In December, a divided panel of the U.S. Court of Appeals for the Second Circuit in U.S. v. Valle interpreted the Computer Fraud and Abuse Act to exclude employees who access their employer’s computers. The upshot is that if you are an employee in the Second Circuit and steal data from your employer to commit identity theft or to provide it to a competitor, you cannot be prosecuted by the Department of Justice or sued by your employer under the CFAA.
By: Ron Moscona, Partner Dorsey & Whitney On 6 November 2015, The EU Commission published a communication addressed to the European Parliament and the EU Council, in an attempt to reduce current legal uncertainties surrounding the transfer of personal data from European Union countries to the U.S. The communication follows on the decision of the… Read More
A recent ruling shows that plaintiffs must act fast when using a federal criminal statute for a civil suit.
The U.S. Court of Appeals for the Second Circuit in August addressed the proper application of the statute of limitations to a civil action—in the context of allegations of malicious statements made on the Internet over a broken romance and sexual misconduct—brought under the federal computer crime statute, the Computer Fraud and Abuse Act (CFAA). The case was Sewell v. Bernardin.
By: Ron Moscona, a partner in Dorsey & Whitney’s London Office The Court of Justice of the European Union (“CJEU”) held yesterday, in its decision in Schrems v. Data Protection Commissioner, that the decision of the European Commission of July 2000 which provides the legal basis under EU law for the “Safe Harbor” scheme is… Read More
The recent decision in Allied Portables v. Youmans from the U.S. District Court for the Middle District of Florida underscores the need for businesses to establish explicit, well-advertised written policies identifying the scope of permissible employee access to company computers. Absent such policies, employers may be precluded from using the civil remedy in the federal computer crime statute, the Computer Fraud and Abuse Act, to sue employees who steal or destroy data from a company computers.
Allied properly recognized that for a CFAA claim to succeed, the plaintiff employer must be able to show the critical element that the defendant employee accessed a company computer by exceeding the authorized access to the computer.
Author: Melissa Krasnow Organizations are preparing for data incidents and breaches by developing, updating, implementing, and testing incident response plans. This article provides a checklist of key components of an incident response plan. Following are items from state and federal sources of guidance: “Best Practices for Victim Response and Reporting of Cyber Incidents”(April 2015) issued… Read More
Washington State Governor Jay Inslee signed legislation making Washington among the five US states with the most rigorous data breach notification laws enacted to date. Washington joins Florida, Ohio, Vermont, and Wisconsin in imposing strict and specific obligations on any business that has suffered a data breach. The new law is effective July 24, 2015.
Guest Blogger Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the eDiscovery Group and the Internet, eCommerce, & Technology Team, and before practicing law he worked as a systems programmer, received a Masters in Computer Science, and taught graduate courses in information systems. In addition to… Read More
On January 2015, the Obama administration announced a series of proposals to strengthen the country’s response to cyberattacks including, most notably, specific amendments to the federal computer crime statute, the Computer Fraud and Abuse Act (CFAA). These changes are not only significant to the cyber crime-fighting efforts of federal prosecutors, but also to private companies. This is because the CFAA allows companies victimized by violations of the statute to bring civil actions against the perpetrators. 18 U.S.C. 1030(g). The CFAA, among other things, makes it a crime when an individual “accesses” a computer “without authorization or exceeds authorized access” to steal data.
The fundamental shift for businesses in the past 15 years from paper documents to computer data has forced the courts to decide whether intangible electronic data should enjoy the same legal protections as physical property.
Because of this shift, it is important to review the judicial response to the electronic-data issue in the context of a federal criminal statute, the National Stolen Property Act (NSPA), and common law conversion.
The NSPA makes it a felony for one who “transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise … of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.” Conversion is the state civil cause of action for the theft of property.