shutterstock_142248280The defendants in a case pending in Chicago federal court were accused of contravening Facebook’s terms of use by accessing its computers in order to create a phony page and then using it to ridicule someone. In Bittman v. Fox, Case No. 14 C 8191 (N.D.Ill., June 1, 2015) (Holderman, J.), the court held that those allegations do not state a cause of action under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, or the Stored Communications Act, 18 U.S.C. § 2707.

Summary of the case. In 2013, several persons began voicing complaints to the staff and board of trustees of a public library which permitted patrons to view pornography on the library’s computers. The objectors’ increasingly strident efforts to persuade library personnel to install filters on the computers were unsuccessful. Moreover, allegedly in response to those efforts, library personnel engaged in what the objectors viewed as violations of the Illinois Open Meetings Act and as harassment. The objectors retaliated by creating a Facebook page on which they mocked the library’s spokesperson. She filed a multi-count complaint alleging, among other causes of action, CFAA and SCA violations. The objectors’ motion to dismiss the CFAA and SCA counts, and a few other claims, was granted. The remaining counts will be heard by a different judge (because Judge Holderman retired the day the opinion was issued).

Actions by and against the objectors. The objectors attempted to make their views heard at board meetings. The board responded by committing what the objectors viewed as Open Meetings Act violations (in at least one instance, the Illinois Attorney General agreed that the Act had been violated) and refusing in other ways to let the objectors speak their minds. On one occasion, library personnel accused the objectors of illegally disrupting board meetings and summoned the police, but no arrests were made. When the objectors began receiving harassing emails and phone calls at home, which they attributed to library personnel (acting directly or indirectly), the objectors created the fake Facebook page and used it to ridicule the library spokesperson and her floral arrangement business. She sued.

Dismissal of the CFAA and SCA claims. The CFAA and SCA counts allege that the plaintiff was injured by the defendants’ violation of Facebook’s terms of use, and that the violation constitutes unauthorized access to Facebook’s computer. Her allegations were imaginative, but there appears to be scant authority supporting the view that she stated justiciable causes of action.

In his ruling on the Rule 12(b)(6) motion, Judge Holderman reasoned that the statutes were enacted to protect against hacking, or tampering with, computerized personal and proprietary information. The defendants here “did not access a computer to damage, steal or tamper with” the plaintiff’s data. Further, noting that the CFAA is a criminal statute, he cited the rule of lenity and the decision in U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009), a somewhat similar California case. The court there ruled for the defendant, holding that criminalizing “the conscious violation of a website’s terms of service runs afoul of the void-for-vagueness doctrine.” Judge Holderman also cited Matot v. CH, 975 F. Supp. 2d 1191 (D. Ore. 2013), a decision reaching the same result in a civil lawsuit.

Takeaways. According to Matot, the fabrication of fake social media accounts and phony profiles is not uncommon, and sometimes they even have been created by law enforcement personnel. Moreover, users of electronic media have been known to include lies and other fictions in their postings. Judge Holderman cited Drew for the proposition that prosecuting someone for accessing social media computers in violation of the media’s rules, even as part of a vindictive campaign or one intended to embarrass, “affords too much discretion to the police and too little notice to citizens who wish to use the Internet.” Judge Holderman did not mention U.S. v. Morris, 928 F.2d 504 (2d Cir. 1991), where the use of electronic media in a manner unrelated to its intended function contributed to a CFAA criminal conviction for unauthorized access to a public website.

In Bittman v. Fox, in addition to the dismissed CFAA and SCA claims, several common law causes of action were alleged. The defendants still are charged with defamation, intentional infliction of emotional distress, and interference with prospective economic advantage. The defendants in Bittman were not alleged to have achieved a monetary gain by violating an electronic media’s rules. If there were such a claim in a different case, that claim might state a cause of action for fraud.