Matot v. CH, 975 F. Supp. 2d 1191

OPINION AND ORDER

McSHANE, Judge:

Plaintiff brings this action seeking damages and equitable relief for alleged violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, defamation, negligent supervision, and parental liability pursuant to Oregon Revised Statute § 30.765. Defendant, Gary Hill, filed this motion to dismiss for lack of subject matter jurisdiction (# 14). Defendant, S.A., filed this motion for entry of a limited judgment and injunction (#25). Magistrate Judge Thomas M. Coffin filed two Findings and Recommendations (F & R) in response to defendants’ motions (# 14) and (# 25), and these matters are now before this court. See 28 U.S.C. § 636(b)(1)(B) (2012); Fed.R.Civ.P. 72(b).

Because no objections to either F & R were filed, this court reviews only the legal principles de novo. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc); see also United States v. Bernhardt, 840 F.2d 1441, 1445 (9th Cir.1988). Upon review, this court finds find no error in F & R(# 27) or F & R(# 29) and ADOPTs both in full. Defendant Gary Hall’s motion to dismiss for lаck of subject matter jurisdiction (# 14) is GRANTED and defendant S.A.’s motion for entry of a limited judgment and injunction (#25) is DENIED consistent with this opinion.

DISCUSSION

Plaintiffs CFAA claim rests on defendants’ alleged use “without authorization” of social media sendees (e.g., Facebook and Twitter) and defendants’ alleged use “exceeding] authorized access” of social media services, i.e., defendants’ violation of the terms of use of the particular social media service. As indicated by Judge Coffin in F & R(# 27), a mere violation of a use restriction, i.e., “exceeding] authorized access,” is not аctionable under the CFAA in the Ninth Circuit. U.S. v. Nosal, 676 F.3d 854, 863 (9th Cir.2012) (“[W]e hold that the phrase ‘exceeds authorized access’ in the CFAA does not extend to violations of use restrictions.”). Thus, the crux of plaintiffs argument is that defendants accessed social media services “without authorization” under 18 U.S.C. § 1030.¹

Plaintiffs “without authorization” argument focuses on defendants’ alleged use of plaintiffs name and image in creating “forged” social media accounts (e.g. Facebook and Twitter). Plaintiff attempts to cast defendants’ behavior as analogous to that of hacking² proscribed by thе CFAA. Plaintiffs argument is unpersuasive in light of (1) LVRC Holdings LLC v. Brekka, (2) United States v. Nosal, and (3) the rule of lenity.

I. LVRC Holdings LLC v. Brekka

In LVRC Holdings LLC v. Brekka,³ the Ninth Circuit held that “a person uses a computer “without authorization’ under [the CFAA] when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway.” 581 F.3d at 1135 (emphasis added). The Court further provided that “a person who uses a computer ‘without authorization’ has no rights, limited or otherwise, to access the computer in question.” Brekka, 581 F.3d at 1133. Despite this relatively bright-line rule, this Court is reluctant to use it as an absolute bar to plaintiff’s claim. To begin, unlike in Brekka, defendants are not employees of Twitter or Facebook who initially used the service for purposes of employment. Rather, as plaintiff alleges, defendants’ relationship with the social media websites was “forged ... from the ground up,” i.e., the defendants, as social media users, never were authorized because they breached the terms of use at the inception of the relationship. Likewise, this court doubts that evеn the Brekka Court would enforce its “without authorization” language to the extent implicated.⁴ For example, if a hacker⁵ targeted a United States governmental website for malicious purposes, such a hacker may be “authorized” to access the website under Brekka because many governmental websites are open to the public.⁶ In other words, if interpreted strictly, Brekka could preclude CFAA application of “without authorization” to hackers who breach governmental websites that are open to the public.⁷ For the same reason, strict adherence to Brekka’s bright-line rule outside of the employment context appears to be in conflict with the underlying legislative purpose.⁸

