The Computer Fraud and Abuse Act and Disloyal Employees: How Far Should the Statute Go to Protect Employers from Trade Secret Theft?

Audra A. Dial and John M. Moye

Volume 64, Issue 5, 1447-1467

This Article discusses the current split between the federal circuits over the scope of the Computer Fraud and Abuse Act (“CFAA”) and whether it extends to employees who steal an employer’s electronic trade secrets to which they were lawfully given access as employees. After discussing the legislative history of the CFAA and various appellate decisions interpreting its scope, the Authors argue that recent court decisions interpreting the statute—exemplified by the Fourth Circuit in WEC Carolina Energy Solutions, LLC v. Miller and the Ninth Circuit in United States v. Nosal—are unduly narrow in their scope.The Authors argue that the CFAA, by its language, is broad enough to provide for civil liability when a disloyal employee misappropriates electronic trade secrets in violation of an employer’s computer use policies. A contrary approach is harmful to employers and inconsistent with the statute’s intent. In light of these ambiguities, clarification of the CFAA’s scope—either from the Supreme Court or via legislative action—is sorely needed.

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