McSHANE, Judge:
Plaintiff brings this action seeking damages and equitable relief for alleged violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, defamation, negligent supervision, and parental liability pursuant to Oregon Revised Statute § 30.765. Defendant, Gary Hill, filed this motion to dismiss for lack of subject matter jurisdiction (# 14). Defendant, S.A., filed this motion for entry of a limited
Because no objections to either F & R were filed, this court reviews only the legal principles de novo. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also United States v. Bernhardt, 840 F.2d 1441, 1445 (9th Cir. 1988). Upon review, this court finds find no error in F & R (# 27) or F & R (# 29) and ADOPTs both in full. Defendant Gary Hall's motion to dismiss for lack of subject matter jurisdiction (# 14) is GRANTED and defendant S.A.'s motion for entry of a limited judgment and injunction (#25) is DENIED consistent with this opinion.
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
In LVRC Holdings LLC v. Brekka,
In United States v. Nosal,
The term "authorization" is not defined in the CFAA. Brekka, 581 F.3d at 1132. In Brekka, the Ninth Circuit interpreted "authorization" narrowly and found the CFAA inapplicable to employee breach of loyalty scenarios. 581 F.3d at 1133; but see International Airport Centers, LLC v. Citrin, 440 F.3d 418, 419 (7th Cir.2006) (interpreting the CFAA to recognize employee breach of loyalty as "without authorization"). In adhering to its narrow interpretation, the Ninth Circuit stated "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Brekka, 581 F.3d at 1134 (internal quotation marks omitted) (internal citations omitted); cf. Nosal, 676 F.3d at 863 (finding that a "narrower interpretation" of "exceeding authorized access" was "a more sensible reading of the text and legislative history").
As in both Brekka and Nosal, the rule of lenity precludes CFAA application as to defendants' alleged conduct. Under the rule of lenity, "penal laws [are] ... to be construed strictly." Nosal, 676 F.3d at 863 (quoting United States v. Wiltberger, 18 U.S. 76, 88, 5 Wheat. 76, 5 L.Ed. 37 (1820)) (internal quotation marks omitted). As stated in Nosal:
Id. (internal citations omitted) (internal quotation marks omitted). The CFAA's focus is "on hacking" rather than the creation of a "sweeping internet-policing mandate." Nosal, 676 F.3d at 859. This court cannot fail "to consider the effect on millions of ordinary citizens caused by" recognizing plaintiff's claim. Id. at 863. Plaintiff alleges that defendants created false
For these reasons, Judge Coffin's F & R(# 27) and (# 29) are ADOPTED. Defendant Gary Hall's motion to dismiss for lack of subject matter jurisdiction (# 14) is GRANTED and defendant S.A.'s motion for entry of a limited judgment and injunction (# 25) is DENIED.
IT IS SO ORDERED.
COFFIN, United States Magistrate Judge:
Plaintiff brings this action asserting claims for computer fraud and abuse, defamation and negligent supervision. Defendant Gary Hill moves to dismiss asserting lack of subject matter jurisdiction.
Plaintiff an assistant principal at a middle school in Salem, Oregon, alleges that one or more of the defendants created social media accounts under his name and likeness. Defendants then allegedly invited students to communicate with them under the accounts falsely tied to plaintiff. Plaintiff further alleges that defendants published false and defamatory statements and images about or attributed to plaintiff using the false accounts. Plaintiff alleges that the parents of defendant CH were negligent in their supervision of CH's internet
Plaintiff asserts the court has subject matter jurisdiction based on the Computer Fraud and Abuse Act. Although it is unclear which provision plaintiff relies upon for his claim, the Act prohibits, among other things, access to a protected computer without authorization, or exceeding authorization, with intent to defraud via use of the computer. 18 U.S.C. § 1030(a)(4).
Although a criminal statute, a civil cause of action may be maintained:
18 U.S.C. § 1030(g)
Under 18 U.S.C. § 1030(c)(4)(A)(i)(IV) threats to public health or safety are addressed.
In essence, plaintiff alleges that the actions of CH and the Doe defendants caused harm to plaintiff and to over 70 presumed students who were invited to friend the forged Face book account attributed to plaintiff, by associating plaintiff (and exposing students to) obscene materials. Plaintiff further contends that such actions impaired plaintiff in his professional capacity and compromised the security of the students at the middle school.
While plaintiff alleges that certain defendants created false social media accounts and used protected computers to do so, plaintiff does not allege a direct lack of authorization to use the computers. Plaintiff, rather, asserts "violation of the license under which access is provided." First Amended Complaint (#10) at 1124. In other words, plaintiff alleges that defendants violated the terms of use of social media sites such as www.twitter.com and www.facebook.com.
