Computer Fraud & Abuse - A More Powerful Tool for Protection of Trade Secrets

A new opinion from Judge Posner of the Seventh Circuit, International Airport Centers, L.L.C. v. Citrin, 2006 WL 548995 (7th Cir. Mar. 8, 2006), deals with the application of the federal Computer Fraud and Abuse Act ("CFAA") to a circumstance in which an employee or agent deletes information on his employer's computer. The defendant, Citrin, was an employee hired to work in plaintiff's real estate business. Prior to leaving that employment, he secretly began to compete with plaintiff. Just prior to leaving employment, "[b]efore returning the laptop to [plaintiff], he deleted all the data in it - not only the data that he had collected but also data that would have revealed to IAC improper conduct in which he had engaged before he decided to quit." Specifically, defendant "loaded into the laptop a secure-erasure program, designed, by writing over the deleted files, to prevent their recovery."

The district court dismissed the claim under CFAA on the grounds that simply deleting information did not violate the Act.

In the words of Judge Posner:

The provision of the Computer Fraud and Abuse Act on which [plaintiff] relies provides that whoever "knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer [a defined term that includes the laptop that [plaintiff] used]," violates the Act.

The key to the case, thus, was the word "transmission." Plaintiff argued that "merely erasing a file from a computer is not a 'transmission.'"

The court noted that "[p]ressing a delete or erase key in fact transmits a command, but it might be stretching the statute too far (especially since it provides criminal as well as civil sanctions for its violation) to consider any typing on a computer keyboard to be a form of ‘transmission’ just because it transmits a command to the computer."

Nevertheless, the court ruled that "the transmission of the secure-erasure program to the computer," could violate the Act and therefore reinstated the case.

Given the fact that most trade secrets cases involve abuse of computers in the sense of the Act, the CFAA can be a powerful tool in protecting trade secrets. The Citrin opinion is a step forward in that direction. A take on the case from TG Daily can be found here.