Federal Statutory Civil Law

Federal Civil Rights Statutes, Title VII or Title IX
Federal Statutory Civil Law for Enforcing Constitutional Claims, 42 U.S.C. § 1983
Federal Statutory Civil Law on Copyright, 17 U.S.C. § 501
Federal Statutory Civil Law Related To Child Pornography: Child Abuse Victims’ Rights Act, 18 U.S.C. § 2255(a)
Federal Statutory Civil Law Related To Unauthorized Computer Access: Computer Fraud and Abuse Act, 18 U.S.C. § 1030
Federal Wiretap Act, 18 U.S.C. § 2520

Federal Civil Rights Statutes, Title VII or Title IX
1. Introduction
  
  The federal Civil Rights Act of 1964 outlaws discrimination based on race, color, religion, sex, or national origin. Sexual harassment is encompassed within its prohibition of discrimination on the basis of sex. Because Congress wished to encourage enforcement of these statutes by “private attorneys general,” federal courts may award attorney’s fees to a plaintiff who prevails on claims brought under the Civil Rights Act.¹ The sections of the Civil Rights Act that are most likely to be useful to a WMC victim are Title VII, which prohibits sexual harassment or other forms of discrimination at work, or title IX, which prohibits discrimination in an education program that receives funding from the federal government.
2. Text of Statute(s)
  
  20 U.S.C. § 1681 (Title IX)
  
  (a) Prohibition against discrimination; exceptions
  
  No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance [. . .]
  
  42 U.S.C. § 2000e-2 (Title VII)
  
  (a) Employer practices
  
  It shall be an unlawful employment practice for an employer--
  
  (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
  
  (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
  
  […]
3. Cases
  1. Ruiz v. City of New York, No. 14-cv-5231 (VEC), 2015 WL 5146629 (S.D.N.Y. Sept. 2, 2015)
    - Procedural Posture: Defendants moved to dismiss plaintiffs’ amended complaint.
    - Law: Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2; the Civil Rights Act of 1866, 42 U.S.C. § 1981; constitutional claims under 42 U.S.C. § 1983, and state law human rights statutes
    - Facts: Plaintiffs were two minority members of the New York Police Department who were romantically involved with each other. They brought claims alleging that defendants, other officers of the New York Police Department and the City of the New York, had engaged in several official and non-official discriminatory and retaliatory actions. In particular, plaintiffs alleged that a coworker had circulated an image of the female plaintiff’s face superimposed onto a naked woman’s body. The female plaintiff also alleged that she was singled out for discipline in retaliation for complaining about discrimination and, as a result, had severely limited promotion and transfer prospects.
    - Outcome: The court dismissed several of plaintiffs’ claims, but allowed the female plaintiff to pursue her race discrimination claims and both plaintiffs to pursue their retaliation and hostile work environment claims.
    - Special Notes: Although the court held that the female plaintiff had not adequately alleged a connection between her gender and the adverse employment action she suffered, it concluded that both defendants had adequately alleged sexual harassment through a hostile work environment. The court highlighted the photoshopped image circulated by a coworker, several instances of sexually-explicit graffiti using the plaintiffs’ names, and a lewd text a coworker sent both plaintiffs.
  2. Doe v. Town of Stoughton, No. 12-10467-PBS, 2013 WL 6195794 (D. Mass. Nov. 25, 2013)
    - Procedural Posture: Plaintiff brought claims against the Town of Stoughton, her school principal, and the town Superintendent of Schools. Defendants moved for summary judgment.
    - Law: Title IX of the Civil Rights Act, Constitutional Claims (Equal Protection), Massachusetts Fair Practices Act, negligence.
    - Facts: Plaintiff was a 14-year old freshman attending public high school. A 17-year old junior solicited nude photographs from plaintiff and, when she sent them, he distributed those photographs to friends and classmates through his cell phone and the Internet. Other classmates subsequently subjected Plaintiff to sexual harassment; for example, other male students requested more nude photographs, students called her gender-charged derogatory names, and students threatened to widen the distribution of the photographs if she transferred to another school. Plaintiff and her mother reported the incidents to school employees in the guidance department, who promised to take action to prevent further harassment. But no formal disciplinary measures were ever imposed and no parents were notified, even after the junior who solicited nude photographs was charged with statutory rape and pled guilty to assault and battery.²
    - Outcome: The court held plaintiffs’ Title IX and negligence claims survived summary judgment but entered summary judgment in favor of defendants on the remainder.
    - Special Notes: Although defendants argued that plaintiff was not harassed “on the basis of sex,” the court held that a reasonable jury could find that the actions were because of plaintiff’s sex, in that (1) students circulated nude photographs of the plaintiff, (2) name-calling included several gender-charged words, (3) classmates spoke to plaintiff about the photographs in a sexually demeaning manner, and (4) in this context, pointing, whispering, and staring by fellow students can be considered sexual harassment. The court further held that the harassment met the “severe, persistent, and objectively offense” bar due to the high number of students (estimated to be between 25 and 30), and the frequency of harassment (as often as every day for a number of months). Additionally, the court concluded a jury could reasonably find that the harassment deprived plaintiff of a public school education based on plaintiff’s testimony that the harassment caused her to develop an eating disorder that required extensive treatment, a week-long hospitalization, and eventual withdrawal from school.
  3. Phillips v. Donahoe, No. 12-410, 2013 WL 5963121 (W.D. Pa. Nov. 7, 2013)
    - Procedural Posture: Plaintiff, a postal employee, brought claims against the Postmaster General. Defendant moved for summary judgment.
    - Law: Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2
    - Facts: After plaintiff made comments about a coworker, she received threatening text messages from him and his cousin, another coworker. The cousin had nude photographs of plaintiff in sexually suggestive poses on his cell phone, and he showed the photographs to several coworkers. Plaintiff was eventually terminated.
    - Outcome: The court held that a reasonable jury could conclude that plaintiff had experienced a hostile work environment because of her sex, but that the Postal Service could not be held vicariously liable for her coworker’s harassing conduct because plaintiff’s supervisors took actions that were reasonably calculated to prevent further harassment. The court denied the defendant’s motion for summary judgment as to plaintiff’s retaliation claims.
    - Special Notes: The court held that although the harassing conduct spanned a brief period of time, it was nonetheless sufficient for a trier of fact to find that the work environment was both objectively and subjectively abusive. In particular, the court highlighted that the plaintiff had almost quit her job after she learned that pictures of her naked body had been shown to her coworkers, and that Pennsylvania law reflects a societal interest in preventing the unauthorized exposure of an individual’s intimate body parts.
  4. Morrison v. N. Essex Commty. College,780 N.E. 2d 132 (Mass. App. Ct. 2002)
    - Procedural Posture: The trial court granted summary judgment for the defendants based on its conclusion that the claims were barred by the three-year statute of limitations. Plaintiffs appealed.
    - Law: Title IX, 20 U.S.C. § 901(a), and state law unfair educational practice claims
    - Facts: Plaintiffs were two female athletes who alleged they were sexually harassed by their basketball coach, who was also the school’s athletic director, while they attended Northern Essex Community College as students. There was evidence that college administrators were on notice as early as the 1980s that the coach gave liquor to underage students and asked female students for sexual favors. No official action was taken until seven years after the initial reports, when the college investigated a complaint against the coach and uncovered several similar accusations, including that he had threatened to reveal pictures in which female students appeared naked that were apparently taken while the students were drunk. As a result of the investigation, the college and the coach entered an agreement prohibiting him from coaching any female athletic teams, but this agreement was later modified to allow him to coach the female basketball team after the earlier coach resigned. Plaintiffs were on the team when he returned, and the coach engaged them in sexually explicit conversations and made sexual advances toward them.
    - Outcome: Grant of summary judgment was reversed and the case was remanded. The court held that “[b]ecause the creation of a hostile educational environment may occur through accretion of sexually offensive behavior over time, the most recent incident of conduct (conduct that need not itself be independently actionable) anchors prior, related events for purposes of determining whether the limitations bars suit even though a large portion of the discriminatory conduct may have taken place more than three years prior to the complaint.” The court concluded that there were genuine issues of material fact regarding whether incidents of conduct within the limitations period were substantially related to earlier events. Additionally, the court held that there were genuine issues of material fact related to whether the college was deliberately indifferent because there was evidence showing the college had been put on notice of the coach having sexually harassed other women at the college.
4. Practice Pointers
  - Title VII and Title IX of the federal Civil Rights Act do not provide plaintiffs with a cause of action against individuals, only against employers and educational institutions.³
  - Title VII imposes an exhaustion requirement, meaning that an employee alleging unlawful discrimination or retaliation must file an administrative charge with the EEOC (or a similar state or local agency) before suing in court.⁴ Title VII claims by federal employees must be brought against the head of the relevant department, agency, or unit.⁵
  - To establish a Title IX claim against a school district based on student-on-student harassment, a plaintiff must be able to show (1) the harassment is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit; (2) the defendant had actual knowledge of the harassment; and (3) the district acted with deliberate indifference to the harassment.⁶
1. See Civil Rights Attorney’s Fees Award act, codified at 42 U.S.C. § 1988. ↩
2. This factual description is taken from the court’s order granting in part and denying in part the defendants’ motion to dismiss. See Doe v. Town of Stoughton, 917 F. Supp. 2d 160 (D. Mass. 2013). ↩
3. See Ruiz v. City of New York, No. 14-cv-5231 (VEC), 2015 WL 5146629, at *12 (S.D.N.Y. Sept. 2, 2015). ↩
4. See 42 U.S.C. § 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). ↩
5. See 42 U.S.C. § 2000e-16(c). ↩
6. See Doe v. Town of Stoughton, No. 12-10465-PBS, 2013 WL 6195794, at *1 (Nov. 25, 2013). ↩
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Federal Statutory Civil Law for Enforcing Constitutional Claims, 42 U.S.C. § 1983
1. Introduction
  
