The 4th Circuit softened that, ruling that because the attackers placed the information on the dark web, that suggested a greater risk of actual fraud. Thieves willing to pay for such data wouldn’t be willing to pay if they didn’t have access to other data to complete fraudulent activity.
“The dark web, an anonymous online network for unregulated content and markets, is not a traditional method of communicating information like a newspaper or radio broadcast,” the 4th Circuit judges ruled. “But, not dissimilar to the internet more generally, it is a forum accessible to all — or at least to those with some degree of proficiency with computers. Information listed on it thus either reaches, or is sure to reach, the public or is close to doing so.”
Moreover, because one of the plaintiffs alleged the information was found to be for sale on the dark web, rather than published openly, which would limit its exposure, the judges explored whether the existence of a paywall should make a difference in terms of proving harm and concluded that it didn’t.
