Clifford Chance

Ninth Circuit Declares Watching YouTube on Your Work Computer Is Not a Federal Crime: Creates Circuit Split

13 April 2012

Employees who use their work computers for personal reasons, like watching YouTube videos, checking box scores, shopping or even stealing confidential documents from their employers, can rest a little easier today because – at least according to the Ninth Circuit – such conduct does not expose them to criminal or civil liability under the Computer Fraud and Abuse Act ("CFAA").  Specifically, just last week, the Ninth Circuit issued its long-awaited en banc opinion in United States v. Nosal, concluding that the CFAA does not apply to employees who use otherwise authorized access to their employers' computer systems for non-business purposes, even where such use breaches corporate policy or an employee's duty of loyalty to their employer.  No. 10-10038 (9th Cir. Apr. 10, 2012) ("Slip Op.").  The Ninth Circuit's opinion, however, departs dramatically from decisions by the First, Fifth, Seventh and Eleventh Circuits, each of which have upheld CFAA application in circumstances where employees have used their authorized access to employers' computer systems for unauthorized purposes.  Until either Congress steps in and clarifies its intent or the Supreme Court resolves this clear circuit split, the Nosal decision will hamper the ability of employers and prosecutors (at least in the Ninth Circuit) to pursue civil claims or criminal charges under the CFAA against rogue employees who misappropriate their employers' confidential information by using a work computer.  

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