When an employee leaves your company, whether by termination or of his or her own choice, your company’s most important information may be at risk. Disgruntled employees may download proprietary information onto personal computers or even destroy your company’s digital confidential information. The Computer Fraud and Abuse Act (the “CFAA”), a popular tool of employers hoping to rein in rogue employees, may no longer be available to help.
The CFAA allows claims against parties for “unauthorized access” to computers. Originally intended as a tool to fight hackers, the CFAA has recently become a popular means for employers to go after former employees who have downloaded or destroyed confidential digital information. However, the U.S. Fourth Circuit, which includes Virginia and North Carolina, among other states, recently refused to allow an employer’s CFAA claim against a former employee.
The former employee, while still employed, violated his company’s computer policy by downloading confidential information onto his personal computer. He took that information with him to his new employer and began stealing his old company’s business. The Court would not permit a claim under the CFAA. It reasoned that while the employee may have violated the computer policy, he still had authorization to access his computer as an employee. He therefore could not be guilty of “unauthorized access.”
Of course, an employee’s actions after termination or resignation may still fall under the definition of “unauthorized access.” The U.S. Circuit Court covering Illinois has permitted an employer’s CFAA claim against a former employee who, after quitting, destroyed his company’s confidential digital information. The employee’s access was premised on his agency relationship to the company, and once he quit, the employee was no longer an agent. Without that relationship, the former employee had no authority to access his computer.
Fortunately for employers, plenty of causes of action still exist to prevent employees from destroying confidential information or taking it with them to your competitors. Confidentiality agreements can prevent employees from removing such information. Claims such as conversion, tortious interference with contractual relations, civil conspiracy, and misappropriation of trade secrets can still be powerful tools to help maintain the secrecy of your company’s most valuable information.