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Checking Facebook at Work Isn’t Crime, Appeals Court Rules

Employees who check Facebook, shop online or send personal e-mail from work in violation of their companies’ policies aren’t committing a crime under a federal computer fraud law, a U.S. appeals court said.

Today’s decision came in a lawsuit in which federal prosecutors charged a former Korn/Ferry International employee with trade secret theft and mail fraud and violations of the Computer Fraud and Abuse Act for getting information from the company’s database to start a competing business. Prosecutors appealed a district court ruling throwing out the computer fraud charges.

“Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate” though workers are rarely disciplined for such conduct, wrote Judge Alex Kozinski for a majority of appeals court judges in San Francisco. “Under a broad interpretation of the CFAA, such minor dalliances would become federal crimes.”

Kozinski cited a Florida case in which an employee suing her company for wrongful termination was countersued by the employer for violations of the CFAA because she checked Facebook and sent personal e-mails at work. The employee would have had to face the claims if the anti-hacker CFAA, which punishes an individual who “exceeds authorized access” on a computer for stealing, was construed to include violations of company computer use policies, Kozinski said.

Florida Counterclaims

A federal court had dismissed the company’s counterclaims in the Florida case.

Dan Gugler, a spokesman for Los Angeles-based Korn/Ferry, didn’t immediately return a voice-mail message seeking comment on today’s ruling.

“The decision leaves intact the ability of the government to prosecute someone for getting into a computer they don’t have permission to get into,” said Dennis Riordan, an attorney for David Nosal, the Korn/Ferry employee. “What it prevents from happening is people getting prosecuted from watching March Madness at work.”

The case against the ex-Korn/Ferry worker is U.S. v Nosal, 10-10038, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

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