Keep Up with Current Employment Law Issues

Can an employee be found criminally or civilly liable under the Computer Fraud and Abuse Act (CFAA”) for accessing digital information to which she or he had authorization when done for an improper purpose? The answer prior to the June 2021 decision by the U.S. Supreme Court in Van Buren v. United States, 141 S. Ct. 1648 (2021), was unclear and varied between jurisdictions.

The Defend Trade Secrets Act of 2016 (“DTSA”) turned five years old on May 11, 2021.  As a follow-up to our last article concerning misappropriation of trade secrets litigation, we are devoting this article to a review of the litigations which have arisen out of this relatively new statute.

Every state has common law or statutory law prohibitions against the theft or disclosure of trade secrets. The Federal law is the Defend Trade Secrets Act of 2016 (the “DTSA”) (18 U.S.C. §1836, et seq.). New York relies on common law which creates civil liability for misappropriation of trade secrets.

Trade secrets are only protected under the DTSA if they are related to “a product or service used in, or intended for use in, interstate or foreign commerce.” (18 U.S.C. § 1836(b)).