Legal Blog: The Devastating Fallout From The Ashley Madison Hack on Reality TV Stars

“Welcome to the age of un-innocence. No one has breakfast at Tiffany’s and no one has affairs to remember. Instead, we have breakfast at seven a.m. and affairs we try to forget as quickly as possible.”  – “Sex and the City”

Ashley Madison, an online site devoted to helping married people have an affair, uses the debauched slogan, “Life is short. Have an affair.” The website facilitates adulterous relationships with the help of an advertising campaign which promised discretion and security.  Now Ashley Madison hackers calling themselves Impact Team have posted personal information, including names, e-mail addresses, home addresses, financial data, message history and account details from nearly 40 million members.   If one were to pitch this idea for a TV show, network execs wouldn’t exactly rush to green light the project.  But as the old adage goes, truth is stranger than fiction. (A TV show based on the cheating website is already in the works, according to The Hollywood Reporter.)

The impact the scandal could have on Internet privacy and the current state of protections and safeguards for Internet users in the United States is enormous. This is a turning point for American jurisprudence. 

Reality TV Squeezed By Hackers

The reality TV world has been rocked by the cyberspace hack. “Real Housewives of New York City” star Kristen Taekman isn’t sitting pretty after the digital fallout touched her family.  Kristen’s husband, Josh Taekman, was found to have allegedly signed up for the site in 2011.  (Their bickering and marital woes were a storyline on the Bravo hit.) 

Josh initially claimed “There’s not a shot in hell that I’m a subscriber.”  Then he pivoted, saying, “I signed up for the site foolishly and ignorantly with a group of friends…”  The couple issued this joint statement: “We both look forward to moving past this and getting on with our lives.”  An email address linked to the EBOOST energy supplement entrepreneur indicated he had 62 paid transactions on the cheaters’ site and spent thousands of dollars in the process.

Meanwhile “19 Kids and Counting” character Josh Duggar became the hack’s most disreputable reveal: The married former family values activist confessed to cheating on his wife. “I have been the biggest hypocrite ever,” said the man who spouts fundamentalist Christian ideology.  The eldest son of Jim Bob and Michelle Duggar was a paying member of Ashley Madison.  Reports claim Josh checked himself into a long-term treatment center (a.k.a. rehab).  The father of four’s family doesn’t say in their website announcement what Josh is seeking treatment for.   

It was also reported that an email account connected to Jionni Lavalle, husband to “Jersey Shore” alum Snooki (Nicole Polizzi), was identified in the data leak. Snooki claimed on her Instagram account, “Jionni is the most humble, respectful, and most loyal souls I know.” 

The hacker’s actions have likewise exposed state and federal judges, prosecutors, military personnel, college professors, celebrities, and members of the British Parliament. If life is short, as AshleyMadison.com claims, one negatively impacted by the scandal might sue.  Could that include these reality TV stars?  Will more reality TV husbands be exposed?

The Lawsuits

In Canada, a $578 million class-action lawsuit was filed against the Toronto-based website’s parent company, Avid Life Media Inc.  A complaint seeking $5 million has been filed in Missouri.  Two other lawsuits were filed in California and another one was filed in Texas. Ashley Madison users in Georgia, Tennessee and Minnesota have also filed suit.  The federal lawsuit filed in California does not name a specific amount of money, however the complaint states the plaintiff and anyone who joins the class-action lawsuit are seeking compensatory and punitive damages.

Plaintiffs allege that Ashley Madison and Avid Life Media are in 1) breach of contract; 2) engaged in negligence in protecting customer data; and 3) violated various state privacy laws. They say the companies knew their networks were insecure and Avid Life Media was aware of vulnerabilities, including “technical issues that could lead to a data breach occurring, as well the legal problems that may come with that,” notes one of the lawsuits.

Plaintiffs assert that AshleyMadison.com failed to protect their information while some users paid an additional fee for the website to remove all of their user data, only to discover that the information was left intact.

When signing up for the service, Avid Life Media makes it clear that users have a reasonable expectation of privacy. The privacy policy on Ashley Madison states the company treats “data as an asset that must be protected against loss and unauthorized access” and uses “standard practices and technologies,” including firewalls and encryption, to help protect user data from prying eyes.  Ashley Madison, if negligent in protecting sensitive data, would owe damages to the site members.   

Lawyers for plaintiffs and the infidelity website must look to see what are the terms of use and whether defendant had in place reasonable security measures.  Simply because the measures were hacked does not mean Ashley Madison breached its promises to their customers.  Plaintiffs must show that Ashley Madison failed to take reasonable steps to protect the security of its users, including those who paid a special fee to have their information deleted.

Traditionally, data breach cases provide plaintiffs with big payouts. But the drawbacks to filing a lawsuit against Avid Life Media in this instance are many:

AshleyMadison.com’s parent company, Avid Life Media Inc., is based in Toronto, meaning it could be more difficult to sue in the United States. 

People litigating will risk facing more publicity.  Plaintiffs will have to be identified as part of a class action lawsuit in which they would have to admit they signed up with AshleyMadison.com with an apparent interest in cheating.  The victims will likely be branded as cheats regardless of why they were on the site. 

The character issue hanging over plaintiffs could significantly limit a damage award, especially from a jury.   

Copyright Law

Ashley Madison has issued copyright takedown notices to multiple sites. While the company that flaunts infidelity has gone after websites that published parts or the entire database of the millions of customers, claiming that the “intellectual property in the data” was being infringed, these claims are on shaky legal ground.

The Digital Millennium Copyright Act (“DMCA”) was designed to allow rights holders to ask Internet companies to remove copyright-infringing content from their websites. The DMCA is a legal tool designed to help content owners delete unauthorized content that people have posted to websites like Twitter, YouTube or Facebook. In this case, the data released is probably not copyrighted material.  Members’ profiles belong to the member, not Ashley Madison.com.

Moreover these takedown notices could hinder journalists from doing their jobs by reporting on the story (think First Amendment protection).  The U.S. Supreme Court in Bartnicki v. Vopper 532 U.S. 514 (2001) held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception.

Crime Doesn’t Pay

Federal law enforcement agents are supposedly hot on the trail of the hackers.  The cyberthieves known as Impact Team could face many years in prison. A variety of federal laws including those against wire fraud, extortion, racketeering and computer fraud carry sentences of up to 20 years in prison for a cybertheft of this size. 

Grab your gavel, join the conversation, and let us know what you think about the Ashley Madison hack and the issues associated with cybercrime.

 

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