The Intended Use Theory of access under the Computer Fraud and Abuse Act (“CFAA”) has been all the rage among since the Ninth Circuit handed down its opinion in United States v. Nosal but that doesn’t mean the Agency Theory has gone by the wayside. Just last week a district court used the Agency Theory (set forth by the Seventh Circuit in International Airport Centers, LLC v. Citrin) to determine that an employee, who after changing loyalties from his existing employer to another, accessed his then-employer’s computer and deleted data from the computer before turning it back in, destroyed data without authorization in violation of the Computer Fraud and Abuse Act. Lawyers, perhaps it isn’t time to forget about the Agency Theory just yet!
The case is LKQ Corporation v. Thrasher, 2011 WL 1984527, — F. Supp.2d — (N.D. Ill. May 23, 2011) and in it the court stated: “no allegation specifically noting that LRQ restricted his access to his company computer is necessary to state a Computer Fraud and Abuse Act claim. LKQ’s allegation of breach of duty are enough to properly allege that Thrasher lost his authorization to access his company computer. See Int’l Airport Ctr. L.L.C. v. Citrin, 440 F.3d 418, 420-21 (7th Cir. 2006)” and, on this basis, denied Thrasher’s Motion to Dismiss.
It is worth noting that, though Thrasher did have a contractual agreement with LKQ that prohibited him from competing with LKQ, the agreement did not define the permissible uses of LKQ’s computer system or place any restrictions thereon. In the Seventh Circuit, which follows the Citrin Agency Theory of access, this was still a violation of the CFAA. Had this occurred in the Ninth, Eleventh, or Fifth Circuits, it probably would not have been as they follow the Intended Use Theory as set forth in United States v. Nosal, United States v. Rodriguez, and United States v. John, respectively. For a more thorough explanation of this go HERE.
What does this teach you if your company has a computer that others access? That’s right, we lawyers are good for something every so often!
- Bye Bye Brekka – Hello Nosal: Ninth Circuit Warms-up to Intended-Use Theory of “Access” Under the Computer Fraud and Abuse Act (shawnetuma.com)
- Ninth Circuit: Speculative “Loss” Insufficient for Computer Fraud and Abuse Act (shawnetuma.com)
- No Computer Fraud and Abuse Act Violation for Access of Facebook and Personal Email by Employee — Lee v. PMSI (ericgoldman.org)
- Ninth Circuit Holds That Violating Any Employer Restriction on Computer Use “Exceeds Authorized Access” (Making It a Federal Crime) (volokh.com)
- 9th Cir: Access of Computer in Violation of Employer’s Use Policy Violates Computer Fraud and Abuse Act — US v. Nosal (ericgoldman.org)