Biesenbach v. DOES 1-3

Background

Klaus Biesenbach alleged that three unidentified defendants engaged in repeated hacking activity involving his cellphone, encrypted Wi-Fi networks, Google G-Suite account, router, and voice-over-internet telephone service. He alleged unauthorized access, password changes, bypassing of security measures, and other conduct. He asserted claims under federal laws concerning cyberstalking, wiretapping, stored electronic communications, and computer fraud. He requested $2.8 million in damages and a judgment stating that the conduct was intended to cause irreparable harm.

Biesenbach applied to proceed without paying the filing fee and separately requested permission to take early discovery to identify the three Doe defendants.

Screening of the Complaint

The court granted Biesenbach's application to proceed without paying the filing fee after finding that he met the financial eligibility requirement. But the court screened the complaint under 28 U.S.C. § 1915(e), which requires review of a case filed without the filing fee and permits dismissal when the complaint is frivolous, fails to state a claim, or seeks relief from an immune defendant. The court found that the complaint failed to state a claim. It allowed Biesenbach 21 days, until February 14, 2022, to file a first amended complaint addressing the identified deficiencies. The court stated that if he did not timely amend, it would recommend dismissal of the action.

Cyberstalking claim

Biesenbach cited a provision defining a “course of conduct.” The court explained that this definition alone does not create a legal violation and construed the allegation as arising under the federal cyberstalking statute. The court held that the statute creates a federal criminal offense but does not provide a private right of action—that is, it does not allow a private person to sue for damages. This allegation therefore did not state a claim for relief.

Wiretap Act claim

The court explained that the Wiretap Act's civil damages provision can support a private lawsuit for the unauthorized interception, disclosure, or intentional use of the contents of communications. But Biesenbach alleged only that the defendants accessed accounts or devices and changed passwords. He did not plausibly allege that they captured or redirected the contents of communications, used those communications, or seized actual emails or text messages. The court also explained that account credentials and passwords are not the substance or meaning of a communication protected as “contents” under the Act. The Wiretap Act allegation therefore failed to state a claim.

Stored Communications Act claim

The Stored Communications Act provides a civil claim for unauthorized access to electronic communications held in electronic storage on a covered facility. The court found that Biesenbach did not explain what he meant by “organizational data” or provide enough facts to show that it consisted of protected electronic communications. He also did not plausibly allege that his cellphone, Wi-Fi, router, G-Suite account, or voice-over-internet service was a covered facility under the Act. The court noted that personal devices generally are not covered facilities and that Biesenbach had not adequately described the alleged server, the communications stored there, or why the storage qualified under the Act. The Stored Communications Act allegation therefore failed to state a claim.

Computer Fraud and Abuse Act claim

The court found that Biesenbach plausibly alleged unauthorized access to his cellphone, Wi-Fi network, and router, as well as conduct that may have transmitted a program, information, code, or command resulting in password and access changes. But a private claim under the Computer Fraud and Abuse Act requires qualifying damage or loss, including a loss of at least $5,000 under the provision at issue. Biesenbach did not allege that he incurred costs responding to the alleged hacking, restoring data, or assessing damage, or that he lost income or revenue because of an interruption in service. His request for $2.8 million, without supporting facts about qualifying loss, was insufficient. The court therefore found that the complaint failed to state a claim under the Act.

Early discovery

Biesenbach sought early discovery to identify the Doe defendants. Early discovery before the parties' usual discovery conference is generally disfavored, although a court may allow it for good cause. Courts consider whether the plaintiff has identified a real, suable person or entity with enough specificity, described prior efforts to identify the defendant, shown that the complaint can withstand a motion to dismiss, and demonstrated a reasonable likelihood that the discovery will produce information permitting service.

The court denied Biesenbach's application for expedited discovery without prejudice. Because the complaint could not withstand a motion to dismiss, one required factor was missing. The court also found that the application did not adequately describe prior efforts to identify the defendants or explain why the requested discovery was likely to identify them. The court stated that any renewed request should include a sworn declaration supporting each required factor.

Disposition

The court granted the application to proceed without paying the filing fee, found that the complaint failed to state a claim under 28 U.S.C. § 1915(e), and denied the application for expedited discovery without prejudice. It permitted Biesenbach to file a first amended complaint within 21 days and gave additional instructions about authenticating exhibits and explaining their relevance.