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David Nosal

Former Korn/Ferry International executive recruiter David Nosal has reached the end of the road in his attempt to overturn his criminal conviction under a controversial federal anti-hacking statute.

The U.S. Supreme Court denied Nosal’s petition for certiorari Tuesday, leaving in place his conviction under the Computer Fraud and Abuse Act (CFAA) and a one-year sentence handed down by U.S. District Judge Edward Chen in 2014.

Nosal’s lawyer, Dennis Riordan of Riordan & Hogan, didn’t respond to an email message Tuesday morning. A spokesman for the U.S. Attorney’s Office for the Northern District of California, which prosecuted the case, didn’t respond to a request for comment.

Nosal’s case tested the boundaries of the CFAA, which critics have complained criminalizes common online behavior such as sharing passwords. But the events that led to Nosal’s arrest and prosecution perhaps weren’t necessarily the best avenue for the high court to delve into what constitutes unauthorized access to a computer under the law, which was enacted in 1986 before the dawn of the internet age.

Nosal left Korn/Ferry, the largest executive search firm in the world and where he was a regional director, to secretly start a rival business. Other former Korn/Ferry employees who were working with him used a Korn/Ferry secretary’s password to log into a proprietary database of job candidates to build the new outfit’s candidate lists. A San Francisco jury convicted Nosal in 2013 of violating the CFAA and stealing trade secrets.

“I don’t think the Supreme Court is going to use this case as the one to clarify any of the open issues in the CFAA,” said Bradford Newman, a partner in the employment law department of Paul Hastings, who followed the case but was not directly involved in it.

Newman said he thinks a series of decisions from the U.S. Court of Appeals for the Ninth Circuit in the Nosal case and others have clarified that routine web behavior isn’t subject to criminal prosecution. Said Newman: “I think the parade of horribles doesn’t exist any longer—if it ever did.”

Ross Todd

Ross Todd is bureau chief of The Recorder in San Francisco. He writes about litigation in the Bay Area and around California. Contact Ross at rtodd@alm.com. On Twitter: @Ross_Todd.

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