The Conflicting Rulings on Employee Data Theft

In all jurisdictions the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030, the federal computer crime statute, applies to former employees who steal data from the company computer, but in two federal circuits it does not apply when the theft occurs during employment. The difference in jurisdictions is significant to employers because the CFAA provides a civil remedy for damages and injunctive relief for a company that “suffers damage or loss” by reason of a violation of the CFAA. 18 U.S.C. 1030(g).
Last year the U.S. Court of Appeals for the Ninth Circuit in U.S. v. Nosal, 676 F.3d 854 (9th Cir. 2012), disagreed with certain of its sister circuits and narrowly interpret-ed what it means to access the company computer “without authorization,” effec-tively eliminating a company’s ability in that jurisdiction to use the CFAA against current employees. This column will review the conflicting interpretations of the CFAA that distinguishes between current and former employees and the strategies and options companies can employ to navigate this conflict.

Computer Policies and the 9th Circuit

Last month I posted my article from the National Law Journal, entitled, “Time to Review Computer Policies,” discussing three recent cases, including LVRC Holdings LLC v. Brekka, 81 F.3d 1127, 1131 (9th Cir. 2009). I cited Brekka for the proposition that it is important to delineate the scope of an employee’s permissible access to the… Read More

Default judgment entered for Criagslist on the CFAA

Craigslist, Inc. v. Naturemarket, Inc., 2010 WL 807446, *12 (N.D. Ca., March 5, 2010) entered a default judgment in favor of Craigslist for, among other things, a violation of the Computer Fraud and Abuse Act. The court held that the defendants’ access to the Craigslist Web site was unauthorized under the CFAA because the defendants… Read More

How To Prove “Loss” for Computer Fraud and Abuse Act

To bring a civil action based on the federal Computer Fraud and Abuse Act (“CFAA”) a plaintiff must show that the alleged violation “caused . . . loss . . . aggregating at least $5,000 in value.” 18 U.S. C. Section 1030(c)(4)(A)(i). “Loss” is defined by the CFAA as “any reasonable cost to any victim,… Read More