The Computer Fraud and Abuse Act (CFAA), enacted in 1986 at the dawn of the personal computer revolution, has become a key tool for both prosecutors and civil litigators in pursuing breaches of employers’ computer systems. The CFAA can provide protection to employers who have had intellectual property taken by current or former employees for purposes other than that for which the employee is authorized to use the IP. Although the CFAA is subject to multiple interpretations from different judicial circuits, employers can properly use the Act to enhance their Intellectual Property protection if they are mindful of what constitutes a violation of the act.
The CFAA provides a federal cause of action for plaintiffs who have suffered “damage or loss” as a result of a series of violations that are laid out in the Act. The most common of these violations is 18 U.S.C. § 1030(a)(2), imposing civil liability for anyone who “intentionally accesses a computer without authorization or exceeds authorized accesses and thereby obtains . . . information from any protected computer.” The terms “without authorization” and “exceeds authorized access” have been subject to much judicial interpretation.
Courts have split as to the meaning of “without authorization.” Wisconsin is governed by the broad construction of this split, which is embraced by the First, Fifth, Seventh, and Eleventh circuits. Under this broad construction, any employee use of a computer that is beyond what is authorized terminates the employee’s authorization. Subsequent use of the computer is done “without authorization,” even if the subsequent use was originally within the scope of permissible use of the computer.
Employers who are aware of the nature of the CFAA may avail themselves of its protection with the proper procedures. Such protection is invaluable in an era of growing importance for computer system security.
If you would like to learn more about how to tailor your employment policies and handbooks to better avail yourselves with the protection of the CFAA, contact Tori Kluess, Kurt Goehre or another member of the Intellectual Property Team and/or Employment Team at the Law Firm of Conway, Olejniczak & Jerry, S.C.