Apr 112013
 

The Computer Fraud and Abuse Act is no stranger to these pages.  The tragic suicide of Aaron Swartz at the beginning of the year following the relentless pursuit of the Department of Justice against him for his downloading of the JSTOR archive has galvanized a reform movement to overhaul – or at least ameliorate – some of the most troublesome provisions of the CFAA.

One such provision can be found at 18 U.S.C. § 1030(g), which creates a civil cause of action for a party claiming to be aggrieved by the purported wrongdoings described in subsection (a).  While civil causes of action are generally beyond the scope of this blog, having a civil cause of action buried in a statute designed to enable criminal prosecutions can be problematic for defendants facing the latter because the civil litigation, as it explores the contours of the statute and its internal definitions, tends to leave in its wake precedent that prosecutors can later use.  Which is unfortunate, because how the statute may be interpreted in a civil context — which inherently can only reflect the particular dynamics of the particular civil dispute between these particular private parties — reshapes how the statute will be interpreted in a criminal context.  Especially with a law like the CFAA, whose language always tempts excessive application, these civil precedents can vastly expand the government’s prosecutorial power over people’s technology use, and easily in a way Congress never intended.  One should also never presume that the outcome of a civil dispute correlates to a result that is truly fair and just; miscarriages of justice happen all the time, often simply because it is often so difficult and expensive to properly defend against a lawsuit, especially one asserting a claim from such an imprecisely-drafted and overly broad statute like the CFAA.

The reality is that plaintiffs often abuse the judicial process to bully defendants, and that brings us to the second subject of this post, Prenda Law, which is currently being exposed, judicially and publicly  as one of the biggest bullies on the block.  But why should we care here?  Because although Prenda has most notoriously exploited the Copyright Act for its legal attacks, it has also showed itself ready, willing, and able to abuse the easily-abusable CFAA in order to enrich itself as well.

In a sense, Prenda Law is nothing new.  The copyright statute has evolved in a way that allows putative copyright holders to easily threaten very scary and expensive infringement lawsuits against people who have digitally shared copyrighted material, such as music or movies.  Whether these lawsuits are truly defensible either in law or sound policy is beyond the scope of this post, and in many ways also irrelevant to it.  Whether justified or not, the possibility of being on the receiving end of such a lawsuit is usually enough to induce a defendant into a preemptive settlement for an amount that, while likely less than their potential financial exposure would be should the matter proceed to court, is still a non-negligible amount of money (and likely also well beyond any potential damage actually incurred by the copyright holder).  As a result it’s very easy for a copyright holder to profit simply by finding enough people to just *threaten* with a lawsuit, and many have made a business of doing exactly this.  It’s especially easy for them to do when the copyrighted material alleged to have been infringed is adult in nature and would likely lead to much embarrassment should it become public that a potential defendant had downloaded it.  This sort of reputational blackmail is one of the hallmarks of the Prenda Law enterprise.

Other hallmarks relate to how Prenda Law has tended to prosecute its actions.  Ostensibly Prenda Law is simply a law firm hired by a copyright-owning client to pursue people alleged to have fileshared the adult movies the client claims to own the rights to.  These pursuits would be problematic enough on their own for the reasons described above.  What makes them particularly odious in these cases, however, is that Prenda Law may not actually be a separate entity apart from its client.  It may not simply be a law firm zealously advocating for its client’s interests, as a law firm can appropriately be expected to do.  What has recently been brought to light is that Prenda Law appears to be one and the same as the “client” it portends to represent, and that it (a) obfuscated this fact in a way that compromised defendants’ abilities to defend themselves, and (b) potentially perpetrated a fraud on the court through its conduct, often in violation of various rules designed to keep the judicial process as equitable and fair for all parties as possible.  Serious judicial inquiry is now being made into how Prenda Law and its principals have comported themselves, and people are increasingly becoming aware of the potentially criminal aspects of the Prenda Law litigation model.

Prenda Law is most noted for having used copyright claims as its method for extracting money from its marks, but it is important not to overlook how it has also used the CFAA to similar ends.  It has already filed multiple lawsuits, and a recent defense filing in one of the copyright cases includes an affidavit from defense counsel in one of those CFAA-based cases alleging the same sort of malfeasance exhibited in the copyright cases, including the same obfuscation of the lawyers’ controlling interest in the plaintiff.  Also of note in the CFAA cases is the use of questionable forensics to identify the target of the lawsuits, the same questionable forensics that judges have begun to reject in the copyright cases.

Prenda Law’s abusive litigation should be exceptional.  If everything alleged about it is true it has comported itself so far beyond the rules and ethics of the legal profession that its behavior should not be the single determining factor for evaluating whether a legal provision – be it in copyright, the CFAA, or otherwise – is sound or not.  Few others should ever be expected to act with similar hubris.  But laws are tools we arm parties with, and we need to make sure we temper their power lest even a more noble litigant be tempted to wield them in a way that would lead to a similarly unjust result.  Unfortunately the CFAA, as currently written, includes no such tempering, as it enables any litigant to benefit from its unrealistically expansive definitions of wrongfulness, with the added threat of an associated criminal sanction to further intimidate its target.  As part of CFAA reform all these overbroad provisions should be narrowed if not outright deleted, but at minimum the subsection empowering civil litigants to use its measures should be stricken.  As shown in this chart private parties don’t need access to this law to seek redress to the sort of harm the CFAA is thought to assuage (it may similarly be unnecessary for prosecutors to use it either), and giving them access to it has only enabled them, and the government, to overuse it in a way that creates its own harm.

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