Monday, April 16, 2012, 4/16/2012 05:22:00 PM

Ninth Circuit Opts for Narrow Construction of Computer Fraud and Abuse Act

From the California Recorder, an article concerning the Ninth Circuit’s en banc ruling in U.S. v. Nosal (opinion here), holding that a simple violation of terms of use does not constitute a violation of the federal Computer Fraud and Abuse Act which prohibits users from “exceeding authorized access.”

The facts of the case are pretty simple. Nosal left the employment of an executive search firm but got some old pals back at the employer to send him confidential information that they shouldn’t have.

The question was did this violate the terms of the federal law. Other circuits – notably the Fifth, Seventh and Eleventh – have taken a broad view.

The Ninth Circuit, in an en banc decision by Chief Judge Kosinski, nixed that and ruled for the defendant.

The main concern, it seems was that standard computer behavior -- lying on Facebook games at work -- might be criminalized.

The dissenters point out, of course, that that was not what Nosal did.

The confusion on this statute is rife and, hopefully, the split in the Circuits may encourage the Supreme Court to give us all some real guidance.


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