Articles Posted in Internet Law

Unauthorized access to another’s email account can give rise to a variety of claims. The Computer Fraud and Abuse Act (“CFAA”), for example, prohibits a wide variety of improper computer activity, including unauthorized access to another’s email account. Specifically, it makes it illegal to intentionally access a computer without authorization and to thereby obtain information which results in a loss worth at least $5000 over the course of a year. (See 18 U.S.C. § 1030(a)(2)(C)). In Virginia, the Computer Crimes Act prohibits “computer fraud,” which occurs when a person uses a computer without authority and thereby obtains property or services by false pretenses. It also makes it a crime to commit “computer invasion of privacy,” which occurs when a person, without permission, logs onto someone else’s computer and examines that person’s employment, salary, credit, or any other financial information.

To obtain relief under the Virginia Computer Crimes Act, a plaintiff must have suffered injury to person or property. (See Va. Code § 18.2-152.12). And as mentioned above, you need at least $5000 in damages to recover anything under the CFAA. But what if someone hacks into your email and reads your personal messages without actually causing any direct pecuniary loss or personal injury?

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Suppose your employer asks you to create a Google account for the company. So you do. You set up everything yourself: Google Drive, Google+, Gmail–the works. You even set the password to your dog’s name. All of Google’s terms and conditions are accepted by you personally when creating the account. You proceed to use the account on behalf of the company, using Google Drive to store hundreds of company documents. Then you leave your job. Is the Google account yours? You created it, so are you free to make whatever use of the account you wish? Can you delete it?

Marcelo Cuellar thought so, but he was wrong. According to papers filed in Estes Forwarding Worldwide v. Cuellar in the Eastern District of Virginia, here are the facts. Cuellar joined Estes Forwarding Worldwide (“EFW”)–a transportation logistics company–in 2010. EFW has developed trade secrets relating to the best transportation solutions for various types of shipments, including information about type of freight, freight dimensions, routing decisions, vendor selection, and so on. It keeps this information in spreadsheets and other electronic documents.

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The Stored Communications Act (“SCA”), found at 18 U.S.C. §§ 2701-2712, establishes both a criminal offense and a civil cause of action against anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility,” and by doing so “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” Successful plaintiffs may obtain damages, equitable or declaratory relief, and reasonable attorney’s fees. (See 18 U.S.C. § 2707(b)). In the employment context, the SCA is often understood to place restrictions on those situations in which an employer can access its employees’ private email accounts (i.e., accounts maintained by third-party email service providers like Google, Microsoft, and Yahoo). A few weeks ago, the Western District of Virginia decided Hoofnagle v. Smyth-Wythe Airport Commission, in which it rejected various justifications offered by an employer for accessing a former employee’s private Yahoo! email account.

Charles H. Hoofnagle was a government employee who worked as the Operations Manager for Mountain Empire Airport in Rural Retreat, Virginia. He reported to the Smyth-Wythe Airport Commission and his duties included answering phone calls and responding to emails from the public and customers. The Commission, however, did not have in place an official policy regarding use of computers or email. The airport did not even provide employees with an email address, so Hoofnagle created a Yahoo! Mail address, charliemkj@yahoo.com, which he used for both personal and business purposes. (MKJ is the airport’s FAA idendifier code). It was this Yahoo! address that was held out to the public as an official contact for the airport and provided to nearly all vendors and customers.

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Back in 2012, the Alexandria Circuit Court ruled in an Internet defamation case that discovery could be obtained from a nonresident third party by serving a subpoena on the company’s registered agent in Virginia. That decision was reversed last week by the Virginia Supreme Court in an unambiguous ruling that is going to force a lot of Virginia attorneys to make greater use of the Uniform Interstate Depositions and Discovery Act.

I had been following this case–Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.–over the past few years with great interest, not because of the subpoena-power issue, but because the case involved some fascinating First Amendment issues and promised to offer some guidance on the correct application of Virginia’s “unmasking” statute, Section 8.01-407.1. For example, would an interactive computer service like Yelp have standing to object to complying with an enforceable subpoena by invoking the First Amendment rights of its users? Does a plaintiff need to produce evidence to meet 8.01-407.1’s “showing” requirement or can it make the required showing merely by by alleging a prima facie cause of action for defamation? In a case involving online negative reviews phrased as non-actionable statements of opinion but written anonymously by competitors hiding behind a pseudonym, how can a plaintiff demonstrate falsity (i.e., that the reviewer was not an actual customer) without an opportunity to use discovery to ascertain the poster’s true identity? The justices showed keen interest in questions like these at oral argument, but ultimately decided to save addressing them for another day.
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The Racketeer Influenced and Corrupt Organizations Act (commonly known as “RICO“) became effective on October 15, 1970. It was originally intended primarily to assist in the prosecution of mafia leaders, as it permitted them to be tried for crimes they ordered others to do rather than committed themselves. Congress never intended to limit RICO to organized crime, however. G. Robert Blakey, the primary author of the statute, once told Time Magazine, “We don’t want one set of rules for people whose collars are blue or whose names end in vowels, and another set for those whose collars are white and have Ivy League diplomas.” The statute includes a civil provision, found at 18 USC § 1964(c), that has proven particularly popular in business litigation as it allows for the recovery of treble damages and attorneys fees.

