This post examines an opinion the U.S. Court of Appeals for the Second Circuit issued last summer in a civil suit: Sewell
v. Bernardin, 795 F.3d 337 (2015).
The court begins by explaining that
[i]n order to resolve this appeal, we
address a matter of first impression in this Circuit: the
operation of the statutes of limitations applicable under the civil enforcement
provisions of the Computer Fraud and Abuse Act (CFAA.), 18 U.S. Code § 1030, and the Stored Communications
Act (SCA.), 18 U.S. Code § 2701, et seq. A plaintiff
bringing an action under the CFAA's civil enforcement provision must do so `within
2 years of the date of the act complained of or the date of the discovery of
the damage.’ 18 U.S. Code § 1030(g). The SCA provides that `[a] civil
action under this section may not be commenced later than two years after the
date upon which the claimant first discovered or had a reasonable opportunity
to discover the violation.’ 18 U.S. Code § 2707(f).
Sewell v. Bernardin,
supra.
The court goes on to explain that
[t]he plaintiff, Chantay Sewell, filed
suit under both statutes alleging that her former boyfriend, defendant Phil
Bernardin, had gained access to her e-mail and Facebook accounts without her
permission and therefore in violation of the CFAA and the SCA. She asserts that
she discovered that she could not log into her www.aol.com (AOL.) e-mail account
on or about August 1, 2011 `because her password was altered.’ Complaint ¶ 11(J.A. 5). More than six months later, on or about February 24, 2012, she
contends, she discovered that she could not log into her www.facebook.com
(`Facebook’) account `because her password was altered.’ Complaint ¶ 12 (J.A.
5). The district court granted Bernardin's motion to dismiss Sewell's claims as
untimely, and Sewell appealed.
Sewell v. Bernardin,
supra.
The Court of Appeals then outlined the facts that led to
this litigation:
We accept as true at this stage of the
proceedings all facts alleged in Sewell's complaint. See Town of
Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir.2012).
According to those allegations, Sewell and Bernardin were involved in a `romantic
relationship’ from in or about 2002 until 2011. Sewell maintained a
private e-mail account with AOL and a private social media account with
Facebook, including in 2011 and 2012. She did not knowingly share her account
passwords with Bernardin or any other person and was the only authorized user
of each account.
On or about August 1, 2011, Sewell
discovered that her AOL password had been altered, and she was therefore unable
to log into her AOL e-mail account. That same month, malicious statements
about her sexual activities2 were
e-mailed to various family members and friends `via Sewell's own contacts list
maintained privately within her email account.’ Compl. ¶ 19 (J.A. 6).
On February 24, 2012, Sewell found
herself unable to log into her Facebook account. Then, on March 1, 2012,
someone other than she posted a public message from her Facebook account
containing malicious statements, again concerning Sewell's sex life.
Sewell v. Bernardin,
supra.
The opinion continues, explaining that
Sewell alleges that Bernardin obtained
her AOL and Facebook passwords without her permission while he was a guest in
her home. Verizon Internet records confirmed that Bernardin's computer was used
to gain access to the servers on which Sewell's accounts were stored. He then
changed her AOL and Facebook passwords. Bernardin allegedly thereby obtained
access to Sewell's electronic communications and other personal information and
sent messages purporting to be from her.
On May 15, 2013, Sewell filed a
separate suit against Bernardin's wife, Tara Bernardin, and `John Does # 1–5,’
apparently believing that Tara Bernardin and others unknown to her had gained
access to her Internet accounts. The complaint raised claims strikingly similar
to those that she is pursuing in the instant action. Tara Bernardin settled her
suit with Sewell on September 27, 2013, and the court accordingly entered
judgment in Sewell's favor shortly thereafter. Several months later, on January
2, 2014, Sewell filed the instant action against Phil Bernardin, alleging
violations of the SCA and CFAA. On August 2, 2014, the United States District
Court for the Eastern District of New York (Arthur D. Spatt, Judge)
granted Bernardin's motion to dismiss, holding that Sewell's claims were
time-barred under the CFAA's and SCA's applicable two-year statutes of
limitations. This appeal followed.
Sewell v. Bernardin,
supra.
