Graves Concerns

The Computer Fraud and Abuse Act (CFAA) creates criminal penalties for doing various bad things by intentionally accessing a computer without authorization or by exceeding authorized access. There’s been a some debate recently over just what “authorization” means. For example, one of the issues in the Lori Drew case was whether Drew had exceeded authorized access, and thus committed a federal crime, by violating MySpace’s terms of service. Another frequent issue comes up in employment contexts: is it unauthorized access to use company computers for purposes other than those intended?

For example, suppose an employee has access to an employer’s computers for regular business purposes, but e-mails confidential data to an outside account. Later, he leaves the company and uses that confidential data to set up a competing business. Did the employee access that confidential data without authorization? The simple answer would be “no”: he had an account, he was allowed to use it, that permission had not been revoked, so any access was authorized.

The Ninth Circuit Court of Appeals recently adopted essentially this definition. LVRC Holdings, LLC v. Brekka said that such conduct is not unauthorized for purposes of the CFAA. The court looked at the language of the statute and a dictionary, and held that an employee has authorization to access a computer when the employer has given permission to use it. Because Brekka’s permission to use the computer had not been revoked when he accessed and mailed data to an outside account, the court held that his access was not unauthorized.

The Ninth Circuit rejected the agency-law analysis from a 2006 Seventh Circuit decision, International Airport Centers, LLC v. Citrin. That case had held that an employee’s authorization to access a computer ended the moment he breached his duty of loyalty to his employer—in that case, by wiping data from a laptop to hide evidence of misconduct. But in LVRC, the Ninth Circuit stuck to the text of the CFAA, noting that the CFAA is a criminal statute and should be interpreted in favor of lenience. Because the Ninth Circuit could find no agency law principles in the text of the CFAA, it held that a person uses a computer without authorization “when the person has not received permission to use the computer for any purpose . . . or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway.”

An aspect of this case that might be of interest to employers is that Brekka did not have a written employment agreement and LVRC had no policies against e-mailing documents to outside accounts. Such a policy would presumably have made Brekka’s actions unauthorized. But it’s hard to write policies that cover every single thing an employee is not allowed to do. If a company wrote a policy that “employees are only authorized to use company computers to the extent that such use is consistent with company interests,” would that create the Seventh Circuit agency-law definition of unauthorized access? It seems like it might, but, as always, This Is Not Legal Advice.