ART :: Sunberg, Danielle E., Reining in the Rogue Employee: The Fourth Circuit Limits Employee Liability Under the CFAA (June 27, 2013). American University Law Review

Sunberg, Danielle E., Reining in the Rogue Employee: The Fourth Circuit Limits Employee Liability Under the CFAA (June 27, 2013). American University Law Review, Vol. 62, No. 5, 2013. Available at SSRN: http://ssrn.com/abstract=2286316

Abstract: The Fourth Circuit’s opinion in WEC Carolina Energy LLC v. Miller reflects a growing trend among the courts to adopt a narrow code approach to employee liability under the Computer Fraud and Abuse Act. The case exacerbates the existing circuit split and reinforces the need for reconciling when an employee accesses a computer “without authorization.” While resolution from the judiciary remains remote, Congress is engaged in a lively debate over the proper interpretation of the term “without authorization.” Recent legislative proposals suggest that Congress has united in support of limiting liability for unauthorized access under the CFAA to the circumvention of technological barriers. Support for this restrictive interpretation signifies that until the ambiguity in the law is clarified, future undecided courts should follow in the Fourth Circuit’s footsteps and adopt the code approach to determine employee liability under the CFAA.