After Last Week's Oral Argument Will the 9th Circuit Reverse Its Decision that the Computer Fraud and Abuse Act Applies to Employees?

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On December 15, 2011, the 9th Circuit Court of Appeals heard argument en banc in the case of U.S. v. Nosal, 642 F.3d 781 (9th Cir. 2011), reh’g en banc granted (Oct. 27, 2011). As expected, the oral argument focused on the meaning of unauthorized access under the Computer Fraud and Abuse Act. The issue is whether an employee can be prosecuted under the CFAA for accessing his employer's computer in violation of rules established by the employer restricting access to the company computers. In Nosal, the 9th Circuit had clarified its earlier decision in LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1131 (9th Cir. 2009). A key element to prove either a civil or criminal violation of the CFAA is that the employee accessed the company computer “without authorization” or “exceed[ed] authorized access.”

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