NBA monolith Shaquille O'Neal says a cyberstalking lawsuit against him tells “a fanciful tale,” arguing that his alleged “oral abuse” of an ex-girlfriend was not “outrageous” and he didn't steal anything by allegedly hacking into her voice mails and text messages.

Vanessa Lopez, an Orlando, Fla., model, claims O'Neal harassed her after she ended their affair in September 2009. The Cleveland Cavaliers center used “extremely sophisticated software” to “spoof” her cell phone, she alleged in a complaint filed on her behalf by celebrity attorney Gloria Allred in January.

When a cell phone is spoofed, the number of the phone displays on the caller ID. If the cell phone provider uses caller ID to authorize access to voice mail, the spoofer can hack into the voice mailbox without using a password.

The spoofing of her communications, Lopez said, amounts to “conversion” — or theft — since it appropriated her property “to the use of O'Neal or to the use of another person not entitled to the use of the communications.”

O'Neal, of course, is better known for being hacked on the basketball court than hacking into cell phones. And in a motion obtained by On Point, he says Lopez's suit is a slam dunk for dismissal.

“Plaintiff's Complaint spins a fanciful tale that has absolutely no basis in fact or law,” O'Neal attorney Benjamine Reid writes in the motion.

Lopez cannot state a claim for invasion of privacy, Reid argues, because she does not allege O'Neal published any of her communications to the public at large. As for conversion, “voicemail messages and text messages are not personal property capable of conversion” and even if they were, "accessing voicemail messages and text messages would not deprive Plaintiff of any property interest."

Conversion claims have traditionally been limited to “tangible” property. And Reid cites cases in which courts ruled that telephone service and a screen name are not property capable of conversion. Teleco v. Southwestern Bell, 392 F. Supp. 692 (1974); Express One International v. Steinbeck, 53 SW.3d 895 (2001).

But New York's highest court recently ruled that a claim for conversion of electronic data is recognizable under New York law. “[T]he tort of conversion must keep pace with the contemporary realities of widespread computer use,” the court said in Thyroff v. Nationwide Mutual Insurance Co., 8 N.Y.3d 283 (2007).

“Thyroff undoubtedly is the future direction of the law in this country,” attorney Nick Akerman, an expert in computer crime, says on his website.

Lopez says she began dating O'Neal in 2004 and broke up with him after he accused her of being intimate with another man. “O'Neal told Lopez he would never leave her alone because they both loved each other,” the suit says, alleging he made “repeated harassing and heavy breathing calls” to her and caused others, including his sister, to threaten her.

“[T]he Complaint merely alleges oral threats,” O'Neal says in the motion to dismiss, and “Florida courts have been reluctant to find claims for intentional infliction of emotional distress based on allegations of oral abuse.”

The outrageousness standard is always a tough one to satisfy in emotional distress cases. But if the law is trending toward recognizing claims for conversion of electronic data, at least part of Lopez's case could survive the motion to dismiss.

O'Neal recently reached a divorce settlement with estranged wife Shaunie O'Neal.

By Matthew Heller
4/6/10