The Ninth Circuit has analyzed the term "without authorization" in LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132-35 (9th Cir.2009). The court held that "a person uses a computer `without authorization' under § 1030(a)(2) and (4) when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone's computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway." Id. at 1135. The complaint does not allege that defendants did not have permission to use the social networking computers for any purpose, but rather they used the computers in violation of the license permitting the access, as noted above. Accordingly, plaintiff must rely on the Act's prohibition on "exceeding authorized access." However, because the restriction alleged is regarding
The Act defines "exceeds authorized access" as accessing "a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter." 18 U.S.C. § 1030(e)(6). Here, Congress intended (interpreting the Act under the rule of lenity as is necessary for criminal statutes) to target the unauthorized procurement or alteration of information, not its misuse or misappropriation. United States v. Nosal, 676 F.3d 854, 863 (9th Cir.2012).
Plaintiff argues that if his Computer Fraud and Abuse Act claim is dismissed, he should be granted leave to amend to add a Racketeer Influenced and Corrupt Organizations Act (RICO) claim. To state a claim under RICO, 18 U.S.C. § 1961 et seq., plaintiff must allege that he has been injured by "(1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity." Jarvis v. Regan, 833 F.2d 149, 151-52 (9th Cir.1987).
Plaintiff asserts that he can allege the predicate acts of obscenity and wire fraud. It is highly questionable whether the allegedly obscene material (submitted by plaintiff, unsealed, as exhibit 1 to the declaration of counsel (# 16)), qualifies as obscene given contemporary standards. In addition, it is difficult to understand how plaintiff could allege wire fraud as a predicate act. To establish the predicate act of mail or wire fraud a plaintiff must allege that defendants engaged in (1) a scheme to defraud (2) to get money or property, (3) furthered by the use of interstate mail or wires. USA Certified Merchants, LLC v. Koebel 262 F.Supp.2d 319, 332
Moreover, Congress did not intend to target the misguided attempts at retribution by juvenile middle school' students against an assistant principal in enacting RICO. The legislative history demonstrates that the RICO statute was intended to provide a new weapons for an assault upon organized crime and its economic roots. Congress' statement of findings and purpose in enacting Pub.L. 91-452, 84 Stat. 922 (1970), is set forth in section 1. The statement describes the problem presented by organized crime. Congress declared: "It is the purpose of this Act to seek the eradication of organized crime in the United States ... by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." Id., at 923. Congress emphasized the need to fashion new remedies in order to achieve its objectives. See S.Rep. No. 91-617, p. 76 (1969). "What is needed here ... are new approaches that will deal not only with individuals, but also with the economic base through which those individuals constitute such a serious threat to the economic well-being of the Nation. In short, an attack must be made on their source of economic power itself, and the attack must take place on all available fronts." Id., at 79. The legislative history shows that the economic power of organized crime derived from its huge illegal profits. See Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 Notre Dame L.Rev. 237,249-256 (1982). In short, Congress' overriding goal was remove profit from organized crime. Russello v. United States, 464 U.S. 16, 28, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). As noted above, this is not a case about a grand scheme to obtain money, it was an attempt to cause harm primarily in a nonmonetary way. This is simply not the kind of case envisioned by Congress in providing for a civil cause of action under RICO. Plaintiffs strained effort to assert federal question jurisdiction by resort to RICO should not be allowed via amendment.
Perhaps recognizing that a claim under RICO is implausible, plaintiff also asserts that the proper remedy for defendant in its motion to dismiss is remand for the remaining state law claims. However, this case has not been removed from state court and thus there is nowhere for this court to remand the state law claims. Jurisdiction over the state law claims is based on supplemental jurisdiction with the Computer Fraud and Abuse Act claim which, as noted above, should be dismissed.
When the federal claims are dismissed before trial, it is wholly within the district court's discretion to dismiss the state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); see also Schneider v. TRW, Inc., 938 F.2d 986, 993-94 (9th Cir. 1991). The court has not invested its judicial energies to such an extent that would justify retaining jurisdiction. See Schneider, 938 F.2d at 994; Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir.1981). Nor is it apparent that judicial economies would be served by retaining jurisdiction over this case. See Schneider, 938 F.2d at 994. In weighing issues of economy, convenience, fairness, and comity, the court should decline to retain supplemental jurisdiction over the remaining state law claims and this case should be dismissed.
For the reasons stated above, defendant Gary Hill's motion to dismiss (# 14) should
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
