Sewell v. Bernardin

Aug 4, 2015
14-3143
Versions:795 F.3d 337

Before: POOLER, SACK, and DRONEY, Circuit Judges.

The plaintiff, Chantay Sewell, appeals from an August 2, 2014, judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) dismissing her claims under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Stored Communications Act, 18 U.S.C. § 2701, et seq., for failure to initiate her action within the Actsʹ two‐year limitations periods. Her claims arose in connection with the defendant, Phil Bernardinʹs, alleged acts of gaining unlawful access to Sewellʹs AOL e‐mail and Facebook accounts. We conclude that the district court correctly applied the two‐year statutes of limitations to Sewellʹs claims for unlawful access with respect to her e‐mail account, but that it erred in holding that her claims with respect to her Facebook account were time‐barred.

We therefore AFFIRM in part, and VACATE and REMAND in part for further proceedings as indicated in this opinion.

HARVEY S. MARS, Law Office of Harvey S. Mars LLC, New York, NY, for Plaintiff–Appellant.

GARY T. CERTAIN, Law Office of Certain & Zilberg, PLLC, New York, NY, for Defendant–Appellee.

SACK, Circuit Judge:

In order to resolve this appeal, we address a matter of first impression in this Circuit: the operation of the statutes of limitations applicable under the civil enforcement provisions of the Computer Fraud and Abuse Act (ʺCFAAʺ), 18 U.S.C. § 1030, and the Stored Communications Act (ʺSCAʺ), 18 U.S.C. § 2701, et seq. A plaintiff bringing an action under the CFAAʹs civil enforcement provision must do so ʺwithin 2 years of the date of the act complained of or the date of the discovery of the damage.ʺ 18 U.S.C. § 1030(g). The SCA provides that ʺ[a] civil action under this sеction may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.ʺ 18 U.S.C. § 2707(f).

The plaintiff, Chantay Sewell, filed suit under both statutes alleging that her former boyfriend, defendant Phil Bernardin, had gained access to her e‐mail and Fаcebook accounts without her permission and therefore in violation of the CFAA and the SCA. She asserts that she discovered that she could not log into her www.aol.com (ʺAOLʺ) e‐mail account on or about August 1, 2011 ʺbecause her password was altered.ʺ Compl. ¶ 11 (J.A. 5). More than six months later, on or about February 24, 2012, she contends, she discovеred that she could not log into her www.facebook.com (ʺFacebookʺ) account ʺbecause her password was altered.ʺ Compl. ¶ 12 (J.A. 5). The district court granted Bernardinʹs motion to dismiss Sewellʹs claims as untimely, and Sewell appealed. Because Sewell filed suit on January 2, 2014, we conclude that her claims relating to Bernardinʹs аlleged unlawful access of her e‐mail account are time‐barred, but that her claims relating to his alleged unlawful access of her Facebook account were timely filed.

BACKGROUND

We accept as true at this stage of the proceedings all facts alleged in Sewellʹs complaint. See Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012). According to those allegations, Sewell and Bernardin were involved in a ʺromantic relationshipʺ1 from in or about 2002 until 2011. Sewell maintаined a private e‐mail account with AOL and a private social media account with Facebook, including in 2011 and 2012. She did not knowingly share her account passwords with Bernardin or any other person and was the only authorized user of each account.

On or about August 1, 2011, Sewell discovered that her AOL password had been altered, and she was therefore unable ‍​​​​‌‌‌‌‌​​​​​​‌‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​​​‌​‌​​‌‌‌‌‍to log into her AOL e‐mail account. That same month, malicious statements about her sexual activities2 were e‐mailed to various family members and friends ʺvia Sewellʹs own contacts list maintained privately within her email account.ʺ Compl. ¶ 19 (J.A. 6).

On February 24, 2012, Sewell found herself unable to log into her Facebook account. Then, on March 1, 2012, someone other than she posted a public message from her Facebook account containing malicious statements, again concerning Sewellʹs sex life.

