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In this case, though the Terms of Use Agreements and Privacy Policies prohibit monitoring data flows using technologies like Wireshark on the websites associated with the app, these apps themselves do not have relevant regulations. It is not proper to accuse Lori violates relevant policies of these apps, such as BeFit.
(2) Whoever knows that the intentional transmission of programs, information, codes or orders would result in damages caused by unauthorized access to a protected computer systems.
In this case, Lori does not intentional transmission any information, and her monitoring conduct on medical and fitness data does not result in any damage to a protected computer. Therefore it is not proper to accuse Lori’s conduct cause any damage to BeFit.
(3) Whoever intentionally had access to the protected computer system without authorization and the action would recklessly cause damage. If so, the injured party can claim for compensation.
In the case Intel Corp. V. Hamidi, Hamidi was fired by Intel in 1996 after a dispute with the company over working conditions. Hamidi, who is strongly dissatisfied with this, sent six emails denouncing Intel six times before 1998.The maximum number of active staff receiving this email is more than 30,000 (the e-mail address mentioned above is the address used in the work of the company). In the e-mail message sent, there is a URL with a link to the Hamidi declaration. The home page details how bad Intel's work environment is. In response, Intel sued the California primary court in 1998, demanding that Hamidi stop sending such emails. Hamidi lost the verdict, and Hamidi appealed to the high court, But it still ended in defeat. Hamidi then appealed to the California Supreme Court in 2003 to win the case. Intel accused Hamidi that the large number of emails that Hamidi sends to its employees "is like junk mail," which "infringes our mail server and causes losses to our business." The California Supreme Court upheld Hamidi's case, 1) The number of messages sent by Hamidi does not reach the level of spam messages; 2) Intel is unable to prove that its computer system functions may be burdened by Hamidi's behavior or actually damaged in any way.
That is to say, Lori shall bear the corresponding civil liability if BeFit can prove Lori’s conduct had recklessly caused damage to BeFit. To sum up, it is not proper to claim that Lori violates the CFAA, because: 1) Lori’s access does not violate the Terms of Use Agreements and Privacy Policies of BeFit directly; 2) BeFit cannot be regarded as “protected computer” according to CFAA; 3) Lori’s conduct had not recklessly cause damage to BeFit.
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