2015 and 2016 saw a wave of transactions among cable, satellite, and other linear programming distributors: AT&T & DirecTV, Altice and Suddenlink, etc. That transactional wave is beginning to spawn a litigation wave, principally over interpretation and application of the pre-existing licenses and contracts between networks and distributors. A recent…

In Nghiem v Dick’s Sporting Goods, Inc., No. 16-00097 (C.D. Cal. July 5, 2016), the Central District of California held browsewrap terms to be unenforceable because the hyperlink to the terms was “sandwiched” between two links near the bottom of the third column of links in a website footer.  Website developers – and their lawyers – should take note of this case, part of an emerging trend of judicial scrutiny over how browsewrap terms are presented. Courts have, in many instances, refused to enforce browsewraps due to a finding of a lack of user notice and assent. In this case, the most recent example of a court’s specific analysis of website design, a court suggests that what has become a fairly standard approach to browsewrap presentment fails to achieve the intended purpose.   

UPDATE: On January 18, 2019, the Ninth Circuit affirmed the award of damages and injunctive relief in favor of Facebook. (Facebook, Inc. v. Power Ventures, Inc., No. 17-16161 (9th Cir. Jan. 18, 2019) (unpublished)). The California district court in 2017 had awarded Facebook almost $80,000 in CFAA damages, representing only the period after Facebook sent its cease and desist letter to the defendant and including expenses both for technical measures to block Power Ventures from accessing Facebook servers and expenses for negotiating with Power Ventures to voluntarily stop its activities and destroy the data.  The lower court also granted Facebook’s request for a permanent injunction barring defendant from, among other things, accessing Facebook for a commercial purpose without permission.

  • Unauthorized Access: A former employee, whose access has been revoked, and who uses a current employee’s login credentials to gain network access to his former company’s network, violates the CFAA. [U.S. v. Nosal, 2016 WL 3608752 (9th Cir. July 5, 2016)]
  • Data Scraping: A commercial entity that accesses a public website after permission has been explicitly revoked can be civilly liable under the CFAA. However, a violation of the terms of use of a website, without more, cannot be the basis for liability under the CFAA, a ruling that runs contrary to language from one circuit level decision regarding potential CFAA liability for screen scraping activities (See e.g., EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58 (1st Cir. 2003)). [Facebook, Inc. v. Power Ventures, Inc., No. 13-17102 (9th July 12, 2016)]

This past week, the Ninth Circuit released two important decisions that clarify the scope of liability under the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.  The Act was originally designed to target hackers, but has lately been brought to bear in many contexts involving wrongful access of company networks by current and former employees and in cases involving the unauthorized scraping of data from publicly available websites.

Another court has contributed to the ongoing debate over the scope of the term “personally identifiable information” under the Video Privacy Protection Act – a statute enacted in 1988 to protect the privacy of consumers’ videotape rental and purchase history but lately applied to the modern age of video streaming…

We’ve previously blogged about the National Telecommunications and Information Administration (NTIA) privacy multistakeholder process to address concerns associated with the emerging commercial use of facial recognition technology. Notably, last year, the self-regulatory initiative hit a stumbling block when nine consumer advocacy groups withdrew from the process due to a lack…

In the wake of thousands of parental complaints about unauthorized in-app purchases made by their children, resulting in millions of dollars in disputed charges, the Federal Trade Commission (“FTC”) brought suit against Amazon, Inc. (“Amazon”) in July 2014. The FTC sought a court order requiring refunds to consumers for unauthorized…

For years, craigslist has aggressively used technological and legal methods to prevent unauthorized parties from scraping, linking to or accessing user postings for their own commercial purposes.  In a prior post, we briefly discussed craigslist’s action against a certain aggregator that was scraping content from the craigslist site (despite having…