II. United States v. Nosal

In United States v. Nosal,⁹ the Court in dicta,¹⁰ found that “without authorization would apрly to outside hackers (individuals who have no authorized access to the computer at all).” 676 F.3d at 858 (internal quotation marks omitted) (emphasis added). In contrast, the Court found that “exceeds authorized access would apply to inside hackers (individuals whose initial access to a computer is authorized but who access unauthorized information or files).” Id. (internal quotation marks omitted). The Court further provided that “hacking” colloquially refers to “someone who’s authorized to access only certain data or files but accesses unauthorized data or files.” Id. at 856-57. Unfortunately, the Court’s colloquial definition provides little insight ‍​‌‌‌​‌‌​‌‌​​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​‌​​​‌​‌​‌​‌‌​​‍as to “outside hackers” because “hackers,” by definition, lack authorized access.¹¹ However, the Court, in affirming the district court’s dismissal of the claim, discussed numerous forms of relevant online conduct that it was unwilling to criminalize. Of these examples, many dealt with plaintiffs “trespass under false pretenses” scenario. The Court found that “lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight.” 676 F.3d at 862. The Court referenced United States v. Drew, to combat the notion that the government could be trusted to nоt “prosecute minor violations.” Id. (citing 259 F.R.D. 449 (C.D.Cal.2009). In Drew, a mother posed as a 16-year old boy (“Josh Evans”) and cyber-bullied her daughter’s classmate who ultimately committed suicide). 259 F.R.D. at 452. Although Drew’s “Josh Evans” profile was fictitious, it did include “a photograph of a boy without that boy’s knowledge or consent.” Id. Nosal’s extensive discussion of “lying on social media websites” and its subsequent disapproval of prosecution under Drew, indicate that the Ninth Circuit is unwilling to recognize plaintiffs claim under the CFAA.

III. The Rule of Lenity

The term “authorization” is not defined in the CFAA. Brekka, 581 F.3d at 1132. In Brekka, the Ninth Circuit interpreted “authorization” narrowly and found the CFAA inapplicable to employee breаch of loyalty scenarios. 581 F.3d at 1133; but see International Airport Centers, LLC v. Citrin, 440 F.3d 418, 419 (7th Cir.2006) (interpreting the CFAA to recognize employee breach of loyalty as “without authorization”). In adhering to its narrow interpretation, the Ninth Circuit stated “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Brekka, 581 F.3d at 1134 (internal quotation marks omitted) (internal citations omitted); cf. Nosal, 676 F.3d at 863 (finding that a “narrower interpretation” of “exceeding authorized access” was “a more sensible reading of the text and legislative history”).

As in both Brekka and Nosal, the rule of lenity precludes CFAA application as to defendants’ alleged conduct. Under the rule of lenity, “penal laws [are] ... to be construed strictly.” Nosal, 676 F.3d at 863 (quoting United States v. Wiltberger, 18 U.S. 76, 88, 5 Wheat. 76, 5 L.Ed. 37 (1820)) (internal quotation marks omitted). As stated in Nosal:

We construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals. [B]eeause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. If there is any doubt about whether Congress intended [the CFAA] to prohibit the conduct in which [defendants] engaged, then we must choose the interpretation least likely to impose penalties unintended by Congress.

Id. (internal citations omitted) (internal quotation marks omitted). The CFAA’s focus is “on hacking” rather than the creation of a “sweeping internet-policing mandate.” Nosal, 676 F.3d at 859. This court cannot fail “to consider the effect on millions of ordinary citizens caused by” recognizing plaintiffs claim. Id. at 863. Plaintiff alleges that defendants created false social media profiles in his name and likeness. Yet, as indicated in Nosal, “lying on social media websites is common.” Id. at 862. For example, in June 2011, Facebook predicted that approximately 83 million of 855 million active users were duplicates, false or undesirable.¹² Twitter is also thought to have a large number of “fake” accounts.¹³ More recently, police departments have taken to creating false profiles for the purpose of law enforcement.¹⁴ Were this court to “adopt the [plaintiffs] proposed [argument], millions of unsuspecting individuals would find that they are engaging in criminal conduct,” in addition to any civil liability. Nosal, 676 F.3d at 859. This Court “must choose the interpretation [of “authorization”] least likely to impose penalties unintended by Congress.” Id. (quoting United States v. Cabaccang, 332 F.3d 622, 635 n. 22 (9th Cir.2003) (internal quotations omitted)). Accordingly, this Court finds that the rule of lenity precludes application of the CFAA (“access without authorization”) to defendants’ alleged creation of fake social media profiles in violation of social media websites terms of use.

