Court Tells Asst. Principal That Students' Fake Social Media Accounts Don't Violate CFAA Or Racketeering Laws

from the insulted-by-someone-who's-not-even-a-legal-adult?-sue! dept

When all else fails, conjure up the CFAA and see if that can stop the “cyberbullying.” That seems to be the legal theory here in the case of a middle school assistant principal who sued five students (and their parents) for creating fake social media accounts in his name and then using those accounts to generally make him look as ridiculous as possible. According to the plaintiff (Adam Matot), these fake accounts were used to post material, some of it obscene, which “caused his reputation to be diminished.”

Venkat Balasubramani reports that one motion to dismiss has been granted, with the court finding that Matot’s claims of CFAA violation simply don’t hold up, not even under the broad definitions of “unauthorized access” that has made the law problematic over the last several years.

Reviewing the CFAA case law, the court says that plaintiff’s cause of action is premised on defendants’ use of protected computers beyond the scope of authorization (i.e., use in a way that “exceeded authorized access”). Finding that Nosal, Brekka, and US v. Drew all frowned upon this as a legal theory (particularly when restrictions are contained in terms of use agreements), the court rejects the claim.

More specifically, Judge Michael McShane points out how the CFAA must be applied judiciously in order to prevent both “turning ordinary citizens into criminals” and to prevent the “creation of sweeping internet-policing mandate.” (If only more judges felt this way…)

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 (1820))… As stated in Nosal:

“We construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals. [B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. If there is any doubt about whether Congress intended [the CFAA] to prohibit the conduct in which [defendants] engaged, then we must choose the interpretation least likely to impose penalties unintended by Congress.”

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 social media profiles in his name and likeness. Yet, as indicated in Nosal, “lying on social media websites is common.” Id. at 862.

For example, in June 2011, Facebook predicted that approximately 83 million of 855 million active users were duplicates, false or undesirable. Twitter is also thought to have a large number of “fake” accounts. More recently, police departments have taken to creating false profiles for the purpose of law enforcement. Were this court to “adopt the [plaintiff’s] proposed [argument], millions of unsuspecting individuals would find that they are engaging in criminal conduct,” in addition to any civil liability. Nosal, 676 F.3d at 859. This Court “must choose the interpretation [of “authorization”] least likely to impose penalties unintended by Congress.”

Accordingly, this Court finds that the rule of lenity precludes application of the CFAA (“access without authorization”) to defendants’ alleged creation of fake social media profiles in violation of social media websites terms of use.

Facing this dismissal, it appears Matot attempted to bring in a completely new set of statutes in order to pursue the defendants, but Judge McShane was not amused.

In front of the magistrate judge, plaintiff requested leave to add a RICO claim, but the judge rejects this:

Congress did not intend to target the misguided attempts at retribution by juvenile middle school students against an assistant principal in enacting RICO.

When you’re attempting to apply laws put in place to pursue organized crime to a bunch of middle school students and their counterfeit accounts, you know you’ve hit the bottom of the barrel, legally-speaking.

Balasubramani points out that while not all members of school administration are incredibly thin-skinned, Matot is certainly contributing to that stereotype. He links to several posts at Eric Goldman’s blog dealing with similar situations where teens have “bullied” administration via social media accounts (fake or real), only to find themselves sued for their actions. Or, as was covered here last year, intimidated by administration and school cops into coughing up social media passwords in response calling an adult hall monitor “mean” in a Facebook post.

It also should be noted that Matot was seeking more than monetary damages in this case. Here’s a full list of his demands.

A. Find that defendants have violated 18 U.S.C. 1030;
B. That defendants’ conduct is reckless;
C. That defendants’ conduct is willful;
D. Enter judgments against defendants and in favor of plaintiff in the amount of $5,000.00;
E. Award plaintiff his costs and attorney fees;
F. Enjoin defendants from using or accessing accounts on Twitter or Facebook for a period deemed reasonable and proper by the court; and
G. Grant plaintiff such other and further relief as justice may require.

Even if it was granted that the students’ actions had harmed Matot and “diminished his reputation” (as if this lawsuit doesn’t), it seems excessive to ask that the students be banned, even temporarily, from social media platforms for their actions. Fortunately, it looks as though Matot won’t be granted any form of relief, not if the rest of the defendants succeed in having their cases dismissed. If they don’t, that request alone will allow the remaining defendants to challenge Matot with First Amendment claims, something the court hasn’t examined yet — and something that’s very unlikely to resolve in Matot’s favor.

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Comments on “Court Tells Asst. Principal That Students' Fake Social Media Accounts Don't Violate CFAA Or Racketeering Laws”

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Baldaur Regis (profile) says:

Not just anybody can use the CFAA

There’s a secret clause in 18 USC ? 1030 – section (I could tell you but then I’d have to kill you)(None of your fucking business):

(5) Courts considering prosecutions under this title shall meet a two-step test of eligibility:

(A) A vindictive or publicity-seeking prosecutor, or, a prosecutor who has made a deal with the Devil or lessor imps may be considered, provided validity of the Dark Agreement, and

(B) A technologically-illiterate, insane, or East Texas Judge.

Jeff in Calgary says:


I am not sure if it is a matter for the courts, but clearly, these kids were way out of line. Blatant disrespect for authority like that must be dealt with. Probably a better approach would be to deal the the parents. Problem is, most parents these days think their kids are blameless, and will take no actions. If the court had to be used, wouldn’t a libel suet be more appropriate?

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