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Disgruntled employees beware. Erasing files on your company laptop as you leave the firm could trigger expensive civil liability under a federal anti-hacker law, according to a recent 7th U.S. Circuit Court of Appeals ruling. Since 1984, Congress has expanded the Computer Fraud and Abuse Act (CFAA)-which was originally intended to punish hackers who break into computer networks or send computer viruses-giving employers new civil remedies. Now, in one of a very few appellate interpretations of the anti-hacking law, a 7th Circuit opinion by Judge Richard Posner on March 8 adopts an expansive view of the law holding that permanently erasing files from an individual laptop computer could trigger federal liability. International Airports Centers v. Citrin, No. 05-1522. “One interesting question is: Has the ruling really opened the door to federal courts for more employment disputes?” asked Ronald Marmer of Jenner & Block in Chicago who represents employee Jacob Citrin. “What this means is anybody who destroys an employer’s computer, even by new technology, exposes themselves now to this statute,” said attorney Don H. Reuben of Chicago’s Kane, Carbonara & Mendoza for International Airport Centers LLC (IAC), a provider of warehouse space. 21st century RICO Few employers have resorted to the anti-hacking law over the years because people simply don’t know about it or its breadth, according to Nick Akerman of Dorsey & Whitney’s New York office, who specializes in trade secret and computer litigation. “People are just starting to use it. This will be the RICO of the 21st century,” Akerman said. The law requires only that the knowing transmission of a program, code or command intentionally damages, without authorization, a protected computer. In this case Citrin, a managing director at IAC, helped the company locate and acquire warehouse space near airports for rental. When Citrin decided to leave IAC and go into business for himself, in alleged violation of his employment contract, he deleted files on a company laptop and then used a special program to scrub the files, rendering them impossible to recover, according to the allegations. The company sued for violation of the anti-hacking law and state law claims, but the case was thrown out in January 2005 by U.S. District Judge Wayne Andersen, who held that deleting material from a computer does not constitute “transmission” under the law. But Posner said Congress was concerned with both external attacks on computers via a virus or worm, and insider attacks from disgruntled programmers who decide to trash a system. Posner wrote that although Citrin had authorization to use the computer, it stopped when he decided to quit IAC and-in alleged violation of his employment contract-went into business for himself and destroyed computer files. It was unlikely that the company intended to authorize him to destroy data that he knew the company could not duplicate, according to Posner. ‘Extremely broad view’ Akerman said Posner has taken “an extremely broad view of CFAA.” The law doesn’t require the information to be confidential, only that it be valuable. Akerman said that the key element is whether the employee exceeded authorized access. Reuben said that this opinion “puts employees on notice if they introduce a program to whitewash a computer memory so it can’t be recovered, they are going to have a real problem.” Akerman said that the law is a potentially powerful tool for companies to protect proprietary information. “You’ve got the right to go to court and get injunctions to stop use of the material and return it. You can go to a federal judge and get instant justice.” In one of the few other circuit rulings on the CFAA, Judge Frank Easterbrook, also in the 7th Circuit, said last year, “Electronics and communications change rapidly while each legislator’s imagination is limited.” They don’t predict new technologies but give broad guidance. That may mean every cellphone or cell tower, every iPod or wireless base station at a corner coffee shop is a “computer” under this law, he said. U.S. v. Mitra, 405 F.3d 492 (2005).

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