  Section 1983, codified as 42 U.S.C. § 1983, was enacted as part of the Civil Rights Act of 1871, and it provides a civil remedy for people whose constitutional rights have been violated.¹
  
  Because constitutional rights generally protect individuals against the government, Section 1983 is generally used to seek monetary remedies from government officials and municipalities, and plaintiffs can also bring civil conspiracy claims under section 1983 if their constitutional rights were violated as the result of an agreement between multiple people. Section 1983 covers a broad swath of issues and often involve complex questions of jurisdiction and procedure.
  
  A suit under Section 1983 must identify which of plaintiff’s constitutional rights he or she alleges was violated. Most of the cases described below allege violations of plaintiffs’ rights under the Equal Protection Clause or the Fourth Amendment, but a victim should consider whether other constitutional rights are at issue.
  
  In sum, if the culpable actors were government officials, a WMC victim can consider suing for damages under 42 U.S.C. § 1983.
2. Text of Statute(s)
  
  42 U.S.C. § 1983
  
  Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
  
  Fourth Amendment
  
  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  
  Equal Protection Clause (Fourteenth Amendment, Section 1)
  
  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
3. Cases
  1. Ruiz v. City of New York, No. 14-cv-5231 (VEC), 2015 WL 5146629 (S.D.N.Y. Sept. 2, 2015)
    - Procedural Posture: Defendants moved to dismiss plaintiffs’ amended complaint.
    - Law: Title VII of the Civil Rights Act, the Civil Rights Act of 1866, 42 U.S.C. § 1981, constitutional claims under 42 U.S.C. § 1983, and state law human rights statutes
    - Facts: Plaintiffs were two minority members of the New York Police Department who were romantically involved with each other. They brought claims alleging that defendants, other officers of the New York Police Department and the City of the New York, had engaged in several official and non-official discriminatory and retaliatory actions. In particular, plaintiffs alleged that a coworker had circulated an image of the female plaintiff’s face superimposed onto a naked woman’s body.
    - Outcome: The court dismissed several of plaintiffs’ claims, but allowed the female plaintiff to pursue her race discrimination claims and both plaintiffs to pursue their retaliation and hostile work environment claims.
    - Special Notes: The court dismissed plaintiffs’ 42 U.S.C. § 1983 claims against the City of New York because the plaintiffs’ allegations were not sufficient to support a claim for municipal liability. Under the 1978 Supreme Court ruling in Monell v. Dep’t of Soc. Servs. of City of N.Y., a municipal entity can only be held liable under § 1983 if the plaintiff can show the constitutional violation was caused by a municipal policy or custom. See 436 U.S. 658, 694 (1978). The court held that this standard was not satisfied by allegations the misconduct was repetitive, continuous, systematic, and extended up the chain of command to a Commanding Officer. The court paid particular attention to the fact that the coworker who circulated the photoshopped image was disciplined after plaintiffs complained.
  2. Doe v. Old Forge Borough, No. 3:12-cv-2236, 2015 WL 4041435 (M.D. Pa. July 1, 2015); Doe v. Old Forge Borough II, No. 3:12-cv-2236, 2015 WL 4079362 (M.D. Pa. July 1, 2015).
    - Procedural Posture: Defendants moved to dismiss some of plaintiff’s claims.
    - Law: Child Abuse Victim’s Rights Act, 18 U.S.C. § 2255; constitutional claims (Substantive Due Process) under 42 U.S.C. § 1983, and several state law torts (negligence, negligence per se, negligent infliction of emotional distress).
    - Facts: While plaintiff was a volunteer junior firefighter, beginning when she was 15, she was sexually assaulted by Borough police officers and firefighters. Plaintiff was also suspended after one defendant told Borough personnel that he had naked pictures of her. All three individual defendants were criminally charged and convicted for their actions against plaintiff.
    - Outcome: The court dismissed most of plaintiff’s claims, but allowed her to pursue her claims against the Borough that her constitutional right to substantive due process was violated by the municipality’s failure to supervise, train, or promulgate policies adequate to protect her.
    - Special Notes: The court observed that all people should be well aware that sexually abusing minors is a criminal action, meaning that her theory of liability would not be convincing if it relied on concluding that her sexual abuse could have been prevented if the Borough had more rigorous policies or training programs about proper contact with minors. But the court did conclude that the municipality could be held liable if plaintiff could prove her allegations that it had failed to implement a policy for reporting supervising officers’ improper and illegal conduct, had not properly sanctioned employees for improper activity, and had not properly monitored and supervised officers with records of improper conduct.
  3. Gillespie v. City of Battle Creek, --- F. Supp. 3d ---, 2015 WL 1459611 (W.D. Mich. Mar. 30, 2015)
    - Procedural Posture: City defendant moved to dismiss, and individual defendants moved for partial judgment on the pleadings.
    - Law: Wiretap Act, 18 U.S.C. § 2520(a); Constitutional Claims (Fourth Amendment); civil conspiracy under 42 U.S.C. § 1983; Michigan eavesdropping statute; state law tort claims (intrusion on seclusion, embarrassing private facts, negligent infliction of emotional distress, intentional infliction of emotional distress)
    - Facts: After receiving reports that money and property had been stolen from the women’s locker room, the Battle Creek Police Department installed a camera and video recording device in the locker room without informing female officers they would be recorded. A video from the locker room recording device was shown during a disciplinary hearing because it included footage of a female officer in her uniform going through at least two open lockers. That video also included footage of the officer removing her clothing and her naked breasts. During the screening, the head of the Internal Affairs Division, who was operating the audio/visual equipment, suggested that the male officers turn around before that part of the video. The officer was instructed not to say anything about the recording or she would be fired, and she was eventually terminated. Several female police officers, including the officer who was shown in the hearing, sued the City and high-ranking officers in the Police Department. The other plaintiffs regularly used the women’s locker rooms and believed they were taped, but did not have access to the videotapes.
    - Outcome: Plaintiffs’ constitutional claims (among others) against the City were allowed to proceed to discovery because the Chief of Police had authorized the surreptitious recording device.
    - Special Notes: The court agreed with plaintiffs that whether a person possesses “final authority” sufficient to establish municipal liability is not a purely legal question, but is a fact-intensive inquiry regarding practice, custom, and delegation of duties.
      
