On November 13, 2013, my partner Jim Goodman and I presented a national webinar discussing recent developments in Trade Secrets and Non-Competes. In that webinar, I discussed the split in the Circuits’ interpretation of the Computer Fraud and Abuse Act (CFAA). (Access to the recording and presentation is by request only.) I have also blogged on the most recent case that had been decided in the District of Massachusetts dealing with the interpretation of the CFAA, Advanced Micro Devices, Inc. v. Robert Feldstein, C.A. No. 13-40007-TSH, 2013 U.S. Dist. LEXIS 81206 (D. Mass. Jun. 10, 2013).
The issue that the courts are wrestling with is how to interpret the meaning of the terms “exceeds authorized access” and “without authorization,” which are in the CFAA. The issue has unfortunately not been resolved by the United States Supreme Court. Until then, different interpretations will continue to exist in the federal courts.
Recently, Chief Magistrate Judge Leo T. Sorokin rendered the latest opinion in the District of Massachusetts on the issue in MOCA Systems Inc. v. Bernier, C.A. No. 13-10738-LTS, 2013 U.S. Dist. LEXIS 161071 (D. Mass. Nov. 12, 2013). In that case, he refused to dismiss a CFAA claim, but allowed the defendants to bring the claim up later in the case at the summary judgment stage.
MOCA Systems sued Bernier (its former CEO) and Pernier Systems, the company he founded, claiming that Bernier improperly accessed MOCA’s computer systems for the purpose of competing with MOCA. The defendants moved to dismiss the Complaint.
Judge Sorokin quoted the language from the CFAA that has caused the split by the courts which states that a defendant is civilly liable where he or she “knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period.” 18 U.S.C. § 1030(a)(4) (emphasis added).
Judge Sorokin acknowledged that there are two views that the Courts have taken interpreting this language, commonly referred to as the “narrow” view and the “broad” view. The Courts that take the narrow view interpret the CFAA as limited to hacking. Thus, as long as the individual has authority to access the computer, he or she does not act “without authority” or “exceed” his or her “authorization” even though the employee used the information for personal needs after leaving the company. Those Courts that take the “broad” view focus on unauthorized use by the former employee on the theory that the former employee exceeds his or her authorization when the information is used in a way that is adverse to the company or violated the company’s policy.
In MOCA, the Court acknowledged that in the District of Massachusetts, in Advanced Micro Devices, Inc. v. Feldstein, District Judge Hillman recently found that the narrow construction was “preferable.” The Court also acknowledged that there is even a split in the District of Massachusetts. (See District Judge Gorton’s decision in Guest-Tek Interactive Entm’t, Inc. v. Pullen, 665 F. Supp. 2d 42, 45 (D. Mass. 2009), in which he followed the broader line of cases.) However, in MOCA, Magistrate Judge Sorokin chose to defer the issue until summary judgment just as Judge Hillman did in Advanced Micro Devices and said that he didn’t have to decide whether to adopt the “narrow” or the “broad view” at this early stage since the facts in the case “suffice under either standard.” In reaching this conclusion, he relied on the allegations in the Complaint which, assuming they are true, state that Bernier accessed the company-owned computer after he left the Company, which would support the claim that Bernier acted “without authority.”
This case illustrates once more that Courts are trying to deal with the differing interpretations of the CFAA and defer a final decision on the issue when the facts support that approach. Until the U.S. Supreme Court finally issues a definitive interpretation of the CFAA, we will continue to see different results issued by Courts depending which Court and in some cases, which judge, hears the case.