Web-based Email Bombardment Campaign Does Not Amount to a Violation of the Computer Fraud and Abuse Act — Pulte Homes, Inc. v. LiUNA
[Post by Venkat]
Pulte Homes, Inc. v. Laborers’ International Union of North America, et al. (E.D. Mich.) (May 12, 2010)
Background: Pulte Homes, “the largest new home builder in the United States” terminated eight employees. Defendant Laborers’ International Union of North America (LiUNA) is a labor organization that represents workers in the construction industry. LiUNA claimed that seven of the eight employees were fired for expressing support for LiUNA. Plaintiff alleged that in response to the terminations LiUNA began a “targeted effort to sabotage and interrupt” plaintiff’s business operations. Plaintiff argued that LiUNA’s email campaign was a violation of the Computer Fraud and Abuse Act (sections 1030(a)(5)(A), 1030(a)(B), and 1030(a)(C)):
Defendants have encouraged LiUNA supporters to inundate Plaintiff with mass quantities of phone calls and e-mails . . . . LiUNA’s website featured a ‘call to action,’ which provided a pre-typed e-mail voicing opposition to Plaintiff’s alleged termination of employees for supporting the union. This e-mail was pre-addressed to Plaintiff and allowed users to send it to Plaintiff with the click of a few buttons.
The Court’s Ruling:
Unlawful transmissions: The unlawful transmission prong of the CFAA requires the transmission of information as a result of which the defendant “intentionally causes” damage to a protected computer. The court dismissed this claim because plaintiff failed to allege that LiUNA’s email campaign caused any appreciable damage to plaintiff’s computer system.
Unauthorized access: The unauthorized transmission prong of the statute requires intentional access “without authorization,” along with resulting loss. The court concludes that LiUNA did not “access [plaintiff's] computer under the CFAA merely by leaving a voice-mail or sending an e-mail.” The court rejects plaintiff’s attempt to rely on an older AOL spam case (AOL v. National Health Care Discount, Inc.) where the Northern District of Iowa held that the transmission of bulk email through AOL’s servers could constitute a violation of the CFAA. (The court there expressed serious reservations as to whether the Computer Fraud and Abuse Act even covered unsolicited bulk emails: “it is not clear that a violation of AOL’s membership agreements results in ‘unauthorized access.'”) The AOL case was decided pre-CAN-SPAM, and as the court recognized, stretched the bounds of the Computer Fraud and Abuse Act. It’s tough to conclude that sending an email to an email address that’s designed to receive emails from the general public constitutes “unauthorized access” under the Computer Fraud and Abuse Act. AOL argued that mass emails were “unauthorized,” because they were a violation of AOL’s terms of service, but this argument suffers from the same problems that any terms of service-based Computer Fraud and Abuse Act claim suffers from.
[Anyone engaging in this sort of a mass email campaign may want to stagger the emails or otherwise take steps to minimize potential damage or slowdowns to the recipient's servers. Where there's no damage or slowdown, courts are reluctant to find liability.]
This case is reminiscent of Intel v. Hamidi, another case involving a departing employee who was sued for sending mass emails. In Hamidi, the California Supreme Court held that the departing employee could not be held liable under a trespass to chattels theory because the emails he sent did not damage Intel’s servers. As in this case, in Hamidi, the plaintiff seemed more concerned about the content or peripheral effects of the emails, rather than any effect the emails had on plaintiff’s servers.
The case also brings to mind the contempt order slapped on “television-pitchman” Kevin Trudeau. Trudeau was a defendant in a case brought by the FTC who exhorted “his radio and web followers to deluge U.S. District Judge Robert Gettleman with e-mail” in an attempt to persuade the judge to side with Trudeau in the FTC proceeding. Judge Gettleman found that this interfered with his administration of justice, and sentenced Trudeau to 30 days. That decision is on appeal to the Seventh Circuit. (See coverage from Wired’s Threat Level blog here.)
Another union activity case which Prof. Goldman blogged about recently (in that case, involving trademarks) is Cintas v. Unite Here (“Union Organizers’ Activist/Gripe Sites Don’t Support Trademark Claims“).
UPDATE FROM ERIC: This case also vaguely reminds me of the Utube v. YouTube lawsuit, where Utube claimed that YouTube was trespassing its domain name because people were lousy spellers.