National sent a cease-and-desist letter to LineJump stating that National’s terms and conditions prohibited the use of nationalair.com for commercial purposes and that LineJump’s activities breached the Terms. When LineJump’s use did not stop, National filed suit. Its complaint includes claims for breach of contract, trespass to chattels, and violation of the Computer Fraud and Abuse Act. National and Line-Jump have filed cross motions for summary judgment. How should the court rule?
The Court should rule in favor of National for the breach of contract claim and the Computer Fraud and Abuse Act but deny the trespass to chattels claim. The breach of contract claim will likely succeed because the “Terms and Conditions” are hyperlinked on the homepage and the homepage states “use of the National website constitutes acceptance of our Terms and Conditions.” National would argue that this puts users on notice that they are subject to the terms and conditions. these terms include that “third parties may not use the National web sites for the purpose of checking Customers in online or attempting to obtain for them a boarding pass in any certain boarding group.” On the other hand, LineJump could argue that it was not reasonable conspicuous notice because the print was in small black print and at the bottom of the page. However, the Courts will likely find in favor of National.
Next, the CFAA claim will likely find in favor of National because LineJump was circumventing usernames and passwords to gain access to National’s website. They obtained the usernames/passwords of other people, instead of creating their own. In HIQ Labs, Inc. the Courts found that “the wording of the statute, forbidding “access[] … without authorization,” 18 U.S.C. § 1030(a)(2), suggests a baseline in which access is not generally available and so permission is ordinarily required. …Where the default is free access without authorization, in ordinary parlance one would characterize selective denial of access as a ban, not as a lack of “authorization.”” Therefore, “the CFAA’s prohibition on accessing a computer “without authorization” is violated when a person circumvents a computer’s generally applicable rules regarding access permissions, such as username and password requirements, to gain access to a computer. It is likely that when a computer network generally permits public access to its data, a user’s accessing that publicly available data will not constitute access without authorization under the CFAA.”
Lastly, in order to show trespass to chattels, there must be some actual harm which National has not show so the Courts will likely rule in favor of LineJump.
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