Originally enacted in 1984 to address the growing problem of computer hacking, the Computer Fraud and Abuse Act has been used to prosecute a wide variety of behavior, such as the violation of a non-compete agreement by a former employee, the leak of classified government materials, and cyber-bullying. The perceived breadth of activities prohibited by the CFAA is staggering and, as previously suggested by the authors, may not be constitutional.1 The courts have had a lot to say about this topic, and recent congressional action indicates a belief that the reach of the statute is overbroad. The Justice Department does not agree.
The CFAA proscribes the knowing access of a computer used in or affecting interstate or foreign commerce or communication without authorization or in excess of authorized access.2 The statute provides that the term “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”3 The exact meaning of this definition has arisen in recent CFAA prosecutions targeting individuals alleged to have violated an employer’s computer use policy or website or Internet service provider policies in the use of a computer.
Employment Cases
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