by Jeff Pietsch
A federal district court in Minnesota dismissed claims made under the Computer Fraud and Abuse Act (18 U.S.C. § 1030) (“CFAA”) for the receipt of unwanted text messages. The CFAA, which was originally adopted as criminal law to prohibit actions that damaged another’s computer system or stealing information from it, now permits a claim for civil damages.
In this case, the defendant Wall Street on Demand (“WSOD”) provides financial information services to customers sent by text messages to the customer’s wireless devices. WSOD does not track recycled or cancelled wireless telephone numbers and, therefore, some text messages are sent to persons who have not subscribed to WSOD’s services. Plaintiff Brenda Czech began receiving unwanted text messages from WSOD on her cell phone shortly after she purchased a new cell phone plan. Because of these unwanted text messages from WSOD, Czech incurred fees and charges related to those charges. Czech brought a complaint against WSOD alleging that WSOD violated provisions of the CFAA.
In order to recover under the CFAA, a plaintiff must show that a defendant caused a violation of one of CFAA’s provisions which caused damage to the plaintiff. Czech made three specific claims under CFAA, namely that WSOD (1) was obtaining information from Czech’s cell phone and was not authorized to do so, (2) damaged Czech’s cell phone by its transmission and (3) intentionally accessed Czech’s cell phone without authorization.
With respect to Czech’s claim that WSOD wrongfully obtained information from her phone, Czech needed to show that WSOD intentionally accessed her cell phone without authorization and obtained information from such access. Czech claimed that WSOD obtained information from her by obtaining operation and storage capacity, bandwidth and memory from her wireless device. In addition, WSOD received a receipt of delivery notification once a text message was sent to Czech’s cell phone. The Court noted that even if WSOD caused Czech’s wireless device to slow or consumed bandwidth, there is no evidence that WSOD gained information from Czech’s cell phone. Czech argued that WSOD viewed information such as an individual would view a website. The court did not accept this analogy because the type of information gathered by viewing a website versus the information gathered by a sender of a text message is not similar. The information obtained by a sender of a text message is very limited, and therefore the court held that no information was obtained.
Czech’s second claim was that WSOD damaged Czech’s cell phone by WSOD’s transmission. To plead this claim, Czech needed show that WSOD knowingly caused the transmission of a program, information, code or command, and as a result of such conduct, intentionally caused damaged without authorization to Czech’s cell phone. The court boiled down the issue here to whether sending unwanted messages “intentionally causes damage without authorization” to Czech’s cell phone. Czech argued that WSOD’s unwanted text messages caused numerous problems to her phone, such as exhausting the cell phone’s memory, interfering with the phone’s bandwidth and causing the phone to reboot or shutdown. The court found that under Czech’s claim any unwanted incoming message, no matter the size or extent of the message, would damage her cell phone by depleting memory. The court did not believe that it was congress’ intent that unwanted text messages that did not impair the recipient’s cell phone service would constitute a claim under the CFAA. Even if Czech was able to show that her service was interrupted or delayed because of WSOD’s text messages, the CFAA requires that the sender of the text messages must have intended to cause the damage. In this case, it was clear that WSOD was not intending to cause damage to cell phones, but, rather, it was trying to sell its services.
Czech’s third claim that WSOD intentionally accessed Czech’s phone also failed because Czech could not demonstrate that WSOD intentionally sent the unwanted messages to Czech. The Court also questioned whether sending text messages to a phone constituted access.
Because Czech was unable to provide any plausible facts alleging the WSOD intentionally sent unwanted text messages and that these text messages actually damaged her phone, the court dismissed the complaint. Although unwanted text messages are often an annoyance and may cost the cell phone user some money in usage fees, the CFAA does not protect the cell phone user in this situation. If there was actual damage done to the phone besides consuming memory, such as losing the ability to access other text messages, the court may have found WSOD liable under the CFAA.