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Facebook at Work Isn’t Crime: Appeals Court

Employees who check Facebook, shop
online or send personal e-mail from work in violation of their
companies’ policies aren’t committing a crime under a federal
computer fraud law, a U.S. appeals court said.

Today’s decision came in a lawsuit in which federal
prosecutors charged a former Korn/Ferry International (KFY) (KFY) employee
with trade secret theft and mail fraud and violations of the
Computer Fraud and Abuse Act for getting information from the
company’s database to start a competing business. Prosecutors
appealed a district court ruling throwing out the computer fraud
charges.

“Minds have wandered since the beginning of time and the
computer gives employees new ways to procrastinate” though
workers are rarely disciplined for such conduct, wrote Judge
Alex Kozinski for a majority of appeals court judges in San
Francisco. “Under a broad interpretation of the CFAA, such
minor dalliances would become federal crimes.”

Kozinski cited a Florida case in which an employee suing
her company for wrongful termination was countersued by the
employer for violations of the CFAA because she checked Facebook
and sent personal e-mails at work. The employee would have had
to face the claims if the anti-hacker CFAA, which punishes an
individual who “exceeds authorized access” on a computer for
stealing, was construed to include violations of company
computer use policies, Kozinski said.

Florida Counterclaims

A federal court had dismissed the company’s counterclaims
in the Florida case.

Dan Gugler, a spokesman for Los Angeles-based Korn/Ferry,
didn’t immediately return a voice-mail message seeking comment
on today’s ruling.

“The decision leaves intact the ability of the government
to prosecute someone for getting into a computer they don’t have
permission to get into,” said Dennis Riordan, an attorney for
David Nosal, the Korn/Ferry employee. “What it prevents from
happening is people getting prosecuted from watching March
Madness at work.”

The case against the ex-Korn/Ferry worker is U.S. v Nosal,
10-10038, U.S. Court of Appeals for the Ninth Circuit (San
Francisco).

To contact the reporter on this story:
Karen Gullo in San Francisco at
kgullo@bloomberg.net

To contact the editor responsible for this story:
Michael Hytha at mhytha@bloomberg.net

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