Circuits Split Over Application of Computer Fraud Law

Ever since John McCain's aides tattled on her after the 2008 election, Sarah Palin has tried to make "going rogue" something to be admired. But the issue of "rogue workers," or employees using company assets to advance their own agendas, is something no employer wants to be associated with.

Now in its decision in LVRC v. Brekka, the 9th Circuit has made life even more difficult for companies that believe an employee used digital company material for noncompany purposes.

In discussing the concept of "authorization" in CFAA, the 9th Circuit expressly declined to follow guidance the 7th Circuit outlined in International Airport Centers v. Citrin, which considered the motivation of the employee. Citrin concerned a disloyal employee of International Airport Centers (IAC) who decided to go into business for himself. Before he quit IAC, he deleted company material from his laptop, including evidence of his improper behavior as an employee. IAC sued under CFAA.

The 7th Circuit, in an opinion authored by Judge Richard Posner, held that the employee's authorized access to a company computer, as defined by CFAA, was automatically voided when his actions violated his common law duties to loyal service as an agent of the company.

Bill Barnhart

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