CONCLUSION

For these reasons, Judge Coffin’s F & R(# 27) and (# 29) are ADOPTED. Defendant Gary Hall’s motion to dismiss for lack of subject matter jurisdiction (# 14) is GRANTED and defendant S.A.’s motion for entry of a limited judgment and injunction (# 25) is DENIED.

IT IS SO ORDERED.

FINDINGS & RECOMMENDATION

COFFIN, United States Magistrate Judge:

Plaintiff brings this action asserting claims for computer fraud and abuse, defamation and negligent supervision. Defendant Gary Hill moves to dismiss asserting lack of subject matter jurisdiction.

Plaintiff an assistant principal at a middlе school in Salem, Oregon, alleges that one or more of the defendants created social media accounts under his name and likeness. Defendants then allegedly invited students to communicate with them under the accounts falsely tied ‍​‌‌‌​‌‌​‌‌​​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​‌​​​‌​‌​‌​‌‌​​‍to plaintiff. Plaintiff further alleges that defendants published false and defamatory statements and images about or attributed to plaintiff using the false accounts. Plaintiff alleges that the parents of defendant CH were negligent in their supervision of CH’s internet and computer use causing harm to plaintiff.

Plaintiff asserts the court has subject matter jurisdiction based on the Computer Fraud and Abuse Act. Although it is unclear which provision plaintiff relies upon for his claim, the Act prohibits, among other things, access to a protected computer without authorization, or exceeding authorization, with intent to defraud via use of the computer. 18 U.S.C. § 1030(a)(4).¹

Although a criminal statute, a civil cause of action may be maintained:

Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or othеr equitable relief. A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(I). Damages for a violation involving only conduct described in subsection (c)(4)(A)(i)(I) are limited to economic damages. No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage. No action may be brought under this subsection for the negligent design or manufacture of computer hardware, computer software, or firmware.

18 U.S.C. § 1030(g)

Under 18 U.S.C. § 1030(c)(4)(A)(i)(IV) threats to public health or safety are addressed.

In essence, plaintiff alleges that the actions of CH and the Doe defendants caused harm to plaintiff and to over 70 presumed students who were invited to friend the forged Face book account attributed to plaintiff, by associating plaintiff (and exposing students to) obscene materials. Plaintiff further contends that such actions impaired plaintiff in his professional capacity and compromised the security of the students at the middle school.

While plaintiff alleges that certain defendants created false social media accounts and used protected computers to do so, plaintiff does not allege a direct lack of authorization to use the computers. Plaintiff, rather, asserts “violation of the license under which access is provided.” First Amended Complaint (# 10) at ¶ 24. In other words, plaintiff alleges that defendants violated the terms of use of social media sites such as www.twitter.com and www.facebook. com.

The Ninth Circuit has analyzed the term “without authorization” in LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132-35 (9th Cir.2009). The court held that “a person uses a computer ‘without authorization’ under § 1030(a)(2) and (4) when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any ’permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway.” Id. at 1135. The complaint does not allege that defendants did not have permission to use the social networking computers for any purpose, but rather thеy used the computers in violation of the license permitting the access, as noted above. Accordingly, plaintiff must rely'on the Act’s prohibition on “exceeding authorized access.” However, because the restriction alleged is regarding the type of use of the social media computers rather than a limitation on access, the Computer Fraud and Abuse Act claim fails in this regard as well.

