Case 1:16-cv-01368-JDB Document 67 Filed 03/27/20 Page 1 of 28
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`CHRISTIAN W. SANDVIG, et al.,
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`Plaintiffs,
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`v.
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`WILLIAM P. BARR,1 in his official
`capacity as Attorney General of the United
`States,
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`Defendant.
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`Civil Action No. 16-1368 (JDB)
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`MEMORANDUM OPINION
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`Plaintiffs are academic researchers who intend to test whether employment websites
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`discriminate based on race and gender. In order to do so, they plan to provide false information to
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`target websites, in violation of these websites’ terms of service. Plaintiffs bring a pre-enforcement
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`challenge, alleging that the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, as applied
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`to their intended conduct of violating websites’ terms of service, chills their First Amendment right
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`to free speech. Without reaching this constitutional question, the Court concludes that the CFAA
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`does not criminalize mere terms-of-service violations on consumer websites and, thus, that plaintiffs’
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`proposed research plans are not criminal under the CFAA. The Court will therefore deny the parties’
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`cross-motions for summary judgment and dismiss the case as moot.
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`1 Pursuant to Fed. R. Civ. P. 25(d), William P. Barr, the current Attorney General of the United States, is
`automatically substituted as the defendant in this matter.
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`A. Research Plans
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`BACKGROUND
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`Christopher Wilson and Alan Mislove are professors of computer science at Northeastern
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`University. Decl. of Pl. Christopher “Christo” Wilson (“First Wilson Decl.”) [ECF No. 48-1] ¶ 1;
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`Decl. of Pl. Alan Mislove (“First Mislove Decl.”) [ECF No. 48-2] ¶ 1. For their research, Wilson
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`and Mislove “intend to access or visit certain online hiring websites for the purposes of conducting
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`academic research regarding potential online discrimination.” Pls.’ Statement of Undisputed
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`Material Facts (“SMF”) [ECF No. 47-2] ¶ 61. Their plans include “audit testing” to examine whether
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`various hiring websites’ proprietary algorithms discriminate against online users “based on
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`characteristics, such as race or gender, that constitute a protected class status under civil rights laws.”
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`Id. ¶¶ 64, 66. To conduct these audit tests, plaintiffs “will create profiles for fictitious job seekers,
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`post fictitious job opportunities, and compare their fictitious users’ rankings in a list of candidates
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`for the fictitious jobs” in order to see “whether [the] ranking is influenced by race, gender, age, or
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`other attributes.” Id. ¶ 71.
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`Wilson and Mislove state that they will take steps to minimize the impact of their research
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`both on the targeted websites’ servers and on other users of those websites. Id. at ¶¶ 75–78. For
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`instance, they will make it apparent to real job seekers and employers that their postings are fake by
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`“stat[ing] in any fictitious job posting, or in any fictitious job seeker profile, that the job or the job
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`seeker is not real.” Id. at ¶¶ 75–78. Both researchers also intend to “comply with the payment
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`requirement” of certain employment websites. Decl. of Pl. Christopher “Christo” Wilson (“Second
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`Wilson Decl.”) [ECF No. 65-1] ¶ 5; Decl. of Pl. Alan Mislove (“Second Mislove Decl.”) [ECF No.
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`65-2] ¶ 5. But Wilson and Mislove acknowledge that their research plan will violate the target
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`websites’ terms of service prohibiting the provision of false information and/or creating fake
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`accounts. SMF ¶ 86.
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`B. Procedural History
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`In June 2016, Wilson and Mislove, as well as two other researchers (Christian W. Sandvig
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`and Kyratso Karahalios) and the nonprofit journalism group First Look Media Works, Inc., brought
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`a pre-enforcement constitutional challenge to a provision of the CFAA. Compl. [ECF No. 1] ¶¶ 180–
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`202. The provision at issue, 18 U.S.C. § 1030(a)(2)(C), or the “Access Provision,” makes it a crime
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`to “intentionally access[] a computer without authorization or exceed[] authorized access, and
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`thereby obtain[] . . . information from any protected computer.” Plaintiffs argue that this provision
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`violates the First and Fifth Amendments. Compl. ¶¶ 180–202. Specifically, they claim that the
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`Access Provision (1) is overbroad and chills their First Amendment right to freedom of speech; (2)
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`as applied to their research activities, unconstitutionally restricts their protected speech; (3) interferes
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`with their ability to enforce their rights and therefore violates the Petition Clause; (4) is void for
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`vagueness under the Fifth Amendment Due Process Clause; and (5) unconstitutionally delegates
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`lawmaking authority to private actors in violation of the Fifth Amendment Due Process Clause. See
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`id. On March 30, 2018, this Court partially granted the government’s motion to dismiss. See Sandvig
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`v. Sessions, 315 F. Supp. 3d 1, 34 (D.D.C. 2018). The Court dismissed all but the as-applied First
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`Amendment free speech claim brought by Wilson and Mislove. Id.
