FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID NOSAL,

Defendant-Appellant.

 Nos. 14-10037

14-10275

D.C. No.

3:08-cr-00237-EMC-1

OPINION

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Argued and Submitted October 20, 2015

San Francisco, California

Filed July 5, 2016

Before: Sidney R. Thomas, Chief Judge and Stephen

Reinhardt and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;

Dissent by Judge Reinhardt
2 UNITED STATES V. NOSAL

SUMMARY*

Criminal Law

The panel affirmed convictions for knowingly and with

intent to defraud accessing a protected computer “without

authorization,” in violation of the Computer Fraud and Abuse

Act (CFAA), and for trade secret theft, in violation of the

Economic Espionage Act (EEA); and vacated in part and

remanded the restitution order for reconsideration of the

reasonableness of the attorneys’ fees award.

The panel held that the defendant, a former employee

whose computer access credentials were revoked, acted

“without authorization” in violation of the CFAA when he or

his former employee co-conspirators used the login

credentials of a current employee to gain access to computer

data owned by the former employer and to circumvent the

revocation of access. The panel rejected the defendant’s

contentions regarding jury instructions and sufficiency of the

evidence in connection with the CFAA counts, as well as his

sufficiency-of-the-evidence, instructional, and evidentiary

challenges to his EEA convictions for trade secret theft.

The panel determined that the restitution order was within

the bounds of the statutory framework set forth in the

Mandatory Victim Restitution Act, rejecting the defendant’s

contention that the award is invalid because it exceeds the

actual loss that the district court determined for purposes of

the SentencingGuidelines. Reviewing for abuse of discretion

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. NOSAL 3

the district court’s decision to award nearly $1 million, the

panel remanded for the district court to reconsider the

reasonableness of the award with respect to the defendant’s

former employer’s attorneys’ fees.

Dissenting, Judge Reinhardt wrote that this case is about

password sharing, and that in his view, the CFAA does not

make the millions of people who engage in this ubiquitous,

useful, and generally harmless conduct into unwitting federal

criminals.

COUNSEL

Dennis P. Riordan (argued) and Donald M. Horgan, Riordan

& Horgan, San Francisco, California; Ted Sampsell-Jones,

William Mitchell College of Law, St. Paul, Minnesota; for

Defendant-Appellant.

Jenny C. Ellickson (argued), Trial Attorney, Criminal

Division, Appellate Section; Leslie R. Caldwell, Assistant

Attorney General; Sung-Hee Suh, Deputy Assistant Attorney

General; United States Department of Justice, Washington,

D.C.; Barbara J. Valliere, Assistant United States Attorney,

Chief, Appellate Division; Kyle F. Waldinger and Matthew

A. Parrella, Assistant United States Attorneys; United States

Attorney’s Office, San Francisco, California; for PlaintiffAppellee.

JamieWilliams, San Francisco, California, for Amicus Curiae

Electronic Frontier Foundation.
4 UNITED STATES V. NOSAL

Martin Hansen, Covington & Burling, Washington, D.C.;

Simon J. Frankel and Matthew D. Kellogg, Convington

& Burling, San Francisco, California, for Amicus Curiae

BSA | The Software Alliance.

David Nied, Keenan W. Ng and Michael S. Dorsi, Ad Astra

Law Group, San Francisco, California, for Amicus Curiae

NovelPoster.

OPINION

McKEOWN, Circuit Judge:

This is the second time we consider the scope of the

Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C.

§ 1030, with respect to David Nosal. The CFAA imposes

criminal penalties on whoever “knowingly and with intent to

defraud, accesses a protected computer without

authorization, or exceeds authorized access, and bymeans of

such conduct furthers the intended fraud and obtains anything

of value . . . .” Id. § 1030(a)(4) (emphasis added).

Only the first prong of the section is before us in this

appeal: knowingly and with intent to defraud accessing a

computer “without authorization.” Embracing our earlier

precedent and joining our sister circuits, we conclude that

“without authorization” is an unambiguous, non-technical

term that, given its plain and ordinary meaning, means

accessing a protected computer without permission. This

definition has a simple corollary: once authorization to access

a computer has been affirmatively revoked, the user cannot

sidestep the statute by going through the back door and

accessing the computer through a third party. Unequivocal
UNITED STATES V. NOSAL 5

revocation of computer access closes both the front door and

the back door.

Nosal worked at the executive search firm Korn/Ferry

International when he decided to launch a competitor along

with a group of co-workers. Before leaving Korn/Ferry,

Nosal’s colleagues began downloading confidential

information from a Korn/Ferry database to use at their new

enterprise. Although they were authorized to access the

database as current Korn/Ferry employees, their downloads

on behalf of Nosal violated Korn/Ferry’s confidentiality and

computer use policies. In 2012, we addressed whether those

employees “exceed[ed] authorized access” with intent to

defraud under the CFAA. United States v. Nosal (Nosal I),

676 F.3d 854 (9th Cir. 2012) (en banc). Distinguishing

between access restrictions and use restrictions, we concluded

that the “exceeds authorized access” prong of § 1030(a)(4) of

the CFAA “does not extend to violations of [a company’s]

use restrictions.” Id. at 863. We affirmed the district court’s

dismissal of the five CFAA counts related to Nosal’s aiding

and abetting misuse of data accessed by his co-workers with

their own passwords.

