Employers’ Use of Computer Fraud Act May be Slipping.

Posted by on Nov 16, 2010 in Uncategorized | Comments(0)

My friends at Fisher & Phillips, LLP maintain the Non-compete and Trade Secrets Blog. I have known these folks for a long time and they’re good at what they do. They may be wrong (wink), but they’re good at what they do.

The reason I say that the may be wrong is that we don’t frequently agree on issues relating to stockbroker recruiting. Usually, my friends are representing the brokerage firm and I’m representing the soon-to-be victimized registered representative who’s just trying to earn a living. I’m much more in favor of freedom of movement than they are. And that’s what makes them wrong.

One of the tools in the former employer’s arsenal had been the Computer Fraud and Abuse Act. I have defended cases where the CFAA has been used as a weapon in an attempt to criminalize, or quasi-criminalize, the simple act of accessing one’s clients’ names and addresses to facilitate a move from one firm to the next. Brent Cossrow, of Fisher & Phillips, provides his analysis of a criminal proceeding that analyzes the CFAA and its limits.

The US District Court for the Southern District of New York held that accessing a computer using one’s authorized username and password, and obtaining information he/she was otherwise authorized to retrieve, but for alleged improper intent, is not a violation of CFAA. I’m pretty sure that Brent disagrees with the court’s holding, at least on behalf of his clients who would like to use the CFAA to scare a former employee into settlement. That’s OK. It’s a free country. For now.

That’s the view of one computer-literate lawyer from Jupiter, Palm Beach County, Florida. I’m Marc Dobin.

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