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“Throttling” Can Be Violation of Computer Fraud and Abuse Act

ISPs beware.

Throttling customer’s internet usage can be a violation of the Computer Fraud and Abuse Act.

In a decision last week, Federal Judge Laura Swain refused to dismiss claims against Time Warner Cable that throttling users’ internet service (who were heavy users) violated the CFAA.

The CFAA is a broadly written and an even more broadly interpreted statute that essentially prohibits anyone from exceeding their right to access a computer and causing damage and/or loss.

In throttling (slowing down) internet usage for heavy users, the complaint alleges that Time Warner Cable necessarily sent forged packets that essentially caused the peer to peer communication for these users to shut down.

Because of this, the Plaintiffs had to find alternative internet connections at Kinkos and through Verizon’s wireless services.  To the extent this case continues, it could land ISPs in a lot of hot water.

Two of Plaintiffs’ three claims regarding the CFAA were sustained and one was dismissed because the class plaintiffs did not properly allege a “loss” as required by the CFAA.  Other non-CFAA claims were also dismissed, but Plaintiffs have a right to re-plead those claims.

We’ll monitor this interesting case.

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