doesn't employee authorized to access information on his employer's computers exceeds such authorized access under the computer fraud and abuse act when he accesses and uses the information for nefarious reasons he knows to be prohibited by his employer policies the district court said no we are here today to ask this court to reverse the decision of the district court that court was wrong for two primary reasons st this court's decision in whole today excuse me the district court defendant intentionally access to computer without authorisation or by exceeding authorized access in obtained information from the protected computer which cause a loss to one or more persons during any one year period aggregating at least five thousand dollars in value the motion to dismiss and a rule twelve b six brought in the district court as well as district court's opinion focus exclusively on the nd element more specifically did royal plaintiff in this case sufficiently allege these defendants had exceeded their authorized access to the company computers and cellular phones and there's two verbs that two views that have emerged around the country regarding this issue they've been described as a broad approach in a narrow approach the majority of circuits have adopted the broad approach which is that including the st th th th and th if you can you talk about the different to conduct here are a couple different things that happened right they deleted information and then they sent out information but yes there's a few we break it down to break it down by statute yes your honor so if we are asking the court to adopt the broad approach the statute if the court adopts that approach then if there is a policy which in this case there's very clear policies that prohibit them from destroying information including the data on these devices from the cellular phone in the computer is very clear policies prohibiting that if the court adopts the broad approach then when they violated those policies in furtherance of the scheme they were involved then they would have also violated the statute but then it says and thereby obtains information from any protected computer how does deleting information from a computer that you have access to constitute obtaining information i think your honor is actually getting to the heart of the dispute between in their own broad approaches because usually does not get a nagging right to it because because really your honor it gets down to whether whether is the narrow approach says if you have access to information it doesn't matter how you use it if you use it in a way that's nefarious improper or something that violates an employer policy or rule you don't violate the broader which word uses an i mean the key phrase there i think is exceeds authorize access it doesn't say exceeds authorized use your honor a lot of the courts have sort of focused on the access point as opposed to just a broader if you do anything that might be a use and so it violate the statute your honor i would go a step further and say that the court should focus on the actual statutory definition of exerts authorized access which if you look at the actual language and i won't go through and cite every dictionary definition that i did within my brief i know the court could read that but the conclusion of that is the plain language definition of what it means to be not entitled so to obtain or  information is that means not granted or furnished with a suitable or appropriate basis for seeking to gain possession of or modify information in the manner indicated and the crux of the dispute between what did you  exceeds authorized access is defined term right phrase and that means to access a computer to access a computer not information to access a computer with authorization and to use such access meaning access to a computer with auster authorization to obtain or alter information so this is obtaining or altering so far not using in the computer that and this is now restrictive clause which is modifying information to to just say again attain or alter information in the computer that the excess or is not entitled so to obtain or alter and so now we're talking about what so means and i and others kind of put my cards on the table so it would seem to me pretty clearly to refer back to use such access in other words you could say obtain or alter information on the computer that the accessor is not entitled to use such access to obtain or alter and what is such access w that's the st phrase access a computer so obtain or alter information in the computer that the excess or is not entitled to access the computer to obtain or alter and so it's just all about back obtaining or altering without access to without authorization it would seem we would suggested a different focus on the word so i guess similar to the approach taken by the government in th what do you think so means it's referring to something that just happened in the sense young questionably i think to divorce him to directly into the court's question so i think the dictionary definition is in the way or manner indicated right and that's so we look back at some adverbial phrase here because that's been indicated in this definition and the one that's there is you such access i mean would you agree with me at that far to the extent that it's consistent within the way or manner indicated yes but i think you're in such access as access a computer but i think critically what we're overlooking in that piece of the definition is the word intitled ok so in according to supreme court as well as this court they've defined in other situations as well as the dictionary title means to furnish with proper grounds for seeking or claiming so i think that's critical within the statute when you look at the plain language be quiescent the th circuit right it seems like you know that's just  synonym for authorization isn't i mean i don't know about this proper grounds business and even you even the th circuit in the nose you're a right simply gives you a right to get in there and you know obtain the information that even the th circuit in the knows will case acknowledge that the interpretation that the government in that case was advancing as we are here of the dictionary definition word of title and the dictionary definition of the word so we're we're plausible offers and they centrally are saying that we recognize this what the th circuit did and we recognize that that is the definition of entitled and that is the definition of so but we're concerned about the outcome of that choice well i mean i'm not advocating the th circuit's reason what i just laid out really has nothing to do with those sort of consequentialist rationales i mean i'm just trying to figure out what the word the word so in context here it's a seems to mean what it means and entitled that it's just i mean the th circuit did think entitled was easy and they just said that's you know in this context that's just you're authorized and that doesn't seem to sort of mystical to me your honor this court while it is not squarely addressed this issue in poultry did consider the meaning of the word sex seeds auster are the seeds authorized access under the c f a and i think that that is that decision is instructive the reasoning used by that court i think is useful to the court in reaching today's decision today there was a national plaintiff homebuilder who sued a national union and a couple of its officers the plaintiff there alleged among other claims in its complain that the defendants had accessed