The judiciary is often criticized as slow to recognize changes in the “real world,” which may cause the law to be out of step with the conduct it regulates. The impact of the judiciary’s perception of the “real world” was recently highlighted by Chief Judge Alex Kozinski, in an opinion he authored for an en banc panel of the U.S. Court of Appeals for the Ninth Circuit in U.S. v. Nosal. Nosal involves the federal government’s criminal enforcement of the Computer Fraud and Abuse Act, 18 U.S.C. §1030, passed in 1984 and substantially expanded by Congress in 1996. While there have been a limited number of criminal actions based on the statue, the CFAA also has a civil component §1030(g) of the statute provides a private right of action. These cases have presented courts with many opportunities to consider the evolving world of computer and Internet use. Nosal reflects an appreciation by the Ninth Circuit of how that world has changed that, while consistent with the rulings of many district courts throughout the country, has not yet been recognized by its sister circuits.
Background and Holding of ‘Nosal’
David Nosal was a former employee of Korn/Ferry International, and is accused of obtaining Korn/Ferry’s trade secrets by persuading then-current employees of accessing Korn/Ferry’s information and passing it to Nosal to support his efforts to establish a competing company. According to the government, Korn/Ferry’s internal policies permitted employees to access the information given to Nosal, but only for legitimate Korn/Ferry business. The government alleges that the access of Korn/Ferry’s information with the intent of providing it to Nosal exceeded authorization in violation of §a(4) of the CFAA.
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