The remaining counts relate to statutory provisions that

were not at issue in Nosal I: access to a protected computer

“without authorization” under the CFAA and trade secret

theft under the Economic Espionage Act (“EEA”), 18 U.S.C.

§ 1831 et seq. When Nosal left Korn/Ferry, the company

revoked his computer access credentials, even though he

remained for a time as a contractor. The company took the

same precaution upon the departure of his accomplices,

Becky Christian and Mark Jacobson. Nonetheless, they

continued to access the database using the credentials of

Nosal’s former executive assistant, Jacqueline Froehlich-
6 UNITED STATES V. NOSAL

L’Heureaux (“FH”), who remained at Korn/Ferry at Nosal’s

request. The question we consider is whether the jury

properly convicted Nosal of conspiracy to violate the

“without authorization” provision of the CFAA for

unauthorized access to, and downloads from, his former

employer’s database called Searcher.1 Put simply, we are

asked to decide whether the “without authorization”

prohibition of the CFAA extends to a former employee whose

computer access credentials have been rescinded but who,

disregarding the revocation, accesses the computer by other

means.

We directly answered this question in LVRC Holdings

LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009), and reiterate

our holding here: “[A] person uses a computer ‘without

authorization’ under [the CFAA] . . . when the employer has

rescinded permission to access the computer and the

defendant uses the computer anyway.” Id. at 1135. This

straightforward principle embodies the common sense,

ordinary meaning of the “without authorization” prohibition.

Nosal and various amici spin hypotheticals about the dire

consequences of criminalizing password sharing. But these

warnings miss the mark in this case. This appeal is not about

password sharing. Nor is it about violating a company’s

internal computer-use policies. The conduct at issue is that

of Nosal and his co-conspirators, which is covered by the

1 As in Nosal I, Nosal did not himself access and download information

from Korn/Ferry’s database. Nosal was convicted of three substantive

CFAA counts on either an aiding and abetting or conspiracy theory. 

Under either, Nosal is liable for the conduct of Christian and Jacobson. 

See Pinkerton v. United States, 328 U.S. 640, 647 (1946) (conspiracy

liability); United States v. Short, 493 F.2d 1170, 1172 (9th Cir. 1974)

(aiding and abetting liability).
UNITED STATES V. NOSAL 7

plain language of the statute. Nosal is charged with

conspiring with former Korn/Ferry employees whose user

accounts had been terminated, but who nonetheless accessed

trade secrets in a proprietary database through the back door

when the front door had been firmly closed. Nosal

knowingly and with intent to defraud Korn/Ferry blatantly

circumvented the affirmative revocation of his computer

system access. This access falls squarely within the CFAA’s

prohibition on access “without authorization,” and thus we

affirm Nosal’s conviction for violations of § 1030(a)(4) of the

CFAA.

The dissent mistakenly focuses on FH’s authority,

sidestepping the authorization question for Christian and

Jacobson. To begin, FH had no authority from Korn/Ferry to

provide her password to former employees whose computer

access had been revoked. Also, in collapsing the distinction

between FH’s authorization and that of Christian and

Jacobson, the dissent would render meaningless the concept

of authorization. And, pertinent here, it would remove from

the scope of the CFAA any hacking conspiracywith an inside

person. That surely was not Congress’s intent.

We also affirm Nosal’s convictions under the EEA for

downloading, receiving and possessing trade secrets in the

form of source lists from Searcher. We vacate in part and

remand the restitution order for reconsideration of the

reasonableness of the attorneys’ fees award.
8 UNITED STATES V. NOSAL

BACKGROUND

I. FACTUAL BACKGROUND

Nosal was a high-level regional director at the global

executive search firm Korn/FerryInternational. Korn/Ferry’s

bread and butter was identifying and recommending potential

candidates for corporate positions. In 2004, after being

passed over for a promotion, Nosal announced his intention

to leave Korn/Ferry. Negotiations ensued and Nosal agreed

to stay on for an additional year as a contractor to finish a

handful of open searches, subject to a blanket noncompetition agreement. As he put it, Korn/Ferry was giving

him “a lot of money” to “stay out of the market.”

During this interim period, Nosal was very busy, secretly

launching his own search firm along with other Korn/Ferry

employees, including Christian, Jacobson and FH. As of

December 8, 2004, Korn/Ferry revoked Nosal’s access to its

computers, although it permitted him to ask Korn/Ferry

employees for research help on his remaining open

assignments. In January 2005, Christian left Korn/Ferry and,

under instructions from Nosal, set up an executive search

firm—Christian & Associates—from which Nosal retained

80% of fees. Jacobson followed her a few months later. As

Nosal, Christian and Jacobson began work for clients, Nosal

used the name “David Nelson” to mask his identity when

interviewing candidates.

The start-up company was missing Korn/Ferry’s core

asset: “Searcher,” an internal database of information on over

one million executives, including contact information,

employment history, salaries, biographies and resumes, all

compiled since 1995. Searcher was central to Korn/Ferry’s
UNITED STATES V. NOSAL 9

work for clients. When launching a new search to fill an

open executive position, Korn/Ferry teams started by

compiling a “source list” of potential candidates. In

constructing the list, the employees would run queries in

Searcher to generate a list of candidates. To speed up the

process, employees could look at old source lists in Searcher

to see how a search for a similar position was constructed, or

to identify suitable candidates. The resulting source list could

include hundreds of names, but then was narrowed to a short

list of candidates presented to the client. Korn/Ferry

considered these source lists proprietary.

