Photo of Geary Choe

A recent ruling in Parziale v. HP, Inc., arising out of the implementation by Hewlett-Packard (“HP”) of a remote firmware update on many models of the company’s printers, highlights the potentially broad application of the Computer Fraud and Abuse Act (“CFAA”). It also serves as a reminder to technology companies that when distributing software and firmware updates, they must be mindful of providing specific advance notice that such updates may impact product or computer performance.

The Computer Fraud and Abuse Act

In 1986, Congress enacted the CFAA, reportedly in response to concerns arising from the Matthew Broderick film War Games, in which a teenage computer hacker accesses a U.S. Defense Department computer, unintentionally starts the launch sequence on the U.S. nuclear arsenal thinking it is a computer game, and comes close to starting World War III. Saving us all from annihilation, Broderick teaches the computer that when it comes to global thermonuclear war, “the only winning move is not to play.”

The CFAA is the primary computer crime law in the United States. Over the years, it has been amended several times and has broad application. The CFAA criminalizes fraud and certain other specified activities in connection with unauthorized access to computers. The CFAA also provides for civil remedies based on the same prohibited conduct.
Continue Reading Avoiding Claims Under the Computer Fraud and Abuse Act in Connection with Software and Firmware Updates

A random Twitter account tags a Japanese company and badmouths it in a series of tweets. Because the tweets are tagged, a search of the company’s name on Twitter will display the tweets with the negative comments among the search results. Upset over the tweets, the Japanese company wants to sue the tweeter in Japan. But how can it? The tweeter has not used his real name.

This is where discovery under 28 U.S.C. § 1782 can help. Section 1782 provides a vehicle for companies or individuals seeking U.S. discovery in aid of foreign litigation—even if the litigation is merely contemplated and not yet commenced. Specifically, Section 1782 provides that a federal district court may grant an applicant the authority to issue subpoenas in the United States to obtain documents or testimony, including documents or testimony seeking to unmask an anonymous Internet poster to pursue defamation claims abroad.

To pursue Section 1782 discovery, an applicant needs to establish:

  • that the requested discovery is for use in an actual or contemplated proceeding in a foreign or international tribunal;
  • that the applicant is an “interested person” in that proceeding; and
  • that the person from whom the discovery is sought resides or is found in the district of the court where the applicant is making the application.


Continue Reading Foreign Companies Can Use 28 U.S.C. § 1782 to Unmask Anonymous Internet Posters