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The Computer Fraud and Abuse Act and Former Employees

By Patricia Anderson Pryor

Laptops, thumb drives, data sticks, e-mails, and USB ports make it easy for employees to walk out of a company with valuable information, customer lists, and trade secrets. An employer's remedies are often limited. Is there a confidentiality agreement or non-compete agreement that limits the employee's ability to use the information? If so, will the court enforce it and can the employer prove the employee's use of the information? Has there been a breach of fiduciary duty or a breach of the employee's duty of loyalty? Are trade secrets involved?

Under traditional causes of action, employers often struggle to prove actionable harm. In order to obtain damages, an employer may need to establish that the employee has used the information that he or she has copied or downloaded and that such use has caused harm. In recent years, employers have attempted to use the Computer Fraud and Abuse Act (“CFAA”) to seek damages from departing employees who take company information or electronic assets with them.

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