The Act defines “exceeds authorized access” as accessing “a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.” 18 U.S.C. § 1030(e)(6). Here, Congress intended (interpreting the Act under the rule of lenity as is necessary for criminal statutes) to target the unauthorized procurement or alteration of information, not its misuse or misappropriation. United States v. Nosal, 676 F.3d 854, 863 (9th Cir.2012).² Thus, “exceeds authorized access” in the Act is limited to violations of restrictions on access to information, and not restrictions on its use. Id. at 864. In this case, plaintiff alleges that the access granted to defendants was limited by а prohibition on using social media under false pretense to create accounts under the name and likeness of plaintiff. First Amended Complaint (# 10) at ¶¶ 24-26. While plaintiff alleges the access was “unauthorized,” access was permitted under a license. The violation of the license is a restriction on use and does not allege a violation of the Act. See Nosal, at 862 (citing a case finding conviction under the Act via violation of social media site’s terms of service void for vagueness wherein a mother posed as a 17-year-old boy and сyber-bullied her daughter’s classmate in violation of MySpace’s prohibition on lying about identifying information). Accordingly, the Computer Fraud and Abuse claim should be dismissed.³ Once the Computer Fraud and Abuse claim is dismissed, plaintiff has failed to allege any federal cause of action upon which this court may base jurisdiction.

Plaintiff argues that if his Computer Fraud and Abuse Act claim is dismissed, he should be granted leave to amend to add a Racketeer Influenced and Corrupt Organizations Act (RICO) claim. To state a claim under RICO, 18 U.S.C. § 1961 et seq., plaintiff must allege that he has beеn injured by “(1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity.” Jarvis v. Regan, 833 F.2d 149, 151-52 (9th Cir.1987).

Plaintiff asserts that he can allege the predicate acts of obscenity and wire fraud. It is highly questionable whether the allegedly obscene material (submitted by plaintiff, unsealed, as exhibit 1 to the declaration of counsel (# 16)), qualifies as obscene given contemporary standards. In addition, it is difficult to understand how plaintiff could allege wire fraud as a predicate act. To establish the predicate act of mail or wire fraud a plaintiff must allege that defendants engaged in (1) a scheme to defraud (2) to get money or property, (3) furthered by the use of interstate mail or wires. USA Certified Merchants, LLC v. Koebel 262 F.Supp.2d 319, 332 (S.D.N.Y2003) (quoting United States v. Autuori, 212 F.3d 105, 115 (2nd Cir.2000)). Plaintiff contends that the intent to defraud was to convey to the public that the Facebook page belonged to plaintiff causing harm, not to obtain any property.

Moreover, Congress did not intend to target the misguided attempts at retribution by juvenile middle school’ students against an assistant principal in enacting RICO. The legislative history demonstrates that the RICO statute was intended to provide a new weapons for an assault upon organized crime and its economic roots. Congress’ statement of findings and purpose in enacting Pub.L. 91-452, 84 Stat. 922 (1970), is set forth in section 1. The statement describes the problem presented by organized crime. Congress declared: “It is the purpose of this Act to seek the eradication of organized crime in the United States ... by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” Id., at 923. Congress emphasized the need to fashion new remedies in order to achieve its objectivеs. See S.Rep. No. 91-617, p. 76 (1969). “What is needed here ... are new approaches that will deal not only with individuals, but also with the economic base through which those individuals constitute such a serious threat to the economic well-being of the Nation. In short, an attack must be made on their source of economic power itself, and the attack must take place on all available fronts.” Id., at 79. The legislative history shows that the economic power of organized crime derived from its huge illegal profits. See Blakey, The RICO Civil Fraud Action in Context: Reflections оn Bennett v. Berg, 58 Notre Dame L.Rev. 237,249-256 (1982). In short, Congress’ ‍​‌‌‌​‌‌​‌‌​​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​‌​​​‌​‌​‌​‌‌​​‍overriding goal was remove profit from organized crime. Russello v. United States, 464 U.S. 16, 28, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). As noted above, this is not a case about a grand scheme to obtain money, it was an attempt to cause harm primarily in a nonmonetary way. This is simply not the kind of case envisioned by Congress in providing for a civil cause of action under RICO. Plaintiffs strained effort to assert federal question jurisdiction by resort to RICO should not be allowed via amendment.

