Robert Milligan Quoted in InsideCounsel
"Decision deepens circuit split on scope of CFAA'

Seyfarth Shaw Labor and Employment and Litigation partner Robert Milligan is quoted in an article appearing in the May 30 edition of InsideCounsel. The 9th Circuit court ruled in the case U.S. v. Nosal, that employees who violate workplace computer policies or website terms of use are not criminally liable under the federal Computer Fraud and Abuse Act (CFAA).

The U.S. v Nosal case encompasses David Nosal, who resigned from a company and later allegedly tried to start a competing business by convincing three former colleagues to download a confidential client database in violation of his former company's policy. The government indicted Nosal on numerous violations of the CFAA, arguing that although Nosal’s coworkers had authorization to access the confidential database, they had exceeded authorized access by subsequently misusing this information. Subsequently Nosal sought a dismissal of the case, and a district court agreed after citing the 9th Circuit’s precedent in LVRC Holdings LLC v. Brekka.

In the similar Brekka case Robert posits that, the Brekka references aren’t confined to one side. “Both the majority and the dissent rely on Brekka,” he says, “in the case of the majority, saying that the [Nosal] indictment should be dismissed, and the dissent, saying it should be upheld.” In its most recent opinion, the 9th Circuit returned to its Brekka position and took a narrow interpretation of what constitutes “unauthorized access.” Under the new standard, if employees have access to any information they can reach without “the circumvention of technological access barriers,” it is fair game.