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`Now before the Court are the parties’ cross-motions for summary judgment. Wilson and
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`Mislove renew their pre-enforcement challenge to the Access Provision of the CFAA, alleging that
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`it unconstitutionally restricts their First Amendment rights to free speech by criminalizing their
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`research plans and journalistic activities that involve violating websites’ terms of service. Pls.’ Mem.
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`P. & A. in Supp. of Mot. for Summ. J. (“Pls.’ Mem.”) [ECF No. 48] at 1. The government, for its
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`part, argues that plaintiffs have failed to establish standing and that the First Amendment’s
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`protections do not shield plaintiffs from private websites’ choices about whom to exclude from their
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`servers. Def.’s Mem. in Supp. of Cross-Mot. for Summ. J. & in Opp’n to Pls.’ Mot. for Summ. J.
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`(“Gov’t’s Opp’n”) [ECF No. 50-1] at 1–4. The Court held a motions hearing on November 15, 2019,
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`and subsequently ordered another round of briefing to clarify plaintiffs’ specific research plans and
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`both parties’ understanding of particular terms within the CFAA. See November 26, 2019 Order
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`[ECF No. 63] at 1–2. The parties each responded, see Def.’s Resp. to Court’s Order for Clarification
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`(“Def.’s Resp. for Clarification”) [ECF No. 64]; Pls.’ Mem. in Resp. to Court’s Order [ECF No. 65],
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`and the matter is now ripe for consideration.
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`LEGAL STANDARD
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`Summary judgment is appropriate when “the movant shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
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`P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the
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`district court of the basis for its motion, and identifying those portions of [the record] . . .
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`demonstrat[ing] the absence of a genuine issue of material fact.” Celotex Corp. v. Cartrett, 477 U.S.
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`317, 323 (1986); see Fed. R. Civ. P. 56(c)(1)(A) (explaining that a moving party may demonstrate
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`that a fact is undisputed or not by citing “depositions, documents, electronically stored information,
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`affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials”).
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`In determining whether a genuine issue of material fact exists, the Court must “view the facts
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`and draw reasonable inferences in the light most favorable to the party opposing the motion.” Scott
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`v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alteration omitted). But a non-
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`moving party must establish more than the “mere existence of a scintilla of evidence” in support of
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`its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). To avoid summary
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`judgment, “there must be evidence on which the jury could reasonably find for the [non-moving
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`party].” Id.
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`I.
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`Jurisdictional Standing
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`ANALYSIS
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`To have Article III standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is
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`fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
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`favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v.
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`Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). This Court previously concluded that plaintiffs had
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`plausibly alleged standing on their First Amendment claims at the motion-to-dismiss stage, Sandvig,
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`315 F. Supp. 3d at 16–22, but plaintiffs must now demonstrate standing “with specific facts set out
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`by affidavit or other admissible evidence,” In re Navy Chaplaincy, 323 F. Supp. 3d 25, 39 (D.D.C.
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`2018) (internal quotation marks omitted).
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`There are two ways in which litigants like plaintiffs here may establish the requisite ongoing
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`injury when seeking to enjoin a statute alleged to violate the First Amendment. First, plaintiffs may
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`show that they intend “to engage in a course of conduct arguably affected with a constitutional
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`interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.”
