FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FACEBOOK, INC., a Delaware

corporation,

Plaintiff-Appellee,

v.

POWER VENTURES, INC., DBA

Power.com, a California

corporation; POWER VENTURES,

INC., a Cayman Island

corporation,

Defendants,

and

STEVEN SURAJ VACHANI, an

individual,

Defendant-Appellant.

No. 13-17102

D.C. No.

5:08-cv-05780-LHK
2 FACEBOOK V. VACHANI

FACEBOOK, INC., a Delaware

corporation,

Plaintiff-Appellee,

v.

POWER VENTURES, INC., DBA

Power.com, a California

corporation,

Defendant,

and

POWER VENTURES, INC., a

Cayman Island corporation; and

Steven Suraj Vachani, an

individual,

Defendants Appellants.

No. 13-17154

D.C. No.

5:08-cv-05780-LHK

ORDER AND

AMENDED

OPINION

Appeals from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Argued and Submitted December 9, 2015

San Francisco, California

Filed July 12, 2016

Amended December 9, 2016

Before: Susan P. Graber, Kim McLane Wardlaw,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Graber
FACEBOOK V. VACHANI 3

SUMMARY*

CAN-SPAM Act / Computer Fraud

The panel filed an order denying a petition for panel

rehearing and rehearing en banc and amending its opinion

affirming in part and reversing and vacating in part the

district court’s summary judgment in favor of Facebook, Inc.,

on Facebook’s claims against Power Ventures, Inc., a social

networking company that accessed Facebook users’ data

and initiated form e-mails and other electronic messages

promoting its website.

Reversing in part, the panel held that Power’s actions did

not violate the Controlling the Assault of Non-Solicited

Pornography and Marketing Act of 2003, or CAN-SPAM

Act, which grants a private right of action for a provider of

Internet access service adverselyaffected bythe transmission,

to a protected computer, of a message that contains, or is

accompanied by, header information that is materially false

or materially misleading. The panel held that here, the

transmitted messages were not materially misleading.

Reversing in part and affirming in part, the panel held that

Power violated the Computer Fraud and Abuse Act of 1986,

or CFAA, which prohibits acts of computer trespass by those

who are not authorized users or who exceed authorized use,

and California Penal Code § 502, but only after it received a

cease and desist letter from Facebook and nonetheless

continued to access Facebook’s computers without

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 FACEBOOK V. VACHANI

permission. With regard to authorization, the panel stated

that a defendant can run afoul of the CFAA when he or she

has no permission to access a computer or when such

permission has been revoked explicitly. Once permission has

been revoked, technological gamesmanship or the enlisting of

a third party to aid in access will not excuse liability. The

panel also stated that a violation of the terms of use of a

website, without more, cannot be the basis for liability under

the CFAA.

The panel vacated the district court’s awards of injunctive

relief and damages and remanded for consideration of

appropriate remedies under the CFAA and § 502.

COUNSEL

Amy Sommer Anderson (argued), Aroplex Law, San

Francisco, California; Steven Vachani (argued pro se),

Berkeley, California, for Defendants-Appellants.

Eric A. Shumsky (argued), Orrick, Herrington & Sutcliffe

LLP, Washington, D.C.; I. Neel Chatterjee, Monte Cooper,

Brian P. Goldman, and Robert L. Uriarte, Orrick, Herrington

& Sutcliffe LLP, Menlo Park, California, for PlaintiffAppellee.

Jamie L. Williams (argued), Hanni M. Fakhoury, and Cindy

A. Cohn, Electronic Frontier Foundation, San Francisco,

California, as and for Amicus Curiae.
FACEBOOK V. VACHANI 5

ORDER

The opinion filed July 12, 2016, and published at 828

F.3d 1068, is amended by the opinion filed concurrently with

this order.

With these amendments, the panel has voted to deny the

petition for panel rehearing and rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no judge of the court has requested a

vote on it.

The petition for panel rehearing and rehearing en banc is

DENIED. No further petitions for panel rehearing or

rehearing en banc shall be entertained.

OPINION

GRABER, Circuit Judge:

One social networking company, Facebook, Inc., has sued

another, Power Ventures, Inc., over a promotional campaign. 

Power accessed Facebook users’ data and initiated form emails and other electronic messages promoting its website. 

