I know its gauche to talk about things like being busy and posting schedules, but I've had a ton of cases I've been wanting to blog about that I can't seem to get around to tackling.  Everyone's got an excuse of some kind right?  I'm not sure what mine is.  Mostly work.  And the summer maybe?  Anyway, I saw a case on Lexis today that's worth noting and it involves class claims against Wall Street on Demand for the transmission of unwanted text messages.  (Czech v. Wall Street on Demand, Inc., et al., D. Minn. Case No. 09-180 (DWF/RLE) (2009 U.S. Dist Lexis 59172).)

Plaintiffs alleged that they purchased new "cell phone service plan[s] from . . . established national carrier[s]," and began receiving unsolicited texts from WSOD for which they were charged.  The named plaintiff tried to get the charges removed and no one was cooperative until the lawyers got involved.  Plaintiffs asserted claims under the Computer Fraud and Abuse Act, and claims under state law for trespass to chattels and unjust enrichment.  The court grants WSOD's motion for judgment on the pleadings but grants plaintiffs leave to amend.  In closing, the court expresses "serious doubts concerning the viability of [the claims]." 

Broadly speaking, the Computer Fraud and Abuse Act covers unauthorized access to protected computers which cause a certain amount of damage.  The plaintiff must also show that defendant compromised the computer, extracted information, or engaged in one of the specific acts prohibited by the statute.  It's essentially a statute designed to prevent hacking and effecting certain types of harm.  Two issues were play in this case: (1) the damage threshold and (2) whether WSOD "obtained information" from or caused damage to any protected computers.

The Computer Fraud and Abuse Act requires a plaintiff to reach a $5000 dollar loss threshold.  WSOD argued that damages could not be aggregated and needed to be satisfied on a per-plaintiff basis.  The court disagreed, notwithstanding at least one case going the other way (Lyons v. Coxco, Inc., No. 08-cv-02047, 2009 WL 347285 (S.D. Cal., Feb. 9, 2009).)  [Frankly speaking, I'm not sure why the court even bothered to address this issue.]

Did WSOD Obtain Information or Cause Damage?  Plaintiffs alleged that WSOD "obtained information" by among other things "obtaining operation and storage capacity, bandwidth, and memory from . . . [plaintiffs'] wireless devices."  Not surprisingly, the court was not sold on this.  The court also pointed out that plaintiffs failed to allege sufficient facts to show that their wireless devices were damaged in any way.  Again, not surprising.  It's a serious stretch to think your phone is damaged or someone obtained information through your receipt of a text message. 

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The Computer Fraud and Abuse Act is just one of those statutes that people seem to want to stretch far beyond the bounds of its intended scope.  This case is one example.  The Lori Drew case is another (more serious) example.  I guess this is not a recent phenomenon.  In the pre-CAN-SPAM days, ISPs would bring claims against emailers under the Computer Fraud and Abuse Act.  While some courts blessed this approach, other courts pointed out that the conduct didn't seem to fit the statute. 

Facebook was sued under this same theory (different statute) a couple of years ago, and it settled.  (Previous post; SF Gate article noting settlement.)  That complaint, brought by the same lawyers that brought this case, also noted the failure to track recycled or cancelled wireless numbers.