Searcher included data from a number of public and

quasi-public sources like LinkedIn, corporate filings and

Internet searches, and also included internal, non-public

sources, such as personal connections, unsolicited resumes

sent to Korn/Ferry and data inputted directly by candidates

via Korn/Ferry’s website. The data was coded upon entry; as

a result, employees could run targeted searches for candidates

by criteria such as age, industry, experience or other data

points. However, once the information became part of the

Searcher system, it was integrated with other data and there

was no way to identify the source of the data.

Searcher was hosted on the company’s internal computer

network and was considered confidential and for use only in

Korn/Ferry business. Korn/Ferry issued each employee a

unique username and password to its computer system; no

separate password was required to access Searcher. Password

sharing was prohibited by a confidentiality agreement that

Korn/Ferry required each new employee to sign. When a

user requested a custom report in Searcher, Searcher

displayed a message which stated: “This product is intended
10 UNITED STATES V. NOSAL

to be used by Korn/Ferry employees for work on Korn/Ferry

business only.”

Nosal and his compatriots downloaded information and

source lists from Searcher in preparation to launch the new

competitor. Before leaving Korn/Ferry, they used their own

usernames and passwords, compiling proprietary Korn/Ferry

data in violation of Korn/Ferry’s computer use policy. Those

efforts were encompassed in the CFAA accounts appealed in

Nosal I. See Nosal I, 676 F.3d at 856.

After Nosal became a contractor and Christian and

Jacobson left Korn/Ferry, Korn/Ferry revoked each of their

credentials to access Korn/Ferry’s computer system. Not to

be deterred, on three occasions Christian and Jacobson

borrowed access credentials from FH, who stayed on at

Korn/Ferry at Nosal’s request. In April 2005, Nosal

instructed Christian to obtain some source lists from Searcher

to expedite their work for a new client. Thinking it would be

difficult to explain the request to FH, Christian asked to

borrow FH’s access credentials, which Christian then used to

log in to Korn/Ferry’s computer system and run queries in

Searcher. Christian sent the results of her searches to Nosal. 

In July 2005, Christian again logged in as FH to generate a

custom report and search for information on three individuals. 

Later in July, Jacobson also logged in as FH, to download

information on 2,400 executives. None of these searches

related to any open searches that fell under Nosal’s

independent contractor agreement.

In March 2005, Korn/Ferry received an email from an

unidentified person advising that Nosal was conducting his

own business in violation of his non-compete agreement. The
UNITED STATES V. NOSAL 11

company launched an investigation and, in July 2005,

contacted government authorities.

II. PROCEDURAL BACKGROUND

In the first indictment, Nosal was charged with twenty

criminal counts, including eight counts under the CFAA, two

trade secrets counts under the Economic Espionage Act and

one conspiracy count. Five of the eight CFAA counts were

based on allegations that FH and Christian downloaded

material from Searcher using their own credentials while

employed by Korn/Ferry in violation of company policies. 

The district court dismissed these counts, citing our decision

Brekka, 581 F.3d 1127. That dismissal was affirmed by the

en banc court in Nosal I, and the case was remanded for trial

on the remaining counts. 676 F.3d at 864.

The government filed a second superseding indictment in

February 2013 with three CFAA counts, two trade secrets

counts and one conspiracy count. Nosal’s remaining CFAA

counts were based on the three occasions when Christian and

Jacobson accessed Korn/Ferry’s system for their new clients

using FH’s login credentials. The district court denied

Nosal’s motion to dismiss the three remaining CFAA counts,

rejecting the argument that Nosal I limited the statute’s

applicability “to hacking crimes where the defendant

circumvented technological barriers to access a computer.”

United States v. Nosal, 930 F. Supp. 2d 1051, 1060 (N.D. Cal.

2013). Alternatively, the court held that “the indictment

sufficiently allege[d] such circumvention.” Id. at 1061. A

jury convicted Nosal on all counts. The district court

sentenced Nosal to one year and one day in prison, three

years of supervised release, a $60,000 fine, a $600 special
12 UNITED STATES V. NOSAL

assessment and approximately $828,000 in restitution to

Korn/Ferry.

ANALYSIS

I. CONVICTIONS UNDER THE COMPUTER FRAUD AND

ABUSE ACT

A. Background of the CFAA

The CFAA was originally enacted in 1984 as the

Counterfeit Access Device and Computer Fraud and Abuse

Act, Pub. L. No. 98-473, § 2102(a), 98 Stat. 2190 (1984). 

The act was aimed at “hackers who accessed computers to

steal information or to disrupt or destroy computer

functionality . . . .” Brekka, 581 F.3d at 1130–31 (citing H.R.

Rep. No. 98-894, at 8–9 (1984), reprinted in 1984

U.S.C.C.A.N. 3689, 3694). The original legislation protected

government and financial institution computers,2and made it

a felony to access classified information in a computer

“without authorization.” Counterfeit Access Device and

Computer Fraud and Abuse Act § 2102(a).