their computer systems without authorization under the city does not make it a little different in our case as yes this isn't a with this is a to with without authorization case right this is a exceeded authorized access yes your honor admittedly that case did not deal with an exceeds authorized classic access claim however the court's reasoning in explaining why it found the plaintiff there had not sufficiently alleged without authorization is instructive for this court in determining the meaning exceeds authorization because the court specifically there it went through and in order to find it in a legit construe the term without authorization said there is no statutory definition but it's commonly understood as with permission or sanction could be dicta it is wasn't at all relevant to the outcome right that i would disagree with your honor it is dicta within the decision but it was certainly reasoning that was important to the city because what the court did is in order to explain to illustrate how it reached its conclusion without authorization it said we should compare the two prohibitions because while they are somewhat similar they are distinct and in doing so the court very particular specifically said that unlike the phrase without authorization the c f a hopefully defines exceeds authorized access as accessing a computer with authorization and they read the whole definition and then they say under this definition an individual who is authorized to use a computer for certain purposes but goes beyond those limitations has exceeded authorized access in contrast a person who uses a computer without authorization has no rights limited or otherwise to access a computer in question and then it would be easy to write a policy to say you are off arise to access the information in our database for only the following reasons that would be really easy and that's sort of what that that rule would track  you know you're authorized for certain purposes but not for other purposes but so what you have here is is a blanket authorization to access and then a restriction on the use of that information as opposed to the access to it and i mean it's sort of a royal truck kind of road its own ticket here you know it could have said you cannot access for any reason other than our our business purposes and so on it wasn't written that way your honor in the policy that's alleged in the complaint which is paragraph sixteen g page forty one of the page one hundred and forty one of the record i would highlight this one particular and this is one on mung i read you're not going to read them all but i would i like this one among many although the company strives to ensure that each employee has access to the resources needed to perform his or her job the company also expects all employees understand that the use of those resources is limited to of their jobs any unauthorized use retention or disclosure of any company resources  all go through and explain that all of the equipment given to them the data stored there on all of those things are intended only for business purposes not to be disclosed outside of the area so i mean they're clearly informing that you two more questions one sorry just the  deletion point one that of maybe i'm far more properly under section five under a five which talks about intentionally causing damage without authorization because that may be so that you don't plea of this way but doesn't win that maybe go more towards the deleting your honor the honest answer and you're right now as to my recollection there's a reason why i didn't plead it that way and i don't know the exact answer that question standing here i can't without looking back statute akasha one last question about your damages are based entirely on the costs of remedying the express lead with respect to the deletion of the e mails no the forensic investigation is going to be on the deletion it well it was it was incurred because one we needed to recover deleted materials to to determine what actually transpired the entire so for example that entire chart in there which lays out the the path and breathing a plan of what transpired much of that is reconstructed from the deleted communications that we were able to obtain so we can determine what was actually done what was taken what was forwarded much of that so that investigation cost more than five thousand dollars yes ok i have one question here let me let's assume that the company policy said we're limited to use these computers for business purposes only now let's assume that in one day one of the employees decided to spend the whole day playing games on the computer would you claim that it exceeded authorize use and is therefore a violation of the c f a your honor this is the precise concern that has been raised by the courts taking the approach the nose of court court i would suggest and urge this court to follow the path of the th circuit in the th circuit the th circuit explicitly in addressing in distinguishing itself from the th circuit and breck of the time specifically said in the way that they construe the statute was to say ok well if the employer if the employee knows has reason to know that what they're doing is prohibited by the employer and in furtherance of an illegal scheme that they can exceeding their authorize access that's the path that they've taken with that i think that is a path that is consistent with the instruction statute in a reasonable path to take and if you look significantly in every single one of these cases that is reached the circuit courts making the splits we don't have any of these innocuous situations where somebody has gone to the computer and accidentally stumbled into something and we have a situation like the one here where somebody is engaged in a fairy scheme with very clear intentions to take information from a company's computer systems for their personal and more often a competitor's benefit or in the criminal context for some kind of crime that are participating are of you've answered my question would would have the employers play games on the policy the company just  sweeps broadly but if there's a concern there that concern is for congress to amend and that's also the why i have suggested that ls we shouldn't interpret it so broadly and to interpret or narrow slit question well look see the in order to get to a place where it's interpreted narrowly the court in the court obviously could find this just has to be ambiguous if the statutes plain and clear on its face then it should be applied as it's written without any of this resort to these if that's you doesn't say anything about  using for purposes using purposes not permit so i mean this idea that it plainly on its face criminalize using as opposed to obtaining without authorization  i'll confess i'm scratching my head on that well the statute give you thirty seconds ok and then you can think about it for a revote are in the statute does and i guess i would urge the court to also focus on the word intitled in the definition of that it what the authorization is they've been giving in that they can go beyond that and that you can be given a suitable basis in one scenario but not in another circumstance of wreckage self not look at that but i'll yield ok no that's fine thank land language of the statute doesn't refer to the use of data it focuses on obtaining in altering information and so what do you think this was aimed at sort of like you know sony type you know sony hacks and when you're looking at exceeds authorization that's looking at