Friday, July 24, 2015

Wiretapping, Hotmail and Impersonation

This post examines an opinion recently issued by a U.S. District Court Judge who sits in the U.S. District Court for the Western District of Washington.  Chavan v. Cohen, 2015 WL 4077323 (2015).  He begins the opinion by outlining the course of the litigation to this point:
Plaintiffs Ariel and Sean Chavan filed this action on October 9, 2013, asserting claims for violations of the Stored Communications Act,  18 U.S.C. § 2701, et seq., the Wiretap Act, 18 U.S.C. § 2511, et seq., and invasion of privacy by electronic communication under Revised Code of Washington 4.24.790. Plaintiffs' operative Second Amended Complaint alleges incidents of online harassment, identity theft, impersonation, and invasion of privacy taking place from September 2006 through October 2013. . . .
After being granted expedited discovery into Defendant's identity, Plaintiffs accomplished service and Defendant defaulted. Plaintiffs now seek an award of, collectively, over $3,300,000 in compensatory, statutory, and punitive damages as well as attorney's fees and costs.
Chavan v. Cohen, supra. 
As Wikipedia explains, a default judgment (or “defaulting” or a “default"), is a
binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. The failure to take action is the default. . . .

Default can be compared to a forfeit victory in sports. In a civil trial involving damages, a default judgment will enter the amount of damages pleaded in the original complaint. If proof of damages is required, the court may schedule another hearing on that issue. A party can have a default judgment vacated, or set aside, by filing a motion, after the judgment is entered, by showing of a proper excuse.
As the paragraphs above explain, once the plaintiffs in a civil suit have had a copy of the Complaint (the document that is filed to initiate a civil suit) served on the defendant, the defendant is now obligated to respond by filing an “Answer” to the complaint.  If the defendant fails to do so after the appropriate period of time, the plaintiff(s) can see a default judgment by filing a motion requesting the judge who has the case enter one.  We will return to this issue below.
The judge then went on to explain how the litigation arose:
Ariel Chavan attests that in September 2006, [Cohen], then presenting by the name Jessica D. Wright, obtained access to email account, which [Cohen] used to intercept messages daily from September 2006 to October 31, 2012. . . .  [Ariel Chavan] similarly alleges that [Cohen] gained unauthorized access to his university account, intercepting emails for ten days from September to October 2006; to his MySpace account, intercepting communications for at least 120 days in the spring and summer of 2009; and to an account, intercepting emails for ten days in the spring of 2009. . . .

Chavan additionally alleges that [Cohen] created a profile in July 2010 impersonating his identity and proceeded to use the account to intercept communications intended for Ariel Chavan each day from July 2010 until April 2013. . . . . [Chavan] further alleges that in September 2012, [Cohen] created an account on, which [he] used to impersonate Ariel Chavan for the purpose of obtaining a credit report and to regularly intercept messages intended for him from September 2012 through October 31, 2013. . . . Finally, Ariel Chavan alleges that on October 29, 2012, [Cohen] sent an email containing [Ariel’s] full Social Security number to [Ariel Cohen’s] employer from address attempting to reset the password for his employment accounts. . . .

Sean Chavan alleges that on September 23, 2013, [Cohen] obtained unauthorized access to four of his email accounts and his account, changing the passwords and preventing [Sean] from accessing the accounts or information stored therein. . . . Sean Chavan alleges that [Cohen] attempted to obtain unauthorized access to his account as recently as February 2014, despite receiving service of the First Amended Complaint in this action. . . . Ariel Chavan similarly alleges that [Cohen] attempted to impersonate him to one or more third parties as recently as March 2014. . . .

[Cohen] has attempted to use the identities and information obtained from Ariel Chavan to initiate romantic connections and to obtain bank records and has posted numerous false statements on social networking sites falsely attributed to [Ariel]. [Ariel and Sean Chavan] allege that [Cohen’s] actions have caused them to sustain damages, loss, and injury, including humiliation and injury to reputation.
Chavan v. Cohen, supra.
The judge then took up the Chavans’ motion for the entry of a default judgment in this case, explaining that the decision to enter a default judgment is
left to the sound discretion of the trial court. Aldabe v. Aldabe, 616 F.2d 1089 (U.S. Court of Appeals for the 9th Circuit 1980). In exercising its discretion, the court considers seven factors, referred to as the `Eitel factors’: (1) the possibility of prejudice to the plaintiff if relief is denied, (2) the substantive merits of the plaintiff's claims, (3) the sufficiency of the complaint, (4) the sum of money at stake, (5) the possibility of a dispute concerning material fact, (6) whether default was due to excusable neglect, and (7) the policy favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470 (U.S. Court of Appeals for the 9th Circuit 1986).

