Robert Milligan and Joshua Salinas Published in Law360
"Case Study: Bose V. Interclick"

Seyfarth Shaw Los Angeles Litigation partner Robert Milligan and law clerk Joshua Salinas wrote an article published in Law360 on September 27. The article discussed a recent New York federal district court case dismissing Computer Fraud and Abuse Act (CFAA) claims against advertising company Interclick Inc. and its clients.

The plaintiff alleged that Interclick used "supercookies", which continued to track the plaintiff's internet activity despite the deletion of the cookies to protect her privacy, and in turn, plaintiff suffered impaired computer service and resources, loss due to the collection of her personal information and loss due to Internet service interruption.

The court pointed out that though CFAA claims do not require some type of physical damage, the plaintiff failed to demonstrate specific damage to her computer and to quantify her damage. Additionally, the court ruled that the plaintiff's "losses" (invasion of privacy, etc.) were not economically cognizable, and marketers and retailers constantly collect consumer data through several channels. Lastly, the plaintiff could not prove that this data collection via supercookies slowed or shut down her computer, nor did it interrupt her Internet service or cause any damage to her computer.

Robert and Joshua point out that this case serves as an important example because it shows that in the views of the court, there must still be some quantifiable or cognizable loss for a CFAA civil claim to avoid dismissal and invasion of privacy is not enough of a leg for plaintiffs to stand on.