The CFAA Does Not Apply To Facebook Photo Theft

by Holland & Knight LLP

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.").


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.