Sewell alleges that Bernardin obtained her AOL and Facebook passwords without her permission while he was a guest in her home. Verizon Internet records confirmed that Bernardinʹs computer was used to gain access to the servers on which Sewellʹs accounts were stored. He then changed her AOL and Facebook passwords. Bernardin allegedly thereby obtained access to Sewellʹs electronic communications and other personal information and sent messages purporting to be from her.

On May 15, 2013, Sewell filed a separate suit against Bernardinʹs wife, Tara Bernardin, and ʺJohn Does #1‐5,ʺ apparently believing that Tara Bernardin and others unknown to her had gained access to her Internet accounts. The complaint raised claims strikingly similar to those that she is pursuing in the instant action. Tara Bernardin settled her suit with Sewell on September 27, 2013, and the court accordingly entered judgment in Sewellʹs favor shortly thereafter.

Several months later, on January 2, 2014, Sewell filed the instant action against Phil Bernardin, alleging violations of the SCA and CFAA. On August 2, 2014, the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) granted Bernardinʹs motion to dismiss, holding that Sewellʹs claims were time‐barred under the CFAAʹs and SCAʹs applicable two‐year statutes of limitations. This appeal followed.

DISCUSSION

We review the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)3 de novo, ʺaccepting as true factual allegations made in the complaint, and drawing all reasonable inferences in favor of the plaintiff[].ʺ Town of Babylon, 699 F.3d at 227. ʺDismissal under Fed. R. Civ. P. 12(b)(6) is appropriate when a defendant raises a stаtutory bar,ʺ such as lack of timeliness, ʺas an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiffʹs claims are barred as a matter of law.ʺ Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008) (internal quotation marks, alterations, and emphasis omitted).

I. The Applicable Statutes of Limitations

A. The Computer Fraud and Abuse Act

The CFAA criminalizes, inter alia, ʺintentionally access[ing] a cоmputer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer,ʺ 18 U.S.C. § 1030(a)(2)(C), and ʺintentionally access[ing] a protected computer without authorization, and as a result of such conduct, caus[ing] damage and loss,ʺ id. § 1030(a)(5)(C).

The statute also provides a civil cause of action to ʺ[a]ny person who suffers damage or loss by reason of a violation of this section.ʺ Id. § 1030(g). To be timely, such a civil suit must be filed ʺwithin 2 years of the date ‍​​​​‌‌‌‌‌​​​​​​‌‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​​​‌​‌​​‌‌‌‌‍of the act complained of or the date of the discovery of the damage.ʺ Id. ʺDamage,ʺ in turn, is defined as ʺany impairment to the integrity or availability of data, a progrаm, a system, or information.ʺ Id. § 1030(e)(8). The statute of limitations under the CFAA accordingly ran from the date that Sewell discovered that someone had impaired the integrity of each of her relevant Internet accounts.

B. The Stored Communications Act

Under the SCA, it is a crime to:

  1. (1) intentionally access[] without authorization a facility through which an electronic communication service is providеd; or
  2. (2) intentionally exceed[] an authorization to access that facility;

and thereby obtain[], alter[], or prevent[] authorized access to a wire or electronic communication while it is in electronic storage in such system . . . . 18 U.S.C. § 2701(a).

As with the CFAA, the SCA establishes a civil cause of action. ʺ[A]ny . . . person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mindʺ may file suit. Id. § 2707(a). A civil action under this section must be commenced no ʺlater than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.ʺ Id. § 2707(f). In other words, the limitаtions period begins to run when the plaintiff discovers that, or has information that would motivate a reasonable person to investigate whether, someone has intentionally accessed the ʺfacility through which an electronic communication service is providedʺ and thereby obtained unauthorized access to a stored electronic communication. Id. § 2701(a).

