It’s been over a year since the US Court of Appeals for the District of Columbia Circuit ruled that the Federal Communications Commission lacked the authority to prohibit Internet Service Providers (“ISPs”) from “throttling” their customers’ peer-to-peer communications traffic (“P2P”). But net neutrality advocates won a small victory last week when a federal judge in New York held that such conduct by ISPs runs afoul of the Computer Fraud and Abuse Act (“CFAA”).
In Fink v. Time Warner Cable, Plaintiffs brought a class action against Time Warner Cable (“TWC”) on a host of claims, chief among them allegations that the cable giant violated 18 USC 1030(a)(5)(A-C). Under the CFAA, an individual can be held liable if (s)he:
(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;
(B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or
(C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.
Ruling on a motion to dismiss filed by TWC, Judge Laura Swain found that while Plaintiffs’ “alleged losses are outside of the scope of those contemplated by [18 USC 1030(a)(5)(C) of] the CFAA,” Plaintiffs had alleged the type of “damage” and “access” required by subsections (A) and (B) of the Act. Consequently, the court declined to dismiss the Plaintiffs’ first two CFAA claims.
How did TWC damage their customers’ computers? In this case, the ISP throttled Plaintiffs’ use of P2P services like BitTorrent by sending fake “reset packets” to the affected computers, parcels of data that instructed the Plaintiffs’ computers to halt any further P2P data transfers. In so doing, TWC drastically reduced the connection speeds of the Plaintiffs’ computers, affecting both file transfer services as well as other popular programs like Skype. The throttling was so restrictive that one plaintiff was forced, on several occasions, to rent a computer at Kinkos in order to upload files for his job.
"With the FCC currently unable to prevent such conduct by companies like TWC and Comcast, proponents of an open internet may have found a new way to protect a core ideal of net neutrality."
While throttling a computer’s connection speed may seem more like a negative restriction on a network rather than a particularized harm to the computer itself, the court found that damage, according to the CFAA’s definition, included TWC’s throttling. The Act explicitly defines damage as “any impairment to the integrity or availability of data, a system, or information,” and the court determined that this definition was not limited to the destruction of data already on the computer’s hard drives. Damage, then, was deemed “any impairment of an individual’s access to data, systems or information via their computer,” and “another’s [sic] party’s interference qualifies as damage” (emphasis in original).
As for the required showing of “access” to the damaged computer, the court straightforwardly applied the common definition of the term, as it is undefined under the CFAA. Judge Swain ultimately held that TWC accessed Plaintiffs’ computers when they “constructed a program to actively interrupt communications.”
While there is no guarantee that other district courts or the Second Circuit Court of Appeals would interpret the CFAA in the same way as was done here, the idea that the CFAA might serve as a vehicle for punishing ISPs for throttling their customers connection is a curious one. With the FCC currently unable to prevent such conduct by companies like TWC and Comcast, proponents of an open internet may have found a new way to protect a core ideal of net neutrality. In any case, there can be little doubt that the ruling has ISPs worried.
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