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

39 Pages Posted: 30 Nov 2012 Last revised: 11 Feb 2015

Stephanie M. Greene

Boston College - Carroll School of Management

Christine Neylon O'Brien

Boston College - Carroll School of Management

Date Written: November 29, 2012

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.

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

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 281-335 (2013) . Available at SSRN: https://ssrn.com/abstract=2182879

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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