Is An Intentional Act Negligent?

Here’s an interesting opinion from the US Court of Appeals for the 8th Circuit. A marketing company called Eyeblaster got sued under the Computer Fraud and Abuse Act for putting cookies on Web site visitors’ computers. The lawsuit alleged that Eyeblaster, by placing the cookies, had “intentionally accessed a protected computer without authorization.” That is, of course, the very definition of a CFAA violation. The complaint alleged that the spyware caused thousands of dollars of damage to the visitor’s system. Eyeblaster tendered the claim to its errors and omission insurer. The policy provided coverage against claims involving “wrongful acts,” defined as errors, unintentional omissions, or negligent acts. Because the complaint alleged that Eyeblaster engaged in intentional wrongdoing, the insurer declined coverage. The court disagreed. It noted, “[The plaintiff] alleges that Eyeblaster installed tracking cookies, Flash technology, and JavaScript on his computer, all of which are intentional acts.” But that intentional act might be an “error,” or a negligent act, the court concluded. In other words, even though Eyeblaster meant to install the spyware, it didn’t necessarily mean to harm anyone. Close call. But it’s good to know you might have coverage if you find yourself on the wrong end of one of these actions.