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Have you ever been distracted at work, aimlessly looking through blogs, Facebook, or Twitter to help you make it to the end of a long Monday? Most people have found themselves in this situation at some point, although probably few have considered the possibility that their internet browsing could be deemed a federal crime. Yet, the U.S. Goverment claimed just that in a case before the Ninth Circuit. Based on an expansive view of the Computer Fraud and Abuse Act (CFAA) intended to combat internet hacking, the government “argued that CFAA targeted both hackers and people who are authorized to use a computer, but do so for an unauthorized purpose.” Considering the fact that a 2009 study found that over half of the companies surveyed completely prohibited any social media use by their employees at work, things like checking your personal e-mail account while on the job could fall under the government’s inclusion of using a computer “for an unauthorized purpose” in its broad view of the CFAA.
Luckily for procrastinators everywhere (or at least those in states within the Ninth Circuit, like California, Nevada, and others), the court rejected the government’s proposed interpretation of the CFAA. Chief Judge Alex Kozinski held that adopting such a broad view would risk that interpretation being extended to make “such minor dalliances” as watching a sports game on ESPN.com or online shopping while at work into federal crimes. Although personal use of work computers is “routinely prohibited by many computer-use policies,” the Ninth Circuit was concerned with the “millions of unsuspecting individuals [who] would find that they are engaging in criminal conduct” if the government’s view was accepted by the court. Judge Kozinski also noted that the government’s interpretation of the CFAA would have the potential to be enforced arbitrarily or in a discriminatory manner against employees. By finding that checking Facebook accounts at work is not a federal crime, the court’s opinion focused on the original intent of the CFAA to punish hackers and those who access a computer without authorization.
This opinion by the Ninth Circuit conflicts with previous decisions on the issue by the Fifth, Seventh, and Eleventh Circuits, which all took a broader view of the CFAA. The disagreement among the circuit courts may set the stage for a Supreme Court decision to settle the dispute on the proper interpretation of the act. Until then, bored employees should check what circuit court their state is in– those in the Ninth Circuit can rest assured that sending a tweet or ordering from Amazon on their work computer will not result in federal criminal charges. Being safe from such charges, however, does not mean that social media use at work will not result in discipline from employers for violating company policies on computer use… so procrastinate with care!
– Megan DeLockery
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