The Court of Appeals then outlined the standard it applies
when a case involves the
grant of a motion to dismiss under
Federal Rules of Civil Procedure 12(b)(6) de novo, `accepting as true
factual allegations made in the complaint, and drawing all reasonable inferences
in favor of the plaintiff[ ].’ Town of Babylon, 699 F.3d at
227. `Dismissal under Federal Rules of Civil Procedure 12(b)(6) is
appropriate when a defendant raises a statutory bar,’ such as lack of
timeliness, `as an affirmative defense and it is clear from the face of the
complaint, and matters of which the court may take judicial notice, that the
plaintiff's claims are barred as a matter of law.’ Staehr v. Hartford
Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008) (internal
quotation marks, alterations, and emphasis omitted).
Sewell v. Bernardin,
supra.
The court then summarized the applicable law under the
Computer Fraud and Abuse Act and the Stored Communications Act:
The CFAA criminalizes, inter
alia, `intentionally access[ing] a computer without authorization
or exceed[ing] authorized access, and thereby obtain[ing] . . . information
from any protected computer,’ 18 U.S. Code § 1030(a)(2)(C), and `intentionally
access[ing] a protected computer without authorization, and as a result of such
conduct, caus[ing] damage and loss,’ id. § 1030(a)(5)(C).
The statute also provides a civil cause
of action to `[a]ny person who suffers damage or loss by reason of a violation
of this section.’ Id. § 1030(g). To be timely, such a civil
suit must be filed `within 2 years of the date of the act complained of or the
date of the discovery of the damage.’ Id .`“Damage,’ in turn, is
defined as `any impairment to the integrity or availability of data, a program,
a system, or information.’ Id. § 1030(e)(8). The statute of
limitations under the CFAA accordingly ran from the date that Sewell discovered
that someone had impaired the integrity of each of her relevant Internet
accounts.
Under the SCA, it is a crime to:
(1) intentionally access[ ] without
authorization a facility through which an electronic communication service is
provided; or
(2) intentionally exceed[ ] an
authorization to access that facility; and thereby obtain[ ], alter[ ], or prevent[
] authorized access to a wire or electronic communication while it is in electronic
storage in such system. . . .
18 U.S. Code § 2701(a).
As with the CFAA, the SCA establishes a
civil cause of action. `[A]ny . . . person aggrieved by any violation of this
chapter in which the conduct constituting the violation is engaged in with a
knowing or intentional state of mind’ may file suit. Id. §
2707(a). A civil action under this section must be commenced no `later than two
years after the date upon which the claimant first discovered or had a
reasonable opportunity to discover the violation.’ Id. §
2707(f). In other words, the limitations period begins to run when the
plaintiff discovers that, or has information that would motivate a reasonable
person to investigate whether, someone has intentionally accessed the `facility
through which an electronic communication service is provided/ and thereby
obtained unauthorized access to a stored electronic communication. Id. §
2701(a).
Sewell v. Bernardin,
supra.
The Court of Appeals then began its analysis of the issue in
this case, explaining that
[t]he district court granted
Bernardin's motion to dismiss Sewell's claims as untimely based on the court's
conclusion that Sewell was `aware that the integrity of her computer had been
compromised’ as of August 1, 2011. Sewell v. Bernardin, 50
F.Supp.3d 204, 212 (E.D.N.Y. 2014). The court reasoned that Sewell's August 1,
2011, discovery—which related to the unauthorized use of her AOL
account—provided her with a reasonable opportunity to discover the full scope
of Bernardin's alleged illegal activity more than two years before she brought
this suit on January 2, 2014. We agree with the district court as its
decision related to Sewell's AOL account, but disagree with it as it related to
her Facebook account.
Sewell v. Bernardin,
supra.
The court then began its analysis of the issues outlined
above, beginning with this:
Sewell discovered the `damage’ to her
AOL account for CFAA purposes on August 1, 2011, when she learned that she
could not log into her AOL e-mail account. That she may not have known exactly
what happened or why she could not log in is of no moment. The CFAA's statute
of limitations began to run when Sewell learned that the integrity of her
account had been impaired.
The SCA's statute of limitations began
to run when Sewell `first . . . had a
reasonable opportunity to discover,’ 18 U.S. Code § 2707(f), that someone
had `intentionally access[ed] [her AOL account] without authorization,’ id. §
2701(a). She had such an opportunity as soon as she discovered that she could
not obtain access to that account because her password had been `altered’
inasmuch as, accepting her other allegations as true, further investigation
would have led her to Bernardin.
Sewell's CFAA and SCA claims with
regard to her AOL account were first made on January 2, 2014, and were premised
on damage and unauthorized access to her AOL account which she had or should
have discovered some two years and five months earlier. The two-year statutes
of limitations had therefore run.
