New York Federal Court Limits Scope of Computer Fraud and Abuse Act October 23, 2009

In a rare opinion that was handed down last week (and reported in today’s New York Law Journal), a New York Federal Court took the time to provide some detail into what actions constitute a violation of the Federal Computer Fraud and Abuse Act (“CFAA”). The statute, which carries both civil and criminal penalties, provides that one may not transmit “a program, information, code, or command” that would irretrievably remove data or information from a “protected computer.” The full statute can be read at 18 U.S.C. §1030. As a practical matter, this statute comes into play with respect to the prosecution of hackers, as well as disloyal employees who breach their fiduciary duty to their employers, and remove data from the computer system, either maliciously, or even trying to cover the tracks of their inappropriate activities.

Interestingly, for purposes of imposing liability under the CFAA, the Court noted that simply hitting the delete button will not suffice; citing a Seventh Circuit case, Int’l Airport Ctrs., L.L.C. v. Citrin, 440 F.3d. 418 (7th Cir. 2006),  “merely pressing the delete key on a computer does not remove data but rather ‘removes the index entry and pointers to the data file so that the file appears no longer to be there.” Id. “Such deleted files,” wrote the Court, “are easily recoverable.” Id.

The Court continued, “Even though pressing the delete key technically ‘transmits a command’ to the computer,” it would render the statute (which, as stated above also carries criminal implications) too broad.  On the other hand, where, as in this case, the defendant allegedly used a secure-erasure program, such actions would fall within the ambit of the CFAA.

Jonathan Cooper is a New York Business Litigation and New York Commercial Litigation Lawyer with a focus on New York breach of contract and New York business fraud claims before the Nassau, Queens, Brooklyn, Bronx, Westchester and Suffolk County courts of New York State. For more information, feel free to contact his Long Island office at 516-791-5700.

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