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`Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v. United Farm
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`Workers Nat. Union, 442 U.S. 289, 298 (1979)). Second, they may refrain from exposing themselves
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`to sanctions under the statute, making a sufficient showing of self-censorship—i.e., they may
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`establish a chilling effect on their free expression. See Laird v. Tatum, 408 U.S. 1, 11–14 (1972). In
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`either case, a constitutionally affected interest and a credible threat of enforcement are required;
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`without them, plaintiffs can establish neither a realistic threat of legal sanction for engaging in
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`protected speech nor an objectively good reason for self-censoring by not conducting their planned
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`research. Here, plaintiffs take the first path and argue that they intend to engage in conduct
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`“arguably” proscribed by statute.
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`The government responds that plaintiffs lack standing for three reasons. First, regardless of
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`whether the Department of Justice would prosecute their conduct, plaintiffs “lack any concrete plans
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`for conducting future research covered by their as-applied claim, i.e., involving fake or misleading
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`accounts.” Gov’t’s Opp’n at 10. Second, assuming concrete research plans, “[p]laintiffs have not
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`demonstrated a credible threat of prosecution for . . . such research.” Id. And third, plaintiffs’
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`“claims are too abstract to be evaluated and therefore are not ripe.” Id. The government does not
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`appear to dispute that, if plaintiffs can satisfy the injury-in-fact requirements, they can also meet the
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`causation and redressability tests to establish standing. See Spokeo, 136 S. Ct. at 1547.
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`A.
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`Concrete Plans
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`The government first argues that plaintiffs have failed to establish the existence of “any
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`concrete plans for conducting further research covered by their as-applied claim.” See Gov’t’s Opp’n
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`at 10–11. To support this argument, the government quotes testimony from Wilson and Mislove that
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`they have no “concrete plans” for research involving the provision of false information or the creation
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`of fake accounts in violation of websites’ terms of service. Id.
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`This framing—and selective quotation—of plaintiffs’ testimony mischaracterizes the extent
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`of their plans. “Pre-enforcement review, particularly in the First Amendment context, does not
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`require plaintiffs to allege that they will in fact violate the regulation in order to demonstrate an
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`injury.” U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 739 (D.C. Cir. 2016) (internal quotation marks
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`omitted). “Standing to challenge laws burdening expressive rights requires only a credible statement
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`by the plaintiff of intent to commit violative acts and a conventional background expectation that the
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`government will enforce the law.” Id. (emphasis added) (internal quotation marks omitted).
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`Plaintiffs here satisfy this standard. Wilson later clarified that, when he said he did not have
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`concrete plans, “what [he] meant was [they] don’t have software, [they] don’t have a timeframe.
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`There [are] no students assigned to it.” Oral Depo. of Christopher Wilson (“Wilson Depo.”) [ECF
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`No. 54-3] at 215:25–216:4. But Wilson has already “applied and received . . . funding” and approval
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`from the Institutional Review Board (“IRB”) for such projects. Id. at 217:15–18. Likewise, Mislove
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`testified that he has “specific research plans [and] specific platforms that [his lab is] studying . . . in
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`the sense that this is an area of [his] research that [he] intend[s] to conduct work[] in.” Oral Depo.
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`of Alan E. Mislove (“Mislove Depo.”) [ECF No. 52-3] at 47:4–8. In response to the government’s
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`interrogatory asking for “any and all platforms and/or websites that Plaintiffs intend to access in the
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`future for purposes” of research, plaintiffs identified specific websites, including LinkedIn, Monster,
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`Glassdoor, and Entelo, and noted that they intended to conduct research that might violate these sites’
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`terms of service by “creating accounts using false information and/or providing false or misleading
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`information.” Pls.’ Third Suppl. Resps. & Objs. to Def.’s First Set of Interrogs. Nos. 2–3 [ECF No.
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`52-6] at 3–4.
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`The government argues in response that “‘some day’ intentions—without any description of
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`concrete plans, or indeed even any specification of when the some day will be—do not support a
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`finding of the actual or imminent injury.” Gov’t’s Opp’n at 10–11 (quoting Defs. of Wildlife, 504
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`U.S. at 564). But unlike the amorphous “‘some day’ intentions” to visit endangered species on
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`another continent at issue in Defenders of Wildlife, see 504 U.S. at 564, these researchers’ plans are
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`already in motion, even if the specifics of their study are still being developed. The fact that plaintiffs
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`have secured funding and IRB clearance to engage in conduct covered by their as-applied challenge
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`evinces a sufficient demonstration of injury in fact. Cf. Friends of the Earth, Inc. v. Laidlaw Envtl.