insiders and there's there's a way to view that in which you can have access authorized access to a computer system and use that access to access information you are not entitled to obtain so you have a password for the computer but then you are somebody password for you know the secret files or whatever it is that the scenario is seriously your honor i mean and my law firm the same system briefs that holds my partner's compensation i'm not entitle x you're not you know you get that you're not authorized exactly your honor and i think the word entitle can certainly be read you know as brother counsel points to that word i think that can certainly be read as what you say you are entitled to i'm sorry what i what information you are entitled to obtain and you're the employees here you're there to employees they sell tractor and truck trailer service and parts before they resigned they forwarded emails from their own company email to their own personal email there's no allegation that they didn't have access to their company's email at that time nor that they weren't entitled to access the information but you probably not going to lay out the facts here in that what do you think i mean the majority of circuits are contrary to your position so what mistake are they making your you sure your honor i think that the  courts that have adopted the broader approach were largely focused on the specific scenarios in front of them for example and in rodriguez in that case the the court was faced with an individual who worked have authorization to access and use that information for that purpose since then your honor districts in that same circuit have have gone on to attempt to distinguish rodriguez in scenarios like this one where it's merely an employee who's violated some employer policy the courts are more than happy to let that be the province of the state court for a breach of loyalty claim for breach of contract claim that's what we're talking about here not if i relates to information that is permanently lost not information such as an email account that is primarily held on the cloud i'm not but that i would quite read that way but but maybe your friend will come up with a reason why he didn't play it that way   where where that information is stored in a central server that simply wiping a computer d or wiping a cellphone that may also contain personal information does not constitute destroying the doc if it's still that you know the master copy is how elsewhere in other words if i were to delete a you know a document that i had saved on a system it would not constitute a violation and that you weren't actually altering the data itself just that copy of another answer was the one i tried to your friend is that this still requires eventers altering it still requires that you be obtaining information from a protected computer and i see a difference between obtaining and deleting  appellant has used cited this case as in support of adopting the broad approach but i think that if you actually read the language that the supreme court sets forth i don't think that that some was their intention in doing so that they they recognize that there are two crimes identified by the c f a that you can obtain access without authorization or you can obtain access with authorization but use that access improperly but when they say use that access they're not talking about using that information and properly so you can use your access improperly to access information you're not entitled to obtain about about closer to home t authorization there right and your honor i think that the way that defines exceeds authorization is that you can authorize access for certain purposes  i think that goes to exactly what we're talking about with the word entitled and whether or not you are entitled to authorize certain information not to access certain information on the computer at that does not necessarily reflect the overall use of that information in the future that is a contract issue between the two part your honor most of the courts that have adopted the broad approach have since narrowed their view and and recognize the the criticism that that approach has has received throughout the other circuits adopting that broad approach will criminalize every day behavior it will impede upon the traditional province of the state courts to take to deal with you to address no one question you've been raising regarding deletion or destruction so at least in the context of why i think it falls into the image of the statute as well as because within it it has to it because  the company policies i think it does fall intersection one thousand and thirty eight to the destruction of the cellular phone or all the data and the rewriting of the operating system because to the extent the court adopts the broad approaches to what we're asking there are very clear company policies prohibiting them from destroying the information on their on their it is just a guess still has to be done to obtain information i think the obtaining of the information when i'm arguing against is that of act obtaining that information for the purpose of destroying it i mean i guess in some sense what is two i'd also like to address my use of the massage case i am by no means suggesting that musashi you decided this issue that they have ruled in that this court is now bound as ever the court i'm not suggesting that when i'm saying is it would be willfully naive of me to suggest that this is not probably somewhat of a close call given the split split around the judiciary in the country and i'm saying that among trying to figure out where to go we have got one statement relevant to this from the supreme court on it asking the court to decide this circuit split in raising it and then the court in that case when they decided it they were reversed they were affirming and saying there was an error that at the trial court level a criminal trial there had been an instruction of the jury mistakenly all the parties agreed saying to prove a case she had to prove without authorization and exceeds authorized access instead of war instead of just citing the statute the court then said stated there's two ways to violate the statute one they said they stated o access to computer to computer about authorization but think critically the nd part they said but pending access with authorization but then using that access improperly which is very very similar language to a lot of the courts below in the way they describe t divide so that it's as you just read it i mean it's using that access using the access to the computer improperly i e by using it to obtain or alter information that you're that you're not x authorized to access i mean that's kind of what it sounds like were could certainly mean i would suggest the word improperly means more than that when they're talking there  point is in that phrase they're not talking about access to the information they're talking about access to the computer when they talk about improper use right and they're saying you used your access to the computer improperly wouldn't that's when that naturally given what the statute says wouldn't that mean using it to obtain or alter information that you're that itself you're not allowed to access your i see my toeplitz yeah yeah u sing i would say using that access to obtain or alter information in the way or manners in the way or manner you're not allowed so i mean well let me back up a step further actually i don't know your red lights so i want to take court may call the next case