Sewell v. Bernardin,
supra.
The court then explains that, with regard to
Sewell's Facebook-related claims, by
contrast, appear to have accrued on or about February 24, 2012. Her complaint
alleges that she “was the sole authorized user of” her Facebook account. Compl.
¶ 10 (J.A. 4). On or about `February 24, 2012, [she] discovered that she could
no longer log into or access her account with www.facebook.com because her
password [had been] altered.’ Compl. ¶ 12 (J.A. 5). There is nothing in the
facts as alleged in the complaint from which to infer that anyone gained
unauthorized access to her Facebook account before then. Thus, taking these
allegations as true, there would have been no damage, for CFAA purposes, or
violation, for SCA purposes, for Sewell to discover with respect to her
Facebook account before that date, which was less than two years before the
suit was brought.
The fact that Sewell had discovered
`damage’ to her AOL account based on her inability to access AOL's computer
servers at an earlier date does not lead to a different result. Contrary to the
district court's remark, Sewell did not allegedly discover `that the integrity
of her computer had been compromised’ as of August 1,
2011. Sewell, 50 F.Supp.3d at 212 (emphasis added). She
discovered only that the integrity of her AOL account had been
compromised as of that time. Her CFAA claim accordingly is premised on
impairment to the integrity of a computer owned and operated by AOL, not of her
own physical computer. As a result, Sewell has two separate CFAA claims, one
that accrued on August 1, 2011, when she found out that she could not access
her AOL account, and one that accrued on February 24, 2012, when she found out
that she could not access her Facebook account.
Sewell
v. Bernardin, supra (emphasis in the original).
The opinion goes on to point out that,
[l]ike her Facebook-related CFAA claim,
Sewell's Facebook-related SCA claim is also timely. Under the SCA, a civil
plaintiff must file her claim within two years of discovery or a reasonable
opportunity to discover intentional and unauthorized access to an electronic
communication facility. The district court concluded that Sewell `had a
reasonable opportunity to discover the Defendant's illegal activity’ vis-à-vis
her Facebook account as of August 1, 2011. Sewell, 50
F.Supp.3d at 213 (internal quotation marks and brackets omitted). But
as we have noted, there is no allegation in the complaint that Sewell's
Facebook account and the computer servers on which her information was stored
were tampered with before February 24, 2012, when she alleges that she was
unable to log into her Facebook account. She could not reasonably be expected
to have discovered a violation that, under the facts as alleged in the
complaint, had not yet occurred.
The district court's conclusion may
rest on the assumption that a plaintiff is on notice of the possibility that
all of her passwords for all of the Internet accounts she holds have been
compromised because one password for one Internet account was compromised. We
do not think that that is a reasonable inference from the facts alleged in the
complaint. We take judicial notice of the fact that it is not uncommon for one
person to hold several or many Internet accounts, possibly with several or many
different usernames and passwords, less than all of which may be compromised at
any one time. At least on the facts as alleged by the plaintiff, it does not
follow from the fact that the plaintiff discovered that one such account—AOL
e-mail—had been compromised that she thereby had a reasonable opportunity to
discover, or should be expected to have discovered, that another of her
accounts—Facebook—might similarly have become compromised.
Sewell v. Bernardin,
supra.
The court went on to note that
[w]e pause to acknowledge that the
statutes of limitations governing claims under the CFAA and SCA, as we
understand them, may have troubling consequences in some situations. Even after
a prospective plaintiff discovers that an account has been hacked, the
investigation necessary to uncover the hacker's identity may be substantial. In
many cases, we suspect that it might take more than two years. But it would
appear that if a plaintiff cannot discover the hacker's identity within two
years of the date she discovers the damage or violation, her claims under the
CFAA and SCA will be untimely.
The plaintiff does have the option of
initiating a lawsuit against a Jane or John Doe defendant, but she must still
discover the hacker's identity within two years of discovery or a reasonable
opportunity to discover the violation to avoid dismissal. This is because we
have concluded `that Rule 15(c) does not allow an amended complaint adding new
defendants to relate back if the newly-added defendants were not named
originally because the plaintiff did not know their identities.’ Barrow
v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir.1995).
Sewell v. Bernardin,
supra.
The Court of Appeals therefore held that “[f]or the foregoing
reasons, the judgment of the district court is AFFIRMED in part and VACATED and
REMANDED in part for further proceedings.” Sewell
v. Bernardin, supra.
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