A Denver-based federal appeals court has dismissed the lawsuit brought by a Colorado Springs real estate agent against his ex-husband for allegedly violating his privacy and illegally accessing his work data, causing clients to flee.
On Wednesday, the Tenth Circuit of the U.S. Court of Appeals agreed that Brian Seal apparently suffered no actual losses as a result of a series of actions he attributed to his ex-wife, Gary Peacock. A three-judge panel upheld a lower court’s dismissal of Seale’s case, while allowing him to reformulate his claims if he could meet certain conditions.
Notably, the panel opened the door to a question that the Colorado Supreme Court has yet to consider interpreting state law: whether unauthorized use of another person’s username and password qualifies as a “name or photo appropriation” that violates their privacy.
Judge Carolyn B.
According to Seal, someone mailed anonymous letters to acquaintances in November and December 2017. The messages included explicit photos of him, as well as data about his dating or sexual history. Ciel himself also received a letter asking him, “Do you like to break up families?” No local or federal authorities had identified who was responsible by the time Seale filed his lawsuit.
A year after the messages, Seal learned that his contract software for his real estate business, called CTM Software, had a series of logins from someone else using his account. The CTM software contained personally identifiable information about customers and their history with Seale. Peacock was reportedly the only person with Seale’s login information, and Seale traced IP addresses to Peacock’s websites at the time.
Seal sued Peacock for theft, breach of privacy by having his name or the like, and violation of the Stored Communications Act, all from Peacock’s alleged access to the CTM software. The Stored Communications Act makes it illegal to intentionally access electronic communications without permission.
In August 2020, then-U.S. Justice of the Peace Kathleen M. Tavoya lawsuit. Because Seal did not prove that Peacock intentionally deprived Seal of anything “permanently,” as required by law, the allegation of theft could not proceed, she said. Tafoya also did not believe Seale claimed any specific harm from Peacock’s alleged invasion of privacy other than “psychological distress.”
Finally, Tafoya concluded a Stored Communications Act that required Seale to show actual damages from Peacock’s alleged access to CTM software. Although Seal claimed to have lost clients during this period, he linked this to defamatory speeches, not to logging in to the programs.
Soon after the dismissal, Seal sought to amend his lawsuit beyond the deadline and to identify Peacock as the source of the letters, based on Seal’s new findings. Tafoya refused the request.
On appeal, the Tenth Circuit Commission largely agreed with Tafoya’s handling of the allegations. Writing before the panel, McHugh raised an issue that no one had previously discovered in the lawsuit, specifically whether using Seale’s username and password to log into the CTM qualifies by law as an assignment of his “name or likeness.” “
“Specifically, the Colorado Supreme Court has not addressed whether the username and password combination constitutes a ‘name’ for the purposes of this claim or whether the defendant, even if it is a name, should use it publicly for its convenience,” she wrote. .
Because the commission could not rule out whether Colorado law would support the breach of privacy claim under this theory, the 10th Circuit allowed Seale to restate this particular set of allegations—provided he could prove the injuries he suffered more comprehensively than the alleged breach of privacy. .
Michael Cohen, an attorney representing Peacock, noted that if Seal files a breach of privacy claim again, the defense will seek to ratify the question set by McHugh or send it to the state Supreme Court for interpretation. The federal courts in Colorado look to the highest court in the state when applying state law, unless there is a relevant Supreme Court decision.
“We are pleased that the three appellate judges unanimously affirmed the District Court’s dismissal of the plaintiff’s claim,” Cohen said. “This confirms our view that the claim is unfounded.” “In light of this loss, we hope the plaintiff can finally stop the failed litigation and move on with his life.”
Sale’s lawyers did not respond to a request for comment. The commission also allowed Seale to resubmit his claim under the Stored Communications Act, again with instructions on how to seek damages.