Employers frequently seek to prevent unauthorized use or disclosure of confidential information by enforcing non-competition or confidentiality agreements against employees who resign to work for competitors. However, employers who have not entered such agreements with their employees nevertheless have available to them various state statutory and common law claims such as tortious interference, breach of fiduciary duty, civil conspiracy and unfair competition. In this column, we have frequently discussed the enforcement of contractual, common law and statutory methods for protecting confidential information,1 but we have not yet specifically focused on a relatively new theory that employers are asserting in litigation with greater frequency, a federal claim under the Computer Fraud and Abuse Act (CFAA). 18 U.S.C. §1030.
The CFAA was initially enacted in 1986 as a criminal statute, and prohibited anyone from accessing a computer system belonging to a bank or the federal government without authorization. Pub. L. No. 98-474, 100 Stat. 1213 (1986). In 1994, Congress expanded the reach of the CFAA by adding a civil remedy. Pub. L. No. 103-322 §290001(g), 108 Stat. 1796 (1994).