      The court dismissed the plaintiffs’ civil conspiracy claim under 42 U.S.C. § 1983 because it alleged a conspiracy between employees of the City and was therefore barred by the intra-corporate conspiracy doctrine. The intra-corporate conspiracy doctrine provides that where all defendants belong to the same collective entity, there can be no conspiracy because the defendants are all essentially one “person,” and two “people” are required to have a conspiracy. In so holding, the court rejected plaintiffs’ argument that the intra-corporate conspiracy doctrine does not apply to claims under § 1983.
  4. Doe v. Town of Stoughton, No. 12-10467-PBS, 2013 WL 6195794 (D. Mass. Nov. 25, 2013)
    - Procedural Posture: Plaintiff brought claims against the Town of Stoughton, her school principal, and the town Superintendent of Schools. Defendants moved for summary judgment.
    - Law: Title IX of the Civil Rights Act, Constitutional Claims (Equal Protection), Massachusetts Fair Practices Act, negligence.
    - Facts: Plaintiff was a 14-year old freshman attending public high school. A 17-year old junior solicited nude photographs from plaintiff and, when she sent them, he distributed those photographs to friends and classmates through his cell phone and the Internet. Other classmates subsequently subjected Plaintiff to sexual harassment; for example, other male students requested more nude photographs, students called her gender-charged derogatory names, and students threatened to widen the distribution of the photographs if she transferred to another school. Plaintiff and her mother reported the incidents to school employees in the guidance department, who promised to take action to prevent further harassment. But no formal disciplinary measures were ever imposed and no parents were notified, even after the junior who solicited nude photographs was charged with statutory rape and pled guilty to assault and battery.²
    - Outcome: The court held plaintiffs’ Title IX and negligence claims survived summary judgment but entered summary judgment in favor of defendants on the remainder, including plaintiffs’ claims based on the Equal Protection Clause.
    - Special Notes: The court held the municipality was entitled to summary judgment on plaintiff’s constitutional claims under 42 U.S.C. § 1983 because the school officials who addressed plaintiff’s complaints were not final policymakers under state law and the record did not show a pattern or practice of discrimination. The court also granted summary judgment on plaintiff’s § 1983 claims against the superintendent and assistant principal because neither official was involved in the disciplinary decisions that plaintiff alleged caused her injury.
  5. Clements-Jeffrey v. City of Springfield, Ohio, 810 F. Supp. 2d 857 (S.D. Ohio 2011).
    - Procedural Posture: Two plaintiffs, one male and one female, sued the City, City police officers, a software company, and the company’s theft recovery officer. Defendants moved for partial summary judgment.
    - Law: Constitutional Claims (Fourth Amendment), Federal Wiretap Act, Stored Communications Act, state invasion of privacy law
    - Facts: The female plaintiff purchased a laptop that, unbeknownst to her, was stolen, and she used the laptop to exchange sexually explicit email messages, instant messages, and webcam images with the male plaintiff, believing that password protection would keep these communications secure and private. The stolen laptop had originally been purchased by a school district, however, they installed a theft recovery service provided by the defendant software company and issued the laptop to a vocational student. When the student filed a police report for the theft of the laptop, the school district authorized the defendant software company to gather information to identify the user of the stolen laptop. The software company accomplished this by, among other things, causing the laptop to download software that allows theft recovery officers to remotely access the laptop, to capture screen shots of images shown on the monitor, to record all keystrokes, and to intercept electronic communications sent to and from the stolen laptop without the user’s knowledge. The defendant theft recovery officer was assigned to track this laptop and captured keystrokes, monitored the female plaintiff’s visits to various websites, and took screen shots of sexually explicit images plaintiffs sent using webcams. All these images were sent to the police, who interrogated her about the laptop, showed her the sexually explicit screen captures, berated her about her use of the webcam, and arrested and charged her with receipt of stolen property. The charge was eventually dismissed.
    - Outcome: The court denied the software company and theft recovery officer’s motion for summary judgment because it was not acting as an agent of the police (and therefore did not have immunity because it was acting under the color of law). Also, because a reasonable jury could find that the female plaintiff neither knew nor should have known that the laptop was stolen, there were genuine issues of fact regarding whether or not she had a reasonable expectation of privacy in the laptop. However, the court granted summary judgment for the City and City police officers because, even if they obtained the images from the software company wrongfully, their use of the communications was not a search and seizure and because they had qualified immunity.
4. Practice Pointers
  - Claims under § 1983 must establish that plaintiffs were denied a constitutional or federal right under color of state law, and therefore usually can be brought only against government officials or entities.³
  - Claims against government officials often fail against those actors’ qualified immunity defense. “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”⁴ Plaintiffs who bring constitutional claims under § 1983 should conduct research and seek discovery to counter this common defense.
  - A municipal entity may be held liable under § 1983 only if the plaintiff can show the constitutional violation was caused by a municipal “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.”⁵
  - For these and other reasons, litigation of § 1983 claims often focuses more on procedural hurdles than on whether the plaintiff’s constitutional rights were actually violated. In considering whether to bring claims under § 1983, victims and their attorneys should familiarize themselves with the complex procedural rules.
1. A more detailed summary of Section 1983 litigation is available from the Federal Judicial Center. See Martin A. Schwartz & Kathryn R. Urbonya, Section 1983 Litigation (2d ed. 2008), available at http://www.fjc.gov/public/pdf.nsf/lookup/sec19832.pdf/$file/sec19832.pdf. ↩
2. This factual description is taken from the court’s order granting in part and denying in part the defendants’ motion to dismiss. See Doe v. Town of Stoughton, 917 F. Supp. 2d 160 (D. Mass. 2013). ↩
3. See 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-61 (1999). ↩
4. Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). ↩
5. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). ↩
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Federal Statutory Civil Law on Copyright, 17 U.S.C. § 501
1. Introduction
  
  The victim of the nonconsensual online publication of intimate photographs or videos may bring a civil suit for copyright infringement if the victim is the copyright owner of the material.
2. Text of the Statute(s)
  
  17 U.S.C. § 501
  
  (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the authority provided in section106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A (a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.
  
