On Tuesday, April 10, 2012, the Ninth Circuit, in an en banc decision penned by Judge Kozinski, held that an employee could not be criminally liable under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (the “CFAA”) for “exceeding authorized access” to an employer’s computer by accessing proprietary information in violation of the employer’s written policies. In so holding, the Ninth Circuit reversed course from the initial panel decision, band entrenched its split from other circuits that have interpreted the CFAA’s “exceeds authorized access” prong to cover violations of an employer’s clearly disclosed computer use policy. The Nosal decision clarifies the Ninth Circuit’s view that the CFAA targets true “hacking,” and not violations of company computer use policies or website terms of service.
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