2 A computer is defined broadly as “an electronic . . . data processing

device performing logical, arithmetic, or storage functions, and includes

any data storage facility or communications facility directly related to or

operating in conjunction with such device . . . .” 18 U.S.C. § 1030(e)(1). 

The CFAA’s restrictions have been applied to computer networks,

databases and cell phones. See, e.g., United States v. Valle, 807 F.3d 508,

513 (2d Cir. 2015) (restricted police databases); United States v.

Barrington, 648 F.3d 1178, 1184 (11thCir. 2011) (a university’s Internetbased grading system); United States v. Kramer, 631 F.3d 900, 903 (8th

Cir. 2011) (cell phones); United States v. Shea, 493 F.3d 1110, 1115–16

(9th Cir. 2007) (computer network).
UNITED STATES V. NOSAL 13

Just two years later in 1986, Congress amended the statute

to “deter[] and punish[] certain ‘high-tech’ crimes,” and “to

penalize thefts of property via computer that occur as part of

a scheme to defraud,” S. Rep. No. 99-432, at 4, 9 (1986),

reprinted in 1986 U.S.C.C.A.N. 2479, 2482, 2486–87. The

amendment expanded the CFAA’s protections to private

computers. Computer Fraud and Abuse Act of 1986, Pub. L.

No. 99-474, § 2(g)(4), 100 Stat. 1213-15.3

The key section of the CFAA at issue is 18 U.S.C.

§ 1030(a)(4), which provides in relevant part:

Whoever . . . knowingly and with intent to

defraud, accesses a protected computer

without authorization, or exceeds authorized

access, and by means of such conduct furthers

the intended fraud and obtains anything of

value . . . shall be punished . . . .

The CFAA defines “exceeds authorized access” as “access

[to] a computer with authorization and [using] such access to

obtain or alter information in the computer that the accesser

is not entitled so to obtain or alter.” Id. § 1030(e)(6). The

statute does not, however, define “without authorization.”

Both terms are used throughout § 1030. Subsection

1030(a)(2), which mirrors (a)(4) but requires that access be

intentional, penalizes access without authorization and

exceeding authorization. Subsection 1030(a)(1) also

3 The act was later expanded to protect any computer “used in interstate

or foreign commerce or communication.” Economic Espionage Act of

1996, Pub. L. 104-294, § 201(4)(B), 110 Stat. 3488, 3493 (codified as

amended at 18 U.S.C. § 1030(e)(2)(B)).
14 UNITED STATES V. NOSAL

incorporates both terms in relation to accessing a computer

and obtaining national security information. Subsection

1030(a)(7)(B) criminalizes extortion by threats to obtain

information “without authorization or in excess of

authorization.” The remaining subsections pertain only to

access “without authorization.” Subsection 1030(a)(3)

prohibits access “without authorization” to nonpublic

government computers. Subsections 1030(a)(5) and (6)

employ the term “without authorization” with respect to,

among other things, “transmission of a program, information,

code, or command,” § 1030(a)(5)(A); intentional access that

“causes damage and loss,” § 1030(a)(5)(C); and trafficking in

passwords, § 1030(a)(6). In construing the statute, we are

cognizant of the need for congruence among these

subsections.

B. Meaning of “Authorization” Under the CFAA

The interpretive fireworks under § 1030(a)(4) of the

CFAA have been reserved for its second prong, the meaning

of “exceeds authorized access.” Not surprisingly, there has

been no division among the circuits on the straightforward

“without authorization” prong of this section. We begin with

the two Ninth Circuit cases that bind our interpretation of

“without authorization”—Brekka and Nosal I—and then

move on to address the cases from our sister circuits that are

in accord with Brekka, agreeing that “without authorization”

is an unambiguous term that should be given its ordinary

meaning.

Brekka involved a former employee in circumstances

remarkably similar to Nosal: he wanted to compete using

confidential data from his former company. Christopher

Brekka worked as an internet marketer with LVRC Holdings,
UNITED STATES V. NOSAL 15

LLC (“LVRC”), a residential addiction treatment center. 

Brekka, 581 F.3d at 1129. LVRC assigned him a computer

and gave him access credentials to a third-party website that

tracked traffic and other information for LVRC’s website. Id.

at 1129–30. When negotiations to become part owner of

LVRC broke down, Brekka left the company. Id. at 1130. 

LVRC sued him, claiming that he violated the CFAA by

emailing certain confidential company documents to his

personal email account while an employee and also by

continuing to access LVRC’s account on the external website

after he left the company. Id.

In Brekka we analyzed both the “without authorization”

and “exceeds authorization” provisions of the statute under

§§ 1030(a)(2) and (4). Id. at 1132–36. Because the CFAA

does not define the term “authorization,” we looked to the

ordinary, contemporaneous meaning of the term:

“‘permission or power granted by an authority.’” Id. at 1133

(quotingRandom House Unabridged Dictionary139 (2001)). 

In determining whether an employee has authorization, we

stated that, consistent with “the plain language of the statute

. . . ‘authorization’ [to use an employer’s computer] depends

on actions taken by the employer.” Id. at 1135. We

concluded that because Brekka had permission to use his

employer’s computer, “[t]he most straightforward

interpretation of §§ 1030(a)(2) and (4) is that Brekka had

authorization to use the computer” while an employee. Id. at

1133.