  (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411,institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, any person having or claiming an interest in the copyright.
3. Cases
  1. Bollea v. Gawker Media, LLC, 913 F. Supp. 2d 1325 (M.D. Fla. 2012); Bollea v. Clem, 937 F. Supp. 2d 1344 (M.D. Fla. 2013); Gawker Media, LLC v. Bollea, 129 So. 3d 1196 (2014)
    - Procedural Posture: On October 15, 2012, Plaintiff Terry Gene Bollea (professionally known as Hulk Hogan) filed a federal diversity lawsuit against Gawker asserting claims for (1) invasion of privacy by intrusion upon seclusion, (2) publication of private facts, (3) violation of the Florida common law right of publicity, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress. Bollea v. Gawker Media, LLC, No. 8:12-cv-02348, 2012 WL 5509624 (M.D. Fla. 2012) (the "Prior Gawker Action” or the “Federal Complaint”). On October 16, 2012, Bollea filed a motion for preliminary injunction, seeking to enjoin the named defendants from publishing any portion of or any content from the sex tape. On November 8, 2012, Plaintiff filed an amended complaint, which added a claim for copyright infringement. On November 14, 2012, the federal court issued an order denying the October 16, 2012 motion for preliminary injunction. See id. at *3-5. The federal court found that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment, and that, notwithstanding the First Amendment issue, Bollea otherwise failed to demonstrate that he was entitled to a preliminary injunction under the applicable injunction standard. Id. at *3-4. On December 28, 2012, Bollea voluntarily dismissed the Federal Complaint.
      
      After failing to obtain a preliminary injunction in federal court, Bollea filed suit in Florida state court for: (1) invasion of privacy by intrusion upon seclusion; (2) invasion of privacy by publication of private facts; (3) invasion of privacy by misappropriation; (4) intentional infliction of emotional distress; (5) violation of the Florida Wiretap Act; and (6) right of publicity. Thereafter, and as he did in federal court, Bollea filed a motion for temporary injunction seeking to enjoin the Gawker defendants from publishing and otherwise distributing the video excerpts from the sexual encounter and complementary written report. There, before Judge Campbell in Florida state court, Bollea received a preliminary injunction ordering Gawker to take down the video and written narrative. See Order Granting Plaintiff's Motion for Temporary Injunction, Bollea v. Clem, No. 12-012447-CI, 2013 WL 2474359 (Fla. Cir. Ct. Apr. 25, 2013). In 2014, Gawker won an emergency stay and the injunction was reversed on appeal. Gawker Media, LLC v. Bollea, 129 So. 3d 1196 (Fla. Dist. Ct. App. 2014). In March 2016, the case went to trial, and a Florida jury ruled in Bollea’s favor, awarding him $115 million in damages -- $15 million more than he was seeking. The jury enhanced the damages by awarding $25.1 million in punitive damages, bringing the total award in the case to $140.1 million. Gawker intends to appeal the verdict.
    - Law: Copyright Act, state tort law, state wiretap statute
    - Facts: A sexual encounter between Heather Clem and Terry Gene Bollea was surreptitiously recorded. Bollea contended he was unaware the sexual encounter was being videotaped and would have objected to the encounter being recorded. Bollea later obtained a copyright registration for the video. The video was leaked to third parties, and eventually obtained by Gawker. Gawker published excerpts from the video and a narrative describing the video.
    - Outcome: There are three separate lawsuits, and each lawsuit has relevant holdings. (1) Federal Complaint – voluntarily dismissed. (2) State jury trial – $140.1 million verdict. Gawker intends to appeal the verdict.
    - Special Notes: (3) State Amended Complaint – remanded. On October 15, 2012 (the same day that Bollea filed the Federal Complaint), Bollea sued Heather Clem and Bubba the Love Sponge Clem aka Todd Alan Clem by the filing a complaint in the Circuit Court for the Sixth Judicial Circuit in and for Pinellas County (the "State Complaint"). On December 28, 2012, Plaintiff filed an Amended State Complaint dropping Clem as a defendant and adding Gawker and others (the “State Amended Complaint”). Gawker removed, alleging that the federal court had diversity jurisdiction because: (1) Clem, a Florida citizen, had been fraudulently joined; (2) the state law privacy tort claims arose under the federal constitution; and (3) those claims were preempted by the Copyright Act. In response, Bollea filed a motion to remand. Judge James Whittemore (the presiding Judge in the Federal Complaint to whom this case has also been transferred) agreed to grant Hogan's motion to remand the case back to state court. Bollea v. Clem, 937 F. Supp. 2d 1344, 1348, 2013 U.S. Dist. LEXIS 44625, 2013 WL 1296076 (M.D. Fla. 2013). Judge Whittemore ruled that there were no questions of federal law necessarily raised by the plaintiff’s complaint because his state law tort claims did not require the application of federal constitutional law or federal copyright law. On the copyright argument specifically, the court held that the plaintiff’s state law privacy tort claims were qualitatively different from a copyright infringement action because they required different elements of proof.
  2. Doe v. Fortuny, Case 08 C 1050 (N.D. Ill. 2009).
    - Procedural Posture: Anonymous plaintiff sued defendant for publishing his photo on defendant’s website without his permission.
    - Law: Copyright infringement (among other claims).
    - Facts: Defendant allegedly posted plaintiff’s photograph on the internet after obtaining it through a “Craigslist Experiment” in which he pretended to be a woman seeking a “str8 brutal dom muscular male” for sex. Over 100 men responded, including plaintiff, providing photos and contact info. Defendant allegedly posted this material on his blog, RFJason and Encyclopedia Dramatica.
    - Outcome: A default judgment was entered for the plaintiff because the defendant failed to appear or answer. The judgment consisted of: $35,001.00 in statutory damages for violation of the Copyright Act; $5,000.00 in compensatory damages for public disclosure of private facts and intrusion upon seclusion; $32,262.50 in attorney’s fees pursuant to 17 U.S.C. 505; and $1,989.06 in costs. Defendant was also ordered to immediately comply with injunctive relief and remove and/or disable access, content and viewing capabilities of the plaintiff’s response to defendant’s ad, the copyrighted photograph and plaintiff's personal email address on defendant’s blog.
  3. Vogel v. Bennet, No. B 207248, 2009 Cal. App. Unpub. LEXIS 4840 (Cal. Ct. App. June 17, 2009).
    - Procedural Posture: Plaintiff appealed from summary judgment entered in favor of defendants based on preemption grounds.
    - Law: Copyright Act as defense—plaintiff’s claims were preempted by the Copyright Act.
    - Facts: Defendants produced videos of women in bikinis in exotic locations. The plaintiff is a model and spokesperson in many of the videos. Plaintiff claimed that she did not give defendants her consent to sell or merchandise her images in any form. Plaintiff alleged that her privacy rights were violated when defendants used her likeness in videos, advertising, and programs aired on television.
    - Outcome: Determined that trial court had erred because plaintiff’s name and likeness claims are not the subject matter of copyright law.
  4. KNB Enters. v. Matthews, 92 Cal. Rptr. 2d 713 (Cal. Ct. App. 2000).
    - Procedural Posture: Plaintiff appealed trial court’s judgment granting defendant's motion for summary judgment stating that plaintiff's claim under Cal. Civ. Code §3344 was preempted by the federal Copyright Act.
    - Law: Federal Copyright Act
    - Facts: Plaintiff owned the copyright to explicit photographs of models and displayed them on his website. Defendant took plaintiff’s copyrighted photos without permission and used them on his own website for commercial purposes. None of the models were known celebrities and the photographers were not “masters of the genre.”
    - Outcome: Judgment reversed. Plaintiff’s claims were not equivalent to a copyright infringement claim and were not preempted by federal copyright law. Human likeness is not copyrightable even though contained in a copyrighted photograph.
  5. Michaels v. Internet Entm’t Grp., Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998); Michaels v. Internet Entm’t Grp., Inc., No. CV 98-0583 DDP (CWx), 1998 Wl 882848 (C.D. Cal. Sept. 11, 1998)
    - Procedural Posture: Plaintiffs brought claims against Internet Entertainment Group and Paramount. The court granted plaintiffs’ motions for temporary restraining orders and a preliminary injunction prohibiting dissemination of the videotape. Paramount moved for partial summary judgment.
    - Law: Copyright Act, 17 U.S.C. § 501; Lanham Act, 15 U.S.C. § 1125 (false designation of origin), California tort law (invasion of privacy, right of publicity)
    - Facts: Celebrity couple Pamela Anderson Lee, a television and film actor, and Bret Michaels, lead singer of the rock band Poison, recorded a videotape of themselves engaging in sexual private conduct. An unnamed associate of Michaels, who received a copy of the tape as a gift, worked with a private investigator to convey the tape to adult entertainment company IEG for $16,500, with an additional $15,000 to be paid if the tape was commercially distributed through retail for 14 consecutive days. IEG then announced to several media news outlets that it would release the tape on the Internet on a particular date. A few days before the release date, Paramount broadcast a story on its tabloid news program about the impending release, and included eight excerpts from the tape. After the announcements by IEG and Paramount, Michaels and Lee both registered copyrights in the sex tape. Michaels brought claims of copyright infringement, false designation of origin, invasion of privacy, and violation of rights of publicity against IEG, and Lee intervened with claims against IEG and Paramount for copyright infringement, invasion of privacy, and violation of the right of publicity. Both plaintiffs sought to enjoin the nonconsensual dissemination of their sex tape.
    - Outcome: The court issued a preliminary injunction prohibiting the publication, distribution, or other dissemination of a sexually explicit videotape of entertainers Pamela Anderson and Bret Michaels on multiple grounds, including both copyright and privacy theories, because the public has no legitimate interest in graphic depictions of the “most intimate aspects of” a celebrity couple’s relationship. “Sexual relations are among the most private of private affairs”; a video recording of two individuals engaged in sexual relations “represents the deepest possible intrusion into private affairs.”
    - Special Notes: Despite the court’s preliminary injunction ruling, it later entered summary judgment in favor of Paramount on all claims brought against it by plaintiff Lee. Specifically, the court held that Paramount’s use of the excerpts from the tape was not copyright infringement because it qualified as fair use for purposes of news reporting. The court also held that Lee’s state law privacy claims against Paramount failed because Paramount’s use of plaintiffs’ names and likenesses in news reporting was privileged, and because the intrusiveness of the brief excerpts was outweighed by Paramount’s First Amendment interest in conveying information about the imminent release of the tape.
4. Practice Pointers
  - In state court cases, a defendant may attempt to dismiss a valid appropriation claim by arguing that it is preempted by the federal Copyright Act.
  - Another possible related claim could arise if there was a copyrighted song accompanying the intimate video. This possibility might include contacting the copyright holder and obtaining the rights for the purposes of bringing a copyright action, then sending a take down notice under the Digital Millennium Copyright Act (17 U.S.C. § 512), or pursuing a copyright action for statutory damages.
  - Copyright may also be used as a defense if the photos in question were taken by the person attempting to wrongfully use them.
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Federal Statutory Civil Law Related To Child Pornography: Child Abuse Victims’ Rights Act, 18 U.S.C. § 2255(a)
1. Introduction
  