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`Servs. (TOC), Inc., 528 U.S. 167, 183–84 (2000) (concluding that organizational plaintiffs’ members
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`suffered an injury in fact because they had “reasonable concerns” rising above the level of
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`“speculative some day intentions” that the discharge of pollutants would “directly affect[]” their
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`“recreational, aesthetic, and economic interests” (internal quotation marks omitted)).
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`The government also argues that plaintiffs’ two declarations, clarifying the meaning of their
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`earlier statements about “concrete plans,” must be disregarded under the so-called “sham affidavit
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`rule.” Gov’t’s Opp’n at 11–12; see also First Wilson Decl.; First Mislove Decl. This argument fails,
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`however, because these affidavits’ descriptions of plaintiffs’ research plans merely clarify plaintiffs’
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`prior answers and contextualize their use of the term “concrete.” See Galvin v. Eli Lilly & Co., 488
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`F.3d 1026, 1030 (D.C. Cir. 2007). Mislove and Wilson said they have no “concrete” plans in order
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`to explain that they are not currently implementing any of those research plans, notwithstanding their
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`intent to do so in the future. Moreover, there is no indication that plaintiffs, in their earlier statements,
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`intended to use the term “concrete plans” in its specific meaning as a legal term of art.
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`Finally, in its reply brief, the government states that the clearest examples of concrete steps
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`taken by Wilson actually concern a different research project than the proposed discrimination project
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`at issue in this case. Def.’s Reply Mem. in Supp. of Cross-Mot. for Summ. J. (“Gov’t’s Reply”)
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`[ECF No. 56] at 4 n.1. The government does not clearly articulate the distinction between the
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`different research projects, however, and this Court has already recognized that Wilson and Mislove
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`intend both to “create fake employer profiles” and to “create fictitious sock-puppet job seeker
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`profiles” as part of the research at issue in this case. Sandvig, 315 F. Supp. 3d at 9–10.
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`B.
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`Credible Threat
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`Under their theory of standing, plaintiffs must show that they intend to engage in conduct
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`arguably both protected by the First Amendment and proscribed by the statute they challenge, and
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`that there is a “credible threat” that the statute will be enforced against them when they do so. See
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`Driehaus, 573 U.S. at 158–63. The government argues that plaintiffs fail to establish a credible threat
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`of prosecution under the CFAA, contending that (1) plaintiffs’ testimony shows that they do not fear
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`prosecution (and, indeed, already have engaged in such research); (2) past CFAA prosecutions do
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`not establish a credible threat that plaintiffs’ proposed conduct will be prosecuted; and (3) the
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`government’s charging policies and public statements undercut plaintiffs’ attempt to establish a
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`credible threat of prosecution. Gov’t’s Opp’n at 12–18.
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`“Standing to challenge laws burdening expressive rights requires only a credible statement
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`by the plaintiff of intent to commit violative acts and a conventional background expectation that the
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`government will enforce the law” U.S. Telecom Ass’n, 825 F.3d at 739 (internal quotation marks
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`omitted). As previously noted, plaintiffs satisfy the first half of this test; the question thus becomes
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`whether the “conventional background expectation” of criminal enforcement holds here. Id. Again,
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`plaintiffs have the stronger arguments.
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`First, plaintiffs’ testimony that they do not subjectively fear prosecution under this statute—
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`and that they have even engaged in the allegedly “chilled” conduct previously—does not undermine
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`their legal claim. The question is whether there exists “a credible threat,” which is an objective,
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`rather than subjective, inquiry. See id. Mislove also testifies that he does subjectively fear facing
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`criminal consequences for his future research. See, e.g., Mislove Depo. at 147:12–19 (“[I]t really
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`weigh[s] heavily on my mind . . . [that I am] exposing my students to criminal—to potential criminal
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`prosecution or the risk.”).
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`Second, even assuming the absence of prior prosecutions, but see Sandvig, 314 F. Supp. 3d
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`at 19–20 (discussing two previous prosecutions under the Access Provision), plaintiffs still are not
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`precluded from bringing this pre-enforcement action. When constitutionally protected conduct falls
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`within the scope of a criminal statute, and the government “has not disavowed any intention of
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`invoking the criminal penalty provision,” plaintiffs are “not without some reason in fearing
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`prosecution” and have standing to bring the suit. Babbitt, 442 U.S. at 302. Indeed, at the pleadings
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`stage, the Court already rejected the contention that the lack of similar past CFAA prosecutions
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`undermines a credible threat of prosecution now. See Sandvig, 315 F. Supp. 3d at 18–21.
