Court: Employee was authorized to access files (updated)

A Ninth Circuit Court of Appeals decision may be of interest to those who wonder about suing former employees for unauthorized to data. In LVRC Holdings V. Brekka, the court held:

LVRC Holdings, LLC (LVRC) filed this lawsuit in federal district court against its former employee, Christopher
Brekka, his wife, Carolyn Quain, and the couple’s two consulting businesses, Employee Business Solutions, Inc., a Nevada corporation (EBSN), and Employee Business Solutions, Inc., a Florida corporation (EBSF). LVRC alleged that Brekka violated the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, by accessing LVRC’s computer “without authorization,” both while Brekka was employed at LVRC and after he left the company. See 18 U.S.C. § 1030(a)(2), (4).

The district court granted summary judgment in favor of the defendants. We affirm. Because Brekka was authorized to use LVRC’s computers while he was employed at LVRC, he did not access a computer “without authorization” in violation of § 1030(a)(2) or § 1030(a)(4) when he emailed documents to himself and to his wife prior to leaving LVRC. Nor did emailing the documents “exceed authorized access,” because Brekka was entitled to obtain the documents. Further, LVRC failed to establish the existence of a genuine issue of material
fact as to whether Brekka accessed the LVRC website without authorization after he left the company.

Update: Jennifer Granick of EFF has posted a legal analysis of this case that you can read here. She writes, in part:

The Brekka opinion is in line with the more recent and better line of district court cases that have rejected a “thought crime” interpretation of the CFAA where the employee’s mental state determines whether she was authorized or not. Brekka says that neither the statutory language nor the canons of criminal law allow such a broad reading that leaves people uncertain of when this criminal statute would apply.

The opinion puts the Ninth Circuit at odds, however, with an older Seventh Circuit opinion in International Airport Centers v. Citrin, written by the well-known Judge Posner. Brekka and Citrin are the only appellate court decisions on the question of whether a breach of loyalty makes computer use criminal, but there’s now a circuit split. It will be interesting to see whether the plaintiffs in Brekka ask the Supreme Court to review the matter. For now, Brekka is solidly in line with current jurisprudence giving a proper, narrower scope to the CFAA.

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