Brekka’s access after LVRC terminated his employment

presented a starkly different situation: “There is no dispute

that if Brekka accessed LVRC’s information on the [traffic

monitoring] website after he left the company . . . , Brekka

would have accessed a protected computer ‘without
16 UNITED STATES V. NOSAL

authorization’ for purposes of the CFAA.” Id. at 1136.4

Stated differently, we held that “a person uses a computer

‘without authorization’ under §§ 1030(a)(2) and (4) . . . when

the employer has rescinded permission to access the computer

and the defendant uses the computer anyway.” Id. at 1135. 

In Brekka’s case, there was no genuine issue of material fact

as to whether Brekka actually accessed the website, and thus

we affirmed the district court’s grant of summary judgment. 

Id. at 1137.

Not surprisingly, in Nosal I as in this appeal, both the

government and Nosal cited Brekka extensively. The focus

of Nosal’s first appeal was whether the CFAA could be

interpreted “broadly to cover violations of corporate

computer use restrictions or violations of a duty of loyalty.” 

Nosal I, 676 F.3d at 862. We unequivocally said “no”: “For

our part, we continue to follow in the path blazed by Brekka

and the growing number of courts that have reached the same

conclusion. These courts recognize that the plain language of

the CFAA ‘target[s] the unauthorized procurement or

alteration of information, not its misuse or

misappropriation.’” Id. at 863 (internal citations omitted)

(alteration in original). In line with Brekka, we stated that

“‘[w]ithout authorization’ would apply to outside hackers

(individuals who have no authorized access to the computer

at all) and ‘exceeds authorization access’ would apply to

inside hackers (individuals whose initial access to a computer

4 Brekka’s authorization terminated when his employment terminated,

not because his password expired. Expired passwords do not necessarily

mean that authorization terminates: authorized account-holders often let

their passwords lapse before updating the password or contacting the

company’s technical support team for help, but expiration of a password

doesn’t necessarily mean that account authorization has terminated.
UNITED STATES V. NOSAL 17

is authorized but who access unauthorized information or

files).” Id. at 858 (emphasis in original). Because Nosal’s

accomplices had authority to access the company computers,

we affirmed the district court’s dismissal of the CFAA counts

related to the period when the accomplices were still

employed at Korn/Ferry. Id. at 864.

In Nosal I, authorization was not in doubt. The

employees who accessed the Korn/Ferry computers

unquestionably had authorization from the companyto access

the system; the question was whether they exceeded it. What

Nosal I did not address was whether Nosal’s access to

Korn/Ferry computers after both Nosal and his coconspirators had terminated their employment and Korn/Ferry

revoked their permission to access the computers was

“without authorization.” Brekka is squarely on point on that

issue: Nosal and his co-conspirators acted “without

authorization” when they continued to access Searcher by

other means after Korn/Ferry rescinded permission to access

its computer system. As Nosal I made clear, the CFAA was

not intended to cover unauthorized use of information. Such

use is not at issue here. Rather, under § 1030(a)(4), Nosal is

charged with unauthorized access—getting into the computer

after categorically being barred from entry.

The text of the CFAA confirms Brekka’s approach. 

Employing classic statutory interpretation, we consider the

plain and ordinary meaning of the words “without

authorization.” See United States v. Stewart, 311 U.S. 60, 63

(1940). Under our analysis in Brekka, “authorization” means

“‘permission or power granted by an authority.’” 581 F.3d at

1133 (quoting Random House Unabridged Dictionary 139

(2001)). Other sources employ similar definitions. Black’s

Law Dictionary defines “authorization” as “[o]fficial
18 UNITED STATES V. NOSAL

permission to do something; sanction or warrant.” Black’s

Law Dictionary 159 (10th ed. 2014). The Oxford English

Dictionary defines it as “the action of authorizing,” which

means to “give official permission for or approval to.” 

Oxford English Dictionary 107 (3d ed. 2014). That common

sense meaning is not foreign to Congress or the courts: the

terms “authorize,” “authorized” or “authorization” are used

without definition over 400 times in Title 18 of the United

States Code.5

 We conclude that given its ordinary meaning,

access “without authorization” under the CFAA is not

ambiguous. See United States v. James, 810 F.3d 674, 681

(9th Cir. 2016) (concluding that the mere fact that a broad,

but otherwise clear, statutory term is “susceptible to

application to various factual situations that can come before

a jury” does not by itself render a term ambiguous).6

5 For example, Title 18 covers a number of offenses that stem from

conduct “without authorization.” See, e.g., 18 U.S.C. § 1388(a)(2)(B)

(holding liable any personwho “willfullyand without proper authorization

imped[es]” access to a funeral of a member of the Armed Forces);

18 U.S.C. § 1831(a) (holding liable for economic espionage “[w]hoever,

intending or knowing that the offense will benefit any foreign government

. . . knowingly . . . without authorization appropriates, takes, carries away,

or conceals” trade secrets); 18 U.S.C. § 2701 (holding liable any person

who “intentionally accesses without authorization a facility through which

an electronic communication service is provided . . . and thereby obtains,

alters, or prevents authorized access to a wire or electronic communication

while it is in electronic storage”).

