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A 'Loss' Under the CFAA Does Not Require Interruption of Service
These days, staying in the same job throughout a career is rare. When the employee-employer relationship ends, sometimes the parting is amicable. Less often, issues arise, and either party can become disgruntled. There are even examples of former employees accessing the employer's computer after access or use has been revoked.
In response to such employee behavior, employers can and have brought claims against previous or soon-to-be previous employees under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, which was originally enacted in 1984 to address “computer crime.” This phrase was then principally understood as referring to the “hacking” or trespassing into computer systems.
The success of CFAA claims can sometimes ride on interpretations of the meaning of “authorization” in the statute, and more specifically, whether “authorization” connotes restrictions only on the access to information, and not restrictions on its use. See 18 U.S.C. §1030(a)(2). A circuit split presently exists over this question and there is no indication that the U.S. Supreme Court is poised to weigh in. The U.S. Court of Appeals for the Second Circuit's decision in United States v. Valle, 807 F.3d 508 (2d Cir. 2015), sided with the view that the CFAA restricts only access to information. However, this decision dealt with the criminal provisions of the CFAA and relied on the rule of lenity as applied to statutory construction in the context of criminal allegations.
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