Michael Wexler Quoted in Inside Counsel

The May issue of Inside Counsel includes an article ("Employers Take Advantage of Computer Fraud Law ") that reviews the Illinois 7th Circuit Court's broadening of the federal Computer Fraud And Abuse Act (CFAA) in a case where an employee used knowledge from his employer to start his own company noting that "This decision has established a new precedent, one that empowers employers with a new weapon to wield against departing employees who steal proprietary information and erase the evidence."  Prior to this case, courts typically viewed “transmission” under the CFAA to apply to damage rendered via the Internet, such as viruses and worms. Yet it was likely that the employee used a piece of software, not the Internet, to accomplish the secure delete. In response to this possibility, the 7th Circuit clarified the definition of transmission, and in doing so expanded its applicability.

“In this case it actually includes somebody who loads a program onto a computer, either through an external drive, an internal drive or the Internet,” says Michael Wexler, a partner at Seyfarth Shaw.  By expanding the definition of transmission and clarifying authorization, the 7th Circuit broadened the scope of the CFAA. Now employers in the 7th Circuit that want to collect damages against an employee who engaged in misconduct have a new weapon of recourse if the employee deleted the evidence of his or her wrongdoing.   However, the ruling doesn’t apply in all situations where an employee deletes files from a company computer. Whereas deleting company information may constitute a violation of the CFAA, the deletion of an employee’s personal information may not. “If someone is leaving an organization, it is one thing to pull off your personal files, like your résumé or the March Madness office pool,” Wexler says. “But when someone takes a software program and runs it to deliberately destroy information, you have to wonder why someone is doing that.”   Although deletion of employees’ personal files isn’t barred under CFAA, it is likely that the statute will continue to broaden in scope.   “This case further refines exactly how you define destruction, authorization and transmission,” Wexler says.