There Is Now a Split Within the District of Massachusetts over the Proper Interpretation of the Computer Fraud and Abuse Act

            Massachusetts Lawyers Weekly reported two weeks ago on a very interesting decision from the District of Massachusetts by Judge Timothy Hillman that interprets the Computer Fraud and Abuse Act (“CFAA”).  There is now a split in how judges within the district interpret the CFAA, and this split can affect whether employers’ CFAA claims against employees survive.  Both Michael Rosen and I offer some commentary in the article, but I would add two things:

1.         With Judge Hillman’s decision, the split among the federal appellate courts over the interpretation of the CFAA has spread to affect the judges in the District of Massachusetts.  As Judge Hillman acknowledged, no case from the First Circuit, which would bind Judge Hillman, actually supports his decision to favor a narrower interpretation of the CFAA.  In fact, another district judge in Massachusetts, Judge Gorton, squarely favored the broader interpretation in a different decision.  So Judge Hillman created new law in Massachusetts that is in direct conflict with another district judge’s decision and absolutely favors employees in general.  He recognized as much when he decided not to dismiss the plaintiff’s CFAA claims but rather gave it a chance to develop the factual record to conform with the new law he created in the district. 

2.         Judge Hillman’s decision is the first substantial treatment of the CFAA in the District of Massachusetts since the Ninth Circuit’s decision in United States v. Nosal last year, and his reliance on it emphasizes that the Ninth Circuit’s influence on this issue extends far beyond the West Coast.  Indeed, the Ninth Circuit is often derided as being out of step with other circuits, but here Judge Hillman agreed with it and adopted the narrower interpretation of the CFAA.  Even so, the CFAA desperately needs to be reviewed by the Supreme Court.  Unless Congress substantially overhauls the CFAA, only the Supreme Court can settle whether the narrow or broad interpretation of the CFAA is the right one.  Another Massachusetts Lawyers Weekly article to which I contributed discussed this issue in February.

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