  Federal child pornography laws punish the possession, receipt, or trafficking of child pornography as described in chapters 71 and 110 of title 18 of the U.S. Code, primarily at 18 U.S.C. §§ 2252, 2252A, 2260(b). There are civil and criminal penalties for such sex crimes against children. This section focuses solely on federal civil law; the federal criminal child pornography laws are discussed under Federal Statutory Criminal Law. There may also be state-specific laws on point.
  
  In 2006, Congress amended the Child Abuse Victims’ Rights Act of 1986 to provide that civil lawsuits may be brought in United States District Court against anyone who produces, distributes, or possesses their child sex abuse images under the Act. The 2006 Amendment is codified at 18 U.S.C. § 2255. Under the civil statute, a plaintiff who proves personal injury is entitled to recover at least $150,000 in damages, plus the cost of suit, including reasonable attorney’s fees.
  
  If the sexual photographs or videos were taken while the victim was a minor (under 18), the victim may be able to file a civil suit against the individuals who possessed, received, or distributed any images that were created, or that aided and abetted violations of the enumerated statutes.
2. Text of the Statute(s)
  - 18 U.S.C. § 2256(8): Definitions for chapter
    
    (8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where —
    
    (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
    
    (B) such visual depiction is a digital image, computer image, or computer generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
    
    (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
  - 18 U.S.C. § 2255: Civil Remedy for Personal Injuries
    
    (a) In general.--Any person who, while a minor, was a victim of a violation of section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney's fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value.
    
