Abstract

http://ssrn.com/abstract=2182879
 


 



Exceeding Authorized Access in the Workplace: Prosecuting Disloyal Conduct under the Computer Fraud and Abuse Act


Stephanie M. Greene


Boston College - Carroll School of Management

Christine Neylon O'Brien


Boston College - Carroll School of Management

November 29, 2012

Vol. 50 American Business Law Journal 291-335 (2013)

Abstract:     
If you spend time at work checking Facebook or shopping online you might be violating your employer’s computer policy. But you might also be committing a federal crime. For the past decade or so, courts have disagreed over the scope of the Computer Fraud and Abuse Act. Some courts have found that an employee who violates a workplace policy, breaches a contract, or breaches a duty of loyalty to his employer may be both civilly and criminally liable under this Act. Computers provide new opportunities for distraction at work; they also provide opportunities for dishonest behavior. While some behavior is clearly criminal, it is not always clear what type of behavior should be criminal under the Act, particularly as social norms about workplace habits and computer use are constantly evolving.

This article focuses on the variety of ways courts construe the Computer Fraud and Abuse Act which criminalizes some types of access to computers, detailing how courts continue to struggle with an accepted interpretation of what is, and what is not, criminal. A recent highly anticipated case, the Ninth Circuit’s en banc United States v. Nosal decision, reflects this discord. In a 9-2 decision, the court held that the ambiguous criminal statute should be given limited applicability because its general purpose is to punish hacking rather than acts such as misappropriation of confidential information. The decision expresses concern that a broad interpretation of the statute would criminalize a range of acts we all engage in on employer networks. The Ninth Circuit’s interpretation creates a notable split of opinion with the First, Fifth, Seventh and Eleventh circuit courts of appeal. More recently, the Fourth Circuit followed the reasoning of the Ninth Circuit’s narrow interpretation theory thereby furthering the division of opinion on this issue.

Number of Pages in PDF File: 38

Keywords: computer, fraud, abuse, act, congress, employer, employee, authorization, exceed, access, narrow, broad, nosal, facebook, hacker, misappropriate, citrin, Shurgard, Brekka, Morris, wec, explorica, circuit court split, ninth, seventh, fourth, fifth, first, eleventh

JEL Classification: K10, K14, K30, K40, K41, K42, K49, K39

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Date posted: November 30, 2012 ; Last revised: June 19, 2013

Suggested Citation

Greene, Stephanie M. and O'Brien, Christine Neylon, Exceeding Authorized Access in the Workplace: Prosecuting Disloyal Conduct under the Computer Fraud and Abuse Act (November 29, 2012). Vol. 50 American Business Law Journal 291-335 (2013) . Available at SSRN: http://ssrn.com/abstract=2182879

Contact Information

Stephanie M. Greene (Contact Author)
Boston College - Carroll School of Management ( email )
140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States
Christine Neylon O'Brien
Boston College - Carroll School of Management ( email )
140 Commonwealth Avenue
Business Law Department
Chestnut Hill, MA 02467
United States
(617) 552-0413 (Phone)
(617) 552-0414 (Fax)
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