Right now, if executives in California and Virginia each bribe a competitor’s disloyal employee to steal a trade secret from the competitor’s servers, under the federal Computer Fraud and Abuse Act (CFAA), the Government can charge one executive but not the other. Courts decide these cases differently due to the widening circuit split over the CFAA term “without authorization.” Neither the Supreme Court nor Congress has shown interest in resolving the split over authorization. Even more concerning is the suggestion that they can’t resolve it; the statute addresses too many potential scenarios for a single definition to end all debate. Where legislation cannot solve the problem, we turn to the common law. Despite the new technologies involved, over centuries working with trespass law, society has confronted these issues before. Rather than reinvent the wheel as the courts have done thus far, we need only understand the lessons learned. Recent scholarship has endorsed trespass as a framework for resolving this split. But scholarship has not begun the work to apply principles and tests from trespass treatises and historical cases to CFAA fact patterns. This Article starts that process. It first uses trespass principles to resolve the current circuit split. It next applies trespass law to resolve common scenarios from CFAA litigation.
Michael J. O'Connor,
The Common Law of Cyber Trespass,
85 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol85/iss2/4