inc. v. 3Taps, Inc., 2013 WL 4447520 (N.D. Cal. Aug. 16, 2013). The plaintiff, the popular classified advertising website Craigslist, alleged that the defendant routinely collected Craiglist's content and then published it in real time to separate servers so as to allow it to replicate the site at its own domain name, craiggers.com. Additionally, the defendant was alleged to have created and marketed an application that allowed third parties to access copious quantities of the data, such as classified advertisements for housing and employment, present on Craigslist at any given time. Upon learning of defendant's activities, the plaintiff attempted to prevent further access by both sending a cease and desist letter, and by blocking access to its servers. The latter was particularly unsuccessful, as defendant continued to access plaintiff's site via proxy servers. As a result, the instant suit ensued. Though defendant admitted to unauthorized use of Craigslist, it argued that the claims brought by the plaintiff under the CFAA should be dismissed because (a) the website was open for public use, and (b) the plaintiff had previously authorized defendant to access its site; therefore, it never accessed the site without authorization under the meaning of the CFAA.

In denying the motion, the court found both of these arguments unavailing. To defendant's first argument, the court responded that the issue of public use was outside the scope of the question presented to the court. With respect to defendant's second argument, the court rejected it on a number of grounds. First, it referred to a previous case in the same circuit that had explicitly held that the phrase "without authorization" confirms computer and network owners had the power to revoke previously granted access. Second, the court cited the Second Circuit's conclusion that "without authorization" had an "unambiguous and plain" meaning as referring to an authorization emanating from "permission or power granted by an authority." Accordingly, since the plaintiff had clearly revoked the permission to access its site by sending a cease and desist letter and blocking access, continuing access by defendant constituted access "without authorization," and as a result the claims pursuant to the CFAA could proceed.

A separate case in the Ninth Circuit from last year, United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc), was also cited by defendant in Craigslist, Inc. as standing for the proposition that it could not be held liable under the CFAA. In Nosal, the government brought criminal charges against the named defendant for inducing corporate employees to access their employer's computer system and steal confidential information on his behalf. Ultimately, the court held that "without authorization" in the language of the CFAA referred to restrictions on access to information, not on the use of any information. The defendants in Craigslist, Inc. argued that Nosal represented a significant curtailment of the scope of the CFAA, and that specifically, the actions of plaintiff in the case represented merely a "creatively labeled" use restriction that thus could not spur liability. In rebutting that claim, the court in the instant case noted that Nosal applied to situations in which a user has legitimate access in the first place, and therefore, since defendant had been banned from plaintiff's website, it could categorically not claim to have legitimate access. Therefore, Nosal was inapposite to the disposition of the CFAA analysis in the instant case.

Going forward, companies may be able to seek damages under the CFAA not only against users that were never granted access to a website, but also against those who were once authorized but lost such a privilege due to changed circumstances. This flexibility should help in obtaining redress for theft of trade secrets, data, or other important types of intellectual property.

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