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Ninth Circuit CFAA Case May Draw High Court Review

By Leonard Deutchman

In United States v. Nosal, No. 10-10038, 2012 U.S. App. LEXIS 7151(9th Cir. Apr. 10, 2012), http://1.usa.gov/J8AJZC, the U.S. Court of Appeals for the Ninth Circuit, en banc, held that the prohibition against “exceed[ing] authorized access” to a computer under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. '1030, http://bit.ly/Jz0c3n, which provides both criminal and civil penalties for such action, does not apply when an employee has been granted access to the company computer infrastructure but uses that access, against company policy and the obvious interests of the company, to copy valuable, confidential information in order to take business from the company.

For various reasons, articulated well in the dissent by Judge Barry Silverman (joined by only one other judge), the Ninth Circuit is wrong. What makes the decision particularly interesting is that, because it challenges the Justice Department's interpretation of the CFAA, it stands the best chance of making its way to the Supreme Court, a far more likely result than in any of the civil cases that held as Nosal did.

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