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Weekly E-Discovery SnapshotPublished: 04/13/2012
This week, the Ninth Circuit ruled that checking Facebook on a work computer isn’t a crime under the federal anti-hacking Computer Fraud and Abuse Act (CFAA), even where an employer has adopted a policy prohibiting the use of work computers for non-business purposes. The government argued that the CFAA covers hackers and people authorized to use a computer but who do so for a purpose that is not authorized. The Ninth Circuit refused to extend the law to unauthorized use. Writing for the court, Chief Judge Alex Kozinski wrote, “Were we to adopt the government’s proposed interpretation, millions of unsuspecting individuals would find that they are engaging in criminal conduct.” This decision sets up a conflict with three other circuits—the Fifth, Seventh, and Eleventh—which take a broader view and, according to Kozinski, fail “to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of ‘exceeds authorized access.’” He wrote:
Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. . . . Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit. Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.
The availability of social media evidence in civil and criminal litigation has also been in the news. According to Facebook, the company requires a subpoena, warrant, or court order to disclose a user’s information. And we recently learned about what types of information Facebook might disclose in response to such a request. The Boston Phoenix obtained a copy of the police case file from the Craigslist Killer matter—the case where a 25-year-old masseuse was killed in a hotel room after meeting a client—and it included an almost 70-page printout of Philip Markoff’s Facebook information, including wall posts, login data, photos, and friend lists. (The printout also details other digital evidence involved in the case, including Craigslist accounts, e-mail addresses, and IP addresses.)

It might be more difficult to obtain this information in Maryland, however, unless you are part of law enforcement. Maryland recently became the first state to protect employees and applicants from having to disclose the usernames and passwords for electronic accounts, including social media. The law might also protect companies against litigation that they failed to monitor employees’ content—whether intentionally or negligently. “In these difficult times businesses should not be required to spend tens of thousands of dollars per year to hire social media monitoring companies to review their employees’ password protected digital content.”

As always, we hope you enjoy our content and welcome your feedback.
Jon Resnick
Worldwide Vice President, Field Operations and Marketing
Phone: 312.543.6211

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