Right for the Wrong Reasons: The Ninth Circuit Excludes Misappropriation from the CFAA's Ambit in United States v. Nosal

Abstract

On April 10, 2012, in United States v. Nosal, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, held that the Computer Fraud and Abuse Act (“CFAA”) assigns criminal liability only in instances of hacking, not of misappropriation. In reaching this conclusion, the court engendered a split with two other circuits, which had previously held that the CFAA encompasses misappropriation as well as hacking. This Comment argues that, although the Ninth Circuit correctly excluded misappropriation from the CFAA’s ambit, the court’s rationale overlooked a more compelling policy consideration favoring the narrow interpretation: the potential disruption that a broad interpretation of the CFAA could cause within trade secret law.