David Nosal and his accomplices did something wrong. No question. But was it — should it be viewed as — criminal? The Ninth Circuit, en banc, dramatically split on that question in interpreting one particular criminal statute designed to deal with the ever-emerging technology of the computer (U. S. v. Nosal). How did the opining judges come to disagree?
The facts are uncomplicated. Nosal was a former employee of executive search firm Korn/Ferry (“KF”). After his departure, he asked his still-employed former colleagues to help him start a competing search firm. Using their log-in credentials to download source lists and contact information from the confidential KF database, they then transferred that valuable information to Nosal. Nosal’s accomplices were, without question, authorized to access the database but also specifically forbidden by company policy from disclosing that information (“This product is intended to be used by Korn/Ferry employees for work on Korn/Ferry business only” [emphasis added]). Were their actions criminal?
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