Initially, Power had implied permission from Facebook. But

Facebook sent Power a cease and desist letter and blocked

Power’s IP address; nevertheless Power continued its

campaign. Facebook alleges that Power’s actions violated the

Controlling the Assault of Non-Solicited Pornography and

MarketingAct of 2003 (“CAN-SPAM”), the Computer Fraud

and Abuse Act of 1986 (“CFAA”), and California Penal Code
6 FACEBOOK V. VACHANI

section 502. We hold that Power did not violate the CANSPAM Act because the transmitted messages were not

materially misleading. We also hold that Power violated the

CFAA and California Penal Code section 502 only after it

received Facebook’s cease and desist letter and nonetheless

continued to access Facebook’s computers without

permission. Accordingly, we affirm in part, reverse in part,

and remand to the district court.

BACKGROUND

Defendant Power Ventures, a corporation founded and

directed by CEO Steven Vachani, who also is a defendant

here, operated a social networking website, Power.com. The

concept was simple. Individuals who already used other

social networking websites could log on to Power.com and

create an account. Power.com would then aggregate the

user’s social networking information. The individual, a

“Power user,” could see all contacts from many social

networking sites on a single page. The Power user thus could

keep track of a variety of social networking friends through

a single program and could click through the central Power

website to individual social networking sites. By 2008, the

website had attracted a growing following.

Plaintiff Facebook also operates a social networking

website, Facebook.com. Facebook users, who numbered

more than 130 million duringPower’s promotional campaign,

can create a personal profile—a web page within the

site—and can connect with other users. Facebook requires

each user to register before accessing the website and requires

that each user assent to its terms of use. Once registered, a

Facebook user can create and customize her profile by adding

personal information, photographs, or other content. A user
FACEBOOK V. VACHANI 7

can establish connections with other Facebook users by

“friending” them; the connected users are thus called

“friends.”

Facebook has tried to limit and control access to its

website. A non-Facebook user generally may not use the

website to send messages, post photographs, or otherwise

contact Facebook users through their profiles. Instead,

Facebook requires third-party developers or websites that

wish to contact its users through its site to enroll in a program

called Facebook Connect. It requires these third parties to

register with Facebook and to agree to an additional

Developer Terms of Use Agreement.

In December 2008, Power began a promotional campaign

to attract more traffic to its website; it hoped that Facebook

users would join its site. Power placed an icon on its website

with a promotional message that read: “First 100 people who

bring 100 new friends to Power.com win $100.” The icon

included various options for how a user could share Power

with others. The user could “Share with friends through my

photos,” “Share with friends through events,” or “Share with

friends through status.” A button on the icon included the

words “Yes, I do!” If a user clicked the “Yes, I do!” button,

Power would create an event, photo, or status on the user’s

Facebook profile.

In many instances, Power caused a message to be

transmitted to the user’s friends within the Facebook system. 

In other instances, depending on a Facebook user’s settings,

Facebook generated an e-mail message. If, for example, a

Power user shared the promotion through an event, Facebook

generated an e-mail message to an external e-mail account

from the user to friends. The e-mail message gave the name
8 FACEBOOK V. VACHANI

and time of the event, listed Power as the host, and stated that

the Power user was inviting the recipient to this event. The

external e-mails were form e-mails, generated each time that

a Facebook user invited others to an event. The “from” line

in the e-mail stated that the message came from Facebook;

the body was signed, “The Facebook Team.”

On December 1, 2008, Facebook first became aware of

Power’s promotional campaign and, on that same date,

Facebook sent a “cease and desist” letter to Power instructing

Power to terminate its activities. Facebook tried to get Power

to sign its Developer Terms of Use Agreement and enroll in

Facebook Connect; Power resisted. Facebook instituted an

Internet Protocol (“IP”) block in an effort to prevent Power

from accessing the Facebook website from Power’s IP

address. Power responded by switching IP addresses to

circumvent the Facebook block. Through this period, Power

continued its promotion even though it acknowledged that it

took, copied, or made use of data from Facebook.com without

Facebook’s permission.

Power’s campaign lasted less than two months. On

December 20, 2008, Facebook filed this action. Toward the

end of January 2009, Power ended its campaign. In April

2011, Power ceased doing business altogether. In total, more

than 60,000 external e-mails promoting Power were sent

through the Facebook system. An unknown number of

internal Facebook messages were also transmitted.

