Pub. 6 2011-2012 Issue 2

www.nebankers.org 14 Extraordinary Service for Extraordinary Members. 5. Computer Fraud and Abuse. Federal law is not com- pletely out of the picture in this setting; a key federal stat- ute is the Computer Fraud and Abuse Act (CFAA). Among its many prohibitions, the CFAA makes it illegal to cause more than $5,000 in “damage or loss” by intentionally accessing a “protected” computer without authorization. A “protected” computer includes any computer that is used in or affects interstate commerce (who has computers anymore which do not meet this test?). “Damage or loss” is so broadly defined that the $5,000 threshold can be easily met. The CFAA can be enforced through civil litigation as well as criminal prosecution by the federal government. Civil enforcement does not require a written noncompete agreement, a written confidentiality agreement, that the information taken was a trade secret, or even proof of intentional theft (just unauthorized “access” to the employer’s computer systems is a potential violation). As a result, the law has become a formidable weapon for em- ployers who believe their employees have taken electronic information towhich they are not entitled (and conversely, a formidable threat for hiring employers who do not make sure the new employee refrains from doing so). Best Practices Every employer can take steps to assure that its employees (past, present, and future) conduct themselves properly when Q Employee Loyalty — continued it comes to proprietary information, trade secrets, customer relationships, and other goodwill. Following are a few basic “best practices”: • Recruiting and Hiring » Develop anddocument an internalmodel to be followed by all recruiters, HR staff, interviewers, and hiring managers, which prohibits any requests for, receipt of, or discussion of the candidate’s current employer’s trade secrets or other confidential information. Train all personnel involved in the hiring process on this model. » Establish with all new hires a written understanding of your ground rules for competition. This should include rules on what information and documents the new employee can and cannot bring to your organization, and the employee’s written agreement not to access the prior employer’s computer systems beyond his or her authorization or to take company data. This document can be a good place to set the tone for doing business the right way, with ethics and integrity. » Be very careful about recruiting and hiring multiple employees from the same competitor at the same time. These situations can be extremely difficult to control and can easily lead to a lawsuit for tortious interference. • Current Employees » Be sure you have a comprehensive and documented program to maintain the secrecy of your trade secrets. » Consider establishing with every employee a written