Two federal courts have issued important rulings scaling back the use of the Computer Fraud & Abuse Act (“CFAA”), 18 U.S.C. 1030, et seq., for alleged violations of online agreements.  These decisions are noteworthy in the trade secret area because employers and businesses have used the CFAA when they believe that a former employee or competitor has improperly accessed their electronic records.  In the first decision, EarthCam, Inc. v. OxBlue Corp., et al., 2017 WL 3188453 (11th Cir. Aug. 1, 2017), the U.S. Court of Appeals for the Eleventh Circuit rejected a claim that a competitor’s access of a customer account violated the CFAA (a link to the opinion can be found here).  And in the second, hiQ Laboratories, Inc. v. LinkedIn Corp., Case No. 3:17-cv-03301 (EMC) (N.D. California Aug. 14, 2017), Judge Edward Chen of the U.S. District Court for the Northern District of California found that a violation of LinkedIn’s online terms and conditions did not support a CFAA claim.  (A link the opinion can be found here).  Judge Chen’s opinion is particularly noteworthy because it appears to depart from some of the reasoning of a recent decision by the U.S. Court of Appeals for the Ninth Circuit that allowed Facebook to invoke the CFAA.  As explained below, these rulings may signal a growing judicial reluctance to allow the CFAA to be used to limit otherwise publicly-available information.
Continue Reading Two Important Rulings Scale Back the Computer Fraud & Abuse Act for Violations of Digital Service Contracts