Internet Law

9th Circuit Narrows Computer Fraud Law, Protecting Lying Homely People and Web-Surfing Workers


An en banc federal appeals court has tossed part of the criminal case against an executive headhunter accused of accessing a confidential database at his prior employer.

The 9-2 decision (PDF) by the San Francisco-based 9th U.S. Circuit Court of Appeals narrows the reach of the Computer Fraud and Abuse Act, report the Recorder and Reuters. Chief Judge Alex Kozinski wrote the majority opinion saying prosecutors can’t use the law to make federal criminals of anyone who violates employer computer policies or a website’s terms of service.

The defendant, David Nosal, persuaded his former colleagues to access a database at Korn/Ferry to get information for his new competing business. He was charged in a 20 count indictment that included five alleged violations of the CFAA. On appeal, Nosal argued the computer fraud statute targeted only hackers. The majority sided with Nosal in an opinion that is “classic Kozinski,” according to the Recorder’s Legal Pad blog.

The government’s construction of the statute would make criminals of large groups of people who violate workplace computer policies, Kozinski wrote.

“Employees who call family members from their work phones will become criminals if they send an email instead,” Kozinski wrote. “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.”

The government’s interpretations of the law would also make criminals of people who violate Internet use policies by, for example, publishing misleading information on dating websites, Kozinski said. Calling yourself “tall, dark and handsome” when you are really short and homely “will earn you a handsome orange jumpsuit,” Kozinski wrote.

The 9th Circuit opinion leads to a split with three other circuits, raising the possibility that the issue will reach the U.S. Supreme Court, Reuters says. The case is United States v. Nosal.

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