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Transmission Claims Under the Computer Fraud and Abuse Act
The Computer Fraud and Abuse Act (“CFAA”) prohibits a number of different computer crimes, the majority of which involve accessing computers “without authorization” or in excess of authorization, and then taking specified forbidden actions, ranging from obtaining information to destroying computer data. See, 18 U.S.C. '1030(a)(1)-(7) (http://bit.ly/Jz0c3n). Although principally a criminal statute, the CFAA provides for a private civil right of action, allowing for awards of damages and injunctive relief in favor of any person who suffers a loss due to a violation of the Act. See, 18 U.S.C. '1030(g). Given the allure of robust remedies in federal court, companies routinely plead CFAA unauthorized access claims ' in addition to state law causes of action for misappropriation and breach of contract ' against former employees who seek a competitive edge through the use of information misappropriated from their former employer's computer network.
Beyond CFAA “authorization” claims, parties have also sought to use the CFAA in cases involving unauthorized “transmissions” of information that cause damage. To state a transmission claim, a plaintiff must allege that the defendant “knowingly cause[d] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause[d] damage without authorization, to a protected computer.” 18 U.S.C. '1030(a)(5)(A). Unlike other subsections of the statute which prohibit unauthorized access, a CFAA transmission claim is predicated on the defendant intentionally causing unauthorized damage. The CFAA defines the term “damage” as “any impairment to the integrity or availability of data, a program, a system, or information.” 18 U.S.C. '1030(e)(8).
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