6 We do not invoke the rule of lenity because “the touchstone of the rule

of lenity is statutory ambiguity,” Bifulco v. United States, 447 U.S. 381,

387 (1980) (internal quotations omitted), and “[t]he rule comes into

operation at the end of the process of construing what Congress has

expressed, not at the beginning as an overriding consideration of being

lenient to wrongdoers,” Callanan v. United States, 364 U.S. 587, 596

(1961). Here, because the statute “unambiguously cover[s] the

defendant’s conduct, the rule does not come into play.” United States v.
UNITED STATES V. NOSAL 19

Implicit in the definition of authorization is the notion that

someone, including an entity, can grant or revoke that

permission. Here, that entity was Korn/Ferry and FH had no

mantle or authority to give permission to former employees

whose access had been categorically revoked by the

company.

7 There is no question that Korn/Ferry owned and

controlled access to its computers, including the Searcher

database, and that it retained exclusive discretion to issue or

revoke access to the database. After Nosal’s login credentials

were revoked on December 8, 2004, he became an “outsider”

and was no longer authorized to access Korn/Ferry

computers, including Searcher.8 Christian and Jacobson’s

credentials were also revoked after they left, at which point

none of the three former employees were “insiders” accessing

Litchfield, 986 F.2d 21, 22 (2d Cir. 1993). That the CFAA might support

a narrower interpretation, as the dissent argues, does not change our

analysis. See Moskal v. United States, 498 U.S. 103, 108 (1990) (holding

that the rule of lenity is not triggered because it is “possible to articulate”

a narrower construction of a statute).

7 The dissent rests its argument on the fact that Brekka had “no possible

source of authorization.” The same is true here—Nosal had “no possible

source of authorization” since the company revoked his authorization and,

while FH might have been wrangled into giving out her password, she and

the others knew that she had no authority to control system access.

8 Nosal argues that he cannot be held liable because, as a contractor, he

was entitled to access information from Korn/Ferry’s database. Nosal

misconstrues his authorization following his departure from Korn/Ferry:

he was only entitled to information related to his open searches, and being

entitled to receive information does not equate to permission to access the

database. Further, Nosal’s liability as a co-conspirator turns on whether

Christian and Jacobson acted “without authorization.”
20 UNITED STATES V. NOSAL

company information. Rather, they were “outsiders” with no

authorization to access Korn/Ferry’s computer system.9

Our analysis is consistent with that of our sister circuits,

which have also determined that the term “without

authorization” is unambiguous.10 Although the meaning of

“exceeds authorized access” in the CFAA has been subject to

much debate among the federal courts,11the definition of

9 We note that the terms “insider” and “outsider” in these circumstances

are simply descriptive proxies for the status of the parties here and in

Brekka. There obviously could be an “insider” in a company, such as a

cleaning or maintenance person, who is not authorized to access any

computer or company information but who, nonetheless, accesses the

company computer “without authorization.”

10 Although the Supreme Court recently affirmed a conviction under the

CFAA with facts similar to those here, it did not address interpretation of

“without authorization.” See Musacchio v. United States, 136 S. Ct. 709

(2016). Without elaboration, the Court noted that “[t]he statute thus

provides two ways of committing the crime of improperly accessing a

protected computer: (1) obtaining access without authorization; and

(2) obtaining access with authorization but then using that access

improperly.” Id. at 713.

11 See discussion in Nosal I, 676 F.3d at 862–63. Compare United

States v. Valle, 807 F.3d 508, 526–28 (2d Cir. 2015) (holding that while

there is support for both a narrow and broad reading of “exceeds

authorized access,” the rule oflenity requires the court to adopt a narrower

interpretation in the defendant’s favor), with WEC Carolina Energy

Solutions LLC v. Miller, 687 F.3d 199, 204 (4th Cir. 2012) (concluding

that “an employee ‘exceeds authorized access’ when he has approval to

access a computer, but uses his access to obtain or alter information that

falls outside the bounds of his approved access”), and United States v.

John, 597 F.3d 263, 272 (5th Cir. 2010) (“Access to a computer and data

that can be obtained from that access may be exceeded if the purposes for

which access has been given are exceeded.”), and United States v.

Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010) (holding that an
UNITED STATES V. NOSAL 21

“without authorization” has not engendered dispute. Indeed,

Nosal provides no contrary authority that a former employee

whose computer access has been revoked can access his

former employer’s computer system and be deemed to act

with authorization.

Beginning in 1991, in construing § 1030(a)(5)(A),12

the

Second Circuit recognized that “authorization” is a word “of

common usage, without any technical or ambiguous meaning

. . . .” United States v. Morris, 928 F.2d 504, 511 (2d Cir.

1991). The court reaffirmed this holding in 2015, citing

Brekka and stating that “common usage of ‘authorization’

suggests that one ‘accesses a computer without authorization’

if he accesses a computer without permission to do so at all.” 

United States v. Valle, 807 F.3d 508, 524 (2d Cir. 2015).

The Fourth Circuit’s analysis mirrors the conclusion that

the “without authorization” language is unambiguous based

on its ordinary meaning:

Recognizing that the distinction between

[“exceeds authorized access” and access

employee who violates employer use restrictions “exceeds authorized

access”), and Int’l Airport Ctrs., L.L.C. v. Citrin, 440 F.3d 418, 420–21

(7th Cir. 2006) (holding that while the “difference between access

‘without authorization’ and ‘exceeding authorized access’ is paper thin,”

an employee who breached a duty of loyalty terminated the agency

relationship and exceeded authorized access in using company laptop),

and EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 581–84 (1st

Cir. 2001) (holding that former employees who violated confidentiality

agreements exceeded authorized access).