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`Third, the government points to guidance from the Attorney General that “expressly cautions
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`against prosecutions based on [terms-of-service] violations,” as well as statements to Congress by
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`Department of Justice officials, as evidence that plaintiffs face no credible threat of prosecution.
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`Gov’t’s Opp’n at 16–17. But the absence of a specific disavowal of prosecution by the Department
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`undermines much of the government’s argument. See Babbitt, 442 U.S. at 302. The government
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`insists that it is not a defendant’s burden to “come forward with proof of a non-existent threat of
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`prosecution.” Gov’t’s Opp’n at 17. But while the burden of demonstrating standing remains on the
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`plaintiffs, this Court has previously ruled that in the absence of an “explicit statement” disavowing
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`prosecution, these various advisory and non-binding statements and Department of Justice policies
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`do not eliminate the reasonable fear of prosecution. Sandvig, 315 F. Supp. 3d at 20–21. Furthermore,
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`as noted above the government has brought similar Access Provision prosecutions in the past and
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`thus created a credible threat of prosecution. Id. at 19–20.
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`Discovery has not helped the government’s position. John T. Lynch, Jr., the Chief of the
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`Computer Crime and Intellectual Property Section of the Criminal Division of the Department of
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`Justice, testified at his deposition that it was not “impossible for the Department to bring a CFAA
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`prosecution based on [similar] facts and de minimis harm.” Dep. of John T. Lynch, Jr. [ECF No. 48-
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`4] at 154:3–7. Although Lynch has also stated that he does not “expect” the Department to do so,
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`Aff. of John T. Lynch, Jr. [ECF No. 21-1] ¶ 9, “[t]he Constitution ‘does not leave us at the mercy of
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`noblesse oblige,’” Sandvig, 315 F. Supp. 3d at 21 (quoting United States v. Stevens, 559 U.S. 460,
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`480 (2010)). Absent a specific disavowal or a clear indication that plaintiffs’ conduct falls outside
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`the scope of the criminal provisions, plaintiffs adequately demonstrate a credible threat for standing
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`purposes.
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`C.
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`Ripeness
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`The government also argues that plaintiffs’ claims are not ripe for adjudication. “Plaintiffs
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`have not yet identified the specific websites that they intend to access for their research,” the
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`government says, and hence it is “impossible to know what those websites’ [terms of service] will be
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`at the time of Plaintiffs’ research”—or whether any violation of the terms of service will run afoul of
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`the Court’s narrow construction of the CFAA. Gov’t’s Opp’n at 18. Because plaintiffs do not know
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`what their research will entail, the government argues, the Court cannot evaluate the potential harms
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`caused by their hypothetical research. Id. at 18–19. Hence, according to the government, the Court
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`cannot meaningfully examine plaintiffs’ First Amendment claim on the merits and fashion a proper
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`injunction under Rule 65 because it cannot “describe in reasonable detail—and not by referring to
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`the complaint or other document—the act or acts restrained or required.” Id. at 19 (quoting Fed. R.
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`Civ. P. 65(d)(1)(B), (C)).
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`Plaintiffs respond first that, because terms of service are always subject to change, it will
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`always be impossible to know what a website’s exact terms of service will be in the future, or whether
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`research violating those terms will implicate the Access Provision. Pls.’ Mem. in Opp’n to Def.’s
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`Mot. for Summ. J. & Reply in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Reply”) [ECF No. 54] at 10–
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`11. Accordingly, “[p]laintiffs would have to actually undertake the research—taking note of the
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`[terms of service] actually in effect at the time and exposing themselves to criminal liability—in
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`order to challenge the Access Provision’s application to them,” a drastic and risky step that plaintiffs
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`argue is not required by the First Amendment. Id. at 11. Next, plaintiffs say that how exactly they
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`plan to carry out their research—for instance, the number of fictitious accounts or postings that will
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`be necessary or how long each account or posting will exist—is irrelevant to the First Amendment
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`question. Id. Finally, plaintiffs argue that their complaint and declarations clarify in detail the
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`research goals, methodologies, and precautions that will be taken to mitigate potential harm. Id. at
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`11–12.
