Say you run a business. Say too that one of your employees takes computer data without authorization and later uses it against you to compete unfairly. Let’s imagine that, for some reason, trade secret protections do not apply. (There are a number of factors to be met for something to be called a trade secret, so this scenario is not overly far-fetched.) Do you have recourse in court?
It depends on where you live, and in which court you file. In federal courts, there is a disagreement whether the Crime Fraud and Abuse Act applies to employees. Some courts, like the 9th Circuit, which covers the West Coast, say it does not. Others, like the 11th Circuit that encompasses Florida, say it does.
And a good thing too for Florida businesses. That is because the Florida equivalent, called the Computer Crimes Act, does not allow those who have been hacked to pursue hackers unless the hackers have been convicted in criminal court first.
So choose you lawyer wisely; plead your causes of action judiciously; and always be prepared for appeals. Employees may still try to convince the 11th Circuit to change its mind and follow the 9th Circuit’s more recent decision putting the acts of employees outside the federal law’s reach, or ask the US Supreme Court to resolve the conflict.
Thanks to the Florida Bar Journal for its analysis of employee-hacker problems.