Computer Fraud (CFAA)

PILLOW TALK: A Threat to Trade Secrets?

It turns out that, even in romantic relationships, some things are best kept secret.  On July 7, 2017, Teva Pharmaceuticals USA, Inc. filed a complaint in the Eastern District of Pennsylvania alleging that a former executive disclosed confidential information to a romantic partner who happens to be an executive of one of Teva’s direct competitors. READ MORE

(Alleged) Spammer Squares Off With (Alleged) Hacker, Highlighting Risk of Cyber Threats

What’s in a name?  Obviously a lot, as businesses in all industries invest significant time and money to protect their reputations.  But, in some sectors, the line between positive and pejorative can be quite thin.

Take email marketing and cybersecurity, for example:  What exactly distinguishes a successful high-volume email marketer from a spammer?  And how can we distinguish a well-intentioned security analyst exposing vulnerabilities from a nefarious hacker?  (Those familiar with techspeak will surely recall the familiar “white hat” and “black hat” dichotomy, but even that, as Wired has observed, is subject to gray areas of its own.) READ MORE

Password Sharing Is Not a Crime, Ninth Circuit Reassures in Denial of Nosal’s Request for Rehearing

Since the early days of this blog, we’ve been covering the ongoing legal battle involving ex-Korn Ferry recruiter David Nosal as it winds its way through the courts. The latest chapter in this saga came on December 8, 2016, when a Ninth Circuit panel clarified that the Computer Fraud and Abuse Act (CFAA) does not criminalize innocent password sharing, in a published opinion denying Nosal’s request for a rehearing en banc. READ MORE

Amendment to Federal Criminal Procedural Rule Could Impact Trade Secret Cases

Much attention, including here at Trade Secrets Watch, has been focused in recent weeks on the Defend Trade Secret Act (“DTSA”), which overwhelmingly passed both houses of Congress in April and was signed into law by President Obama on May 11th. The DTSA gives companies new tools for combatting alleged trade secret theft, including a direct path to federal court via the addition of a private right of action to the Economic Espionage Act (EEA) and the ability to apply for ex parte seizure orders to prevent propagation or dissemination of stolen trade secrets. READ MORE

Ninth Circuit Hears Oral Arguments in United States v. Nosal, Part II

On October 20, 2015, a three judge panel of the Ninth Circuit heard oral arguments in Round II of United States v. David Nosal.  Both sides generally stuck with arguments from their briefs, with Nosal’s counsel arguing that upholding Nosal’s  conviction under the Computer Fraud and Abuse Act (the “CFAA”) would lead to criminalization of relatively minor misappropriations of information, and the government arguing that the precedent would only apply in the employment context. READ MORE

Final TPP Language on Trade Secret Protection Disclosed

On October 5, 2015, years of protracted negotiations of the Trans-Pacific Partnership Agreement (“TPP”) concluded. The TPP is a proposed trade agreement between 12 Pacific Rim nations that lowers trade barriers such as tariffs, establishes intellectual property protections, creates labor and environmental standards, and creates a framework for resolving disputes between member nations. The 12 nations participating in those negotiations are Singapore, Brunei, New Zealand, Chile, Australia, Peru, Vietnam, Malaysia, Mexico, Canada, Japan, Colombia, Philippines, Thailand, Indonesia, Taiwan, South Korea, and the United States. Conspicuously absent are the People’s Republic of China, Macao, Russia, and North Korea. READ MORE

Think Before You Tack CFAA Claims on to Your Trade Secret Misappropriation Case

Before you include a Computer Fraud and Abuse Act (“CFAA”) claim in a trade secret case, consider carefully: was the data acquired through “unauthorized access” or was it just misused by the defendants? If it was properly accessed (but later misused), your CFAA claim, and the federal question jurisdiction that comes with it, is in jeopardy. In SunPower Corp. v. SunEdison, Inc., Judge Orrick of the Northern District of California recently dismissed the plaintiff’s CFAA claim because the plaintiff failed to allege that the data was accessed without authorization, only that it was later misused.  Because the CFAA claim provided the basis for federal jurisdiction, Judge Orrick indicated that he would dismiss the entire case and not exercise pendent jurisdiction over the remaining thirteen state claims if the CFAA claim could not be properly amended. READ MORE

Orrick Launches New Cybersecurity Blog

We’re excited to announce Orrick’s new sister blog, Trust Anchor!

Trust Anchor highlights current topics in cybersecurity and data privacy, such as recent cases, legislative and regulatory developments, emerging standards, risk management strategies, and insurance coverage.  It’s not just news.  Instead, it aims to review new developments and offer actionable privacy and cybersecurity intel and strategies. READ MORE

A Preview of the CFAA Arguments in United States v. Nosal, Part II: Could “Phishing” be a Factor?

Oral arguments for the next round in United States v. Nosal have been set for October 20, 2015 at the Ninth Circuit in San Francisco.  So we figured it may be a good time to review both sides’ arguments related to the Computer Fraud and Abuse Act. After doing so, it seems to us that one topic not given any consideration in the briefs, but that may play a role during oral argument is the phenomenon known as phishing schemes, and how such schemes might be compared and contrasted with the scheme alleged in this case. READ MORE

Hacking Your Rivals – Corporate Espionage in Major League Baseball

As we approach the dog days of summer, baseball season is again in full bloom. We previously discussed old-fashioned sign stealing in the context of teams trying to gain a competitive advantage during an actual game. But it appears these hijinks have evolved in today’s electronic world. As the New York Times first reported, the FBI and Department of Justice prosecutors are investigating front-office personnel for the St. Louis Cardinals, one of Major League Baseball’s most beloved franchises, for allegedly infiltrating the internal network of the Houston Astros. READ MORE