    (b) Statute of limitations.--Any action commenced under this section shall be barred unless the complaint is filed within 10 years after the right of action first accrues or in the case of a person under a legal disability, not later than three years after the disability.
3. Cases
  1. Stephens v. Clash, 796 F.3d 281 (3d Cir. 2015)
    - Procedural Posture: The district court dismissed the plaintiff’s claims as untimely, and he appealed.
    - Law: 18 U.S.C. § 2255, sexual battery under state law
    - Facts: Plaintiff met defendant at social networking event when plaintiff was 16 years old and they had a sexual relationship for a number of years. During their relationship, defendant arranged for plaintiff to be transported from Pennsylvania to New York in a chauffeured car. Plaintiff alleged that the defendant compelled him to engage in sexual contacts through intellectual, emotional, and psychological force, but it was several years after they met that plaintiff became aware of the adverse psychological and emotional effects he suffered as a result. Plaintiff sued in March 2013, nine years after the relationship began and seven years after his eighteenth birthday.¹
    - Outcome: Dismissal affirmed because the plaintiff’s claim was untimely.
    - Special Notes: The court held that the discovery rule applies to claims arising under 18 U.S.C. § 2255. The discovery rule means the statute of limitations does not begin to run until the plaintiff learns of his cause of action or with reasonable diligence could have done so. Nevertheless, the court concluded plaintiff’s claim was untimely because he was aware he suffered an injury when the sexual relationship began, even if he did not fully appreciate all the consequences of that violation.
  2. Prewett v. Weems, 749 F.3d 454 (6th Cir. 2014)
    - Procedural Posture: Defendant appealed the $1 million judgment entered against him after the district court granted plaintiff’s motion for summary judgment.
    - Law: Child Abuse Victim’s Rights Act, 18 U.S.C. § 2255
    - Facts: Defendant hired prostitutes and filmed plaintiff having sex with them. After plaintiff told police what had occurred, defendant pled guilty to producing child pornography.
    - Outcome: Reversed and remanded for a new calculation of damages because plaintiff had not offered any proof of actual damages exceeding the $150,000 statutory minimum.
    - Special Notes: The court held that a defendant can be held liable under the statute even if he was not convicted of a predicate criminal offense as long as the plaintiff can prove, by a preponderance of the evidence, that he engaged in conduct that violated one of the predicate criminal statutes. The court also held that the statute does not provide $150,000 in minimum damages for each violation, but a minimum of $150,000 in damages for the entire lawsuit.
  3. M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041 (E.D. Mo. 2011)
    - Procedural Posture: Defendant moved to dismiss, arguing that the website where the images were posted was entitled to immunity under § 230 of the Communications Decency Act.
    - Law: Child Abuse Victim’s Rights Act, 18 U.S.C. § 2255; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, Convention on the Rights of the Child; Communications Decency Act, Title V, Pub. L. 104-104, 110 Stat. 56
    - Facts: When plaintiff was 14, she was sexually trafficked by a woman who photographed her in pornographic poses and posted the images on a website in advertisements that solicited payment for sex. When the woman pled guilty to sex trafficking and related offenses, plaintiff sued the website, alleging that it had facilitated sex trafficking and aided and abetted the offenses because the website failed to investigate despite a “strong suspicion” these crimes were being committed, and because it wanted the sex trafficking to be successful so that the perpetrators would pay for more advertisements.
    - Outcome: The court granted the defendant’s motion to dismiss because the website was immune under § 230 of the Communications Decency Act, which broadly immunizes online service providers from being held liable for information originating with third-party users of the service.
  4. Doe v. Peterson, 784 F. Supp. 2d 831 (E.D. Mich. 2011)
    - Procedural Posture: Defendants moved for summary judgment.
    - Law: Child Abuse Victim’s Rights Act, state law tort claims (intrusion on seclusion, public disclosure of private facts, intentional infliction of emotional distress).
    - Facts: When plaintiff was 17, she took a series of nude and explicit photographs of herself, uploaded them to an online photo website, and sent them to her then-boyfriend using MySpace. She immediately deleted or destroyed all copies of the photos after they were sent, and they were supposed to remain private between her and her then-boyfriend. A year and a half later, plaintiff learned that the images had been uploaded and posted to several online websites, including a website operated by defendant that encourages men to submit nude photos of their exes. She and her then-boyfriend both requested that the pictures be removed, but they remained on the site. The photos were eventually removed the day after defendant was served with plaintiff’s Complaint. Plaintiff also sued defendant’s father because the website was registered to a partnership created by defendant and his father to run unaffiliated online commerce sites.
    - Outcome: The court refused to grant summary judgment on the 18 U.S.C. § 2255 claim because plaintiff did not consent to defendants’ possession or use of the photographs, which was sufficient to show she had been aggrieved and victimized by defendant.
    - Special Notes: The court rejected defendant’s arguments that plaintiff was not a “victim” of child pornography offenses as required by the statute because she had taken the pictures herself. The defendants also argued that plaintiff’s claims should be dismissed under the common law doctrine of in pari delicto because plaintiff herself violated the child pornography statutes when she took the photographs. The court rejected this argument because, among other things, plaintiff’s injury did not arise out of the photos themselves but from their widespread, nonconsensual dissemination on the Internet, meaning that plaintiff was not culpable for the injury she suffered.
4. Practice Pointers
  - The statute of limitations under this statute is tolled until the plaintiff discovers his or her injury, or with due diligence could reasonably have done so; however, awareness of all of the consequences of injury is not necessary to have awareness of the injury itself.² This means a WMC victim has 10 years from the date the injury is discovered to file a claim.
  - A defendant is liable under 18 U.S.C. § 2255 only if he or she has violated one of the enumerated child pornography laws.³ Make sure the predicate criminal act applies to the facts alleged in the Complaint, or the court may dismiss the claim.⁴ Not all depictions of nudity or sexual themes constitute “sexually explicit conduct” under the statutes.⁵
  - Because the predicate criminal acts generally include a scienter requirement, it is often necessary to show that the defendant knew the plaintiff was a minor during the commission of the underlying offense.⁶
  - It has been held that common carriers (e.g., cruise lines) are strictly liable for the acts of their employees that occur on board, and thus the employer may be sued under 18 U.S.C. § 2255.⁷
  - This statute has had mixed success in suits against media outlets or Internet sites; claims against some website operators have been successful, but others have been dismissed based on platforms’ immunity from suit under Section 230 of the Communications Decency Act, 47 U.S.C. § 230.⁸
1. At the time, the statute set the statute of limitations at six years. Congress extended the limitations period to ten years later in 2013. See Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4 § 1212(a)(2), 127 Stat. 54, 143. ↩
2. See Stephens v. Clash, 796 F.3d 281 (3d Cir. 2015). ↩
3. As documented in the statutory text above, the qualifying child pornography laws are 18 U.S.C. §§ 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, and 2423. ↩
4. See Doe v. Old Forge Borough, No. 3:12-cv-2236, 2015 WL 4041435 (M.D. Pa. July 1, 2015). ↩
5. See Doe v. Chamberlin, 299 F.3d 192 (3d Cir. 2002)(refusing to find that amateur photographers photographs of her teenage daughter and friends fell within the statute); ↩
6. See, e.g., Tilton v. Playboy Entm’t Grp., 554 F.3d 1371, 1377-78 (11th Cir. 2009) ↩
7. Jane Doe No. 8 v. Royal Caribbean Cruises, Ltd., 860 F. Supp. 2d 1337 (S.D. Fla. 2012); Tilton, 554 F.3d at 1376 (finding that sexually themed conduct (e.g., a wet t-shirt contest, and similar activities) photographed by the hotel was not actionable under § 2255). ↩
8. Compare, e.g., Doe v. Peterson, 784 F. Supp. 2d 831 (E.D. Mich. 2011), with M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041 (E.D. Mo. 2011). ↩
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Federal Statutory Civil Law Related To Unauthorized Computer Access: Computer Fraud and Abuse Act, 18 U.S.C. § 1030
1. Introduction
  
  The Computer Fraud and Abuse Act (CFAA) criminalizes intentionally accessing a protected computer without authorization; basically, hacking a protected computer. The CFAA also provides a civil remedy for similar conduct, but in much more limited circumstances. In particular, damages may be available against a person who obtains information through unauthorized access to a computer, or who uses unauthorized access to a protected computer in furtherance of a fraudulent scheme. “Protected” computers include those that are used in or affecting interstate or foreign commerce or communication, including a computer outside the United States that is used in a manner that affects interstate or foreign commerce or communications of the United States. As a practical matter, because of the interstate and international nature of the Internet, most ordinary computers, including cell phones, will qualify as “protected” computers under the CFAA.
  
  The CFAA may be useful to victims where a perpetrator uses the victim’s computer to secretly record him or her, or where the perpetrator has hacked the victim’s computer or otherwise accessed it without authorization to distribute or obtain sexual photos or videos.
2. Text of the Statute(s)
  
  18 U.S.C. § 1030
  
  (a) Whoever-- [. . .] (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—[. . .] (C) information from any protected computer; [. . .] [or] (4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period; [. . .].”
  