II. Sewellʹs Discovery of Damage and Unauthorized Access to Her AOL and Facebook Accounts

The district court granted Bernardinʹs motion to dismiss Sewellʹs claims as untimely based on the courtʹs conclusion that Sewell was ʺaware that the integrity of her computer had been compromisedʺ as of August 1, 2011. Sewell v. Bernardin, 50 F. Supp. 3d 204, 212 (E.D.N.Y. 2014). The court reasoned that Sewellʹs August 1, 2011, discovery – which related to the unauthorized use of her AOL account – provided her with a reasonable opportunity to discover the full scope of Bernardinʹs alleged illegal activity more than two years before she brought this suit on January 2, 2014. We agree with the district court as its decision related to Sewellʹs AOL account, but disagree with it as it related to her Facebook account.

Sewell discovered the ʺdamageʺ to her AOL account for CFAA purposes on August 1, 2011, when she learned that she could not log into her AOL e‐mail account. That she may not have known exactly what happened or why she could not log in is of no moment. The CFAAʹs statute of limitations began to run when Sewell learned that the integrity of her account had been impaired.

The SCAʹs statute of limitations began to run when Sewell ʺfirst . . . had a reasonable opportunity to discover,ʺ 18 U.S.C. § 2707(f), that someone had ʺintentionally access[ed] ‍​​​​‌‌‌‌‌​​​​​​‌‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​​​‌​‌​​‌‌‌‌‍[her AOL account] without authorization,ʺ id. § 2701(a). She had such an оpportunity as soon as she discovered that she could not obtain access to that account because her password had been ʺalteredʺ inasmuch as, accepting her other allegations as true, further investigation would have led her to Bernardin.4

Sewellʹs CFAA and SCA claims with regard to her AOL account were first made оn January 2, 2014, and were premised on damage and unauthorized access to her AOL account which she had or should have discovered some two years and five months earlier. The two‐year statutes of limitations had therefore run.5

Sewellʹs Facebook‐related claims, by contrast, appear to have accrued on or about February 24, 2012. Her complaint alleges that she ʺwas the sole authorized user ofʺ her Facebook account. Compl. ¶ 10 (J.A. 4). On or about ʺFebruary 24, 2012, [she] discovered that she could no longer log into or access her account with www.facebook.com because her password [had been] altered.ʺ Compl. ¶ 12 (J.A. 5). Therе is nothing in the facts as alleged in the complaint from which to infer that anyone gained unauthorized access to her Facebook account before then. Thus, taking these allegations as true, there would have been no damage, for CFAA purposes, or violation, for SCA purposes, for Sewell to discover with respeсt to her Facebook account before that date, which was less than two years before the suit was brought.

The fact that Sewell had discovered ʺdamageʺ to her AOL account based on her inability to access AOLʹs computer servers at an earlier date does not lead to a different result. Contrary to the district courtʹs remark, Sewell did not allegedly discover ʺthat the integrity of her computer had been compromisedʺ as of August 1, 2011. Sewell, 50 F. Supp. 3d at 212 (emphasis added). She discovered only that the integrity of her AOL account had been compromised as of that time. Her CFAA claim accordingly is premised on impairment to the integrity of a computer owned and operated by AOL, not of her own physical computer.6 As a result, Sewell has two separate CFAA claims, one that accrued on August 1, 2011, when she found out that she could not access her AOL account, and one that accrued on February 24, 2012, when she found out that she could not access her Facebook account.

Like her Facebook‐related CFAA claim, Sewellʹs Facebook‐relаted SCA claim is also timely. Under the SCA, a civil plaintiff must file her claim within two years of discovery or a reasonable opportunity to discover intentional and unauthorized access to an electronic communication facility. The district court concluded that Sewell ʺhad a reasonable opportunity to discover the Defendantʹs illegal activityʺ vis‐à‐vis her Facebook account as of August 1, 2011. Sewell, 50 F. Supp. 3d at 213 (internal quotation marks and brackets omitted). But as we have noted, there is no allegation in the complaint that Sewellʹs Facebook account and the computer servers on which her information was stored were tampered with before February 24, 2012, when she alleges that she was unable to log into her Facebook account. She could not reasonably be expected to have discovered a violation that, under the facts as alleged in the complaint, had not yet occurred.

