Who Messed Up Tis Computer?
By Jack L. ShuLtz aNd RoBeRt B. tRuhe Guest Writers
A federal district court in Texas answered
the question listed above by pointing the finger at prior employees of a technology company. Tose former employees allegedly downloaded and then deleted confidential and proprietary information belonging to their employer. Te employees then left to start a competing venture. As you might expect, the former employer filed a lawsuit in federal court and the issues and conclusions apply equally well in Nebraska.
THE COMPANY POLICY Te former employer must have been a
reader of their trade association newsletter because the former employer made sure to write down a policy about computer usage. Tat policy stated that it is “inappropriate conduct” to use the company computer system to engage in private or personal business activities. Te policy also stated that it was “inappropriate conduct” to make unauthorized copies of data or to delete data. Interestingly enough, one of the former employee defendants helped write the policy.
THE ACTIVITIES Te former employees in question allegedly
copied confidential company information. Te former employees then deleted the information from the company computer. Finally, the former employees left the company to launch a competing venture.
FEDERAL LAW Te Computer Fraud and Abuse Act
(CFAA) establishes liability for anyone who
“knowingly and with intent to defraud” exceeds authorized access to a protected computer and obtains anything of value to further the intended fraud. Te federal court concluded that all of the former employees exceeded their authorized access to the computer system and that the value of the misappropriated information completed the requirements to state a claim under the CFAA. Te CFAA also establishes liability for anyone who knowingly causes the transmission of a program, information, code or command and thereby causes intentional damage to a protected computer. Te federal court concluded that the alleged use of a hard drive erasure program stated an additional claim under the CFAA. Finally, the CFAA establishes liability for anyone who intentionally accesses a protected computer and causes damage and loss. Te federal court concluded that the former employer stated a claim under this section of the CFAA as well.
NEBRASKA LAW In 2008, the federal district court in
Nebraska stated that under Nebraska law it is a generally recognized principle that an employee owes a duty of loyalty to his employer during the course of his employment. In that case the defendant employees breached the duty of loyalty by intentionally preventing the employer from discovering that specific customers are considering not renewing their business with the employer and taking steps to persuade customers not to renew their business with the employer in order that a competing firm could take over the accounts. In addition, the Nebraska Uniform Trade Secrets Act
applies to misappropriation of proprietary information even if there is not an employment relationship. In other words, activities of the type alleged to have occurred in Texas would have been actionable in Nebraska under both federal and state law.
CONCLUSION All employers should develop and
distribute a computer use policy to all employees. Te types of computer usage which are considered by the employer to be “inappropriate” should be clearly spelled out. Incorporating the prohibitions found in the CFAA and in Nebraska state law is a good starting point. However, each employer and business has unique proprietary and confidential information, and the written policy should be clear in spelling out that information and prohibiting its misappropriation. All employers hope to avoid litigation involving employee misuse of computers and the information stored on those computers. However, in the event such a situation develops, a written policy is extremely valuable, as it was in this Texas case. Write your policies carefully! Nt
Editor’s Note: Tis article is not intended to provide legal advice to our readers. Readers are urged to consult their own legal counsel or the author of this article if the reader wishes to obtain a specific legal opinion regarding how these legal standards may apply to their particular circumstances.
NEBRASKA TRUCKER — ISSUE 4, 2014 —
www.nebtrucking.com
11
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24