  (g) Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i). Damages for a violation involving only conduct described in subsection (c)(4)(A)(i)(I) are limited to economic damages. No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage. No action may be brought under this subsection for the negligent design or manufacture of computer hardware, computer software, or firmware.
3. Cases
  1. Sewell v. Bernadin, 795 F.3d 337 (2d Cir. 2015)
    - Procedural Posture: The district court dismissed plaintiff’s claims because the statute of limitations periods had run. Plaintiff appealed.
    - Law: Computer Fraud and Abuse Act, 18 U.S.C. § 1030; Stored Communications Act, 18 U.S.C. § 2701
    - Facts: Plaintiff and defendant had a romantic relationship from 2002 until 2011. Plaintiff did not share her passwords with anyone, including defendant. In August 2011, plaintiff discovered that someone had changed the password to her private email account, so she could not log into that account. Around the same time, someone used her email account to send malicious statements about her sexual activities to her family and friends through the account contact list. Six months later, in February 2012, Plaintiff discovered she could no longer access her Facebook account, and someone used her Facebook account to post public, malicious statements about her sex life. Verizon Internet records confirmed that the defendant’s computer had accessed the email and Facebook servers where plaintiff’s accounts were stored. Plaintiff sued in January 2014.
    - Outcome: Because more than two years had passed from the time Plaintiff realized she could no longer access her email account before she filed suit, the court affirmed that plaintiff’s claims as to her email account were time-barred; however, because two years had not yet run since plaintiff discovered her Facebook account had been accessed without her consent, the court concluded her claims based on her Facebook account could proceed.
    - Special Notes: The district court had concluded that Plaintiffs’ claims were barred as to both her email account and her Facebook account because she knew “the integrity of her computer had been compromised” in August 2011, giving her a reasonable opportunity to discover the full scope of the unauthorized access more than two years before she filed suit. The Court of Appeals disagreed, however, noting that she had not discovered that her computer’s integrity had been compromised, only that her email account had been compromised. Her claims based on the impaired integrity of her Facebook account therefore were separate from her claims based on her email account, and the statute of limitations as to those claims began in February 2012, making those claims timely filed.
  2. United States. v. Batti, 631 F.3d 371 (6th Cir. 2011).
    - Procedural Posture: Defendant appealed conviction under CFAA arguing that the district court misjudged the value of the information that defendant accessed, and that the fine imposed was excessive and an abuse of discretion.
    - Law: 18 U.S.C. § 1030(a)(2)(C), and (c)(2)(B)(iii)
    - Facts: Employee accessed and copied confidential company information, including video footage of an upcoming advertisement and posted the video and information online.
    - Outcome: Affirmed district court’s outcome: 1 day in prison, 36 months of supervised release including 6 months of home confinement, and $47,565 in restitution.
  3. United States v. Feigin, 365 Fed. Appx. 180 (11th Cir. 2010).
    - Procedural Posture: Defendant appeals the length of his sentence after pleading guilty to unauthorized access of a computer.
    - Law: 18 U.S.C. § 1030(a)(2) and (c)(2)(B)(ii).
    - Facts: After meeting defendant through a mutual acquaintance and finding out he was knowledgeable about computers, victim granted defendant access to her computer to fix some technical issues. Unbeknownst to victim, defendant installed spyware on her computer that made it possible for him to take pictures and videos of her, some of them nude, without her knowledge.Victim learned of defendant's actions when she saw her computer “moving on its own” and had an IT specialist friend examine it. Victim searched the internet and found that defendant had posted a video of her with the comment, “This is my girlfriend who at the time had no idea that I was filming her. Afterwards we had a big laugh about it.”¹ Victim also reported that people contacted her and said she “deserved what [she] got; that they wanted to see the pictures; [and that] they wanted to see what the whole hype was about.”² Victim submitted an impact statement where she reported that she “suffered from insomnia, paranoia, and anxiety, and had issues with trust and insecurity as a result of [defendant’s] conduct.”³ She also testified that she was taking medication and receiving counseling to treat the anxiety she experienced as a result of defendant’s actions.
    - Outcome: District court sentenced defendant to thirty months of imprisonment, which was above the sentencing guidelines, because “[Defendant’s] crime was one that ‘just keeps on giving’” [because nude images of victim are now online]. The court increased the sentence “based on the extreme psychological injury under U.S. Sentencing Guidelines Section 5K2.3, the seriousness of the crime, and the harm to the victim.”⁴
4. Practice Pointers
  - Civil actions for compensatory damages and equitable relief are available under the Computer Fraud and Abuse Act’s multiple provisions for computer intrusion and damage.⁵ However, the bar for a civil plaintiff is higher than for a federal prosecutor. In order to bring a civil action, a civil plaintiff must demonstrate that the defendant’s conduct: (1) amounted to a loss of over $5,000 in the course of one year; (2) modified or impaired the medical treatment of at least one individual; (3) physically injured any person; (4) threatened the public health or safety; or (5) damaged a computer used by the U.S. Government to promote national security.⁶ If the CFAA violation causes only loss of money, then the damages are also limited to economic damages.⁷ The statute of limitations for the CFAA is two years.⁸
  - Unfortunately, the availability of civil actions and damages has been limited by some courts. For example, the District of Minnesota limits availability of civil actions to violations of section 1030(a)(5), which involves knowingly or intentionally causing damage to a protected computer.⁹ The Second Circuit affirmed the definition of “loss” to the plaintiff as “any remedial costs of investigating the computer for damage, remedying the damage and any costs incurred because the computer cannot function while or until repairs are being made.”¹⁰ This definition may prevent plaintiffs from bringing a civil action if the monetary loss they suffered is a result of the computer intrusion, but is not damage to the computer or computer service. In Caro v. Weintraub, for example, the court dismissed the plaintiff stepfather’s claim even though he had pleaded all of the elements of a CFAA violation.¹¹ After defendant gained access to plaintiff's computer on the pretense of checking email, he deleted documents from plaintiff’s computer regarding the amount of inheritance plaintiff would receive.¹² Because plaintiff's loss pertained to the loss of inheritance rather than the “interruption of computer service” or the “assess[ment] and remedy[ ] to [plaintiff’s] computer system,” the court dismissed the claim.¹³ A plaintiff should research the treatment of CFAA civil actions in the applicable jurisdiction.
1. United States v. Feigin , 365 Fed. Appx. 180, 182 (11th Cir. 2010). ↩
2. Id. ↩
3. Id. ↩
4. Id. at 183. ↩
5. 18 U.S.C. § 1030(g). ↩
6. See §§ 1030(g), (c)(4)(A)(i)(I)-(IV). ↩
7. Id. ↩
8. Id. ↩
9. See Hot Stuff Foods, LLC v. Dornbach, 726 F. Supp. 2d 1038, 1045 (D. Minn. 2010). ↩
10. Nexans Wires S.A., v. Sark-USA, Inc., 319 F. Supp. 2d 468, 474 (S.D.N.Y. 2004), aff’d 166 F. App’x 559 (2d Cir. 2006). ↩
11. Caro v. Weintraub, Civ. No. 3:09-cv-1353 (PCD), 2010 WL 4514273, *12 (D. Conn. Nov. 2, 2010). ↩
12. Id. at *10. ↩
13. Id. at *12. ↩
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Federal Wiretap Act, 18 U.S.C. § 2520
1. Introduction
  
  The federal Wiretap Act protects individual privacy in communications with other people by imposing civil and criminal liability for intentionally intercepting communications using a device, unless that interception falls within one of the exceptions in the statute. Although the Wiretap Act originally covered only wire and oral conversations (for example, using a device to listen in on telephone conversations), it was amended in 1986 to cover electronic communications as well (for example, emails or other messages sent via the Internet).
  
