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.
The CFAA, although principally a criminal statute, under Section 1030(g) permits a company to bring a civil action for damages and injunctive relief when it is the victim of computer crime. Valle sided with the Fourth and Ninth circuits and rejected the contrary positions of the First, Fifth, Seventh and Eleventh circuits, further exacerbating a split in the circuits on the use of the CFAA against employees. Valle also directly implicates how employers should draft their computer policies as a predicate to take advantage of the CFAA.
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