Brenda Czech v. Wall Street on Demand, Inc.

Wall Street on Demand, Inc. (WSOD) (defendant) sent financial information to subscribers via text messaging. Because WSOD did not track recycled or canceled telephone numbers, it sometimes sent text messages to people who had not subscribed to the service. Brenda Czech (plaintiff) began receiving text messages from WSOD on her cell phone shortly after purchasing a new phone plan. Czech brought a putative class action against WSOD, alleging that WSOD sent unwanted text messages and in doing so obtained information from her cell phone without authorization in violation of the Computer Fraud and Abuse Act (CFAA). The court rejected as insufficient Czech’s allegations that WSOD obtained information from her by obtaining operation and storage capacity, bandwidth, and memory from her phone and receiving a delivery notification once a text message was sent. Czech’s second amended complaint alleged that WSOD obtained information that her wireless number was active, she was located in the geographic area of the area code, and future text messages could be sent to that number, which allowed WSOD to market the number and evade restrictions imposed by do-not-call lists. Czech also claimed that WSOD obtained a portion of the hard-drive capacity of her phone. WSOD moved to dismiss the complaint, arguing that Czech failed to adequately allege that WSOD obtained information from Czech’s cell phone. Czech maintained that the CFAA required only that WSOD observed information, not that WSOD physically removed data. Czech argued, based on United States v. Drew, that sending text messages was analogous to contacting and viewing a website.