Ninth Circuit lifts block on AI-powered shopping assistant

A federal judge previously blocked Perplexity's Comet shopping tool from accessing Amazon’s online store without authorization. An Amazon logo on the company's building in Schoenefeld near Berlin, Germany, March 18, 2022. (AP Photo/Michael Sohn, File) (CN) — A Ninth Circuit panel vacated a lower court order Tuesday that restricted the use of an artificial intelligence shopping tool created by Perplexity AI that can compare products, prices and reviews on behalf of users. The three-judge panel found the federal court abused its discretion when it ruled Amazon was likely to succeed on the merits of its claim that Perplexity’s Comet application violates the U.S. Computer Fraud and Abuse Act (CFAA) and the California Comprehensive Computer Data Access and Fraud Act (CDAFA). “Because Amazon is unlikely to succeed on the merits of the ‘access’ prong of the CFAA and CDAFA analysis and the equitable factors do not otherwise strongly favor an injunction, we vacate the preliminary injunction granted by the district court and remand for further proceedings consistent with this opinion,” U.S. Circuit Judge Milan Smith Jr., a George W. Bush appointee, wrote for the panel. Previously, Senior U.S. District Judge Maxine Chesney granted Amazon’s request for a preliminary injunction, finding the company was likely to succeed on its CFAA and CDAFA claims. “Amazon has provided strong evidence that Perplexity, through its Comet browser, accesses with the Amazon user’s permission, but without authorization by Amazon, the user’s password-protected account, thereby obtaining information as to the user’s private Amazon account information, and that such information is transmitted to Perplexity’s servers for the purpose of conducting said user’s requested tasks,” the Bill Clinton appointee wrote. In a 21-page opinion, the Ninth Circuit panel found Chesney erred in the “access” analysis for Amazon’s CFAA claim. The statute prohibits access to another person’s computer “without authorization” or “exceeding authorized access.” “Our focus is thus to ask whether Perplexity uses a tool (the Assistant) to ‘access’ Amazon’s computers. On the facts before us, we answer no. It is the user who ‘accesses’ Amazon’s computers, with the help of the Assistant to carry out specific acts on Amazon.com,” Smith wrote for the panel. “To be sure, Perplexity may receive screenshots of the user’s browser and may communicate instructions to the Assistant. But those activities, by themselves, do not mean that Perplexity has “accessed” (gained entry) to Amazon’s servers.” The panel found Amazon’s CDAFA claim fails under the same logic, as the CDAFA only applies to “any person” who causes unauthorized access. “While Amazon might be correct that ‘access’ under the CDAFA is broader than the CFAA’s definition, the focus of the inquiry is still on the person accessing or causing the access,” Smith wrote for the panel. “Accordingly, we arrive at the same conclusion: the user (not Perplexity) accesses Amazon using the Assistant as an AI tool, and thus Amazon is unlikely to succeed on the merits of its CDAFA claim.” The panel limited its ruling to “‘access’ as contemplated by the CFAA and as applied to the Assistant’s interactions with Amazon.com on the record before us,” noting their ruling does not “establish a new legal regime governing agentic AI.” The judges also found the remaining injunction factors favored Perplexity, reversing the lower court’s conclusion Amazon would suffer irreparable harm without an injunction and the balances of equities and public interest tip in Amazon’s favor. “Because Amazon has failed to show a likelihood of success on the merits of its claims, its arguments regarding the harm to Perplexity from an injunction fall flat,” Smith wrote for the panel. U.S. Circuit Judge Eric Tung, a Donald Trump appointee, and U.S. District Judge John Hinderaker, a Trump appointee sitting by designation from the District of Arizona, rounded out the panel. In a statement to