Assert State Law Unauthorized Computer Access Claims in Intra-Spousal Data Breaches

Abstract

[...]Arkansas' Computer Trespass statute states that: [a] person commits computer trespass if the person intentionally and without authorization accesses, alters, deletes, damages, destroys, or disrupts any computer, computer system, computer network, computer program, or data.26 The statute provides for a civil cause of action if the unauthorized access injures the plaintiff or the plaintiff's property.27 Significantly, the plaintiff can claim loss of profits as damages.28 Likewise, the Texas Harmful Access by Computer Act29 (HACA) is another plainly worded statute that creates a civil cause of action for a "person who is injured or whose property has been injured" by knowing or intentional violations of Texas Penal Code Chapter 33 (Computer Crimes).30 The injured party is entitled to actual damages and reasonable attorney fees and costs.31 Texas Penal Code Chapter 33, in turn, is a very broadly worded statute whereby: [a] person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.32 "Access" means to approach, instruct, communicate with, store data in, retrieve or intercept data from, alter data or computer software in, or otherwise make use of any resource of a computer, computer network, computer program, or computer system.33 The statute does not define the term "approach." No case law sheds light on this issue.34 But the inclusion of the term "approach" illustrates Chapter 33's breadth and strength. [...]the statute narrowly defines "effective consent," an issue that is the source of much litigation under the CFAA. Citing Miller, the court held that Stoddard violated the SCA as a matter of law and also the Rhode Island Computer Crimes Law.39 Finding that Williams suffered no actual damages, the court only awarded Williams the SCA's minimum $1,000 statutory damages.40 Last year, a Texas court of appeals issued the first published decision in a case where plaintiffs asserted a HACA claim against a former snooping spouse. In Institutional Sec. Corp. v. Hood, the plaintiff (ISC), a securities broker/dealer, sued its former vice-president Hood after he retained copies of ISC's computer files and tried to woo ISC clients to his new employer.42 The court held that "[t]he download of data from the computer system without ISC's consent could constitute a violation of section 33.02(a) of the Penal Code," and it affi rmed, in part, the district court's temporary injunction.43 In other words, Hood's unfettered access to ISC's computer system did not imply that he enjoyed ISC's consent to download ISC client information for his personal benefit, that is, "for a purpose other than that for which the consent was given."