Although much attention has been focused on the split within the courts on the meaning of permissible “authorization” to access a computer (see 10/20/09 Tech Razor post), the differing interpretations of the types of losses that may be pursued under the CFAA also pose a substantial hurdle to employers seeking to use the CFAA as a means of pursuing a trade secret misappropriation claim in federal court. Two recent federal district court decisions continue the trend of limiting the scope of what may be regarded as an actionable “loss” under the Computer Fraud and Abuse Act (CFAA).
Liability Under The CFAA
The CFAA provides, in part, that “[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief. . . .” Section 1030(g). Based on this an employer or other person who has had a “protected computer” accessed without authorization (or in a manner that exceeds the scope of authorization) may pursue a CFAA claim. However, if “damage” or “loss” cannot be shown then the CFAA does not provide any source of recovery. Section 1030(e)(8) defines “damage” as “any impairment to the integrity or availability of data, a program, a system, or information” and Section 1030 (e)(11) defines “loss” as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”
While some courts have been liberal about construing the scope of eligible losses under the CFAA, the majority of courts that have addressed the issue have made clear that unless there has been actual damage to data, program or a system or an interruption of service, then a CFAA claim may not be pursued. Adding to the majority view are two cases decided earlier this year, ReMedPar v. AllParts Medical, et al., Civ. Action No. 3:09-cv-00807 (M.D. Tenn. Jan. 4, 2010), and Mintel International Group v. Neergheen, Case No. 08-cv-3939 (N.D. Ill. Jan. 12, 2010).
ReMedPar and Mintel
ReMedPar presented the situation of a competitor company, AllParts, aided by former employees of the plaintiff, ReMedPar, making use of proprietary ERP and CRM systems developed by ReMedPar. While it was very likely that the former employees breached confidentiality and other obligations to ReMedPar, at no time was ReMedPar prevented from use of its systems or data and there was no physical damage. Because of this, the court found that while the business of plaintiff, ReMedPar, may very well have suffered from the defendant’s wrongful action, ReMedPar did not suffer a recoverable “loss” covered by the statute.
Mintel involved a former employee, Neergheen, who in the course of his employment copied a wide variety of confidential information of his then employer, Mintel, which the employee then utilized when he went to work with a competitor business. Again, because there was no impairment or damage to the employer’s data or systems and no interruption of use by the former employer, the court observed, “[defendant’s] allegedly unauthorized acts of copying and e-mailing Mintel’s computer files did not impair the integrity or availability of the information in Mintel’s system . . . . As several judges in this district have already found (or confirmed), the ‘underlying concern of the [CFAA] [is] damage to data’ and ‘the statute was not meant to cover the disloyal employee who walks off with confidential information.’ . . . Rather, there must be destruction or impairment to the integrity of the underlying data. . . . Thus, Mintel has not demonstrated that it suffered the type of damage contemplated by [the CFAA]. ” Mintel also did not suffer a recoverable loss because an “alleged loss” must also have stemmed from the impairment or unavailability of data or interruption of the service of a system.
In both these recent cases, the plaintiff employers are not without other remedies against the offending parties, particularly under relevant state laws dealing with protection of trade secrets and confidentiality. The CFAA has a definite place to play in protecting valuable data and system assets, but its role fits a very specific set of circumstances. Beacuse of this in many courts, at least, it will continue to be more difficult to shoehorn within the CFAA framework claims for breaches of trade secrets or confidentiality obligations.
Opinion in ReMedPar v. AllParts Medical: ReMedPar
Opinion in Mintel v. Neergheen: Mintel