The following is an abstract of my latest law review article that is being published by the University of South Carolina Law Review.The title of the article is “What Does CFAA Mean and Why Should I Care?”–A Primer on the Computer Fraud and Abuse Act for Civil Litigators. It should be out in the late Fall 2011 and will be available on this site once published.
Shawn E. Tuma*
Computer fraud is threat to businesses worldwide that is increasing at an exponential rate. Businesses victimized by computer fraud often seek the help of civil litigation attorneys to fight the ensuing legal battles caused by computer fraud. In this article the author draws on his years of litigation experience to explain why, in order to be prepared for this role, civil litigation attorneys need to be familiar with the Computer Fraud and Abuse Act (“CFAA”); the CFAA is the most frequently used law to combat computer fraud. The CFAA provides for civil claims to recover damages and, more importantly, injunctive relief that, when used properly, can effectively win a case from the very beginning. The author then explains why the CFAA, as interpreted and applied, is challenging to master because of its complicated nature as well as the fact that as a body of law it is still evolving jurisprudentially and courts often reach different outcomes on some of its integral provisions. Because of these uncertainties, the CFAA is laden with procedural and substantive pitfalls that can present many problems for unprepared attorneys. The author provides the litigation practitioner with a guide to much of the basic information related to asserting a civil claim under the CFAA which will be helpful to all attorneys handling CFAA civil claims, whether prosecuting or defending. Lastly, the author examines some of the more frequently litigated issues arising under the CFAA including the “access” issue and the very recent opinion by the Ninth Circuit Court of Appeals in United States v. Nosal, a case that could finally usher the CFAA to the United States Supreme Court.