The federal appeals court based in Denver has dismissed the lawsuit of a Colorado Springs real estate agent against his ex-husband for allegedly invading his privacy and unlawfully accessing his business data, causing clients to flee.

On Wednesday, the U.S. Court of Appeals for the 10th Circuit agreed that Bryan Seale had seemingly not suffered any actual losses as the result of a series of actions he attributed to his former spouse, Gary Peacock. A three-judge panel upheld a lower court’s dismissal of Seale’s lawsuit, while also allowing him to refile his claims if he could satisfy certain conditions.

Notably, the panel opened the door to a question the Colorado Supreme Court has yet to consider in interpreting state law: Whether the unauthorized use of another person’s username and password qualifies as an “appropriation of a name or likeness” that invades their privacy.

“(W)e are hindered by the unsettled status of Colorado law,” wrote Judge Carolyn B. McHugh in the appellate court’s April 27 opinion.

According to Seale, someone mailed anonymous letters to acquaintances of his in November and December 2017. The letters included explicit photographs of him, as well as statements about his dating or sexual history. Seale himself also received a letter that asked him, “Do you like breaking up families”? Neither local nor federal authorities had identified who was responsible by the time Seale filed his lawsuit.

One year after the letters, Seale learned that his contracting program for his real estate business, called CTM Software, had a series of log-ins from someone else using his account. The CTM Software contained customers’ personal identifying information and their histories with Seale’s company. Peacock was reportedly the only person who had Seale’s log-in information, and Seale traced the IP addresses to Peacock’s locations at the time.

Seale sued Peacock for theft, invasion of privacy by appropriating his name or likeness, and violating the Stored Communications Act, all from Peacock’s alleged access of the CTM Software. The Stored Communications Act makes it illegal to intentionally access electronic communications without authorization. 

In August 2020, then-U.S. Magistrate Judge Kathleen M. Tafoya dismissed the lawsuit. Because Seale had not proven that Peacock knowingly deprived Seale of anything “permanently,” as the law requires, the theft claim could not stand, she reasoned. Tafoya also did not believe that Seale had claimed any specific harm from Peacock’s alleged invasion of privacy other than “mental anguish.”

Finally, Tafoya concluded the Stored Communications Act required Seale to show actual damages from Peacock’s alleged access of the CTM Software. Although Seale had alleged he lost clients during this period, he linked it to the defamatory letters, not to the software log-ins.

Shortly after the dismissal, Seale sought to amend his lawsuit beyond the deadline and identify Peacock as the source of the letters, based on new deductions Seale had made. Tafoya denied the request.

On appeal, the 10th Circuit panel largely agreed with Tafoya’s handling of the allegations. McHugh, writing for the panel, raised an issue that no one had explored previously in the litigation, namely if the use of Seale’s username and password to log in to the CTM Software qualified under the law as an appropriation of his “name or likeness.”

“Specifically, the Colorado Supreme Court has not addressed whether a username and password combination constitutes a ‘name’ for purposes of this claim or whether, even if such is a name, a defendant must use it in public to appropriate it,” she wrote.

Because the panel could not rule out whether Colorado law would support an invasion of privacy claim under that theory, the 10th Circuit allowed Seale to refile that particular set of allegations – provided he could more thoroughly demonstrate the injuries he suffered from the alleged invasion of privacy.

Michael Kuhn, a lawyer representing Peacock, indicated that if Seale did file his invasion of privacy claim anew, the defense would seek to certify, or send to the state Supreme Court for interpretation, the question McHugh identified. Federal courts in Colorado look to the state’s highest court when applying state law, unless there is no relevant Supreme Court decision.

“We’re pleased that the three appellate judges unanimously affirmed the district court’s dismissal of the plaintiff’s lawsuit. This confirms our opinion that the lawsuit was meritless,” Kuhn said. “In light of this loss, we hope the plaintiff will finally stop his failed litigation and move on with his life.”

Attorneys for Seale did not respond to a request for comment. The panel also allowed Seale to refile his claim under the Stored Communications Act, again with instructions about how to request damages.

The case is Seale v. Peacock.