Employment and the Computer Fraud and Abuse Act

Employment and the Computer Fraud and Abuse Act

If you are lucky, you will go through your entire life without knowing what the Computer Fraud and Abuse Act (“CFAA”) is or how it applies to employment law.

In recent years, the issue of what types of claims exist against an employee who left (or got fired from) a job and either took or retained company documents or electronically stored information of their former employer has become quite a hot-button issue. Some aggressive employers sued former employees under the CFAA if they learned that an employee still possessed confidential information obtained from a company computer. They argued that the employee accessed a company computer without authorization to obtain information violated the CFAA.

The CFAA creates a civil remedy where a party can sue for damages if a person intentionally accessed a computer without authority and obtained data from that computer that caused a loss. Besides civil damages and attorneys’ fees, this statute also has criminal penalties.

Companies would sue a former employee who had obtained data from a company computer system while employed but who then kept that data to assist the employee in his or her lawsuit. The companies argue that the use of the information was not authorized and violated the CFAA. The companies then sue for damages and attorney’s fees. Because the statute authorized statutory penalties and attorneys’ fees, a violation could subject the former employee to a large liability.

Earlier this year, however, the Supreme Court finally ruled on a criminal case involving the CFAA. However, this opinion impacts employment law. The issue in Van Buren v. United States was whether a police officer violated the CFAA to log into a law-enforcement database. The police officer used valid credentials to log into the database, but he did so for non-law enforcement purposes. He violated his department’s policies. But did he violate the CFAA?

According to the Supreme Court, no. The CFAA makes it illegal for a person to obtain information from a computer system without authorization. However, the CFAA does not make it illegal for someone—who may have improper motives—to access a computer system to obtain information otherwise available to that person. So, if you are authorized to access a computer system, you do not violate the CFAA when you do so—even if you are doing it for an improper reason.

In the employment context, this ruling removes a weapon from a company’s arsenal. A company can no longer sue an employee for allegedly violating the CFAA if the employee legally obtained company information by accessing a computer system while the employee still had the authorization to do so.

Now, if the employee accesses parts of the computer system that the employee does not have the authorization to access, then the answer is different. The employee could face CFAA liability for that. However, if an employee gets information from a computer system while the employee has authority to access that system, then the employee no longer faces the risk of a CFAA claim.

Again, in a perfect world, few employees will ever know what the CFAA is and how it might affect their employment. However, this ruling protects employees who gather information while working for a company that might support a future claim against the company. So long as the employee had the authority to access the computer system, the employee should not be accused of violating the CFAA.

This Supreme Court ruling takes one possible risk off of employees who want to sue a former employer.  

What You Need to Know About Hiring a Lawyer

What You Need to Know About Hiring a Lawyer

Need a Lawyer?

When you are facing a job loss or a crisis at work and need a lawyer, you may be full of questions, like . . .

What do I want to achieve?

What kind of lawyer am I looking for?

What am I getting into?

How does the process work?

Here are some of my tips for what to look for in a lawyer, and a few answers to these questions.

Find Someone you Trust

Hiring a lawyer to represent you in an employment dispute is a very personal thing.  You’ve got to find someone who you trust and who makes you feel comfortable. You need to know that the lawyer understands what happened to you and understands what your goals are. And you need to feel like your lawyer is listening to you, is approachable and will be responsive to you.

Not every lawyer is a good match for every client.  Every lawyer has a different personality and style and that personality and style may not mesh with yours.  It does not mean that the lawyer is not a good lawyer.  It just means that the lawyer is not a good lawyer for you. 

Organize your Information.

After a job loss, it can be difficult to separate the emotions caused by the job loss from the facts of what happened.  But it is really important to do that and to drill down to the actual facts of what happened. 

Think like a journalist: who, what, when, where and why.

Before you meet with a lawyer, Distill the facts into an organized timeline of events and list of all of the people who play a part in your issue. This will help your lawyer figure out what legal claims may be available to you.

Think about Your Goals

What is the outcome you are looking for? 

Think about it!

You may not have any idea what your goals are, but that is o.k.  You may just want to meet with a lawyer to find out if you may have a claim so you can decide from there.

And you having given some thought as to what a good resolution looks like to you is very helpful to your lawyer.

Understand How Lawyers Charge for Their Services

Lawyers sell their time and their expertise by charging either an hourly rate or a contingent fee.  An hourly rate is a fee for all time spent on the matter, usually billed in a tenth of an hour increment.  A contingent fee means that you do not pay the lawyer until the lawyer obtains a recovery for you.  When that happens, you pay an agreed upon percentage of your recovery to the lawyer as the fee.

Fitzgerald Law does both arrangements. In some cases, an hourly fee is the most appropriate way to charge for a matter.  In other cases, our firm will take a case on a contingent fee basis. Whether using an hourly or contingency arrangement, we always require  reimbursements for any out of pocket costs or expenses. 

When we meet with potential clients, we charge an hourly for those consultations. Many times, clients come to me to see just to find out what their rights might be.  Often, the client does not have a claim. In those cases, the office visit is just like a doctor’s office visit where the doctor tells you that you have a virus and to take a Tylenol. Because we provide valuable legal expertise in the consultation meeting, we charge for those visits.  We found that our clients understand and appreciate this arrangement.

Do Not Wait Until the Last Minute

Do not procrastinate.  If you think you might have an employment claim, you typically have a very short window of time to file a charge of discrimination or other kind of complaint.  If you have been laid off or fired and offered a severance package, you will typically only have a few weeks before deciding whether to accept it or not.  Lawyers can be busy.  If you delay, you might not be able to get a meeting quickly.  So, if you think you need to talk to an employment lawyer, reach out fast.

If you think you have an employment issue, please contact us  by clicking Tell Us About Your Problem.