information.”106 Meanwhile, “the term ‘loss’ means any
reasonable cost to any victim, including the cost of
responding to an offense, conducting a damage assessment,
and restoring the data, program, system, or information to its
condition prior to the offense, and any revenue lost, cost
incurred, or other consequential damages incurred because of
interruption of service.”107
On appeal, the plaintiffs contend that they have
properly pled “loss” under the statute because they have
alleged that their “impermissibly seized [p]ersonally
[i]dentifiable [i]nformation is both ‘currency’ and a
marketable ‘commodity.’”108 By capturing and making
economic use of such information, the plaintiffs say, the
defendants have taken the value of such information for
themselves, depriving the plaintiffs of their own ability to sell
their internet usage information. Insofar as the plaintiffs have
a right to capture that value for themselves, the plaintiffs
contend that the defendants’ conduct has caused them harm.
The complaint plausibly alleges a market for internet
history information such as that compiled by the defendants.
Further, the defendants’ alleged practices make sense only if
that information, tracked and associated, had value. However,
when it comes to showing “loss,” the plaintiffs’ argument
lacks traction. They allege no facts suggesting that they ever
106
18 U.S.C. § 1030(e)(8).
107
Id. § 1030(e)(11).
108
Appellants’ Br. 45.
49
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