In this action, Facebook alleged violations of the CFAA,

the CAN-SPAM Act, and California Penal Code section 502

and moved for summary judgment. The district court granted

summary judgment to Facebook on all three claims. The

district court awarded statutory damages of $3,031,350,
FACEBOOK V. VACHANI 9

compensatory damages, and permanent injunctive relief, and

it held that Vachani was personally liable for Power’s actions. 

Discovery disputes persisted after the judgment; a magistrate

judge ordered Power to pay $39,796.73 in costs and fees for

a renewed Federal Civil Procedure Rule 30(b)(6) deposition. 

Power filed a motion for reconsideration, which the district

court denied. Defendants timely appeal both the judgment

and the discovery sanctions.

STANDARD OF REVIEW

We review de novo a grant of summary judgment. 

Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th

Cir. 2011). We may affirm the judgment on any ground

supported by the record and presented to the district court. 

Venetian Casino Resort L.L.C. v. Local Joint Exec. Bd.,

257 F.3d 937, 941 (9th Cir. 2001).

DISCUSSION

A. CAN-SPAM Act

The CAN-SPAM Act grants a private right of action for

a “provider of Internet access service adversely affected by a

violation of section 7704(a)(1) of this title.” 15 U.S.C.

§ 7706(g)(1). In relevant part, § 7704(a)(1) makes it unlawful

for “any person to initiate the transmission, to a protected

computer, of a commercial electronic mail message, or a

transactional or relationship message, that contains, or is

accompanied by, header information that is materially false

or materially misleading.”

The CAN-SPAM Act “does not ban spam outright, but

rather provides a code of conduct to regulate commercial e-
10 FACEBOOK V. VACHANI

mail messaging practices.” Gordon v. Virtumundo, Inc.,

575 F.3d 1040, 1047–48 (9th Cir. 2009). To prove a violation

of the statute, Facebook cannot simply identify excessive

electronic messages. Rather, assuming all facts in favor of

the non-moving party, the offending messages must be

“materially false” or “materially misleading.” 15 U.S.C.

§ 7704(a)(1).

The statute provides that

the term “materially,” when used with respect

to false or misleading header information,

includes the alteration or concealment of

header information in a manner that would

impair the ability of an Internet access service

processing the message on behalf of a

recipient, a person alleging a violation of this

section, or a law enforcement agency to

identify, locate, or respond to a person who

initiated the electronic mail message or to

investigate the alleged violation, or the ability

of a recipient of the message to respond to a

person who initiated the electronic message.

Id. § 7704(a)(6). A “from” line “that accuratelyidentifies any

person who initiated the message shall not be considered

materially false or materially misleading.” Id.

§ 7704(a)(1)(B). And, further, “header information that is

technically accurate but includes an originating electronic

mail address, domain name, or Internet Protocol address the

access to which for purposes of initiating the message was

obtained by means of false or fraudulent pretenses or

representations shall be considered materially misleading.” 

Id. § 7704(a)(1)(A).
FACEBOOK V. VACHANI 11

Here, two types of messages might rise to the level of

“materiallymisleading” under the CAN-SPAM Act: external

e-mails sent when Power caused a Facebook event to be

created and internal Facebook messages authored by Power

that Power users transmitted to their Facebook friends.

We first consider the external e-mails. Facebook

generated these e-mails whenever a Power user created a

Facebook event, promoting Power. The “from” line of the emails identified “Facebook” as the sender. The body was

signed “Thanks, The Facebook Team.” The header stated

that a friend of the recipient invited her to an event entitled

“Bring 100 friends and win 100 bucks!”

Because the statute provides that a “from” line that

accuratelyidentifies a person who initiated the message is not

misleading, it is relevant whether Facebook, identified in the

from line, initiated the messages. The statute defines

“initiate” as “to originate or transmit such message or to

procure the origination or transmission of such message, but

shall not include actions that constitute routine conveyance of

such message.” Id. § 7702(9). It provides that “more than

one person may be considered to have initiated a message.” 

