October 16, 2018

Release 28 to Intellectual Property & Computer Crimes Published

The Computer Fraud and Abuse Act (CFAA) contains numerous subsections sanctioning a party for obtaining access to a protected computer either without authorization or in excess of authorization. Release 28 to my treatise, Intellectual Property & Computer Crimes features an analysis of these concepts of authorization, including whether authorization needs to be obtained both an individual party as well, as an entity that controls access. In addition, there is discussion of what constitutes exceeding authorization, including using such access to obtain or alter information in the computer that the accesser is not entitled to.

The Release also examines whether individuals other than the computer’s owner may bring an action under the CFAA because they may be proximately harmed by unauthorized access, particularly if they have rights to data on the computer.

Other topics receiving treatment in this Release include:

  • Sentencing Commission amending Section 2B5.3, setting out a formula to use to determine the pecuniary harm by trademark and copyright counterfeiting by treating this infringing like theft and fraud
  • Economic Espionage Act (EEA) amending the definition of a trade secret to address “independent economic value”
  • Ninth Circuit examination of whether disclosure to a single competitor destroys trade secret protection because the information became generally known or ascertainable by the public
  • Interpretation of Section 2411(2)(D) of the Electronic Communications Privacy Act (ECPA) which only requires the consent of one party to a communication contrasted with some state laws which requires the consent of all parties

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