A Widening Circuit Split in the Interpretation of the Computer Fraud and Abuse Act


Introduction - The Computer Fraud and Abuse Act (CFAA) criminalizes unauthorized access to a private computer system and allows for individuals suffering harm from such conduct to bring private civil actions for relief. Congress originally enacted the CFAA asan anti-hacking statute, targeting third-party individuals accessing private computer systems without authority. Because the CFAA originally targeted third-party offenders, the language is unclear as to whether it applies to an employee who has authorized access to a computer, but then exceeds the scope of the authorized access and engages in the misuse or misappropriation of confidential information. Courts have had trouble applying the ambiguous language of the CFAA. The Circuit Courts of Appeals have not provided clear guidance regarding the interpretation of two important terms used in the CFAA; namely, "authorization" and "exceeds authorized access."

A Narrow Interpretation of the Terms "Authorization" and "Exceeds Authorized Access"

The United States Court of Appeals for the Ninth Circuit recently settled on a narrow interpretation of the terms "authorization" and "exceeds authorized access" in an en banc decision. In United States v. Nosal, an employee left an executive search firm to start his own competing business. Before leaving, the defendant convinced several former colleagues still employed by the firm to download source lists and to transfer the confidential information to him. The employees had authorized access to the database, but the firm had a policy that prohibited: (1) using confidential information for nonbusiness purposes and (2) transferring the information to third parties. The government indicted the defendant with aiding and abetting the employees in accessing a protected computer "without authorization," or "[exceeding] authorized access" with the intent to defraud.

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