United States: Happy Times, High Crimes And Misdemeanors (Silicon Valley – Episode 25)

In this week's episode of Silicon Valley, Richard enjoyed an unprecedented run of success, culminating with the official launch of Pied Piper's platform. Richard has suffered so many setbacks, it's little wonder he is initially reluctant to launch even a beta version—certain that the platform is buggy and will only subject Pied Piper to further mortal embarrassment. But the team convinces him to try a very limited, private beta, and the embarrassment never comes. Everyone loves it, from the beginning to the shockingly happy ending... everyone, except Monica. (But that doesn't matter because her dissatisfaction just convinces us that we aren't dreaming.) The team even manages to foil Gavin Belson's attempt to steal the beta, turning the tables on him and leaving him screaming to "cut the power to building" in order to shut down the team's zip bomb.

But the making of this happy story involves an amazing number of privacy invasions and downright dirty tricks, led by the budding uber-villain Gavin Belson. Through his scheme of monitoring employees' emails, Gavin discovers that Pied Piper released its beta, and Gavin unleashes Hooli's head of security to fraudulently obtain a copy of the beta by impersonating one of Richard's friends. But Pied Piper's hands are not entirely clean either. Pied Piper finds out someone at Hooli has their beta because Gilfoyle enabled 'god view' and can monitor the precise location of all the app's users. Gilfoyle disables the stolen copy (and via Gavin's hysteria, all of Hooli) by using the app to send a zip bomb to Gavin's phone and laptop. Richard uses the god view to stalk Monica to a hookah bar and confront her about her dislike of the beta. One starts to wonder just how much sneakiness and skulduggery it takes to make each happy moment of Silicon Valley.

There is so much material to cover, I'll start with the easy one: Hooli likely did not violate any laws by monitoring employee email. In general, when an employer owns the email system, network and/or computers, the employer is allowed to monitor the contents of all of those. Employees generally have no expectation of privacy for things they do on their employers' computers or messaging systems.

But that's where Hooli's compliance ends, and its crimes and torts begin. First, it is a misdemeanor (a crime) in California to "credibly" impersonate someone else electronically or online, without their consent, for purposes of harming, intimidating, threatening, or defrauding another person. When Hooli's head of security set up a fake email account and impersonated Richard's friend Max in order to illicitly obtain Pied Piper's beta, he clearly violated this California law. More than that, he committed good-old, garden-variety fraud. Someone commits fraud by making a false statement of an important fact, knowing the fact is false but intending that someone else rely on it, and the other person reasonably relies on it, and is harmed as a result. Hooli's security guy knowingly misrepresented his identity, intending for Richard to rely on the false identity, Richard reasonably relied on the false identity and was tricked into giving up something valuable: access to his beta. That's fraud! On top of that, the security guy likely committed theft of trade secrets (by using a misrepresentation to acquire the beta) — I could go on, but it seems unnecessary.

Given all Gavin's scheming, it was satisfying when Gilfoyle retaliated by delivering a zip bomb to Gavin's phone and laptop, and even better when Gavin freaked out and shut down all of Hooli in an attempt to contain the bomb. Alas, our hero's actions also might have bent or broken a law or two. One of the primary laws to worry about is the Federal "Computer Fraud and Abuse Act" or "CFAA," and similar state laws. The CFAA prohibits various kinds of "hacking" including accessing a computer "without authorization" or "exceeding authorized access" to obtain information, or to commit fraud and obtain something of value. Gilfoyle could argue that by installing Pied Piper's app, Gavin "authorized" the app to be on his phone and computer and to do things like communicate with Pied Piper's servers and download data. Therefore, there was no 'unauthorized access,' nor did Gilfoyle "exceed authorized access." This is a really interesting argument and I don't have nearly enough space to explore it. Fortunately for Gilfoyle, he didn't obtain any information or try to commit fraud, so for that reason, he didn't violate these portions of the CFAA.

However, the CFAA also prohibits knowingly transmitting a "program, information, code, or command" to cause damage "without authorization" to a computer, or intentionally accessing a computer "without authorization" and causing damage or loss. In this context, "damage" means any impairment to the integrity or availability of data, a system, or information. Courts have held that "damage" can include flooding an email account or server if it causes some sort of "impairment" to functioning of the target computer or system. This is where Gilfoyle looks to be in trouble, because he knowingly transmitted the zip bomb, which clearly impaired Gavin's phone and computer, and Gilfoyle was not authorized to cause this "damage."

It turns out it's pretty difficult to take offensive measures or engage in counter-hacking without potentially breaking the law—and many argue this is a good thing. Even the newly-enacted Cybersecurity Information Sharing Act of 2015 ("CISA") doesn't provide blanket authorization for counter-hacking or offensive measures. CISA authorizes "defensive measures," which are measures to detect, prevent or mitigate cybersecurity threats or vulnerabilities. However, CISA excludes any measures that destroy, substantially harm or provide unauthorized access to someone else's systems, or data on someone else's systems. In other words, those who engage in CISA-authorized "defensive measures" still have to be pretty careful not to substantially harm or obtain unauthorized access to others' systems. CISA probably doesn't give Gilfoyle cover for deploying the zip bomb.

What about Pied Piper's use of 'god view' to track Monica and find out that Gavin was using the app? That was probably ok, and will be ok going forward—as long as Pied Piper adequately informs users that they will be tracked, explains how the tracking data will be used or shared with third parties, and obtains consent (preferably with a click-box or button, but at minimum because users install and use the app after being informed of the tracking). However, precise location data is sensitive information, and if Pied Piper continues to collect it, Pied Piper should implement security and internal controls to prevent employees from misusing the data. That means Richard should stop using the information to chase Monica around town.

Pied Piper finally launched its platform and Gavin Belson cut his own power, but we'll have to see if this blissful state can continue into another episode.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
18 Oct 2017, Seminar, San Francisco, United States

Please join us for Sheppard Mullin's Labor & Employment Law Update & Happy Hour Seminar Series. 2017 presents significant developments in California labor and employment laws that will affect the way you run your day-to-day business operations. We will provide analysis and insight on these new laws, as well as offer practical advice and helpful tools for employers to protect their organizations from liability in the workplace.

18 Oct 2017, Seminar, California, United States

Come learn the latest about Labor Law Updates, Healthcare Reform Updates, Federal and State Tax-related issues/credits, Unemployment and Disability Insurance-related issues. Meet face-to-face with Sheppard, Mullin, Richter & Hampton LLP attorneys, government representatives, and other experts in workshops that will educate you on critical and timely issues.

18 Oct 2017, Seminar, San Diego, United States

Data breaches have a devastating impact on business and personal privacy. The Equifax breach is the most recent example of hackers taking advantage of corporate vulnerability. Shows like Mr. Robot have surged in popularity as our curiosity with hacking and cybersecurity continues to grow.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.