Who’s Really at the Keyboard? Ninth Circuit Opines on Agentic AI in E-Commerce

On August 4, 2026, the Ninth Circuit vacated a preliminary injunction that Amazon had obtained earlier this year, which would have temporarily barred AI engine Perplexity from deploying its agentic AI shopping tool on Amazon.com. The panel held that Amazon was unlikely to succeed on the merits of its claims under the Computer Fraud and Abuse Act (CFAA) and the California Comprehensive Computer Data Access and Fraud Act (CDAFA). As retailers continue to confront the growing use of third-party AI agents on their platforms, the decision provides an early and influential guidepost for assessing available legal responses.

What Happened?

In November 2025, Amazon filed suit against Perplexity in the Northern District of California, asserting that Perplexity’s “Comet” browser used an AI agent to log into customer accounts for users, compare products, and submit orders at their direction. Amazon further alleged that the tool made machine-generated requests resembling ordinary browser activity, operated in breach of Amazon’s terms of service, did not stop after multiple cease-and-desist notices, and worsened data-security concerns by routing private account information to Perplexity’s servers.

In March 2026, Judge Maxine Chesney granted Amazon’s motion for a preliminary injunction, finding that Amazon was likely to succeed on its CFAA and CDAFA claims because Perplexity accessed password-protected accounts without Amazon’s authorization. Perplexity appealed, and administrative stays pending appeal prevented the injunction from taking effect.

The Ninth Circuit Weighs In

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.

What This Means for Retail Clients

The ruling does not take enforcement against AI agents off the table. It does, however, make clear that CFAA and CDAFA claims may be harder to sustain where an AI agent operates through the customer’s own account and device, rather than through direct access by the AI provider. Retailers should understand how any given AI agent interacts with their systems before deciding whether to pursue computer-access claims. The court also left room for retailers to enforce their own website terms of service and pursue other non-CFAA theories, including contract and tort claims. The case now returns to the district court.

Practical Takeaways and Next Steps

Retailers should consider the following actions in light of this development:

• Strengthen Terms of Use. Review and update terms of service to explicitly prohibit automated agents, bot access, and unauthorized API usage, with clear account-access rules and conspicuous consent mechanisms.
• Document Enforcement Efforts. Maintain records of cease-and-desist communications, technical blocking measures, evidence of circumvention, data-security harms, and business disruption to support future claims.
• Upgrade Technical Controls. Implement or enhance bot-detection systems, authentication protocols, transaction-velocity controls, and fraud-monitoring tools to detect and restrict unauthorized automated access.
• Preserve the Advertising Record. Retain detailed page versions, pricing history, disclosures, product feeds, and transaction records in order to distinguish what was actually displayed versus what a user-directed AI tool may have summarized or acted on.

Agentic commerce is here, and as state and federal courts grapple with the statutory and common law aspects of regulating its use, retailers should pay careful attention to the developments to maintain compliance and an industry-forward approach to e-commerce.

Ballard Spahr’s Retail and E-Commerce Team regularly counsels retailers on how to navigate these evolving questions and risks. We welcome the opportunity to discuss these issues and how they may impact your company’s operations.

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