The federal Computer Fraud and Abuse Act (CFAA) allows an employer to bring a civil action against an employee who accesses the employer's computers "without authorization" or in a manner that "exceeds authorized access." In WEC Carolina Energy Solutions LLC v. Miller, shortly before the employee resigned from his position as project director for WEC, he downloaded to his personal computer and emailed to himself or his assistant a substantial number of WEC's confidential documents. Shortly thereafter, the employee resigned and used WEC's information to make a presentation to a potential WEC customer on behalf of WEC's competitor. Although WEC had authorized the employee's access to the company's intranet and computer servers, WEC's policies prohibited using that information without authorization or downloading it to a personal computer. After the customer awarded two projects to the competitor (allegedly as a result of the employee's actions), WEC sued its former employee under the CFAA, claiming that he violated the CFAA because, under WEC's policies, he was not permitted to download WEC's proprietary information to a personal computer. By doing so, WEC argued, the employee either: (1) lost all authorization to access the confidential information; or (2) exceeded his authorization.

The Fourth Circuit  held that the plain meaning of the terms "without authorization" or "exceeds authorized access" does not encompass a scenario where the employer allows the employee access to data and the employee then uses that information improperly. The court took a more literal and narrow interpretation of "without authorization" and "exceeds authorized access," holding that these terms apply "only when an individual accesses a computer without permission or obtains or alters information on a computer beyond that which he is authorized to access."

To learn more about the decision and its potential implications for employers, please continue reading Littler's ASAP, Fourth Circuit Joins Courts Limiting Employers' Use of the Computer Fraud and Abuse Act to Prosecute Disloyal Employees, by Matthew Hank and Nina Markey.