Matot v. CH, 2013 WL 5431586 (D. Or. Sept. 26, 2013)

Matot v. CH, 2013 WL 5431586 (D. Or. Sept. 26, 2013)

Plaintiff was an assistant principal at a middle school who sued students who created a parody Facebook account of him, as well as their parents, for violating the Computer Fraud and Abuse Act. Defendants filed a motion to dismiss, which was granted as Plaintiff failed to plead an actionable access under the CFAA.

“Plaintiff’s CFAA claim rests on defendants’ alleged use “without authorization” of social media services (e.g., Facebook and Twitter) and defendants’ alleged use “exceed[ing] 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., “exceed[ing] authorized access,” is not actionable 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 plaintiff’s argument is that defendants accessed social media services “without authorization” under 18 U.S.C. § 1030.

Plaintiff’s “without authorization” argument focuses on defendants’ alleged use of plaintiff’s 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 hacking 2 proscribed by the CFAA. Plaintiff’s argument is unpersuasive in light of (1) LVRC Holdings LLC v. Brekka, (2) United States v. Nosal, and (3) the rule of lenity.

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