Robert Milligan and Carolyn Sieve Published in Law360
“Establishing CFAA Violations By Former Employees”

Robert Milligan and Carolyn Sieve were published in the October 27, 2009 Law360 article, “Establishing CFAA Violations By Former Employees.” In their article, Robert and Carolyn discuss the recent LVRC Holdings LLC v. Brekka case, which found the Ninth Circuit Court of Appeals joining the growing number of federal courts disfavoring Computer Fraud and Abuse Act (CFAA) claims brought by companies against disloyal employees.

In the article, the authors explain that in the Brekka decision, the court affirmed the district court’s summary judgment in favor of the defendants on the employer’s CFAA claim. The court found that because the employee was authorized to use his employer’s computers while he was employed at the company, he did not access a computer “without authorization” when he e-mailed documents to himself and to his wife before leaving the company. The court also found that the employee did not “exceed authorized access” when he emailed the documents because he was entitled to obtain the documents.

Robert and Carolyn recommend that in light of the Ninth Circuit’s definition of “unauthorized access” and “access in excess of authorization,” employers must educate their employees about what constitutes permissible computer use. Employers may need to rethink their strategies for protecting company property and ensure that they have adequate computer security protections and confidentiality agreements in place. The authors also suggest that companies should be mindful of the level of access they provide to their employees because they may not be able to maintain CFAA claims against employees who transmit such data for their personal use or other improper purposes if they were originally provided access to the data as part of their employment.

The attorneys conclude, “Nonetheless, following LVRC Holdings LLC, we may see fewer trade secret/unfair competition suits (which frequently include CFAA claims) involving rogue former employees and competitors in federal court in the Ninth Circuit.”