  If a WMC victim’s sexual photos or videos are obtained through interception of an electronic communication, the perpetrator may be criminally and civilly liable under this statute.
2. Text of the Statute(s)
  
  18 U.S.C. § 2511
  
  (1) Except as otherwise specifically provided in this chapter any person who--
  
  (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
  
  (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--
  
  (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
  
  (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
  
  (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
  
  (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
  
  (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
  
  (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
  
  (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
  
  (e)
  
  (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter,
  
  (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation,
  
  (iii) having obtained or received the information in connection with a criminal investigation, and
  
  (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,
  
  shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)
  
  […]
  
  18 U.S.C. § 2520
  
  (a) In general.--Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.
  
  (b) Relief.--In an action under this section, appropriate relief includes--
  
  (1) such preliminary and other equitable or declaratory relief as may be appropriate;
  
  (2) damages under subsection (c) and punitive damages in appropriate cases; and
  
  (3) a reasonable attorney's fee and other litigation costs reasonably incurred.
  
  (c) Computation of damages.--
  
  (1) In an action under this section, if the conduct in violation of this chapter is the private viewing of a private satellite video communication that is not scrambled or encrypted or if the communication is a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess damages as follows:
  
  (A) If the person who engaged in that conduct has not previously been enjoined under section 2511(5) and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $50 and not more than $500.
  
  (B) If, on one prior occasion, the person who engaged in that conduct has been enjoined under section 2511(5) or has been found liable in a civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $100 and not more than $1000.
  
  (2) In any other action under this section, the court may assess as damages whichever is the greater of--
  
  (A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or
  
  (B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.
  
  […]
3. Cases
  1. Bruce v. McDonald, No. 3:13cv221-MHT, 2014 WL 931522 (M.D. Ala. Mar. 10, 2014)
    - Procedural Posture: Husband and wife plaintiffs sued the wife’s ex-husband and his attorneys for violations of the federal Wiretap Act. Parties filed cross-motions for summary judgment.
    - Law: Wiretap Act, 18 U.S.C. § 2520(a).
    - Facts: When formerly married plaintiff and defendant divorced, they split custody of their only child. Plaintiff eventually married another man, her co-plaintiff in this lawsuit. Without authorization, defendant gained access to his ex-wife’s individual email account, the plaintiffs’ joint email account, and their joint AdultFriendFinder account. Defendant printed out hundreds of pages of sexually explicit messages and photos from the accounts relating to plaintiffs’ engaging in sexual conduct with other people. Defendant allegedly sent a packet of these documents to the Alabama Board of Pharmacy, which began taking actions to revoke plaintiff’s pharmacist’s license, and also disclosed the documents to his attorneys in the child-custody dispute against plaintiff. The attorneys used the documents in the custody case, subject to a protective order, and also may have used the documents during a mediation. The new child custody agreement granted defendant increased custody time, put limits on plaintiff’s sexual activities, and included other terms favorable to the defendant.
    - Outcome: Summary judgment granted in favor of the defendants because there was no evidence of an “interception” as required under 18 U.S.C. § 2511.
    - Special Notes: Plaintiffs argued that defendant “intercepted” their email messages by logging into their accounts without authorization. The court held that unauthorized access to an email account, standing alone, does not constitute interception because interception does not occur unless the electronic communications were acquired while they were being transmitted. In other words, communications are “intercepted” if they are obtained while they are in motion, but are not “intercepted” if they are obtained while they are at rest.
  2. Clements-Jeffrey v. City of Springfield, Ohio, 810 F. Supp. 2d 857 (S.D. Ohio 2011).
    - Procedural Posture: Two plaintiffs, one male and one female, sued the City, City police officers, a software company, and the company’s theft recovery officer. Defendants moved for partial summary judgment.
    - Law: Constitutional Claims (Fourth Amendment), Federal Wiretap Act, Stored Communications Act, state invasion of privacy law
    - Facts: The female plaintiff purchased a laptop that, unbeknownst to her, was stolen, and she used the laptop to exchange sexually explicit email messages, instant messages, and webcam images with the male plaintiff, believing that password protection would keep these communications secure and private. The stolen laptop had originally been purchased by a school district, however, that installed a theft recovery service provided by the defendant software company and issued the laptop to a vocational student. When the student filed a police report for the theft of the laptop, the school district authorized the defendant software company to gather information to identify the user of the stolen laptop. The software company accomplished this by, among other things, causing the laptop to download software that allows theft recovery officers to remotely access the laptop, to capture screen shots of images shown on the monitor, to record all keystrokes, and to intercept electronic communications sent to and from the stolen laptop without the user’s knowledge. The defendant theft recovery officer was assigned to track this laptop and captured keystrokes, monitored the female plaintiff’s visits to various websites, and took screen shots of sexually explicit images plaintiffs sent using webcams. All these images were sent to the police, who interrogated her about the laptop, showed her the sexually explicit screen captures, berated her about her use of the webcam, and arrested and charged her with receipt of stolen property. The charge was eventually dismissed.
    - Outcome: The court denied the software company and theft recovery officer’s motion for summary judgment. As relevant to the Wiretap Act, the court refused to craft a public policy exception to the federal Wiretap Act where the rights of a user of stolen property could never outweigh the rights of the legal owner of that property. Instead, the court held it is inappropriate for a court to craft a “public policy” exception to the Wiretap Act, and that any steps an owner of stolen property takes to track down that property must stay within the confines of the law.
4. Practice Pointers
  - Whether or not communications were “intercepted” is a key issue under the Federal Wiretap Act. Although the statute defines “intercept” broadly as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device,”¹ some courts have adopted a more narrow construction requiring that “interception” occur while the communication is being transmitted.² Plaintiffs seeking to bring claims under the Wiretap Act should research the interpretation of “interception” in the applicable jurisdiction.
  - Civil claims under the Federal Wiretap Act, 18 U.S.C. § 2511, are sometimes referred to in court documents as being brought under the Electronic Communications Privacy Act.³
1. 18 U.S.C. § 2510(4). ↩
2. See, e.g., United States v. Steiger, 318 F.3d 1039, 1050 (11th Cir. 2003). ↩
3. See, e.g., Gillespie v. City of Battle Creek, --- F. Supp. 3d ---, 2015 WL 1459611, at *2 n.1 (W.D. Mich. Mar. 30, 2015); Clements-Jeffrey v. City of Springfield, Ohio, 810 F. Supp. 2d 857 (S.D. Ohio 2011). ↩
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Federal Statutory Civil Law

Contents

Federal Civil Rights Statutes, Title VII or Title IX

Federal Statutory Civil Law for Enforcing Constitutional Claims, 42 U.S.C. § 1983

Federal Statutory Civil Law on Copyright, 17 U.S.C. § 501

Federal Statutory Civil Law Related To Child Pornography: Child Abuse Victims’ Rights Act, 18 U.S.C. § 2255(a)

Federal Statutory Civil Law Related To Unauthorized Computer Access: Computer Fraud and Abuse Act, 18 U.S.C. § 1030

Federal Wiretap Act, 18 U.S.C. § 2520