The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Scott Mitchell used to work as a programmer for YourNetDating,
which runs internet dating services. He no longer does, but
YourNetDating alleges that he and Webscapades, Inc., an Illinois
corporation, are using Mitchell's knowledge of the
codes he wrote to hack the YourNetDating site and divert its
clients and users to a porn site they operate or operated under
the name of Sexetera.*fn1 Sexetera advertises itself as "the
forum for sexual discovery" and includes on its introductory page
an illustrated banner photograph of Pamela Anderson Lee
performing fellatio with a gross and vulgar descriptive caption.
The rest of the site is in the same spirit. The Sexetera site was
a "blind link"; that is, it was not possible to return to the
YourNetDating site from Sexetera.
To use YourNetDating's services, a customer signs on and fills
out a "profile," providing personal information about sex, age,
physical appearance, tastes, and preferences in a partner or
partners, typically under a pseudonym. The service provides a
password, and thereafter a user can sign on and search for
particular profiles under various categories, such as
twentysomething men in Chicago.
After a customer complaint in mid-February 2000, YourNetDating
investigated and determined that a certain client, purportedly
based in Idaho, calling herself "Debbie Does Dallas" (the name of
a well-known porn flick) had somehow embedded code in her profile
that diverted YourNetDating's users to the Sexetera website
whenever "Debbie" was brought up in a search, either by selecting
"Debbie" individually or by searching a category that included
"Debbie" such as all women in Idaho. "Debbie" could be traced to
Mitchell, who admits he created the profile. YourNetDating says
that it is not possible to embed such code in a profile in the
ordinary course of business, and that to do this one would need
special access, such as the password of a systems administrator,
which they allege Mitchell has.
YourNetDating purged "Debbie," but there is evidence that
Mitchell hacked their system again and did the same thing with a
profile for a "Lisa Martin," purportedly based in California.
That Mitchell created "Lisa" is undisputed. Because Mitchell
knows the codes that he wrote for YourNetDating, it has been
impossible to keep him out of the system.
YourNetDating moves for a temporary restraining order ("TRO")
or a preliminary or permanent injunction, damages, attorney's
fees, and costs. The motion for a TRO is granted and the other
motions are denied as premature.
The appropriate relief in the circumstances is a TRO,
particularly since I am acting here only as the emergency judge.
The standards I must apply when determining whether a TRO is
appropriate are analogous to the standards applicable when
determining whether preliminary injunctive relief is appropriate.
Consumer Sales & Marketing, Inc. v. Digital Equipment Corp.,
No. 95 C 5049, 1995 WL 548765, at *3 (N.D.Ill. Sept. 13, 1995).
Injunctive relief is an extraordinary and drastic remedy that
should not be granted unless the movant, by a clear showing,
carries the burden of persuasion. Mazurek v. Armstrong,
520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). Five
factors figure into the determination of whether a preliminary
injunction or TRO should be granted. Roland Mach. Co. v. Dresser
Indus., Inc., 749 F.2d 380, 385-88 (7th Cir. 1984). As a
threshold matter, the plaintiff must show (1) a likelihood of
success on the merits, (2) irreparable harm if the preliminary
injunction is denied, and (3) the inadequacy of any remedy at
law. Once this threshold showing is made, I balance (4) the harm
to plaintiff if the preliminary injunction were wrongfully denied
against the harm to the defendants if the injunction were
wrongfully granted, and (5) the impact on persons not directly
concerned in the dispute (the "public interest"). Cooper v.
Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
YourNetDating has come forward with enough to persuade me by a
preponderance of the evidence that it has a likelihood of success
on the merits. The evidence is mainly this: (1) when and only
when certain profiles are accessed, a user is diverted to
Sexetera, a site in which Mitchell has a substantial ownership
interest; (2) those profiles were admittedly created by Mitchell;
(3) Mitchell wrote the YourNetDating codes and allegedly had the
administrative access codes that would allow him to insert the
code that would divert users to Sexetera. Against this, Mitchell
denies that he did this or that it is even possible to do it, but
I must balance his bald (and unsworn) statement against the
evidence described above. "One bare assurance is worth just as
much as another." G.F.W. Hegel, The Phenomenology of Spirit 48
(A.V. Miller trans. 1977 ) (quoted in Olander v. Bucyrus
Erie Co., 187 F.3d 599, 608 (7th Cir. 1999)). If YourNetDating's
allegations are true, the defendants have violated the Computer
Fraud and Abuse Act, 18 U.S.C. § 1030, see America Online, Inc.
v. LCGM, Inc., 46 F. Supp.2d 444, 450-51 (E.D.Va. 1998)
(unauthorized access in violation of statute warrants
injunction), and several state statutes.
The showing of irreparable harm is in the damage to the
goodwill of its services. See Gateway Eastern Railway Co. v.
Terminal RR Assoc. of St. Louis, 35 F.3d 1134, 1140 (7th Cir.
1994) (damage to good will suffices for irreparable harm).
Persons who sign up to get an online date do not necessarily want
be subjected to pictures of Pamela Anderson Lee performing sex
acts. The customer who complained asked to be removed from
YourNetDating's services, and is unlikely to be the only such
person to do this.
Mitchell and Webscapades will suffer no legitimate harm of
which they can complain if the TRO is granted because they have
no honest business hacking YourNetDating's system and diverting
its customers to Sexetera. Mitchell expresses worry about injury
to his reputation and worry that if someone else hacks the
YourNetDating system in the ten days that the TRO is in force, he
will be held accountable for it. These are insubstantial concerns
compared to the risks to YourNetDating.
The public will not be harmed and will be benefitted by
granting the preliminary injunction because people who do want
dating services but do not want hardcore porn will not be
subjected to pornography because of Mitchell's misconduct.
I therefore GRANT YourNetDating's motion for a temporary
restraining order, without bond, enjoining Mitchell and
Webscapades or anyone acting on their behalf from (1) diverting
or attempting to divert any user of YourNet or YourNetDating to
Sexetera or any other website; (2) accessing or attempting to
access any computer, program, or services of YourNet and
YourNetDating, or (3) damaging or interfering with
YourNetDating's computers, programs, or services, or otherwise
injuring the business or reputation of YourNet and ...