Perhaps recognizing that a claim under RICO is implausible, plaintiff also asserts that the proper remedy for defendant in its motion to dismiss is remand for the remaining state law claims. However, this case has not been removed from state court and thus there is nowhere for this court to remand the state law claims. Jurisdiction over the state law claims is based on supplemental jurisdiction with the Computer Fraud and Abuse Act claim which, as noted above, should be dismissed.

When the federal claims are dismissed before trial, it is wholly within the district court’s discretion to dismiss the state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); see also Schneider v. TRW, Inc., 938 F.2d 986, 993-94 (9th Cir.1991). The court has not invested its judicial energies to such an extent that would justify retaining jurisdiction. See Schneider, 938 F.2d at 994; Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir.1981). Nor is it apparent that judicial economies would be served by retaining jurisdiction over this case. See Schneider, 938 F.2d at 994. In weighing issues of economy, convenience, fairness, and comity, the court should decline to retain supplemental jurisdiction over the remaining state law claims and this case should be dismissed.

CONCLUSION

For the reasons stated above, defendant Gary Hill’s motion to dismiss (# 14) should be granted and this action should be dismissed.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court’s judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party’s right to de novo consideration of the factual issues and will constitute a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.

Notes

1 . Plaintiff does not articulate a particular provision under the CFAA. However, for purposes of this analysis, this Court will assume that plaintiff seeks recovery under 18 U.S.C. § 1030(a)(2)(C), (a)(4), and/or (a)(5)(B) & (C).

2 . Plaintiff also casts defendants’ conduct as trespass under false pretenses.

3 . In Brekka, defendant, as an employee of plaintiff, was given an administrative log-in to access company documents and information. During his employment, Brekka emailed company documents to his personal computer. The Court found that Brekka was still employed by plaintiff when “he emailed the documents to himself” and thus, Brekka "had authorization to use the computer.” 581 F.3d 1127, 1133 (9th Cir.2009).

4 . First, in Brekka, the Court stated "[tjhere is no dispute that if Brekka accessed LVRC’s information on the LOAD website after he left the company ... Brekka would have accessed a protected computer 'without authorization’ for purposes of the CFAA.” In so stating, the Court focused on Brekka’s alleged use of the “cbrеkka” log-in (i.e., use of cbrekka user-name and password), and not Brekka’s alleged access of the website itself. Thus, the Court’s own analysis ignored possible permissible website access and instead focused on impermissible use of log-in information. Second, the Brekka Court cited an earlier Ninth Circuit opinion, Theofel v. Farey-Jones, to support its finding that "there is no dispute that Brekka had permission to access the computer.” 581 F.3d at 1133 (citing Theofel v. Farey-Jones, 359 F.3d 1066, 1072-73 (9th Cir.2003)). In Theofel, the Court discussed plaintiff's claim under the Stored Communications Act, 18 U.S.C. 2701 et seq. in terms of common law trespass. Theofel, 359 F.3d at 1072. The Theofel Court provided multiple examples of unauthorized access, e.g., a "busybody who gets permission to come inside by posing as a meter reader” and a "police officer who, invited into a home, conceals a recording device for the media.” 359 F.3d at 1073. To the extent that Brekka relies on Theofel, the court appears receptive to a trespass scenario analogous to that alleged in plaintiff’s complaint (i.e., defendants’ posed as plaintiff to gain access to social media websites).

5 . In this example, the term “hacker” refers to "a person who uses his skill with computers to try to gain unauthorized access to computer files or networks.” The Oxford-English Dictionary Vol. VI, 1000 (2d ed.2001); see also American Heritage Dictionary of the English Language 787 (4th ed.2000) (defining hacker as "one who uses programming skills to gain illegal access to a computer network or file.”).