Id. A Power user gave Power permission to share a

promotion, Power then accessed that user’s Facebook data,

and Facebook crafted and caused form e-mails to be sent to

recipients. These actions all go beyond the routine

conveyance of a message. All the actions require some

affirmative consent (clicking the “Yes, I do!” button) or some

creative license (designing the form e-mails). Because more

than one person may be considered to have initiated the

message, we hold that, within the meaning of the statute,

Power’s users, Power, and Facebook all initiated the

messages at issue.
12 FACEBOOK V. VACHANI

Because Facebook (among others) initiated the messages,

the “from” line accurately identified a person who initiated

the messages. Accordingly, the “from” line is not misleading

within the meaning of the statute. Similar reasoning also

leads us to conclude that the header is technically accurate. 

Because a Power user consented to share Power’s promotion

through an event invitation, a header line that stated that a

recipient’s friend “invited” the recipient to the event does not

conceal or misstate a creator of the e-mail.

It is true that the CAN-SPAM Act includes as materially

misleading a technically accurate header that includes

information accessed through false or fraudulent pretenses or

representations. Id. § 7704(a)(1)(A). But Power users

consented to Power’s access to their Facebook data. In

clicking “Yes, I do!,” users gave Power permission to share

its promotion through event invitations. On this record,

Power did not use false pretenses or fraudulent

representations to obtain users’ consent. Therefore, the

external messages were not materially misleading within the

meaning of the CAN-SPAM Act.

We next consider internal messages sent within the

Facebook system. We can find these messages misleading

only if they impaired the ability of the recipient to “respond

to a person who initiated the electronic mail message” or the

ability of Facebook to locate the initiator of the messages. Id.

§ 7704(a)(6). Two factors convince us that the messages are

not misleading under this standard. First, the body of the

messages included both Power’s name and a link to the

Power website. A reasonable recipient could understand that

Power had drafted the message or had some part in its

construction. Second, Facebook users who were identified as

the senders did authorize the sending of these messages. It
FACEBOOK V. VACHANI 13

was not misleading for such users to be identified in internal

messages sent through the Facebook system.

Because neither e-mails nor internal messages sent

through Power’s promotional campaign were materially

misleading, Power did not violate the CAN-SPAM Act. We

reverse the district court on this claim and remand for entry

of judgment in favor of Defendants.

B. CFAA

The CFAA prohibits acts of computer trespass by those

who are not authorized users or who exceed authorized use. 

It creates criminal and civil liability for whoever

“intentionally accesses a computer without authorization or

exceeds authorized access, and thereby obtains . . .

information from any protected computer.” 18 U.S.C.

§ 1030(a)(2)(C). “The statute thus provides two ways of

committing the crime of improperly accessing a protected

computer: (1) obtaining access without authorization; and

(2) obtaining access with authorization but then using that

access improperly.” Musacchio v. United States, 136 S. Ct.

709, 713 (2016). The CFAA provides a private right of

action for “[a]ny person who suffers damage or loss by reason

of a violation of this section.” 18 U.S.C. § 1030(g).

First, we hold that Facebook suffered a loss within the

meaning of the CFAA. The statute permits a private right of

action when a party has suffered a loss of at least $5,000

during a one-year period. Id. § 1030(c)(4)(A)(i)(I). The

statute defines “loss” to mean “any reasonable cost to any

victim, including the cost of responding to an offense,

conducting a damage assessment, and restoring the data,

program, system, or information to its condition prior to the
14 FACEBOOK V. VACHANI

offense, and any revenue lost, cost incurred, or other

consequential damages incurred because of interruption of

service.” Id. § 1030(e)(11). It is undisputed that Facebook

employees spent many hours, totaling more than $5,000 in

costs, analyzing, investigating, and responding to Power’s

actions. Accordingly, Facebook suffered a loss under the

CFAA.

We next consider whether Power accessed Facebook’s

computers knowing that it was not authorized to do so. We

have previously considered whether a defendant has accessed

a computer “without authorization” or in a manner that

“exceeds authorized access” under the CFAA.

In LVRC Holdings LCC v. Brekka, 581 F.3d 1127 (9th

Cir. 2009), an employee logged onto his employer’s

computer, accessed confidential information, and sent e-mails

from the computer to himself and his wife with the intention

of starting a competing business. We held that a person is

“without authorization” under the CFAA “when the person

has not received permission to use the computer for any

purpose (such as when a hacker accesses someone’s computer

without any permission), or when the employer has rescinded

permission to access the computer and the defendant uses the

computer anyway.” Id. at 1135. Because the employee had

sent e-mails while he still had authorized access to the

company’s computers, his actions did not constitute

unauthorized use and did not run afoul of the CFAA. Id.