12 This section of the CFAA criminalizes intentional “transmission of a

program, information, code, or command” to a protected computer

“without authorization” causing damage. 18 U.S.C. § 1030(a)(5)(A).
22 UNITED STATES V. NOSAL

“without authorization”] is arguably minute,

we nevertheless conclude based on the

ordinary, contemporary, common meaning of

“authorization,” that an employee is

authorized to access a computer when his

employer approves or sanctions his admission

to that computer. Thus, he accesses a

computer “without authorization” when he

gains admission to a computer without

approval. Similarly, we conclude that an

employee “exceeds authorized access” when

he has approval to access a computer, but uses

his access to obtain or alter information that

falls outside the bounds of his approved

access.

WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199,

204 (4th Cir. 2012) (internal citations omitted).

Like the other courts, the Sixth Circuit noted that “[t]he

plain meaning of ‘authorization’ is ‘[t]he conferment of

legality; . . . sanction.’ Commonly understood, then, a

defendant who accesses a computer ‘without authorization’

does so without sanction or permission.” Pulte Homes, Inc.

v. Laborers’ Int’l Union of N. Am., 648 F.3d 295, 303–04 (6th

Cir. 2011) (quoting 1 Oxford English Dictionary 798 (2d ed.

1989)). Based on ordinary usage, the Sixth Circuit similarly

reasoned that “‘a person who uses a computer ‘without

authorization’ has no rights, limited or otherwise, to access

the computer in question.’” Id. at 304 (alteration in original)

(quoting Brekka, 581 F.3d at 1133); see also United States v.

Willis, 476 F.3d 1121, 1124–27 (10th Cir. 2007) (upholding

a conviction for aiding and abetting access to a protected

computer “without authorization” where an employee gave
UNITED STATES V. NOSAL 23

login credentials for a financial information website to an

associate of his drug dealer who in turn used the accessed

information for identity theft).

In the face of multiple circuits that agree with our plain

meaning construction of the statute, the dissent would have us

ignore common sense and turn the statute inside out. Indeed,

the dissent frames the question upside down in assuming that

permission from FH is at issue. Under this approach,

ignoring reality and practice, an employee could willy nilly

give out passwords to anyone outside the company—former

employees whose access had been revoked, competitors,

industrious hackers, or bank robbers who find it less risky and

more convenient to access accounts via the Internet rather

than through armed robbery.

Our conclusion does nothing to expand the scope of

violations under the CFAA beyond Brekka; nor does it rest on

the grace of prosecutorial discretion. We are mindful of the

examples noted in Nosal I—and reiterated by Nosal and

various amici—that ill-defined terms may capture arguably

innocuous conduct, such as password sharing among friends

and family, inadvertently“mak[ing] criminals of large groups

of people who would have little reason to suspect they are

committing a federal crime.” Nosal I, 676 F.3d at 859. But

the circumstance here—former employees whose computer

access was categorically revoked and who surreptitiously

accessed data owned by their former employer—bears little

resemblance to asking a spouse to log in to an email account

to print a boarding pass. The charges at issue in this appeal

do not stem from the ambiguous language of Nosal I

—“exceeds authorized access”—but instead relate to a

common, unambiguous term. The reality is that facts and

context matter in applying the term “without authorization.” 
24 UNITED STATES V. NOSAL

The Brekka analysis of the specific phrase “without

authorization”—which is consistent with our sister

circuits—remains controlling and persuasive. We therefore

hold that Nosal, a former employee whose computer access

credentials were revoked by Korn/Ferry acted “without

authorization” in violation of the CFAA when he or his

former employee co-conspirators used the login credentials

of a current employee to gain access to computer data owned

by the former employer and to circumvent the revocation of

access.

C. Jury Instruction on “Without Authorization”

With respect to the meaning of “without authorization,”

the district court instructed the jury as follows:

Whether a person is authorized to access the

computers in this case depends on the actions

taken by Korn/Ferry to grant or deny

permission to that person to use the computer. 

A person uses a computer “without

authorization” when the person has not

received permission from Korn/Ferry to use

the computer for any purpose (such as when a

hacker accesses the computer without any

permission), or when Korn/Ferry has

rescinded permission to use the computer and

the person uses the computer anyway.

The instruction is derived directly from our decision in

Brekka and is a fair and accurate characterization of the plain

meaning of “without authorization.” Although the term

“without authorization” is unambiguous, it does not mean that

the facts don’t matter; the source and scope of authorization
UNITED STATES V. NOSAL 25

may well be at issue. Here, it was not disputed that

Korn/Ferry was the source of permission to grant

authorization. The jury instruction left to the jury to

determine whether such permission was given.

Nosal challenges the instruction on the basis that the

CFAA only criminalizes access where the party circumvents

a technological access barrier.13 Not only is such a

requirement missing from the statutory language, but it would

make little sense because some § 1030 offenses do not require

access to a computer at all. For example, § (a)(6) imposes

penalties for trafficking in passwords “through which a

computer can be accessed without authorization . . . .”

