My article on Computer Fraud and Abuse Act published

Today’s mail brought the latest edition of the St. Louis Lawyer, a monthly published by the Bar Association of Metropolitan St. Louis. I was about to toss it in a pile of reading to take home, when I remembered that my article was to appear in this issue, as part of a special edition entitled “Surfing the Tangled Web of Cyber Law.” Indeed, there it was on page 16, “Using the Computer Fraud and Abuse Act to Combat Improper Employee Competition,” by George L. Lenard. Here’s an excerpt:

Due to extensive reliance on electronic information systems and the ever-improving speed and convenience of data copying and transmission, businesses today face a heightened danger that improper competition by former employees will be aided by electronic misappropriation of trade secrets and other confidential information. . . . As employees conduct such espionage with increased sophistication, employers must employ considerable legal and technical sophistication to prevent, detect, and remedy such conduct. The stakes are high. For instance, data on the entire customer base of a business can be smuggled out on a single CD or e-mail attachment, giving a competitor a tremendous marketing advantage.

The federal Computer Fraud and Abuse Act, 18 U.S.C.A. 1030 (”the CFAA”) prohibits a variety of conduct interfering with computers and electronic data. It can be a useful legal weapon if an employee acquires sensitive information from a company’s computer systems and uses it to aid a competitor — or to start a competing business. “Caselaw supports an employer’s use of the CFAA’s civil remedies to sue former employees and their new companies who seek a competitive edge through wrongful use of information from the former employer’s computer system.” . . .

After running through various benefits of the CFAA, and a summary of its provisions, the article touches on a number of significant cases, and then concludes:

The CFAA can be a useful tool for combating the misuse of confidential information by departing employees who go to work for — or become — competitors. Typically, such information will be electronically stored, and the theft will therefore involve the company’s information systems. Employees may take such data by copying it to portable storage media or devices, transmitting it by e-mail, or simply printing it out. They may also obtain it by remotely hacking into the system or using their knowledge of passwords or system security to access intranets or extranets.

Such activities will almost inevitably leave tracks that can be identified by computer forensics specialists, and it should not be difficult to characterize them as violations of the CFAA such as improperly obtaining information from a protected computer, accessing a protected computer for a fraudulent purpose, causing damage to a protected computer by transmitting information, code, or commands, or simply causing damage and loss by accessing a protected computer.
Companies should take the offensive by preparing clear policies delineating the limits of authorized computer access and by making plans for preserving the “tracks” that may be left when employees depart. If evidence suggesting improper subsequent competitive activities by such employees is later obtained, these steps will aid in using electronic evidence and the CFAA as an adjunct to more traditional legal efforts such as enforcement of noncompetes or pursuit of trade secret claims.

The application of the CFAA to such situations is still in its infancy, but a review of the statutory text and existing caselaw indicates its future is most promising.

Unrelated comment follows:

While I’m in a bragging mood, let me add that I do have a life — and a family — and last night was just thrilled to see my son, a fifth grader who’s been playing trombone for less than two years, introduced as a new member of the seventh and eighth grade jazz band at a downtown concert.

The kids backed up several talented adult soloists — and several of them also soloed — and it was a swinging event featuring standards by Duke Ellington, Miles Davis, Cannonball Adderly, etc.

And last weekend my 6-year-old boy got a third place overall in the eight-and-under boys categoryat a two-day swim meet. Done bragging . . .

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