Judge Peter M. Lauriat of the Massachusetts Superior Court decided late last year that an employee who takes confidential documents from her employer’s electronic document system to use in a discrimination lawsuit against her employer is not liable to the employer under the Computer Fraud and Abuse Act (CFAA), especially when the employer knew about the lawsuit but nonetheless did not restrict the employee’s access to those documents while she was working for the employer. In so deciding, Judge Lauriat had to grapple with two different interpretations of the CFAA, which generally makes individuals criminally and civilly liable for accessing information from a computer without authorization or in excess of authorized access. The “narrow” view limits liability to those who “hack” into a computer and do not have any authorization to access the information, while the “broad” view expands liability to employees and others who have access to the information (e.g., they have a password that allows them to view the information), but then use that information for a purpose adverse to their employer.
As the facts indicate, this case involved the latter situation. The plaintiff employee, Kamee Verdrager, starting working as a labor and employment associate at defendant Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. (Mintz Levin), one of the largest law firms in Boston. On her first day, she signed an offer letter stating that she understood and accepted Mintz Levin’s confidentiality policy, which she received and which, among other things, stated that all documents produced by the firm were Mintz Levin’s property and should not be disclosed unless for the delivery of legal services on behalf of the firm. Shortly after she started working, Verdrager felt that she was being discriminated against and, between May 2007 and November 2008, searched the electronic document system at the firm on six separate occasions for documents that might support her claims. If she found a document that she thought was helpful, she copied it or emailed it to her personal email account. She even found hundreds of transcriptions of voicemail messages to Robert Popeo, the managing partner of the firm, and she emailed them to her lawyer. She also found documents about her own case against Mintz Levin before the Massachusetts Commission Against Discrimination, which she filed in December 2007. In November 2008, Verdrager told a partner at the firm that she was aware of documents indicating widespread discrimination at Mintz Levin. Just days later, after Mintz Levin conducted a review of Verdrager’s computer activities, Verdrager was fired. She continued to pursue her discrimination claims in Superior Court, and Mintz Levin counterclaimed, alleging, among of things, that Verdrager violated the CFAA. Meanwhile, Mintz Levin also complained to the Massachusetts Board of Bar Overseers (BBO) about Verdrager’s conduct, but ultimately the BBO determined that she had not violated the rules of professional conduct. Verdrager then moved for summary judgment on Mintz Levin’s counterclaims.
In considering the CFAA claim against Verdrager, Judge Lauriat first acknowledged the two different interpretations of the CFAA, but then cited a recent case from the Massachusetts federal district court that favored the narrow view. He then stated that “it was not the obtaining of the documents that creates the basis for the defendants’ claims against Ms. Verdrager, but for what use she sought to obtain them,” adding that “Ms. Verdrager’s disloyalty cannot amount to a violation of the CFAA.” He then dismissed the CFAA claim against Verdrager.
This decision is hard to square with the decision of another federal district court judge who took the narrow view of the CFAA. In particular, Judge Nathaniel Gorton allowed a CFAA claim where the plaintiff employer alleged that the employee breached his duty of loyalty to the employer by copying confidential documents which he intended to use for a competing venture. All in all, the Verdrager case shows how hard it has become for judges to decide CFAA cases while courts continue to battle over which interpretation is the best. The Supreme Court or Congress need to step in and settle the issue.