Author Archives: Nick Akerman
High Court May Rule on Computer Law Question
At issue is whether the Computer Fraud and Abuse Act applies to data theft by employees; the circuits are split. BY Nick Akerman On July 26, the U.S. Court of Appeals for the Fourth Circuit became the first circuit to adopt the Ninth Circuit’s holding in U.S. v. Nosal, 676 F.3d 854 (9th Cir. 2012), that the Computer Fraud and Abuse Act does not apply to employees who steal data from the company computers. WEC Carolina Energy Solutions LLC v. Miller, 2012 WL 3039213 (4th Cir. July 26, 2012). This case places the Fourth and Ninth circuits in direct conflict … [ Continue reading ]
No Password for You: California Enacts Social Media Privacy Laws Affecting Employers and Postsecondary Educational Institutions
By: Gary Gansle, Jessica Linehan, and Kurt Whitman Addressing a recent hot topic regarding the forced disclosure of social media passwords and/or content as part of the employment application process, California has promptly resolved the issue legislatively. Effective January 1, 2013, employers in California are generally prohibited from requiring applicants and employees to disclose or access social media information. This new law, AB 1844, parallels an analogous law, SB 1349, which prohibits California’s public and private postsecondary educational institutions from requiring similar mandatory social media disclosure from students, prospective students, or student groups. Consistent with its historically strong state constitutional … [ Continue reading ]
The Software Industry Wakes Up To A Brave New World
By Ron Moscona Dorsey & Whitney Partner London Office In a surprising decision early in July, in the case of UsedSoft GmbH v. Oracle International, the highest court in Europe, at the stroke of the pen, has re-written the basic rules of the game relating to the distribution of software in the European Union. In a word, the European Court of Justice (“ECJ”) held that licensed copies of software can be bought and sold on the open market without the consent of the licensor – even where the licence is stated to be personal to the original purchaser and non-assignable … [ Continue reading ]
The 9th Circuit: Employees Are Free to Steal from the Company Computers
Yesterday the 9th Circuit Court of Appeals issued an opinion holding that limiting an employee’s access to the company computers solely for business purposes, i.e. not stealing the data for a competitor, cannot be the predicate for a violation of the federal computer crime statute, the Computer Fraud and Abuse Act (“CFAA”), Title 18, U.S. C. § 1030. U.S. v. Nosal, 2012 WL 1176119 (9th Cir. April 10, 2012). The CFAA makes it a crime in various instances to access a computer “without authorization” or to have “exceeded authorized access” to obtain information from the computer and permits those, including companies, who are victims of violations of the statute to bring a civil action against the perpetrators. Acknowledging that its decision conflicts with the 5th, 7th and 11th Circuits, there is a good chance the Supreme Court will have the final say on this issue if the Department of Justice decides to appeal. As the dissent pointed out, this decision is counter to the common sense notion that a “bank teller is entitled to access a bank’s money for legitimate purposes, but not to take the bank’s money for himself.” [ Continue reading ]
Company computer policies risk becoming obsolete — Policies must reflect new laws and court decisions on data theft, social networking and cloud computing.
Have your client companies’ policies kept
pace with changes in the law affecting
computer technology? New statutes and court
decisions relating to computer technology
affect every business. Many companies
overlook opportunities to respond to these
new laws by adopting robust policies to
take advantage of the protections they
afford and to minimize the risks they pose.
This article will review three critical areas
of computer technology that should be
addressed by company policies: theft of data,
social networking and cloud computing.
[ Continue reading ]
Hacking, Malware, and Social Engineering—Definitions of and Statistics about Cyber Threats Contributing to Breaches
This article was first published on IRMI.com and is reproduced with permission. Copyright 2012, International Risk Management Institute, Inc As breaches continue to occur and affected organizations determine whether and how to disclose these breaches, breaches and disclosure continue to be the subject of reports as well as media, legislative, and regulatory attention. See, for example, Melissa J. Krasnow, Securities and Exchange Commission Issues Guidance on Cybersecurity and Cyber Incident Disclosure (Dec. 2011). by Melissa J. Krasnow Partner, Dorsey & Whitney LLP The 2011 Verizon Data Breach Investigations Report examined breaches that Verizon, the U.S. Secret Service, and the Dutch … [ Continue reading ]
Think You Own Your LinkedIn, Twitter and Facebook Account? Think Again.
You may not, as reflected in the recently reported decision of Eagle v. Morgan, 2011 WL 6739448 (E.D. Pa. December 22, 2011) where both the employee and her former employer claim ownership in the employee’s LinkedIn account, the popular social networking site for business professionals. The dispute is starkly drawn in the litigation’s opposing pleadings and provides a strong warning to the hundred million plus LinkedIn users and other users of social media who operate under the assumption that their social media accounts belong solely to them to transfer as they please when they change jobs. The facts in the … [ Continue reading ]
Can You Go to Jail for Lying on Facebook?
During last week’s oral argument before the 9th Circuit Court of Appeals on the case of U.S. v. Nosal, 642 F.3d 781 (9th Cir. 2011), reh’g en banc granted (Oct. 27, 2011), members of the Court, including most notably Chief Judge Alex Kozinski, spent a substantial amount of time questioning the government lawyer about whether a Facebook user could be criminally prosecuted (meaning the person would face serious jail time) under the Computer Fraud and Abuse Act (“CFAA”) for lying about their personal information in signing up for a Facebook account. The full oral argument can be viewed at the … [ Continue reading ]
U.S. v. Nosal Re-Argued Before the 9th Circuit
On December 15, 2011, the 9th Circuit Court of Appeals heard argument en banc in U.S. v. Nosal, 642 F.3d 781 (9th Cir. 2011), reh’g en banc granted (Oct. 27, 2011). As expected, the oral argument focused on the meaning of unauthorized access under the Computer Fraud and Abuse Act. The issue is whether an employee can be prosecuted under the CFAA for accessing his employer’s computer in violation of rules established by the employer restricting access to the company computers. In Nosal, the 9th Circuit had clarified its earlier decision in LVRC Holdings LLC v. Brekka, 581 F.3d 1127, … [ Continue reading ]
