A Pennsylvania Federal District Court has decided that an employer did not violate the Federal Computer Fraud and Abuse Act (“CFAA”) or the Federal Lanham Act, when it took control of a departed employee’s LinkedIn account. The Court ruled that (1) the CFAA, which in part prohibits unauthorized access to a computer with the intent to defraud, did not come into play and (2) no trademark infringement in violation of the Lanham Act had occurred.
In Eagle v. Moran et al. plaintiff Eagle was employed as the CEO of Edcomm, Inc., a company that provided training services. In accordance with company practice, Eagle set up a LinkedIn account and gave another employee the password to her account. Edcomm followed a policy of asserting “ownership” over the account when an employee departed the Company; it would extract data and incoming information from the LinkedIn account, but took steps to avoid stealing the former employee’s identity. After Eagle’s involuntary termination, Edcomm used her password to change Eagle’s LinkedIn profile to that of the incoming CEO, and it replaced the photographs and information to reflect that of the new employee. Plaintiff claimed that when searches were done for her, the name and photograph of her replacement was displayed, yet Eagle’s awards, recommendations and contacts remained unchanged. In her lawsuit, Plaintiff claimed violations of the CFAA, the Lanham Act and state common law arising from the loss of business opportunities, relationships, reputation and trust caused by the change to her LinkedIn profile.
In order to prove a violation of the CFAA, a federal statute that prohibits unauthorized access and use of computers, a plaintiff must show actual damages. As the Court held, potential loss of future business — particularly as plaintiff speculatively claimed — is insufficient. Similarly, a loss to one’s reputation or relationship with clients does not arise to the level of a CFAA violation. The District Court dismissed Eagle’s CFAA claim, finding that Eagle’s simply claiming a loss of business opportunities by her lack of access to and control of her LinkedIn account for four months, failed as a matter of law to establish a CFAA violation. In addition, plaintiff was not claiming a monetary loss because her computer was inoperable or she expended money to repair damage to it (typical of a CFAA claim).
The Court also dismissed Eagle’s claim under the Lanham Act, the federal statute relating to trademark protection which prohibits unfair competition in goods and services through use of a word, term, name, symbol or device (or a combination of them) that is likely to confuse, mislead or deceive regarding the affiliation, sponsorship or approval of such goods, services or commercial activities. A viable claim under the Lanham Act requires a showing of a legally protectible mark, the plaintiff owns the mark and the defendant’s use of the mark to identify goods and services is likely to cause confusion. The Court considered the Third Circuit’s Lapp factors — a non-exhaustive list of factors used to determine whether the mark is likely to cause confusion — and concluded that the use of the LinkedIn account by the incoming CEO is unlikely to confuse a viewer. The Court did so reasoning that the account was changed to reflect the name, photograph and information of the incoming CEO. Also, Edcomm made no attempt to portray the new CEO as the former one or to claim the outgoing CEO was affiliated with or endorsed by Edcomm.
Finally, the Court maintained jurisdiction over the plaintiff’s state law claims, noting that the trial date was only 2 weeks away and that it would be unfair to dismiss those claims at such a late date.
The law with regard to social media — especially professional social media — is constantly evolving. Efforts by an employer to assert protections over company sponsored or directed social media activity is likely to face challenges by employees asserting privacy and property rights. Employers should consider these and other related social media activities when preparing social media policies and enforcement measures. For answers to questions regarding social media issues, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.
Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.