For decades, employers have asserted a variety of state law claims against former employees who purloined important company information, including claims for breach of contract, trade secret misappropriation, and breach of fiduciary duty, among others. The U.S. Congress added another arrow in the quiver of aggrieved employers when it enacted the Computer Fraud and Abuse Act (CFAA) in 1984. The CFAA, originally a criminal statute aimed at hackers, was later expanded to allow civil actions for damages, and it has proven useful against former employees who accessed their employers’ computers or systems to misappropriate important information or to destroy files or data just before leaving. However, over the last few years a split of authority among federal courts has arisen regarding a threshold issue for CFAA claimsnamely, when does an employee access a computer or system “without authorization”?
The sections of the CFAA relevant to departing employees say that someone violates the CFAA if the person “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer,” or “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization.” Not only do CFAA claims provide federal jurisdiction to plaintiffs wishing to pursue claims in federal court, a plaintiff need not prove that the stolen or destroyed information was confidential or a trade secret. Thus, CFAA claims may be easier to prove than claims for trade secrets misappropriation or breaches of nondisclosure or confidentiality agreements. So the split of authority about “without authorization” has cast a cloud over a popular remedy for aggrieved employers.
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