• THE 6TH CIRCUIT AFFIRMS THE COMPUTER FRAUD AND ABUSE CONVICTION OF AN IT EMPLOYEE

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• Last week the Sixth Circuit Court of Appeals upheld the criminal conviction for the Computer Fraud and Abuse Act (“CFAA”) of an employee who stole confidential data from his employer’s computers. U.S. v. Batti, 2011 WL 111745 (6th Cir. Jan. 14, 2011). The issues on appeal were limited to whether the government had offered sufficient proof that the value of the data stolen exceeded $5,000 to qualify as a 5 year felony, 18 U.S.C. § 1030 (a)(2)(C)(c)(B)(iii), and whether the district court had abused its discretion in ordering restitution in the amount of $47,565.

• These limited issues precluded the Sixth Circuit from addressing the 9th Circuit’s decision in LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009). Brekka stands for the proposition that because an employee has permission to use the company computers, he or she cannot violate the CFAA because an employee’s access to the computers is never “without authorization,” a critical element of the CFAA. However, the facts in Batti and the language in the decision provide clues as to how the 6th Circuit might ultimately rule on this issue.

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