Criminalizing Use of the Boss’s Computer

computer keyboard
(via J.Franganillo)

Back in April the 9th Circuit gave employers a remedy under the Computer Fraud and Abuse Act to address employee theft of data from computers.  But today a majority of  the 25-judge circuit court agreed to reconsider the three-judge panel decision criminalizing theft of the boss’s data.  

David Nosal was convicted of criminal violation of the CFAA and the appeals court upheld that conviction in April.  But now that ruling will be reconsidered and if it is overturned it would put the 9th Circuit in conflict with other circuits.

Nosal worked for Korn/Ferry International, an executive search firm, from 1996 to 2004.  Although Nosal eventually left and signed an independent contractor contract and agreed not to compete for one year, he engaged three Korn/Ferry employees to help him start a competing business, according to the 9th Circuit.

He was convicted of accessing Korn/Ferry computers to transfer source lists, names and contact information from its database of executives and companies.

At the time, Judge Stephen Trott said the panel did not “dismiss lightly Nosal’s argument that our decision will make criminals out of millions of employees who might use their work computers for personal use, for example, to access their personal email accounts or to check the latest college basketball scores.”  He was joined by Judge Diarmuid O’Scannlain.

But he wrote that the law requires an “intent to defraud,” which would distinguish his case from the Orwellian situation of criminalizing peeks at basketball scores during work.

But dissenting Judge Tena Campbell wrote that under the majority interpretation any person who gets information from a computer linked to the internet, in violation of an employer’s computer use restrictions, is guilty of a federal crime.

A full 11-judge panel will now reconsider that April ruling.

 Case:  U.S. v. Nosal,  No. 10-10038

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