That fact was key; had the employee accessed company

computers without express permission, he would have

violated the CFAA. “[I]f [the employee had] accessed

LVRC’s information on the LOAD website after he left the

company in September 2003, [the employee] would have
FACEBOOK V. VACHANI 15

accessed a protected computer ‘without authorization’ for

purposes of the CFAA.” Id. at 1136.

In United States v. Nosal, 676 F.3d 854 (9th Cir. 2012)

(en banc) (“Nosal I”), a criminal case, we considered whether

a group of employees who logged on to a work computer,

downloaded information from a confidential database, and

transferred it to a competing business “exceed[ed] authorized

access.” Id. at 856. Wary of creating a sweeping Internetpolicy mandate, we applied the rule of lenity to the CFAA

and reversed liability for the defendant. Id. at 863. The

decision broadly described the application of the CFAA to

websites’ terms of service. “Not only are the terms of service

vague and generally unknown . . . but website owners retain

the right to change the terms at any time and without notice.” 

Id. at 862. As a result, imposing criminal liability for

violations of the terms of use of a website could criminalize

many daily activities. Accordingly, “the phrase ‘exceeds

authorized access’ in the CFAA does not extend to violations

of use restrictions. If Congress wants to incorporate

misappropriation liability into the CFAA, it must speak more

clearly.” Id. at 863.

From those cases, we distill two general rules in analyzing

authorization under the CFAA. First, a defendant can run

afoul of the CFAA when he or she has no permission to

access a computer or when such permission has been revoked

explicitly. Once permission has been revoked, technological

gamesmanship or the enlisting of a third party to aid in access

will not excuse liability. Second, a violation of the terms of

use of a website—without more—cannot establish liability
16 FACEBOOK V. VACHANI

under the CFAA.1 Our analysis also is consistent with United

States v. Nosal, 828 F.3d 865 (9th Cir. 2016) (“Nosal II”).

Here, initially, Power users arguably gave Power

permission to use Facebook’s computers to disseminate

messages. Power reasonably could have thought that consent

from Facebook users to share the promotion was permission

for Power to access Facebook’s computers.2In clicking the

“Yes, I do!” button, Power users took action akin to allowing

a friend to use a computer or to log on to an e-mail account. 

Because Power had at least arguable permission to access

Facebook’s computers, it did not initially access Facebook’s

computers “without authorization” within the meaning of the

CFAA.

But Facebook expressly rescinded that permission when

Facebook issued its written cease and desist letter to Power

on December 1, 2008. Facebook’s cease and desist letter

informed Power that it had violated Facebook’s terms of use

and demanded that Power stop soliciting Facebook users’

information, usingFacebook content, or otherwise interacting

 

1

 One can imagine situations in which those two principles might be in

tension—situations in which, for example, an automatic boilerplate

revocation follows a violation of a website’s terms of use—but we need

not address or resolve such questions on the stark facts before us.

2 Because, initially, Power users gave Power permission to use

Facebook’s computers to disseminate messages, we need not decide

whether websites such as Facebook are presumptively open to all comers,

unless and until permission is revoked expressly. See Orin S. Kerr, Norms

of Computer Trespass, 116 Colum. L. Rev. 1143, 1163 (2016) (asserting

that “websites are the cyber-equivalent of an open public square in the

physical world”).
FACEBOOK V. VACHANI 17

with Facebook through automated scripts.3 Facebook then

imposed IP blocks in an effort to prevent Power’s continued

access.

