Ninth Circuit Weighs in on Agentic AI in Commerce

AI developer Perplexity and e-commerce giant Amazon are locked in a legal battle over agentic AI. Perplexity is allowing users to access Amazon using AI agents through their Comet browser. These agents can log into customer accounts using credentials provided by the user. They can then be directed to shop for specific items or compare prices without additional user input. Amazon filed a lawsuit alleging that this violated the Computer Fraud and Abuse Act (CFAA). Initially, the trial court granted Amazon a preliminary injunction. Earlier this month, the Ninth Circuit overruled the injunction. The interesting bit here is in how the court chose to define a “person” in its analysis. A recent Ballard Spahr memo discusses this point:

“The Ninth Circuit reversed, concluding the district court erred because Amazon was unlikely to succeed on the merits. The court reasoned that ‘the CFAA contemplates access by a person,’ and that Perplexity’s AI agent is ‘a tool, not a person, for statutory purposes.’ The panel found that the user—not Perplexity—accessed Amazon’s servers, in part because the architecture routed screen information through the user’s device to Perplexity and returned navigation instructions to the user’s device, rather than relying on a direct connection between Perplexity’s servers and Amazon’s. Judge John Hinderaker noted that the 1986 CFAA was not designed for AI-agent circumstances and warned of potential unintended consequences in extending the statute into a new domain. The case was then remanded for further proceedings.”

I often discuss cases in which courts apply existing laws to actors who use AI. This is one of the rare cases where the court decided that it is unsuitable to apply a law already on the books to an AI product. Agentic AI in commerce is another thorny area where the blurring of actor and action causes legal ambiguity. We’re likely to see more agentic commerce cases as the technology is adopted. For companies like Amazon that don’t want agentic platforms interacting with their websites, the Ninth Circuit points to contract and tort law as possible avenues for relief. E-commerce websites should shore up their terms of use to specifically cover AI agent activity.