No language in the CFAA supports LVRC's argument that authorization to use a computer ceases when an employee resolves to use the computer contrary to the employer's interest.
And with that remark the Ninth Circuit today parted company with International Airport Centers LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006), a Seventh Circuit decision holding that an employee's computer use becomes unauthorized under the Computer Fraud and Abuse Act, 18 U.S.C. 1030, when the employee uses the computer in a manner contrary to the employee's common law duty of loyalty to the employer.
The case involved an ex-employee who e-mailed allegedly confidential information from his work computer to his personal computer shortly before he left the company. A typical scenario. In today's opinion, LVRC Holdings LLC v. Brekka, No. 07-17116 (9th Cir., Sept. 15, 2009), the court firmly rejected Citrin, holding instead that computer access becomes unauthorized when an employee contravenes employer-placed limits on use of a computer. Computer use does not become unauthorized, the court said, at the point when an employee's mental state switches from "loyal employee" to "disloyal competitor."
There is work for lawyers to do in the wake of this opinion. The court specifically noted that the employer did not have an employment agreement with the employee nor did the employer have in place guidelines that prohibited employees from e-mailing company information to their personal computers. So the employer here missed two opportunities to define the scope of authorized computer use by its employees, either of which might have turned the case its way.
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