Yesterday the Texas Lawyer featured a piece written by Michael Maslanka, managing partner of the Dallas office of Constangy, Brooks & Smith and author of the blawg Work Matters, entitled "Circuits Split on Important CFAA Issue."
The article provides an excellent overview of the growing split in authority over the scope of the Computer Fraud and Abuse Act, an issue that Maslanka believes "[t]he U.S. Supreme Court eventually will resolve."
Mr. Maslanka's article highlights four important reasons why this issue is "ripe for review" by the Supreme Court:
1. The CFAA's "unauthorized access" provision is "of interest to all employers."
2. "There is a well-developed body of authority on both views."
3. "[T]he CFAA imposes criminal liability, not just civil," meaning that employees may face criminal sanctions without fair notice.
4. "U.S. attorneys across the country need to know whether to prosecute."
So how might the high court resolve this issue? Mr. Maslanka offers the following forecast: "Because of the criminal aspect, I predict a 9-0 vote siding with the reasoning of the 4th and 9th Circuits. If an employee may end up in the penitentiary, the legal prohibition must be clear, not open to differing interpretations."
I highly recommend reading the full article, which you can find here.