Two cases decided in the past month — LVRC Holdings LLC v. Brekka, No. 07-17116, 2009 WL 2928952, (9th Cir. Sept. 15, 2009) and U.S. v. Drew, No. CR 08-0582, 2009 WL 2872855 (C.D. Calif. Aug. 28, 2009) — raise the prospect that the federal Computer Fraud and Abuse Act (CFAA), U.S.C. 1030, will for the first time in its 25-year history be interpreted by the U.S. Supreme Court. This article will review Brekka and Drew, their likely outcomes on appeal and what businesses should do in response to these decisions.

The CFAA, the federal computer crime statute, enumerates 12 separate violations of federal criminal law relating to computers. Eight of these violations require proof that the violator accessed the computer “without authorization” or “exceeding authorized access.” Brekka‘s and Drew‘s interpretation of “without authorization” in different factual and legal contexts raise significant conflicts with other federal decisions that will likely only be resolved by the Supreme Court. The meaning of “without authorization” has significant implications for the protection of competitively sensitive business data and the control and protection of public Web sites. Both criminal and civil cases are implicated since the CFAA is a criminal statute that 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).

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