No, Sending Spam Text Messages Is Not The Same As Hacking Someone's Phone

from the misusing-computer-fraud-law dept

There's just something about the Computer Fraud and Abuse Act -- the "anti-hacking" law in the US -- that seems to leave it open for abuse in lawsuits. This is the law that was used to convict Lori Drew. Even though the judge eventually tossed the ruling, it showed how the broadly-worded law could be applied in dangerous ways. Still, at least some attempts at twisting the law aren't getting very far. For example, a woman in Minnesota tried to use the law against a company that sent her spam text messages she never requested, and discovered that in order to bring a case under a law, you have to actually show that the law was broken:
Plaintiff brings three possible claims: (1) a claim for obtaining information from her phone; (2) a claim for transmitting information or code through her phone; and (3) a claim for "accessing" her phone.

Information Claim: The court rejects the information-based claim because there's no information that WSOD allegedly obtained through accessing the plaintiff's phone. Plaintiff analogizes to websites and argues that any time someone sends a message to a mobile phone, information is "obtained" in the same way that information is obtained any time someone accesses a website. The court rejects this analogy, finding that "there is a fundamental difference between viewing websites and communicating with wireless devices such as cell phones by sending text messages." Even if the transmission of an unwanted text message somehow resulted in the "obtaining of information," the court concludes that there's no loss as a result of defendant having obtained the information.

Transmission Claim: The transmission claim requires plaintiff to allege that WSOD caused the transmission of code or information and as a result "intentionally caused damage without authorization" to plaintiff's device. The complaint fails on both counts. There wasn't a credible allegation of damage (there was no allegation of impairment to the machine) or of WSOD's intent to cause the damage.

Access Claim: The court rejects the access claim since plaintiff does not adequately allege that the unauthorized access was intentional.
So, nice try, but no dice. Someone sending unsolicited text messages to your mobile phone may be annoying (and potentially illegal under other laws), but it's not hacking under the Computer Fraud and Abuse Act.

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    tracker1 (profile), 16 Dec 2009 @ 8:01am

    @Ryan, some phone services won't allow you to selectively block incoming text messages, and some plans charge per message, inbound as well as outbound. Essentially, if you are causing damages (in costs) incurred to an individual or company they can sue. Probably not under certain conditions, but just the same. As to safe harbors, you could be at least sued to obtain customer information, and for not properly identifying customers and usage for information that gets transmitted over the airwaves, which could mean FCC involvement.

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