A critical element in proving either a civil or criminal violation of the Computer Fraud and Abuse Act (“CFAA”), the federal computer crime statute, is that the defendant act with criminal intent as opposed to mistake or negligence. In discussing the breadth of computers covered by the CFAA the Eight Circuit emphasized the importance of this critical element of intent: “[w]hat protects people who accidentally erase songs on an iPod, trip over (and thus disable) a wireless base station, or rear-end a car and set off a computerized airbag, is not judicial creativity but the requirements of the statute itself: the damage must be intentional.” U.S. v. Mitra, 405 F.3d 492, 495-96 (8th Cir. 2005). Indeed, the CFAA expressly provides that a defendant who is charged with violating the CFAA for damaging a computer must be shown to have “intentionally caus[ed] damage without authorization.” 18 U.S.C. § 1030 (a) (5) (A) (i).
This past summer, as part of a class action suit against Apple, Inc. (“Apple”) and AT&T Mobility, LLC alleging various causes of action including the Sherman Antitrust Act, a California federal court granted summary judgment to Apple dismissing the CFAA claim because of a lack of proof that Apple had intended to damage consumers’ iPhones with its 1.1.1 Operating System Software. In re Apple & ATTM Antitrust Litigation, 2010 WL 3521965 *5-7 (N.D. Ca. July 8, 2010).
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