For purposes of the Consumer Fraud and Abuse Act, both Facebook and its individual users had to consent before defendant could have its users initiate Facebook messages inviting others to use defendant’s website; the consent of the individual users alone was insufficient. Power did not violate the CAN-SPAM Act (15 USC 7704) by having its users initiate messages on Facebook inviting others to join Power’s website. The CAN-SPAM Act prohibits only misleading messages, and Power’s messages weren’t misleading. They showed Facebook as the sender, which it was through its automatic messengering system, and the messages were sent by permission of Facebook users. However, the messages did violate the Consumer Fraud and Abuse Act (18 USC 1030) because Power continued sending the messages after Facebook unequivocally revoked any consent to Power’s using Facebook’s computers by sending Power a cease and desist letter. Consent by Facebook users was insufficient. Both Facebook and its users had to consent before Power had the right to use Facebook’s computers. For the same reason, Power also violated Cal. Penal Code 502. Personal liability for these violations was properly imposed on Vachani who was the central figure in spearheading Power’s advertising scheme.
Ninth Circuit Court of Appeals (Graber, J.); July 12, 2016; 2016 WL 3741956