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Sunday November 25, 2007
COMPUTER FRAUD AND ABUSE ACT UPDATE
The federal Computer Fraud and Abuse Act (CFAA) is most closely associated with criminal prosecutions brought by the Department of Justice. But the CFAA also provides for a civil cause of action for anyone who suffers damage or loss because of a violation of the statute. In light of the expansive reading that some courts have given to the law, victimized companies should give consideration to taking the civil route. A civil lawsuit gives the wronged party more control and may provide a quicker fix. By means of such a lawsuit, the victim can retrieve stolen data, enjoin illegal access to data, and even get compensatory damages for the theft and destruction of data.

The CFAA applies to all companies and all computers that are connected to the Internet. Potentially, there are multiple, distinct types of violations of the statute that could support a civil action. On a recurring issue in such cases--whether the defendant had authorization for his actions--the courts look at several factors:

• whether the defendant was an agent of the plaintiff's, with particular powers;
• whether an employment contract, such as may have been embodied in company rules and policies, was breached; and
• whether the defendant's use of the computer exceeded normal use that was expected by the plaintiff.