The record shows unequivocally that Power knew that it

no longer had authorization to access Facebook’s computers,

but continued to do so anyway. In requests for admission

propounded during the course of this litigation, Power

admitted that, after receiving notice that its use of or access

to Facebook was forbidden by Facebook, it “took, copied, or

made use of data from the Facebook website without

Facebook’s permission to do so.” (Emphasis added;

capitalization omitted.) Contemporaneously, too, soon after

receiving the cease and desist letter, Power’s CEO sent an email stating: “[W]e need to be prepared for Facebook to try

to block us and the [sic] turn this into a national battle that

gets us huge attention.” On December 4, 2008, a Power

executive sent an e-mail agreeing that Power engaged in four

“prohibited activities”4; acknowledging that Power may have

“intentionally and without authorization interfered with

[Facebook’s] possessory interest in the computer system,”

while arguing that the “unauthorized use” did not cause

3 The mention of the terms of use in the cease and desist letter is not

dispositive. Violation of Facebook’s terms of use, without more, would

not be sufficient to impose liability. Nosal I, 676 F.3d at 862–63. But, in

addition to asserting a violation of Facebook’s terms of use, the cease and

desist letter warned Power that it may have violated federal and state law

and plainly put Power on notice that it was no longer authorized to access

Facebook’s computers.

4 The activities were: “- Using a person’s Facebook account without

Facebook’s authorization; -Using automated scripts to collect information

fromtheir site; -Incorporating Facebook’s site in another database[; and] -

Using Facebook’s site for commercial purposes[.]”
18 FACEBOOK V. VACHANI

damage to Facebook; and noting additional federal and state

statutes that Power “may also be accused of violating,”

beyond those listed in Facebook’s cease and desist letter. Emails sent later in December 2008 discussed the IP blocks

that Facebook had imposed and the measures that Power took

to evade them. Nevertheless, Power continued to access

Facebook’s data and computers without Facebook’s

permission.

The consent that Power had received from Facebook users

was not sufficient to grant continuing authorization to access

Facebook’s computers after Facebook’s express revocation of

permission. An analogy from the physical world may help to

illustrate why this is so. Suppose that a person wants to

borrow a friend’s jewelry that is held in a safe deposit box at

a bank. The friend gives permission for the person to access

the safe deposit box and lends him a key. Upon receiving the

key, though, the person decides to visit the bank while

carrying a shotgun. The bank ejects the person from its

premises and bans his reentry. The gun-toting jewelry

borrower could not then reenter the bank, claiming that access

to the safe deposit box gave him authority to stride about the

bank’s property while armed. In other words, to access the

safe deposit box, the person needs permission both from his

friend (who controls access to the safe) and from the bank

(which controls access to its premises). Similarly, for Power

to continue its campaign using Facebook’s computers, it

needed authorization both from individual Facebook users

(who controlled their data and personal pages) and from

Facebook (which stored this data on its physical servers). 

Permission from the users alone was not sufficient to

constitute authorization after Facebook issued the cease and

desist letter.
FACEBOOK V. VACHANI 19

In sum, as it admitted, Power deliberately disregarded the

cease and desist letter and accessed Facebook’s computers

without authorization to do so. It circumvented IP barriers

that further demonstrated that Facebook had rescinded

permission for Power to access Facebook’s computers.5 We

therefore hold that, after receiving written notification from

Facebook on December 1, 2008, Power accessed Facebook’s

computers “without authorization” within the meaning of the

CFAA and is liable under that statute.

Nosal I is materially distinguishable. First, Nosal I

involved employees of a companywho arguably exceeded the

limits of their authorization. 676 F.3d at 856. Here, by

contrast, Facebook explicitly revoked authorization for any

access, and this case does not present the more nuanced

question of exceeding authorization. Nosal I involved a

defendant who “exceeded authorization,” while this case

involves a defendant who accessed a computer “without

authorization.” Second, although Nosal I makes clear that

violation of the terms of use of a website cannot itself

constitute access without authorization, this case does not

involve non-compliance with terms and conditions of service. 

Facebook and Power had no direct relationship, and it does

not appear that Power was subject to any contractual terms

that it could have breached. Finally, Nosal I was most

concerned with transforming “otherwise innocuous behavior

into federal crimes simply because a computer is involved.” 

5 Simply bypassing an IP address, without more, would not constitute

unauthorized use. Because a blocked user does not receive notice that he

has been blocked, he may never realize that the block was imposed and

that authorization was revoked. Or, even if he does discover the block, he

could conclude that it was triggered by misconduct by someone else who

shares the same IP address, such as the user’s roommate or co-worker.
20 FACEBOOK V. VACHANI

Id. at 860. It aimed to prevent criminal liability for computer

users who might be unaware that they were committing a

crime. But, in this case, Facebook clearly notified Power

of the revocation of access, and Power intentionally and

admittedly refused to comply. Nosal I’s concerns about

overreaching or an absence of culpable intent simply do not

apply here, where an individualized cease-and-desist letter is

a far cry from the permission skirmishes that ordinary

Internet users may face.

