The Computer Fraud and Abuse Act: A Tool for the Protection of Trade Secrets

All of the legal tools for protecting important information -- non-competes, non-solicitation and confidentiality agreements -- have their uses and their drawbacks.

A series of recent cases, including an important pharmaceutical industry case from a North Carolina federal court, illustrate that a new tool for protection of trade secrets may be available to counter the problems arising from the departure of key employees. That tool is the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, a statute originally enacted in 1984 to protect the federal government's computers and computer data.

Now it covers any "protected computer" which is defined to include a computer used in interstate or foreign commerce or communication. As a practical matter, the CFAA covers virtually any computer linked to the Internet. More importantly, the CFAA forbids access of such a computer without authorization and prohibits a person with access from exceeding the authorized access. Many (if not most) employee departures and defections to competitors make some use of the former employer's computer data, often by emailing confidential information to the competitor or downloading the information onto computer disks and bringing those disks to the new employer.

Protections, though, are not automatic. This article tells how to ensure protection.