6 . See, e.g., United States Central Intelligence Agency, https://www.cia.gov/about-cia/sitepolicies/ (last visited Sep. 18, 2013) ("information presented on this Web site is considered public information and may be distributed or copied freely____”); United States National Security Agency, http://www.nsa. gov/terms_of_use.shtml# security (last visited Sep. 18, 2013) ("The National Security Agency Web site (NSA.gov) is provided as a public service by the National Security Agency.”); United States Department of Defense, http:// www.defense.gov/landing/privacy.aspx (Past visited Sep. 18, 2013) ("Information presented on this website is considered public....”).

7 . See. e.g., Southwest Airlines Co. v. Board-First, L.L.C., 2007 WL 4823761, at *14 (N.D.Tex.2007) ("[I]t is at least arguable here that [defendant's] access of the Southwest website is not at odds with the site’s intended function; after all, the site is designed to allow users to obtain boarding passes for Southwest flights via the computer. In no sense can [defendant] be considered an ‘outside hacker [] who breakfs] into a computer' given thаt southwest.com is a publicly available website that anyone can access and use.”).

8 . In Senate Report 104-357, the Senate Judiciary Committee stated that the purpose of the Leahy-Kyl-Grassley amendment was to “strengthen [the CFAA], by closing gaps in the law....” S.Rep. No. 104-357, at 3 (1996), reprinted, in 1996 WL 492169. This Report, in discussing coverage omissions, referenced the 1994 intrusion into the Griffiss Air Force Base in New York by a 16-year-old hacker based out of the United Kingdom and the 1996 Justice Department investigation of an Argentinian man who had broken into Harvard University’s computers from Buenos Aires and used those computers as a staging ground to hack into other computer sites. Id. at 4-5. At least as to the Harvard example, it is plausible that ‍​‌‌‌​‌‌​‌‌​​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​‌​​​‌​‌​‌​‌‌​​‍the hacker’s initial access could have been permitted under Brekka in modern times through Harvard’s public website. See Harvard University, www.harvard. edu/ (last visited Sep. 18, 2013). In Senate Report 99-432, the Senate Judiciary Committee, in emphasizing the risk of computer crime, discussed the "414 Gang” who broke into the computer system at Memorial Sloan-Kettering Cancer Center in New York and gained access to the radiation treatment records of 6,000 past and present canсer patients. S.Rep. No. 99-432, at 2-3 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2481. Memorial Sloan-Kettering Cancer Center now has a public website with a patient login portal. See Memorial Sloan-Kettering Cancer Center, http://www.mskcc.org/ (last visited Sep. 18, 2013). Thus, under both Senate Reports, strict adherence to Brekka outside of the employment context appears to be in conflict with legislative intent.

9 .In Nosal, defendant, a former employee of Korn/Ferry, encouraged some of his former colleagues to transfer company documents and information to him. At the time, defendant’s former colleagues were authorized to access the database, but were prohibited from disclosing the confidential information. 676 F.3d at 856. Defendant was charged with aiding and abetting his former colleagues in exceeding their authorized access with intent to defraud. Id.

10 . In Nosal, the Ninth Circuit reviewed Nosal’s conviction under 18 U.S.C. 1030(a)(4) for aiding and abetting the Korn/Ferry employees in “exceeding their] authorized access” with intent to defraud. 676 F.3d at 856. Thus, the Ninth Circuit’s discussion beyond "exceeding authorized access” was not essential to the decision. See Black’s Law Dictionary 519 (9th ed.2009) (defining judicial dictum as "[a]n opinion by а court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision”); see also Weingand v. Harland Financial Solutions, Inc., 2012 WL 2327660, at *3 (June 19, 2012) ("[Although Nosal clearly precluded applying the CFAA to violating restrictions on use, it did not preclude applying the CFAA to rules regarding access.”).

