Guest view: Hunter Biden’s laptop and data: A legal and data privacy analysis

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By David L. Hecht, Esq.

A newly released document suggests that on April 12, 2019 Hunter Biden signed an $85 services “quote” from the Mac Shop in Wilmington covering labor for “Hardware Level 1” data recovery. The document appears to be a contract whereby Biden may have agreed to terms including that “Equipment left with the Mac Shop after 90 days of notification of completed service will be treated as abandoned and you agree to hold the Mac Shop harmless for any damage or loss of property.” Legal questions remain as to what Biden might have actually abandoned and whether the shop owner, and others, violated any laws.

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According to the New York Post, the owner of the Mac Shop represented that the customer who brought in the water-damaged MacBook Pro (who couldn’t be positively identified as Biden), never paid for the data recovery service or retrieved the laptop or a hard drive on which its contents were stored. Repeated attempts to contact the customer were allegedly made. Assuming the customer was Biden, as reflected in the quote for services, and further assuming Biden never picked up his laptop after 90 days of being notified that service had been completed, per the contract, Biden’s laptop and the hard drive had likely been abandoned under the abandonment clause. In other words, the Mac Shop had title to the personal property.

Abandoned property

Delaware Code, Title 25, § 4001, in fact, provides that “tangible personal property which the rightful owner has left in the care or custody of another person and has failed to maintain, pay for the storage of, exercise dominion or control over, and has failed to otherwise assert or declare the ownership rights to the tangible personal property for a period of 1 year” shall be deemed “abandoned personal property.” Accordingly, even in the absence of the Mac Shop contract, Biden’s laptop would have eventually been deemed abandoned personal property under Delaware law assuming one of the preconditions listed was met. (Under Delaware law, to vest complete right and title to abandoned personal property, an application to a court of competent jurisdiction must be made).

Both the Mac Shop contract and the Delaware Code do not resolve the question as to what exactly Biden might have abandoned in his failure to pick up his laptop and hard drive. The physical devices are one thing, but what about the underlying data? The Mac Shop’s contract is limited to “equipment” and does not extend to intangible or intellectual property. With respect to any data on which Biden has a copyright claim, for example, it does not seem reasonable that Biden granted anything more than a limited use license to access data for the purpose of recovering it.

To the extent that the Mac Shop or a third party distributed any content protected by copyright, they may have infringed Biden’s distribution and public performance rights by releasing the content. The alleged raunchy, 12-minute video showing Biden smoking crack while engaged in a sex act, and the other sexually explicit images, may be subject to copyright protection (although Biden may not hold the rights associated therewith if he did not record the video or take the pictures).

If any of Biden’s data not subject to copyright was stored locally (i.e. on the hard drive itself, not exclusively on the cloud) and accessible without a password, the Mac Shop and other third parties accessing the material may be in the clear. But it is likely that Biden’s files were protected by a password. Biden may have provided that password to the repair shop—but again, that would have been for the limited purpose of recovering the data.

Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act(CFAA) was enacted in 1986 and prohibits accessing a computer without authorization, or in excess of authorization. If the Mac Shop or a third party accessed Biden’s files beyond the requisite access needed to recover data, i.e. without authorization or in excess of the original authorization, they may have broken the law (although CFAA doesn’t actually define what “authorization” or “without authorization” means).

Some of the most damning information reported by the New York Post relates to Biden’s email. Email may be stored in the cloud and/or locally on a computer. If Biden’s email was only stored in the cloud, for example, where Biden had a Gmail account and only accessed it from the web browser, accessing this content from his computer may be legally problematic. But if Biden’s setup included Microsoft Outlook, whereby his email was pulled down and stored locally (e.g. in a “.PST” file), accessing it may be less of a problem.

While the cat may be out of the proverbial bag, a host of legal options may be available to protect Biden’s private data and pursue those private citizens who may have infringed on Biden’s copyrights or accessed his data without proper authorization.

David Hecht is the founding partner Hecht Partners LLP, New York City. He represents individuals, companies, and nationwide classes in high-stakes commercial disputes. The 2020 edition ofIAM Patent 1000: The World’s Leading Patent Practitioners ranked David as one of the world’s leading patent litigators.

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