Accordingly, we hold that, after receiving the cease and

desist letter from Facebook, Power intentionally accessed

Facebook’s computers knowing that it was not authorized to

do so, making Power liable under the CFAA. We therefore

affirm in part the holding of the district court with respect to

the CFAA.

C. Section 502

California Penal Code section 502 imposes liability on a

person who “[k]nowingly accesses and without permission

takes, copies, or makes use of any data from a computer,

computer system, or computer network, or takes or copies

any supporting documentation, whether existing or residing

internal or external to a computer, computer system, or

computer network.” Id. § 502(c)(2). This statute, we have

held, is “different” than the CFAA. United States v.

Christensen, 801 F.3d 970, 994 (2015). “[T]he California

statute does not require unauthorized access. It merely

requires knowing access.” Id.

But despite differences in wording, the analysis under

both statutes is similar in the present case. Because Power

had implied authorization to access Facebook’s computers, it
FACEBOOK V. VACHANI 21

did not, at first, violate the statute. But when Facebook sent

the cease and desist letter, Power, as it conceded, knew that

it no longer had permission to access Facebook’s computers

at all. Power, therefore, knowingly accessed and without

permission took, copied, and made use of Facebook’s data. 

Accordingly, we affirm in part the district court’s holding that

Power violated section 502.

D. Personal Liability

We affirm the district court’s holding that Vachani is

personally liable for Power’s actions. A “corporate officer or

director is, in general, personally liable for all torts which he

authorizes or directs or in which he participates,

notwithstanding that he acted as an agent of the corporation

and not on his own behalf.” Comm. for Idaho’s High Desert,

Inc. v. Yost, 92 F.3d 814, 823 (9th Cir. 1996) (internal

quotation marks omitted). Cases finding “personal liability

on the part of corporate officers have typically involved

instances where the defendant was the ‘guiding spirit’ behind

the wrongful conduct, or the ‘central figure’ in the challenged

corporate activity.” Davis v. Metro Prods., Inc., 885 F.2d

515, 523 n.10 (9th Cir. 1989) (internal quotation marks and

ellipsis omitted).

Vachani was the central figure in Power’s promotional

scheme. First, Vachani admitted that, during the promotion,

he controlled and directed Power’s actions. Second, Vachani

admitted that the promotion was his idea. It is undisputed,

therefore, that Vachani was the guiding spirit and central

figure in Power’s challenged actions. Accordingly, we affirm

the district court’s holding on Vachani’s personal liability for

Power’s actions.
22 FACEBOOK V. VACHANI

E. Discovery Sanctions

We affirm the discoverysanctions imposed against Power

for non-compliance during a Rule 30(b)(6) deposition. 

Defendants failed to object to discovery sanctions in the

district court. Failure to object forfeits Defendants’ right to

raise the issue on appeal. Simpson v. Lear Astronics Corp.,

77 F.3d 1170, 1174 (9th Cir. 1996).

Even assuming the issue was not waived, we “review the

district court’s rulings concerning discovery, including the

imposition of discovery sanctions, for abuse of discretion.” 

Goodman v. Staples Office Superstore, LLC, 644 F.3d 817,

822 (9th Cir. 2011). The magistrate judge’s findings that

Vachani was unprepared, unresponsive, and argumentative

and that Power Ventures had failed to produce many e-mails

responsive to Facebook’s requests prior to discovery are

supported by the record. Accordingly, we hold that the

discovery sanctions imposed were not an abuse of discretion.

F. Remedies

Because we reverse in significant part, we also vacate the

injunction and the award of damages. We remand the case to

the district court to reconsider appropriate remedies under the

CFAA and section 502, including any injunctive relief. With

respect to damages, the district court shall calculate damages

only for the period after Power received the cease and desist

letter, when Power continued to access data contained in

Facebook’s servers and memory banks.

REVERSED in part, VACATED in part, AFFIRMED

in part, and REMANDED. The parties shall bear their own

costs on appeal.