At the default judgment stage, well-pleaded factual allegations are taken as true, with the exception of those related to damages. Geddes v. United Financial Group, 559 F.2d 557 (U.S. Court of Appeals for the 9th Circuit 1977). These allegations are considered admitted for the purpose of establishing the defendant's liability. Geddes v. United Financial Group, supra; see also Federal Rule of Civil Procedure 8(b)(6) (providing that `[a]n allegation -- other than one relating the amount of damages -- is admitted if a responsive pleading is required and the allegation is not denied’).
Chavan v. Cohen, supra.
The judge went on to explain that a District Court Judge
may conduct a hearing in order to investigate any matter appropriate to effectuate judgment, including determining the amount of damages. Federal Rules of Civil Procedure 55(b)(2). The Court must ultimately ensure that the amount of damages is reasonable and demonstrated by the plaintiff's evidence. Getty Images (US), Inc. v. Virtual Clinics, 2014 WL 358412 (U.S. District Court for the Western District of Washington 2014).  `A default judgment may not differ in kind from, or exceed in amount, what is demanded in the pleadings.  Federal Rules of Civil Procedure 54(c).
Chavan v. Cohen, supra.
He then began his ruling on the motion for default.  He found, first, that the
Eitel factors favor entry of default judgment in this case. First, as to the sufficiency of Plaintiffs' Complaint, Plaintiffs have pled allegations, which, considered admitted for the purpose of default judgment, are sufficient to establish Defendant's liability under the Stored Communications Act, Wiretap Act, and Revised Code of Washington 4.24.70.
Chavan v. Cohen, supra.
He analyzed the propriety of granting default as to each of the Plaintiffs’ causes of action, beginning with the Stored Communications Act, which,
[p]rohibits intentionally accessing without authorization a facility through which an electronic communication service is provided and thereby obtaining, altering, or preventing authorized access to a wire or electronic communication while it is in electronic storage in such system. 18 U.S. Code § 2701(a). Plaintiffs have shown that [Cohen[ intentionally accessed multiple such facilities in connection with three of Ariel Chavan's email accounts and his profile and MySpace account, as well as Sean Chavan's four email accounts and account. A number of these incidents occurred within the two-year statutory limitations period applicable to SCA claims. See 18 U.S.Code § 2707(f) (limiting civil actions to `two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation’).
Chavan v. Cohen, supra.
Next, he took up the Chavans’ claim under the Wiretap Act, which
is created by 18 U.S. Code § 2520, which provides that `[a]ny 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. . . .’ Plaintiffs have shown that (Cohen) intentionally intercepted and endeavored to intercept thousands of such communications via Ariel Chavan's and Sean Chavan's hacked email and social media accounts.

[Cohen] also unlawfully disclosed and used the contents of such communications with reason to know that they were unlawfully intercepted. A number of these violations occurred within the two-year limitations period for claims brought under the Wiretap Act, which limits Plaintiffs' claims to violations that they first had a reasonable opportunity to discover on or after October 9, 2011. 18 U.S. Code § 2520(e) (limiting civil actions to `two years after the date upon which the claimant first has a reasonable opportunity to discover the violation’).
Chavan v. Cohen, supra.
Finally, the judge analyzed the Chavan’s claim under WashingtonRevised Code 4.24.790(2), which states that
when `(a) [t]he person impersonates another actual person on a social networking web site or online bulletin board; (b) [t]he impersonation was intentional and without the actual person's consent; (c) [t]he person intended to deceive or mislead for the purpose of harassing, threatening, intimidating, humiliating, or defrauding another; and (d) [t]he impersonation proximately caused injury to the actual person . . . inclu[ding] injury to reputation or humiliation, injury to professional or financial standing, or physical harm’ under Washington Revised Code 4.24.790(2). A claimant is authorized to seek actual damages, injunctive relief, and declaratory relief under the act. under Washington Revised Code 4.24.790(3). As the statute does not set forth a limitations period, the Court finds that the three-year limitations period applicable for injury to property and fraud applies. Washington Revised Code 4.16.080.

Plaintiffs have shown that Defendant violated Washington Revised Code 4.24.790(2) by impersonating Ariel Chavan without his consent on at least three social networking websites (MySpace,, and [Cohen] did so in order to deceive others into believing [he] was Ariel Chavan for the purpose of defrauding others. At least one of these impersonation events occurred within the applicable limitations period. . . .
Chavan v. Cohen, supra.
The judge therefore held that, as
to the remaining Eitel factors, the . . . Plaintiffs will be prejudiced absent entry of default judgment, both because they will be unable to recover damages and because they will be unable to enjoin [Cohen] from engaging in future acts, given [his] proven propensity to continue violations even after being served with process.

The Court further finds that, once damages for violations that fall outside the applicable limitations periods are excluded, the sum of money at stake is not so substantial as to weigh against entry of default judgment, particularly in light of the ongoing and willful nature of [Cohen’s] conduct. The Court does not identify a possibility of dispute over material facts that precludes entry of judgment given the testimony heard by the Court during the evidentiary hearing and the documentary evidence filed. 

There is also no indication that [Cohen’s] default is due to excusable neglect. On the contrary, [he] is aware of this case and has deliberately chosen not to engage in the judicial process. . . . Finally, the policy in favor of deciding cases on their merits is not dispositive, particularly as `Defendant's failure to answer [Plaintiffs'] Complaint makes a decision on the merits impractical, if not impossible. Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494 (U.S.District Court for the Central District of California 2003).

Accordingly, the Court determines that default judgment shall be entered and proceeds to determine the relief warranted by the proven violations perpetrated by Defendant.
Chavan v. Cohen, supra.
The judge then conducted that determination, which is quite involved; if I included it in this post, it would be very long.  He does, though, summarize his conclusions in this paragraph:
For the above-stated reasons, the Court hereby ORDERS that Plaintiffs' Motion for Default Judgment and Permanent Injunction . . . is GRANTED in part. The Court awards Plaintiff Ariel Chavan $2,000.68 in compensatory damages, $21,000 in statutory damages, $32,265 in attorney's fees, $497 in costs, and $115,003.40 in punitive damages, for a total of $170,766.08.

The Court awards Plaintiff Sean Chavan $15,000 in statutory damages and $75,000 in punitive damages for a total of $90,000.

Plaintiffs are authorized to effect service of this Order and any subsequent order, judgment, or pleading in this suit, upon Defendant by sending a copy via U.S. Mail to Defendant's last known address and via email to and
Chavan v. Cohen, supra.

You can, if you are interested, read the full opinion here.

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