MercuryNews.com on April 10, 2012 released the following:
“By Howard Mintz
Warning that merely looking up sports scores or online dating services at work could lead to a prison cell, a federal appeals court on Tuesday reined in the federal government’s power to prosecute employees who stray from their bosses’ rules on using company computers.
In a case against a Danville man, the 9th U.S. Circuit Court of Appeals found the Justice Department had gone too far in enforcing a nearly 30-year-old computer hacking law, expressing concern that on-the-job “minor dalliances” with Facebook and Google “would become federal crimes.”
The 9th Circuit, in its 9-to-2 ruling, limited the scope of the 1984 Computer Fraud and Abuse Act, saying it cannot be used to prosecute someone simply for the unauthorized use of information on their workplace computers. The decision sets up a possible showdown in the U.S. Supreme Court because federal courts around the country have ruled otherwise.
The case has been closely watched by digital civil liberties groups, which have warned that prosecutors can bring criminal charges for violating routine corporate rules on the use of work computers. Redwood City-based Oracle, however, sided with the government in the appeal, saying in court papers that the anti-hacking law may be needed to punish employees who steal inside information.
But the court majority clearly was concerned that a heavy hand could slap cuffs on minor offenders.
“Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights,” Chief Judge Alex Kozinski wrote. “Basing criminal liability on violations of private computer use policies can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved.”
The case centered on the prosecution of David Nosal, an executive at Korn/Ferry International, a San Francisco corporate recruiting firm. Federal prosecutors alleged that Nosal and co-workers illegally foraged in the company’s database for information to establish a rival company and charged him with trade secrets theft and violations of the anti-hacking law.
Even with the 9th Circuit ruling, several charges remain against Nosal, including the trade secrets allegations. But the charges of unauthorized use of a computer under the anti-hacking law became the focus of the 9th Circuit legal showdown.
Nosal’s lawyers, backed by the Electronic Frontier Foundation, argued that employees should not face criminal prosecution under anti-hacking statutes when they have a right to use their company computers, but violate corporate policy on the type of information accessed on those computers. They insisted such a broad reading of the law could expose employees to criminal investigations for routine violations of corporate policies.
Orin Kerr, a George Washington University law professor and expert on the statute, said the 9th Circuit got it right.
“What Kozinski is saying is that under the government’s view, most people are criminals,” Kerr said. “It’s an important victory for Internet rights. It limits the power of the government to prosecute people for innocent activity.”
The Justice Department declined to comment. But government lawyers argued in the appeal that Nosal was prosecuted only because he was accused of using his workplace computer to steal his employer’s secrets. They denied a wider threat of prosecuting people for surfing the Web at work.
Two 9th Circuit judges agreed, dissenting from the ruling.
“This case has nothing to do with playing sudoku, checking email, fibbing on dating sites or any of the other activities the majority rightly values,” Judge Barry Silverman wrote Tuesday.
“It has everything to do with stealing an employer’s valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited.””
Douglas McNabb – McNabb Associates, P.C.’s
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