In order to be a “protected computer” within the meaning of the federal Computer Fraud and Abuse Act (the “CFAA”), the computer must be used in interstate commerce at the time of the allegedly unauthorized access of the computer, the U.S. District Court for the District of Massachusetts held.  Pine Env. Servs., LLC v. Charlene Carson and Palms Env. and Survey, LLC, No. 1:14-cv-12830-IT (D. Mass. August 20, 2014).

Defendant Charlene Carson was employed by Plaintiff.  When she resigned her employment to join a competitor, she did not return her company-owned laptop.  Approximately two months after leaving her employment, Carson’s roommate observed her in their apartment working on the laptop.  The roommate left the room and when he returned found a note from Carson asking that he return the laptop to Plaintiff.

After Carson’s roommate returned the laptop, Plaintiff performed a forensic analysis of the laptop and learned that a software program called CCleaner was installed on the laptop and was used after Carson’s last day of employment with Plaintiff to destroy data and files, the internet browsing history, and event log entries on the laptop.  Plaintiff brought several state law claims against Carson and her new employer as well as a CFAA claim.  The CFAA protects computers that are used in or affect interstate commerce or communication from unauthorized use or access.

The CFAA provides a private right of action in certain situations where there is a loss of at least $5,000 when someone (1) knowingly and with intent to defraud, accesses a protected computer or exceeds authorized access and by such means furthers the intended fraud and obtains anything of value; or (2) knowingly causes the transmission of a program, information, code, or command, and as a result intentionally causes damage without authorization to a protected computer; or (3) intentionally accesses a protected computer without authorization and as a result causes damage and loss.  Plaintiff asserted the laptop was a protected computer because the company was engaged in providing rental equipment to other businesses throughout the country, Plaintiff’s principal place of business was in a different state from the one in which Carson lived and worked, and the laptop was used in interstate commerce and communication.

The court dismissed the CFAA claim because the laptop was only being used in interstate commerce when Carson was employed by Plaintiff.  Carson’s use of the laptop during her employment was authorized.  The unauthorized use of the laptop happened after the end of Carson’s employment with Plaintiff and thus occurred at a time when the laptop was not being used in interstate commerce.  The court found that the fact that the laptop formerly was used in interstate commerce did not make the later deletion of files from the laptop an action that was “interstate” in nature.

This decision highlights the importance of requiring employees to return all company-owned devices immediately upon their separation from employment.