Ninth Circuit Ruling Sets Rules for Virtual Trespassing
When we hear the word, “trespass,” an image of a person crossing onto private property usually enters the mind. Overall, the public is familiar with the concept of criminal trespass, but few have heard of the notion of “virtual trespass.” With the rise of the Internet, the notion of “virtual trespassing” has also come about, but to what does this term refer? In other words, how does one trespass virtually? Recently, a Ninth Circuit Court of Appeals decision tackled that issue, and its ruling may have dire implications for website owners and users alike.
Facebook v. Power
In a recent case, technology giant, Facebook, Inc. (“Facebook”) sued a startup named Power Ventures (“Power”) under the Computer Fraud and Abuse Act (“CFAA”). Under the CFAA, a federal statute designed to protect against the unauthorized access of computers and data on protected computers, defendants can be found accountable under both criminal and civil liability. In Facebook, Inc. v. Power Ventures, Inc., DBA Power.com, the Ninth Circuit found that a company can be guilty of violating the CFAA if it continues to access a website after permission has been revoked.
In the case at hand, Power was a startup that allowed users to post to multiple social media accounts (e.g., Facebook, Twitter, etc.) simultaneously. Trouble occurred when Power ran a promotion that encouraged users to connect their Facebook accounts through Power, allowing Power to use such access to directly send messages, which promoted Power, to other users on Facebook. Because Power had not registered with Facebook as an approved third-party developer, Facebook sent Power a cease-and-desist letter, requesting that they terminate the aforementioned practice. When Power failed to comply, Facebook attempted to prevent Power’s access by blocking Power’s IP address. In response, Power changed IP addresses and continued to access Facebook’s services in the same method.
Ninth Circuit Decision
In holding for Facebook, the Ninth Circuit held that Power did indeed violate the CFAA when it continued to access Facebook after receiving the cease-and-desist. Notably, the Ninth Circuit stated that Power’s first access did not violate the CFAA. Instead, violation of the CFAA only occurred after Facebook sent Power the cease-and-desist. While such finding begs the question of whether all websites are then presumed to be open, the Ninth Circuit declined to answer. It did, however, set forth two basic rules: 1) a defendant can be found guilty of violating the CFAA if it accesses a computer without permission or after permission has been explicitly revoked; and 2) mere violation of the terms of use of a website, without additional abuses, cannot serve as the only basis for a finding of liability under the CFAA.
As a result, website operators and users alike should be aware of this new jurisprudence because it significantly impacts how the CFAA may be utilized in litigation. For example, if courts choose to apply the holding broadly, website operators need only to preemptively prohibit access to their website against third parties (e.g., market competitors) to potentially trigger litigation under the CFAA. As such, this could mean that companies could prohibit specific third parties (e.g., competitors, legal counsel, auditors, etc.) from visiting their site by threatening litigation under the CFAA. While it is doubtful that courts will choose to apply the Ninth Circuit’s holding so broadly, virtual trespassing under the CFAA is now a crime that Internet users should be aware of.
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