New Jersey Opinion Calls Into Question Use of Computer Fraud and Abuse Act to Prosecute Disloyal Employee In Third Circuit

Although the Computer Fraud and Abuse Act (CFAA) is mainly a criminal statute designed to prevent hacking, it also prohibits an employee from accessing an employer’s computers “without authorization” or in a manner that “exceeds authorized access.” Employers typically attempt to invoke the CFAA when an employee downloads or emails confidential information to use for the benefit of a competitor. In the “disloyal employee” scenario, the employer may file a CFAA claim—often with a claim for misappropriation of trade secrets—because the CFAA provides a basis for federal court jurisdiction, triggers the possibility of enhanced sanctions, and arguably provides a means of protecting confidential information that does not rise to the level of a “trade secret.”