Pulte Homes, Inc. v. Laborers’ Intern. Union of North America, 648 F.3d 295 (6th Cir. 2011)

Pulte Homes, Inc. v. Laborers’ Intern. Union of North America, 648 F.3d 295 (6th Cir. 2011).

In Pulte, a labor union directed the bombardment of Pulte’s sales offices and three of its executives with voluminous phone calls and e-mails of such a volume that the communications

clogged access to Pulte’s voicemail system, prevented its customers from reaching its sales offices and representatives, and even forced one Pulte employee to turn off her business cell phone. The e-mails wreaked more havoc: they overloaded Pulte’s system, which limits the number of e-mails in inbox; and this, in turn, stalled normal business operations because Pulte’s employees could not access business-related e-mails or send e-mails to customers and vendors.

Id. at 299. Pulte sued the labor union for violating the Computer Fraud and Abuse Act pursuant to 18 U.S.C. § 1030 (a)(5)(A) which is a transmission claim (as opposed to the more common access claim) as it prohibits “knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer.” The trial court had found that Pulte failed to state a claim for this violation which the Sixth Circuit addressed:

To state a transmission claim , a plaintiff must allege that the defendant “knowingly cause[d] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause[d] damage without authorization , to a protected computer. Id. at 301.

The issue before the court was whether the labor union “intentionally caused damage.” In finding a violation of the Computer Fraud and Abuse Act and, consequentially, “damage” arising from this activity, the court found that “a transmission that weakens a sound computer system—or, similarly, one that diminishes a plaintiff’s ability to use data or a system” causes damage. Id. at 301. The court reasoned:

Under the CFAA, “any impairment to the integrity or availability of data, a program, a system, or information” qualifies as “damage.” Because the statute includes no definition of three key terms–“impairment,” “integrity,” and “availability”–we look to the ordinary meaning of these words. “Impairment” means a “deterioration” or an “injurious lessening or weakening.” The definition of “integrity” includes an “uncorrupted condition,” an “original perfect state,” and “soundness.” And “availability” is the “capability of being employed or made use of.” Applying these ordinary usages, we conclude that a transmission that weakens a sound computer system–or, similarly, one that diminishes a Plaintiff’s ability to use data or a system–causes damage.”

[The labor union’s] barrage of calls and e-mails allegedly did just that. At a minimum, according to the complaint’s well-pled allegations, the transmissions diminished Pulte’s ability to use its systems and data because they prevented Pulte from receiving at least some calls and accessing or sending some e-mails.

The court goes on to say this “diminished-ability concept” it is endorsing is not new and cites several district court opinions applying that standard, as well as two other circuit courts of appeal:

The Third Circuit sustained a transmission conviction where the defendant “admitted that in using the direct e-mailing method and sending thousands of e-mails to one inbox, the targeted inbox would flood with e-mails and thus impair the user’s ability to access his other ‘good’ e-mails.” United States v. Carlson, 209 Fed. Appx. 181, 185 (3rd Cir. 2006). And the Seventh Circuit, in United States v. Mitra, upheld the defendant’s transmission conviction because he impaired the availability of an emergency communication system when “[d]ata that [he] sent interfered with the way the computer allocated communications to the other 19 [radio] channels and stopped the flow of information among public-safety officers.” 405 F.3d 492, 494 (7th Cir. 2005). . . .

Because Pulte alleges that the transmissions diminished its ability to send and receive calls and e-mails, it accordingly alleges an impairment to the integrity or availability of its data and systems–i.e., statutory damage.

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