Computer and Internet Use

For the first time, the Supreme Court has agreed to review the Computer Fraud and Abuse Act (CFAA). The Court’s initial review of the CFAA comes in the wake of a federal circuit split as to whether the statute can only be deployed against hackers and unauthorized users of electronic systems, or also against authorized users who use the information for unauthorized purposes. The Court’s decision may significantly affect not only how law enforcement uses the CFAA, but also whether civil litigants, such as employers, may use the CFAA to defend against unauthorized employee activities.
Continue Reading U.S. Supreme Court Case Preview—Van Buren v. United States: Does Use of a Computer for an “Improper Purpose” Violate the Computer Fraud and Abuse Act?

On August 1, 2018, the National Labor Relations Board (“Board”) issued a Notice and Invitation to File Briefs, inviting the public to file briefs on whether the Board should overrule its 2014 decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held, absent special circumstances, employees who have been given access to their employer’s e-mail system have a right to use that e-mail system during non-working time for union organizing and other activities protected under Section 7 of the National Labor Relations Act (“Act”). The decision in Purple Communications overruled the standard set out in the Board’s 2007 Register Guard decision, where the Board held that employers may lawfully impose Section 7–neutral restrictions on employees’ nonwork-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity.
Continue Reading National Labor Relations Board Signals That It May Leave Purple Communications Black and Blue

Overturning existing precedent, the NLRB has ruled that certain employees have a right to use employer email systems for protected communications, unless special circumstances exist. This decision potentially has far-reaching implications and all employers who allow employees to access their email systems should promptly review their policies and practices in light of this decision.
Continue Reading Employers Beware! Employees are Permitted to Use Employer’s Email Systems for Non Work Purposes, Including Union Organizing

The rights of employees under Section 7 of the National Labor Relations Act have been given quite the digital treatment over the last few years.  In its newest decision issued on December 11, 2014, the National Labor Relations Board ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”  The full decision can be found here.
Continue Reading An In-Depth Analysis of the NLRB’s Decision to Permit Employees to Use Employer Email Systems for Union Organizing and Other Non-Work Purposes

On April 24, 2013, a federal jury in the Northern District of California found former Korn/Ferry International corporate executive recruiter, David Nosal, guilty on six counts of conspiracy, stealing trade secrets, and violations of the Computer Fraud and Abuse Act (“CFAA”). An appeal is expected, however.
Continue Reading Federal Jury Finds Executive Recruiter Guilty Stealing Trade Secrets From Former Employer In Order to Start Competing Business

This article was originally published by the Daily Journal.

By Paul Cowie and Dorna Moini

In a recent panel discussion, one of the speakers was a so-called “ethical hacker” – a hacker-turned-protector of employers’ confidential information. As someone at the forefront of cyberattacks, the ethical hacker’s opinion was that there are two types of employers: those that know they have been hacked, and those that do not. And with all of the press coverage regarding recent hacks into U.S. confidential security information, it seems our ethical hacker may well be right. Indeed, in March, James Clapper, the director of National Intelligence to the U.S. Senate Intelligence Committee, suggested that cyberattacks now pose the most dangerous immediate threat to the U.S.


Continue Reading Cyberattacks a mounting challenge for employers

By Michelle Sherman

Agatha Christie had a novel take on invention being the mother of necessity. She disagreed and said, “[I]nvention, in my opinion, arises directly from idleness, possibly also from laziness. To save oneself trouble.” She may have been onto something when you think about businesses that are turning to outside vendors to research employees and job candidates for them. Whether or not these outside vendors are the best solution, however, remains to be seen.


Continue Reading Legal Issues Surrounding Social Media Background Checks

By Michelle Sherman

If your company adopted a social media policy more than two months ago, or, if your company modeled its policy after one of the sample policies available on the Internet, then there is a very good chance that your social media policy is overbroad and needs to be revised. For example, if your social media policy prohibits social media activity that disparages the company without making it very clear that this prohibition does not include protected concerted activity (as more fully described below), then your policy needs to be amended.


Continue Reading Your Social Media Policy May Need Revamping

By Tina Rad & Gregg A. Fisch

In a first-of-its-kind ruling, on September 2, 2011, the National Labor Relations Board (NLRB) required an employer to rehire five workers it had fired after the workers posted comments about a co-worker and their employment with the company on Facebook. As part of its decision, an Administrative Law Judge with the NLRB found that the Facebook communications were a “concerted activity” that were protected by the National Labor Relations Act (the “Act”).


Continue Reading NLRB Requires Employer to Rehire and Provide Backpay to Employees Terminated for Derogatory Comments Made About Co-Worker on Facebook

It should come as no surprise that employers are trying to assert a claim for violation of the Computer Fraud and Abuse Act (“CFAA”) based on employees accessing social networking sites such as Facebook from work computers. While one employer was unsuccessful in stating a claim, employers should not give up on opportunities to assert the CFAA as a claim in an employment related action.


Continue Reading Social Media Activity In The Workplace And The Computer Fraud And Abuse Act

The Computer Fraud and Abuse Act (“CFAA”) may now give employers some teeth to enforce a well-crafted computer use policy. The CFAA punishes anyone who “knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” 18 U.S.C. § 1030(a)(4). Although primarily a criminal statute, the CFAA also includes civil remedies and a private right of action and, therefore, has broad implications for employers who want to protect trade secrets and confidential data from unauthorized access and abuse.


Continue Reading The Ninth Circuit Clarifies Application Of The Computer Fraud And Abuse Act Favorably For Employers