Interestingly, for purposes of imposing liability under the CFAA, the Court noted that simply hitting the delete button will not suffice; citing a Seventh Circuit case, Int’l Airport Ctrs., L.L.C. v. Citrin, 440 F.3d. 418 (7th Cir. 2006),  “merely pressing the delete key on a computer does not remove data but rather ‘removes the index entry and pointers to the data file so that the file appears no longer to be there.” Id. “Such deleted files,” wrote the Court, “are easily recoverable.” Id.

The Court continued, “Even though pressing the delete key technically ‘transmits a command’ to the computer,” it would render the statute (which, as stated above also carries criminal implications) too broad.  On the other hand, where, as in this case, the defendant allegedly used a secure-erasure program, such actions would fall within the ambit of the CFAA.

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Leaving aside, for the moment, the delicious irony inherent in this particular story (of all books for Amazon to remotely access and delete, they had to pick “1984″?) the lawsuit does raise several fascinating legal issues. First, the lawsuit claims that by remotely deleting the eBooks after they had sold the eBooks to consumers, Amazon was not only guilty of breach of contract, but had contravened their own promotional advertising literature that was aimed at the public at large, and therefore, should be held liable for violating state consumer protection laws for engaging in deceptive advertising. (Under New York law, these statutes are codified at General Business Law sections 349 and 350). More specifically, the plaintiffs allege that Amazon’s own terms provide that consumers may keep – on a permanent basis – any eBooks that they pay for and download from Amazon.

Additionally, the plaintiffs to this lawsuit raised a compelling logical argument: since Amazon would certainly be barred from entering the purchasers’ homes and retrieving a hard copy of a book that Amazon had previously shipped to them, Amazon was likewise legally barred from deleting electronic copies of the books that were purchased for download.  Therefore, according to the complaint, Amazon’s actions are tantamount to an unlawful taking, or theft, of the purchasers’ private property (in legal terms commonly referred to as trespass and/or conversion).

Finally, the plaintiffs assert that Amazon’s actions constitute an invasion of their computer privacy rights, and therefore are liable to plaintiffs and all those who suffered a similar fate at Amazon’s hands, for violating the relatively new Computer Fraud & Abuse Act.

To their credit, Amazon has openly and readily acknowledged its mistake, stating that due to licensing issues, it should not have made available for sale these particular eBooks. Nevertheless, given the overwhelmingly negative publicity that Amazon is receiving from this story (which, at least in the short term, is likely to have a signficant chilling effect on Kindle sales), their mea culpa was obviously too little and too late to avert a class action lawsuit, and perhaps further damage to the reputation and sales of their prized product, the Kindle.

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