RICO makes it unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. (See 18 USC § 1962(c)). Key concepts in civil RICO cases typically include whether a true “enterprise” exists, whether the defendant has engaged in “racketeering activity,” and, if so, whether such activity constitutes a “pattern.”
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Virginia lacks an anti-SLAPP statute, but that doesn’t mean filing a frivolous lawsuit focused on eliminating criticism rather than enforcing actual legal rights can’t result in being ordered to reimburse the defendant’s legal fees. Some creative plaintiffs, finding themselves the subject of online criticism but not wanting to sue for defamation either because of an inability to satisfy the elements of the actionable libel or slander or because of other potential problems with bringing a defamation claim, have resorted to copyright law in pursuit of their goals. But as demonstrated by a recent decision of the Western District of Virginia, if the plaintiff has no valid copyright-infringement claim and/or takes unreasonable positions (either in making arguments to the court or in the process of settlement negotiations), the court has the authority not only to dismiss the case but to order the plaintiff to pay the defendant a reasonable amount of attorneys’ fees.

In Ergun M. Caner v. Jonathan Autry, the court found that “Plaintiff filed a copyright infringement suit to stifle criticism, not to protect any legitimate interest in his work” and ordered him to pay Mr. Autry $34,389.59 in attorneys’ fees and costs. The court described the facts of the case essentially as follows:
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Small businesses often find themselves the target of defamatory online reviews left by anonymous reviewers. In most cases, a subpoena can be issued to the website owner or Internet Service Provider to reveal the poster’s identity (or at least the I.P. address from which the post was written). See, for example, Yelp v. Hadeed Carpet Cleaning, in which the Virginia Court of Appeals held that Yelp could be compelled to comply with such a subpoena. Any such subpoena, however, cannot subject the recipient to undue burden. As illustrated by the recent Maryland case of In re: Subpoena of Daniel Drasin, an overreaching subpoena that places an undue burden on the recipient will be quashed.

Advanced Career Technologies, Inc. (“ACT”) sued John Does 1-10 in a Colorado federal court based on allegedly defamatory comments posted anonymously on the “Random Convergence” blog. In an attempt to discover the identity of the John Does, ACT served a third party subpoena on the blog’s administrator, Daniel Drasin, commanding him to produce any hard drives, servers and any other devices he used to administer the blog, and data stored online via website or application. Drasin moved to quash the subpoena pursuant to Federal Rule of Civil Procedure 45(c)(3) asserting that it was unreasonable, imposed an undue burden and was not likely to lead to relevant evidence.
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In yet another case involving alleged defamatory Yelp reviews, Hadeed Carpet Cleaning has filed a “John Doe” action in Alexandria Circuit Court, seeking to first learn the identities of the anonymous posters, then recover damages from them. Yelp is based in California but conducts substantial business in Virginia, so Hadeed served Yelp’s registered agent with a subpoena duces tecum seeking to identify the individuals who wrote the negative reviews. Yelp refused to comply.

Yelp objected to the subpoena on several grounds. It argued that serving a Virginia subpoena on its registered agent was insufficient to confer jurisdiction over a California company, that its advertising agreement with Hadeed required the parties to resolve their disputes in California, and that Hadeed did not meet constitutional requirements to compel Yelp to reveal the anonymous posters’ identities.

The court rejected these arguments, finding that Hadeed complied with Virginia Code § 8.01-407.1, which spells out what a party must do to discover the identities of anonymous posters on the Internet. The court found that service of a subpoena on the registered agent was sufficient to confer jurisdiction, but even if it wasn’t, Yelp would be subject to personal jurisdiction Yelp.jpganyway due to its substantial business activities in Virginia. The forum-selection clause in Yelp’s advertising agreement was inapplicable because the dispute did not arise under that contract.

Vienna, Virginia-based Immersonal, Inc., a consumer software and technology services company, has been sued for trademark infringement and related claims in Virginia federal court. Radio and Podcast personality, Ira Glass, and Chicago Public Media say Immersonal’s new “This American Startup” podcast infringes on their award-winning “This American Life” radio and podcast programs. The suit includes counts for trademark infringement and dilution, unfair competition and fraud, and violation of the Virginia Consumer Protection Act.

According to the complaint, Mr. Glass has produced, aired, promoted and distributed the radio show, “This American Life,” since 1996. The show is part of the lineup of Chicago Public Media, an Illinois not-for-profit corporation, which has owned and operated a radio station since 1990. “This American Life” is a Peabody award-winning syndicated program on contemporary American culture, including fiction and nonfiction and original monologues, mini-dramas, documentaries, music and interviews. It is also available on the internet as a podcast and is downloaded about 700,000 times per week. In many weeks, it is the ThisAmericanLife.jpgmost popular podcast in the country. The program was turned into a television show between 2006 and 2008 and garnered several Emmy awards.

The plaintiffs allege further that the mark, “This American Life,” has been in continuous use since 1996 in entertainment and in connection with the audio program. The plaintiffs co-own this and related marks and have expended significant money and air time to promote and advertise their marks in various media. They say these efforts, combined with quality programming, have led consumers to associate “This American Life” with quality service. In turn, this acceptance and good will has opened the door to additional business opportunities associated with the marks. The plaintiffs claim the mark is famous given its duration of use, reach, extensive consumption and recognition.

As noted previously on this blog, the Anticybersquatting Consumer Protection Act (“ACPA”) permits litigation to be filed against an infringing domain name itself, not just against the owner of the domain name. Which entity should file responsive pleadings in such a case, the domain name or its owner? In Sauikit LLC v. Cydia.com, the Eastern District of Virginia opined that form should not prevail over substance.

Saurikit brought an action against the domain name cydia.com alleging violations of the ACPA. Defendant’s Answer stated that Cykon Technology (“Cykon”) owned the domain name, but the defendant’s attorney signed the answer “Counsel for Cydia.com” instead of “Counsel for Cykon.” Saurikit moved for judgment on the pleadings, arguing that there was no answer on file by a claimant since the property rather than the owner of the property filed the Answer.

A successful judgment on the pleadings requires the moving party to demonstrate that no issues of material fact exist and that it is entitled to judgment as a matter of law. In deciding a motion for a judgment on the pleadings, courts view the facts in the light most favorable to the non-moving party.

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