Restraining Amazon.com's Orwellian Potential: The Computer Fraud and Abuse Act as Consumer Rights Legislation

I. INTRODUCTION II. THE GA WRONSKI SETTLEMENT A. The Amazon Kindle B. The Gawronski Complaint and Settlement C. Historical Background: Expansion and Restriction of the CFAA III. THE ADVANTAGES OF THE CFAA OVER OTHER REMEDIES A. Analysis of Gawronski's CFAA Claim on the Merits B. Comparison of the CFAA Claim and Other Remedies 1. Breach of Contract and State Law 2. Trespass to Chattels IV. CONCLUSION I. INTRODUCTION Amazon.com revealed a capacity for irony when it remotely deleted certain copies of George Orwell's 1984 and Animal Farm from its Kindle e-book readers in 2009. (1) In response, two users filed a class action lawsuit against Amazon.com. (2) Among several causes of action, the plaintiffs claimed that Amazon.com had violated the Computer Fraud and Abuse Act of 1986 (CFAA) by causing harm to their Kindles without authorization. (3) The lawsuit is one example of the ways that the CFAA has grown since it was enacted. (4) The Gawronski lawsuit is a useful case study that shows why the expansion of the CFAA is a good thing for consumers, and why recent restrictions on the Act should not prevent lawsuits like the one Justin Gawronski brought against Amazon.com. In recent years, the CFAA has been criticized as too expansive. (5) What started as a law to prevent hackers from harming federal computer systems has grown to encompass behavior that is not typically considered hacking. For example, the CFAA is now commonly used in private civil claims of employers against employees who use work computers for unauthorized purposes. (6) The CFAA has strayed far from its original purpose, causing a rise in federal litigation that would not otherwise exist. (7) Recent cases that curtailed employers' remedies for disloyal employees, along with one that declined to extend criminal penalties to a breach of a website's terms of service, mark the beginning of a move toward reining in the scope of the CFAA. (8) In many areas, the new judicial restraint may be justified. (9) But the civil causes of action arising under the CFAA deter some behavior that should be curtailed, like Amazon.com's unauthorized deletion of e-books. A powerful CFAA can protect consumers from one-sided licensing deals like the purchase of e-books. One of the CFAA's unique benefits over alternative causes of action, like trespass to chattels, is that it creates uniform treatment for Internet-based contracts because the federal system has greater potential for uniformity than state law. The CFAA also has the conceptual advantage of conceiving of e-book ownership as a bargained-for set of rights in a file, not as personal property in the same way that physical books are property. (10) This concept more accurately reflects the reality of the e-book market than do alternative causes of action. Instead of categorically restricting the CFAA to cover only hacking, the CFAA should continue to apply to devices like the Kindle. Any future judicial or statutory restraints on the statute should not constrain e-book purchasers' ability to use the statute to protect themselves from the licensors of e-book files. In addition, a revision of the CFAA expressly creating a cause of action for tethered e-book readers should be added. II. THE GAWRONSKI SETTLEMENT A. The Amazon Kindle The Amazon Kindle is a handheld wireless device that displays electronic books that have been purchased from Amazon.com's online Kindle Store. (11) Amazon's Whispemet, the network that tethers the e-reader to Amazon.com and allows downloading of e-books, is accessible from any Kindle without extra fees. (12) Amazon.com also created a free software download for PC that displays Kindle e-books for those who want to read e-books on a traditional computer screen. (13) The Amazon Kindle has become one of the most popular devices in consumer electronics. …