11 . The term "authorization” is potentially subject to varying degrees of technical interpretation. For example, in United States v. Morris, the Second Circuit affirmed the criminal conviction of a defendant graduate student who used his access to a university’s computer system to upload malware. 928 F.2d 504, 511 (2d Cir.1991). Defendant Morris argued that his access was "authorized” because his worm only gained access to the other computers by virtue of their configurations and to the extent that defendant's worm circumvented passwords, it still only accessed the other computers in the manner to which they had been configured to be accessed. The Court rejected this argument, finding "Morris did not use either of those features in any way related to their intended function.” 928 F.2d at 510; cf. EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 582 n. 10 (1st Cir.2001) ("Congress did not define the phrase ‘without authorization,' perhaps аssuming that the words speak for themselves. The meaning, however, has proven elusive.”). The Ninth Circuit cited Morris for the proposition that "authorization” is of common usage. Brekka, 581 F.3d at 1132 (citing Morris, 928 F.2d at 511).

12 . Somini Sengupta, Facebook’s False Faces Undermine its Credibility, N.Y. Times, Nov. 12, 2012, http://www.nytimes.com/2012/ll/ 13/technology/false-posts-on-facebook undermine-its-credibility.html.

13 . See, e.g., Nicole Perlroth, Researchers Call Out Twitter Celebrities with Suspicious Followings, N.Y. Times, Apr. 25, 2013, http://bits. blogs.nytimes.com/2013/04/25/researcherscall-outtwitter-celebrities-with-suspiciousfollowings/?_r=0 ("fake Twitter followers offer potential for a $40 million to $360 million business.”); Caitlin Moore, Fake Twitter: The parody accounts to lighten up your news streаm, Wash. Post, Mar. 6, 2012, http://www. washingtonpost.com/blogs/arts-post/post/faketwitter-the-parodyaccounts-to-lighten-upyournews-stream/2012/03/0 l/gIQALpiptR_ blog.html ("Twitter allows untruths and parody to flourish with fake accounts .... ”); Ashley Parker, Fake Twitter Accounts Get Real Laughs, N.Y. Times, Feb. 9, 2011, http://www. nytimes.com/2011/02/10/us/politics/10faketwitter.html ("Fake Twitter personalities mock actors like Chuck Norris and world leaders like President Hosni Mubarak----”).

14 . See, e.g., Heather Kelly, Police embrace social media as crime-fighting tool, CNN, Aug. 20, 2012, http://www.cnn.com/2012/08/30/ tech/social-media/fighting-crimesocial-media/ index.html ("A more controversial approach to getting information ... creating fake profiles to befriend suspects.”).

1 . Sections 1030(a)(5)(B) and (C) also prohibits intentional access without authorization causing damage, but does not include the exceeding authorized access language prohibited by section 1030(a)(4).

2 . Although Nosal is a criminal case, because the Computer Fraud and Abuse Act has both criminal ‍​‌‌‌​‌‌​‌‌​​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​‌​​​‌​‌​‌​‌‌​​‍and civil applications, it is to be interpreted consistently. See Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

3 . Plaintiffs attempt to cast the complaint as one of “hacking” because permission to access Facebook was "arguably” granted to only plaintiff when defendants used his “stolen name and stolen image to create a forged account” (Memorandum in Opposition (# 15) at p. 4) is unavailing. Plaintiff does not, and cannot, allege that defendants accessed, without authorization, his Facebook account by stealing, for example his i.d. and password, but rather that they created an account in his name after accessing Facebook in violation of Facebook's license for use. There is no allegation that defendants were not authorized to access Facebook's computers to set up an account that did abide by Facebook's policies.

Case Details

Case Name: Matot v. CH

Court Name: District Court, D. Oregon

Date Published: Sep 26, 2013

Citations: 975 F. Supp. 2d 1191; 2013 U.S. Dist. LEXIS 138327; 2013 WL 5431586; Civ. No. 6:13-cv-153-MC

Docket Number: Civ. No. 6:13-cv-153-MC

Court Abbreviation: D. Or.