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`The question of ripeness presents a closer call than the previous two standing issues. For
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`instance, if this Court were to reach the First Amendment analysis urged by plaintiffs and evaluate
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`the Access Provision under intermediate scrutiny, it would have to determine whether the
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`government has “show[n] ‘a close fit between ends and means’” such “that the regulation ‘promotes
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`a substantial government interest that would be achieved less effectively absent the regulation,’” and
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`does “not ‘burden substantially more speech than is necessary to further the government’s legitimate
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`interests.’” A.N.S.W.E.R. Coal. v. Basham, 845 F.3d 1199, 1213–14 (D.C. Cir. 2017) (citations
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`omitted); see also Sandvig, 315 F. Supp. 3d at 30. Absent specific direction from plaintiffs, it will
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`be difficult to engage in this analysis. The Court is not well placed, for instance, to forecast what
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`technological or security risks might be generated by permitting such research.
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`Still, based on the record before it, the Court concludes that the present dispute is ripe.
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`Plaintiffs listed several websites—LinkedIn, Monster, Glassdoor, and Entelo—that they plan to visit,
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`and they described intending to violate these sites’ terms of service by “creating accounts using false
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`information and/or providing false or misleading information.” Pls.’ Third Suppl. Resps. & Objs. to
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`Def.’s First Set of Interrogs. No. 3, at 3–4. Wilson and Mislove also both testified that their research
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`plans were designed to have, at most, a de minimis effect on the targeted websites, further
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`demonstrating that specific concrete steps have been taken in their research. First Wilson Decl. ¶ 46;
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`First Mislove Decl. ¶ 43. The governments’ own exhibits make clear the extent to which websites,
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`like LinkedIn, both prohibit and attempt to eliminate false accounts. See, e.g., Decl. of Paul Rockwell
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`(“LinkedIn Decl.”) [ECF No. 52-11] at 3–12; Decl. of Thomas O’Brien (“GlassDoor Decl.”) [ECF
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`No. 52-13] at 5–6; Affirmation of Leonard Kardon (“Monster Aff.”) [ECF No. 52-14] at 1–2. These
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`various pieces of evidence reveal a ripe dispute over whether criminally prosecuting plaintiffs under
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`the CFAA for violations of public websites’ terms of service runs afoul of the First Amendment.
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`*
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`*
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`*
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`Finally, the Court turns to the question of whether plaintiffs’ “intended future conduct is
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`‘arguably . . . proscribed by’” the CFAA. Driehaus, 573 U.S. at 162 (quoting Babbitt, 442 U.S. at
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`298). The government does not appear to question that plaintiffs plan to engage in proscribed
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`conduct, but the Court has “an independent obligation to assure that standing exists.” Summers v.
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`Earth Island Inst., 555 U.S. 488, 499 (2009). The Court is also mindful that its ultimate interpretation
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`of the CFAA, see infra, at 15–28, excludes plaintiffs’ conduct from criminal liability and, at
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`minimum, moots their First Amendment claim. Still, the question remains whether the Court’s
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`ultimate determination that the CFAA does not criminalize plaintiffs’ intended conduct eliminates
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`plaintiffs’ injury-in-fact, see Driehaus, 573 U.S. 158–59, or merely moots the First Amendment
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`dispute, see Powell v. McCormack, 395 U.S. 486, 496 (1969) (“[A] case is moot when the issues
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`presented are no longer ‘live’ . . . .”).
