The Common Law of Cyber-Trespass

43 Pages Posted: 3 Jun 2019

Date Written: May 10, 2019

Abstract

Right now, if executives in California and Virginia each pay a competitor’s disloyal employee to copy a trade secret from the competitor’s servers, under the federal Computer Fraud and Abuse Act (CFAA) the Government can charge one executive but not the other. These cases and many others get decided differently due to the ever-widening circuit split over the CFAA term “without authorization,” currently boasting up to five separate tests. Recent scholarship has endorsed trespass as a framework for resolving this split. But scholarship has not begun the work to pull principles, tests, and facts from trespass treatises and historical cases. Nor has it applied trespass precedent to the fact patterns that regularly recur in CFAA cases. This Article starts that process. It first looks at the existing circuit approaches and finds that trespass precedent forecloses several and focuses others. It next looks at individual scenarios that arise repeatedly in CFAA litigation and applies trespass law to suggest how courts should resolve them.

Despite the new technologies involved, when we look closely, we see that over centuries working with trespass law, society has confronted these issues before. The same theories were debated. The same scenarios were encountered. Instead of reinventing the wheel as the courts have done thus far, we need only understand the lessons learned. As Samuel Warren and Louis Brandeis once said in their famous privacy article: “[T]he common law provides [us] with [a weapon], forged in the slow fire of the centuries, and today fitly tempered to [our] hand.”

Keywords: CFAA, Cybercrime

Suggested Citation

O'Connor, Michael James, The Common Law of Cyber-Trespass (May 10, 2019). Brooklyn Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3386382

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