9th CIRCUIT RULES ON EMPLOYEE USE OF WORK COMPUTERS

The 1986 Computer Fraud and Abuse Act (18 U.S.C. § 1830) made criminal intentionally accessing a protected computer without authorization or exceeding authorized access to that computer and thereby obtaining information it as well as doing so with the intent to defraud, unless the object of the fraud and the thing obtained consists only of the use of the computer. The Act defines a “protected computer” as any computer which is used in or affects interstate or foreign commerce or communication, which would encompass any computer connected to the Internet.

In a decision dated April 10, 2012, U.S. v. Nosal, the Ninth Circuit Court of Appeals narrowly interpreted that statute. Judge Kozinski, writing for the majority of the judges on the 11 member panel who decided that case wrote, “Basing criminal liability on violations of private computer use polices can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved. Employees who call family members from their work phones will become criminals if they send an email instead. Employees can sneak in the sports section of the New York Times to read at work, but they’d better not visit ESPN.com. And Sudoku enthusiasts should stick to the printed puzzles, because visiting www.dailysudoku.com from their work computers might give them more than enough time to hone their Sudoku skills behind bars.” He wrote, “Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the [Computer Fraud and Abuse Act], such minor dalliances would become federal crimes. While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit. Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.” He continues, “. Under the government’s proposed interpretation of the Act, describing yourself as  “tall, dark and handsome,” when you’re actually short and homely, will earn you a handsome orange  jumpsuit” on an on-line dating site.”

The Ninth Circuit, in conclusion, held that the Act “target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation.”

NOTE THAT THIS IS THE LAW IN THE NINTH CIRCUIT WHICH ENCOMPASSES ALASKA, WASHINGTON, OREGON, MONTANA, IDAHO, CALIFORNIA, NEVADA, ARIZONA AND HAWAII AND THAT THE FIFTH, SEVENTH AND ELEVENTH CIRCUITS HAVE NOT CARVED OUT THIS EXCEPTION TO THE ACT. THESE CIRCUITS COVER THE STATES OF ALABAMA, GEORGIA, FLORIDA, ILLINOIS, WISCONSIN, INDIANA, TEXAS, LOUISIANA & MISSISSIPPI.

 

About ERIC WACHSPRESS

The material on this website is for informational purposes only. It should not be considered legal advice and is not intended to create an attorney-client relationship. If you have questions regarding any material presented herein, we recommend that you consult an attorney. This web site and information presented herein were designed in accordance with Illinois law. Any content in conflict with the laws or ethical code of attorney conduct of any other jurisdiction is unintentional and void.

I am a Chicago attorney practicing in the areas of trademark, copyright and information technology law as well as general corporate law. Formerly a trademark examining attorney with the United States Patent and Trademark Office, I have been in private practice since 1987 representing clients in a wide variety of industries, including the consumer products, financial services, information technology and entertainment industries. You can contact me at markscounsel@gmail.com, by phone at 773.934.5855 or by mail at 417 S. Jefferson St., #304, Chicago, IL 60607 USA

This entry was posted in News and tagged , , , , . Bookmark the permalink.