Thursday, August 20, 2026
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Amazon Seeks En Banc Rehearing in AI ‘Trespass’ Case
By a MetNews Staff Writer
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Amazon.com is asking for an en banc rehearing by the Ninth U.S. Circuit Court of Appeals following an Aug. 4 decision by a three-judge panel lifting a preliminary injunction that barred a company from entering the plaintiff’s online “store” despite being told to stay out.
At issue is whether a company called Perplexity is committing a trespass when users of its browser, “Comet,” utilize an artificial intelligence (“AI”) feature in looking for goods in the Amazon Store. When a user tells Comet to do so, it goes into the store and takes screenshots of items offered for sale, transmitting them to the user. Writing for the panel, Circuit Judge Milan D. Smith said that District Court Judge Maxine M. Chesney of the Northern District of California erred in concluding that Amazon would likely prevail in showing that Perplexity was in violation of the federal Computer Fraud and Abuse Act (“CFAA”) and California’s Comprehensive Computer Data Access and Fraud Act (“CDAFA”) through unauthorized “accessing” of Amazon’s computers.
It’s the Comet user, not Perplexity, that does the accessing, he said.
Ban ‘Evaded’
Amazon counters, in its petition, filed Tuesday:
“Artificial intelligence (‘Al’) is a tool of enormous potential. That potential promises many benefits but also poses great risks if not responsibly managed. Because Perplexity does not responsibly manage its Comet Al ‘Assistant’—but rather is uniquely reckless in deploying this powerful Al agent with demonstrated vulnerability to hacking—Amazon barred Perplexity from sending the Assistant into password-protected areas of the Amazon Store. Perplexity repeatedly evaded that ban, disguising the Assistant as a human user and circumventing technical barriers designed to keep the Assistant out of Amazon’s private systems.”
It continues:
“The district court rightly enjoined Perplexity from continuing to do so, finding that its conduct likely violated federal and state laws prohibiting digital trespass. The panel erred in vacating the injunction. The panel wrongly substituted an amicus’s inaccurate account of the facts for those the district court found after a painstaking hearing, and it disregarded this Court’s precedents, stripping district courts of discretion to manage the novel risks of Al during pending litigation.”
Deference Lacking
The giant online emporium argues:
“On a record of eight briefs, sixteen declarations, seventy-five exhibits, and a three-and-a-half-hour hearing, the district court found ‘strong evidence’ that ‘Perplexity, through its Comet browser, accesses...without authorization by Amazon, the user’s password-protected account.’…(emphasis added).”
It maintains that the panel’s “view ignores facts on which the district court relied, without finding them clearly erroneous.”
If a user tells Comet to shop for paper towels, it hypothesizes, even without telling it to look in the Amazon store, it will do so, and bursts “into password-protected customer accounts” despite being prohibited from doing so, the brief asserts.
It goes on to say:
“California’s CDAFA defines “access” more broadly than the CFAA, as the district court recognized. Section 502 of the CDAFA defines ‘access’ as ‘to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with’ a computer system…(emphasis added)….On the panel’s own account, Perplexity at least ‘instructs’ and ‘communicates with’ Amazon’s computers, which is ‘access’ under the CDAFA.”
Broad Implications
Amazon contends:
“The consequences go far beyond these parties, as amici on both sides confirm. Retailers, airlines, trade organizations, publishers, and the software industry all explained why computer owners’ authority to control who enters their password- protected systems—and to distinguish automated agents from customers—underwrites the security of the systems on which their industries depend….Although those submissions may establish the stakes of this case, they cannot establish the facts of this case.”
It adds:
“The district court resolved those factual questions after adversarial testing of sworn evidence, and this Court’s precedents required that its findings be reviewed as findings, rather than displaced by an amicus’s opinions. The full Court should ensure that when questions of this importance are answered, they are answered on evidence. En banc review is warranted to restore the abuse of discretion standard before the panel’s error becomes the Circuit’s first rule for agentic AI.”
The case is Amazon.com Services, LLC, v. Perplexity AI, Inc., 26-1444.
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