On May 10, 2019, the Delaware Chancery Court issued an opinion adopting a “narrow approach” in interpreting Section 1030(a)(2)(C) of Computer Fraud and Abuse Act (CFAA). Section 1030(a)(2)(C) imposes liability on a person who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains… information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C).

Federal courts remain divided on the interpretation of Section 1030(a)(2)(C). For example, the First, Seventh, Fifth, and Eleventh Circuits interpret the statute broadly, finding that acts of misuse of company information “exceed[ ] authorized access,” even if the accused individual or employee had authority to access the information. The Ninth, Second, and Fourth Circuits, which have adopted a narrow approach in interpreting Section 1030(a)(2)(C), simply ask if the individual or employee had authority to access the information at issue, and do not consider a person’s misuse of accessed information.

Here, Plaintiff alleges that the Defendant copied company files from his work-issued computer onto his personal drive on two separate occasions—once before and once after the termination of his employment—and subsequently used the confidential information when he began working at a competitor. The Chancery Court noted that the ordinary meanings of the terms “without authorization” and “exceeds authorized access” do not encompass “misusing the information the employee had a right to access.” The Court also considered the rule of lenity in making its decision, which requires a court to construe criminal statutes “strictly to avoid interpretations not ‘clearly warranted by the text.’”

Because Defendant had authority to access the information at issue before his resignation, the Court found that there could be no liability under the CFAA for the first alleged instance of misappropriation. However, the court found that Plaintiff had adequately pled a CFAA violation for the second instance of misappropriation that occurred after Defendant’s resignation. The case is AlixPartners, LLP, and AlixPartners Holdings LLP vs. David Benichou, C.A. No. 2018-0600-KSJM, before the Delaware Chancery Court.