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`The resolution to this question turns on the meaning of Driehaus’s holding that plaintiffs’
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`intended conduct must be “arguably . . . proscribed by statute,” Driehaus, 573 U.S. at 159; see also
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`Woodhull Freedom Found. v. United States, 948 F.3d 363, 371 (D.C. Cir. 2020) (holding that courts
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`should look to Driehaus’s test for determining whether a plaintiff faces an “imminent threat” of
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`prosecution in a pre-enforcement action). The Second Circuit has taken this standard to mean that,
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`as long as plaintiffs propose a reasonable interpretation of the statute under which they credibly fear
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`prosecution, then they satisfy the standing requirement. See Knife Rights, Inc. v. Vance, 802 F.3d
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`13
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`Case 1:16-cv-01368-JDB Document 67 Filed 03/27/20 Page 14 of 28
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`377, 384–86 (2d Cir. 2015) (holding that plaintiff had standing where, despite believing its knife
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`design was not proscribed, plaintiff could not “confidently determine which such knives defendants
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`will deem proscribed gravity knives”). This “reasonable interpretation” approach stems from a line
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`of pre-Driehaus cases in which the Second Circuit was interpreting Babbitt, from which Driehaus
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`borrowed the “arguably proscribed” standard. See Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d
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`376, 382 (2d Cir. 2000). The Second Circuit understood Babbitt to require only that an interpretation
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`proscribing plaintiffs’ intended conduct be “reasonable enough that [they] may legitimately fear that
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`[they] will face enforcement of the statute.” Id. at 383.
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`The D.C. Circuit’s recent decision in Woodhull Freedom Foundation suggests a slightly
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`different approach. Although not as explicit as the Second Circuit in stating how plausible an
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`interpretation needs to be to satisfy plaintiffs’ standing requirements, the court engaged in
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`considerable statutory construction before deciding that plaintiffs did, in fact, have standing. See
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`Woodhull Freedom Found., 948 F.3d at 371–73. As Judge Katsas suggested in concurrence, a district
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`court is first to decide the statute’s meaning and then to decide if, arguably, the plaintiffs’ conduct
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`falls within its “[p]roperly construed” bounds. Id. at 375 (Katsas, J., concurring).
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`Unlike in Woodhull Freedom Foundation, which concerned a plain-meaning interpretation
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`relying on dictionaries and precedent, see id. at 372–73, Wilson and Mislove challenge an ambiguous
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`statute that this Court has already deemed may apply to their conduct, see Sandvig, 315 F. Supp. 3d
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`at 18. As will be discussed below, substantive canons of interpretation, like the rule of lenity and
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`constitutional avoidance, guide this Court’s ultimate decision. Under such circumstances, the Court
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`concludes that plaintiffs’ intended conduct is “arguably . . . proscribed by statute,” Driehaus, 573
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`U.S. at 159. To rule otherwise, and decide this complicated statutory matter under the rubric of
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`standing, would risk converting the “arguably . . . proscribed by statute” standard of Babbitt and
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`14
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`Case 1:16-cv-01368-JDB Document 67 Filed 03/27/20 Page 15 of 28
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`Driehaus into one of certainty. Cf. Hedges v. Obama, 724 F.3d 170, 199 (2d Cir. 2013) (noting an
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`unease with “allowing a preenforcement standing inquiry to become the vehicle by which a court
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`addresses” important and complex matters of statutory interpretation).
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`II.
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`Interpreting the CFAA
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`Assuming, then, that plaintiffs have satisfied the injury-in-fact requirement, the Court
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`nevertheless concludes that their First Amendment claim is moot. As will be discussed below, courts
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`have disagreed as to the breadth of the CFAA’s Access Provision. If this Court determines that the
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`Access Provision does not actually criminalize plaintiffs’ proposed conduct—namely, violating
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`consumer websites’ terms of service—then the Court need not dive, and judicial economy would
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`advise against diving, into the First Amendment issue. See Bond v. United States, 572 U.S. 844, 855
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`(2014) (“[I]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction
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`that normally the Court will not decide a constitutional question if there is some other ground upon
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`which to dispose of the case.” (internal quotation marks omitted)). Rather, the Court concludes that
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`the First Amendment claims plaintiffs “presented are no longer ‘live’” and will dismiss the case as
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`moot. Powell, 395 U.S. at 496.
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`a. Accessing Without Authorization
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`The CFAA prohibits “intentionally access[ing] a computer without authorization or
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`exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected
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`computer.” 18 U.S.C. § 1030(a)(2). The term “protected computer” refers to any computer “used in
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`or affecting interstate or foreign commerce or communication,” Id. § 1030(e)(2)(B), and no party
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`disputes that the servers and other computers associated with the websites in question here, like
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`LinkedIn, constitute “protected computer[s].”
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`Although the CFAA does not define “authorization,” courts have found the ter