When Taking Proprietary Information from Employers Isn’t a Crime

In the cases of United States v. Nosal, — F.3d –, 2012 WL 1176119 (9th Cir. April 10, 2012) and United States v. Aleynikov, — F.3d –, 2012 WL 1193611 (2d Cir. April 11, 2012), the Second and Ninth circuits interpreted three different federal statutes: the Computer Fraud and Abuse Act (CFAA), the National Stolen Property Act (NSPA), and the Economic Espionage Act (EEA). Taken together, the Department of Justice – at least in the Ninth and Second circuits – will be unable to use the CFAA, NSPA, and the EEA to prosecute theft of trade secrets unless the information was obtained by hacking; consisted of more than intangible property; and was designed to enter or pass in commerce.