The Ninth Circuit has just handed down its long-awaited en banc decision in United States v. Nosal, the case I’ve blogged a lot about involving the scope of the Computer Fraud and Abuse Act and whether violating employee restrictions on workplace computer use is a federal crime. The opinion by Chief Judge Kozinski is a huge victory for those of us who have urged the courts to adopt a narrow construction of the CFAA. Chief Judge Kozinski’s analysis essentially adopts the argument we made in the Lori Drew case (and that I pushed in two articles) that “exceeds authorized access” has to be interpreted narrowly to avoid turning the CFAA into the statute that inadvertently criminalizes a tremendous scope of innocuous activity. From the conclusion of the opinion:

[W]e hold that the phrase “exceeds authorized access” in the CFAA does not extend to violations of use restrictions. If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly. The rule of lenity requires “penal laws . . . to be construed strictly.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). “[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” Jones, 529 U.S. at 858 (internal quotation marks and citation omitted). The rule of lenity not only ensures that citizens will have fair notice of the criminal laws, but also that Congress will have fair notice of what conduct its laws criminalize. We construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals. “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” United States v. Bass, 404 U.S. 336, 348 (1971). “If there is any doubt about whether Congress intended [the CFAA] to prohibit the conduct in which [Nosal] engaged, then ‘we must choose the interpretation least likely to impose penalties unintended by Congress.’” United States v. Cabaccang, 332 F.3d 622, 635 n.22 (9th Cir. 2003) (quoting United States v. Arzate-Nunez, 18 F.3d 730, 736 (9th Cir. 1994)). This narrower interpretation is also a more sensible reading of the text and legislative history of a statute whose general purpose is to punish hacking—the circumvention of technological access barriers—not misappropriation of trade secrets—a subject Congress has dealt with elsewhere. Therefore, we hold that “exceeds authorized access” in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.

Given that I have been beating the drum for this view for about a decade now, I am happy to conclude that Kozinski’s opinion is superb and extremely insightful. Judge Kozinski also recognizes that the Ninth Circuit is creating disagreement among the circuits:

We remain unpersuaded by the decisions of our sister circuits that interpret the CFAA broadly to cover violations of corporate computer use restrictions or violations of a duty of loyalty. See United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); United States v. John, 597 F.3d 263 (5th Cir. 2010); Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). These courts looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of “exceeds authorized access.” They therefore failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly so as to avoid “making criminal law in Congress’s stead.” United States v. Santos, 553 U.S. 507, 514 (2008). We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead. For our part, we continue to follow in the path blazed by Brekka, 581 F.3d 1127, and the growing number of courts that have reached the same conclusion. These courts recognize that the plain language of the CFAA “target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation.” Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz. 2008) (internal quotation marks omitted); see also Orbit One Commc’ns, Inc. v. Numerex Corp., 692 F. Supp. 2d 373, 385 (S.D.N.Y. 2010) (“The plain language of the CFAA supports a narrow reading. The CFAA expressly prohibits improper ‘access’ of computer information. It does not prohibit misuse or misappropriation.”); Diamond Power Int’l, Inc. v. Davidson, 540 F. Supp. 2d 1322, 1343 (N.D. Ga. 2007)(“[A] violation for ‘exceeding authorized access’ occurs where initial access is permitted but the access of certain information is not permitted.”); Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 499 (D. Md. 2005) (“[T]he CFAA, however, do[es] not prohibit the unauthorized disclosure or use of information, but rather unauthorized access.”).

As always, stay tuned. For thoughts on whether the Supreme Court might be interested in this case, see the bottom of this post.