The district courtʹs conclusion may rest on the assumption that a plaintiff is on notice of the possibility that all of her passwords for all of the Internet accounts she holds have been compromised because one password for one Internet account was compromised. We do not think that that is a reasonable inference from the facts alleged in the complaint. We take judicial notice of the fact that it is not uncommon for one person to hold several or many Internet accounts, possibly with several or many different usernames and passwords, less than all of which may be compromised at any one time. At least on the facts as alleged by the plaintiff, it does not follow from the fact that the plaintiff discovered that one such account – AOL e‐mail – had been compromised that she thereby had a reasonable opportunity to discover, or should be expected to have discovered, that another of her accounts – Facebook – might similarly have become compromised.

We pause to acknоwledge that the statutes of limitations governing claims under the CFAA and SCA, as we understand them, may have troubling consequences in some situations. Even after a prospective plaintiff discovers that an account has been hacked, the investigation necessary to uncover the hackerʹs ‍​​​​‌‌‌‌‌​​​​​​‌‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​​​‌​‌​​‌‌‌‌‍identity may be substantial. In many cases, we suspect that it might take more than two years. But it would appear that if a plaintiff cannot discover the hackerʹs identity within two years of the date she discovers the damage or violation, her claims under the CFAA and SCA will be untimely.

The plaintiff does have the option of initiating a lawsuit against a Jane or John Doe defendant, but she must still discover thе hackerʹs identity within two years of discovery or a reasonable opportunity to discover the violation to avoid dismissal. This is because we have concluded ʺthat Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly‐added defendants were not named originally because the plaintiff did not know their identities.ʺ Barrow v. Wethersfield Police Depʹt, 66 F.3d 466, 470 (2d Cir. 1995).7

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part for further proceedings.

Notes

1
Sewellʹs characterization of her relationship with Bernardin is contained in an affidavit filed with the district court on February 14, 2014.
2
In her complaint, Sewell describes an e‐mail sent in or around August 2011 using her personal contacts list as containing ʺmalicious statements toward Sewell regarding certain sexually transmitted diseases and sexual activities.ʺ Compl. ¶ 19 (J.A. 6).
3
The defendant styled his motion before the district court as a motion pursuant to Federal Rule of Civil Procedure 12(c). The district court, however, treated the motion as a motion to dismiss pursuant to Rule 12(b)(6). The parties do not raise this as аn issue on appeal and, in any event, ʺ[t]he standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.ʺ Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001).
4
We express no view as to whether, in a different case under different facts, the mere inability to access an account without knowledge that oneʹs password had been ʺalteredʺ would provide a рlaintiff with a reasonable opportunity to discover an SCA violation.
5
Although the complaint alleges that Sewellʹs AOL account was improperly accessed on multiple occasions subsequent to August 1, 2011, Sewell does not raise any arguments on appeal with respect to these alleged violations. We thus take no рosition as to whether claims based on those subsequent violations would be timely under the CFAA or the SCA, or whether such claims would otherwise survive Bernardinʹs motion to dismiss.
6
Sewell asserts that the AOL and Facebook computers to which Bernardin allegedly gained unauthorized access were ʺprotectedʺ under the CFAA. Compl. ¶ 15 (J.A. 5). Bernardin does not аrgue otherwise.
7
Sewell also purports to appeal from the district courtʹs denial of her request for leave to amend, but the district court did not explicitly deny or otherwise rule on this request. We can imagine no plausible amendment that would render her AOL claims timely but nevertheless instruct the district court to consider and expressly rule on Sewellʹs motion, should she choose to revive it, on remand. See Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (ʺOutright refusal to grant the leave [to amend] without any justifying ‍​​​​‌‌‌‌‌​​​​​​‌‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​​​‌​‌​​‌‌‌‌‍reason for the denial is an abuse of discretion.ʺ).