18 U.S.C. § 1030(a).

In any event, Nosal’s argument misses the mark on the

technological access point. Even if he were correct, any

instructional error was without consequence in light of the

evidence. The password system adopted by Korn/Ferry is

unquestionably a technological barrier designed to keep out

those “without authorization.” Had a thief stolen an

employee’s password and then used it to rifle through

Searcher, without doubt, access would have been without

authorization.

The same principle holds true here. A password

requirement is designed to be a technological access barrier.

13 Nosal did not object to this instruction at the jury instruction

conference. He did, however, raise the issue and offer a circumvention

instruction earlier in the proceedings and objected to an earlier version of

this instruction. Whether we review the instruction de novo or for plain

error, the result is the same because the instruction was correct.
26 UNITED STATES V. NOSAL

D. Accomplice Liability Under the CFAA

Nosal’s convictions under the CFAA rest on accomplice

liability. Nosal claims the government failed to prove the

requisite mens rea. Two instructions bear on this issue: 

aiding and abetting and deliberate ignorance. As to the

former, which is not challenged on appeal, the court

instructed that the government must prove Nosal “knowingly

and intentionally aided, counseled, commanded, induced or

procured [a] person to commit each element of the crime” and

did so “before the crime was completed . . . with the

knowledge and intention of helping that person commit the

crime.” The court also instructed that the defendant acted

“knowingly” if he was “aware of the act and [did] not act or

fail to act through ignorance, mistake, or accident.” The

adjunct deliberate ignorance instruction read: the defendant

acted “knowingly” if he “was aware of a high probability that

[Christian, Jacobson, or FH] had gained unauthorized access

to a computer . . . or misappropriated trade secrets . . . without

authorization . . . and deliberately avoided learning the truth.”

At trial, Nosal objected to the deliberate ignorance

instruction on the ground that the facts alleged did not permit

a deliberate ignorance theory. On appeal, for the first time,

he argues that the instruction is erroneous because it

undermines the requirement that Nosal had advance
UNITED STATES V. NOSAL 27

knowledge of the crime.14 We review this challenge for plain

error. See Jones v. United States, 527 U.S. 373, 388 (1999).

We have repeatedly held that a statutory requirement that

a criminal defendant acted “knowingly” is “not limited to

positive knowledge, but includes the state of mind of one who

does not possess positive knowledge only because he

consciously avoided it.” United States v. Heredia, 483 F.3d

913, 918 (9th Cir. 2007) (internal citation and alterations

omitted); see also United States v. Jewell, 532 F.2d 697, 700

(9th Cir. 1976) (“To act ‘knowingly,’ therefore, is not

necessarily to act only with positive knowledge, but also to

act with an awareness of the high probability of the existence

of the fact in question. When such awareness is present,

‘positive’ knowledge is not required.”). We have equated

positive knowledge and deliberate ignorance in upholding

conspiracy convictions and see no reason to distinguish

aiding and abetting liability. See, e.g., United States v.

Ramos-Atondo, 732 F.3d 1113, 1120 (9th Cir. 2013) (holding

the district court did not abuse its discretion by instructing the

jury on a theory of deliberate ignorance in the context of a

conspiracy to import marijuana as “‘[t]he Jewell standard

eliminates the need to establish such positive knowledge to

obtain a conspiracy conviction’” (alterations in original)

(quoting United States v. Nicholson, 677 F.2d 706, 711 (9th

Cir. 1982))).

14 The district court accommodated Nosal’s many objections to this

instruction. In particular, at his request, the instruction included the names

of the co-conspirators. When the court asked if this included “the three

people,” Nosal’s counsel said, “Right.” The instruction thus incorporated,

with no further objection or comment, FH’s name. Nosal thus waived any

challenge to inclusion of her name, which was not plain error in any event.
28 UNITED STATES V. NOSAL

Nor does the recent case Rosemond v. United States

counsel a different result. 134 S. Ct. 1240 (2014). In

Rosemond, the Supreme Court held that an accomplice must

have “advance knowledge” of the crime the principal is

planning to commit, “knowledge that enables him to make the

relevant legal (and indeed, moral) choice.” Id. at 1249. 

Nosal argues that the district court erred in not including

Rosemond’s advance knowledge requirement. But as the

Supreme Court notes, an advance knowledge requirement for

accomplice liability is not new. Id. at 1248–49. Nothing in

Rosemond suggests that the Court foreclosed a deliberate

ignorance instruction, which was not an issue in the case. 

Instead, Rosemond focuses on when a defendant must have

advance knowledge, meaning “knowledge at a time the

accomplice can do something with it—most notably, opt to

walk away.” Id. at 1249–50. The instructions here are

perfectly consonant with our line of cases extending back to

Jewell. If the Supreme Court had chosen to overturn decades

of jurisprudence, we would expect clearer direction. See

United States v. Ford, No. 15-1303, 2016 WL 1458938, at

*10 (1st Cir. Apr. 13, 2016) (holding that “willful blindness,”

including ignoring “red flags,” meets the mens rea element of

aiding and abetting liability, and discussing the impact of

Rosemond elsewhere in the opinion).

Apart from the instruction, Nosal challenges the

sufficiency of the evidence, claiming evidence of intent was

insufficient because he didn’t have advance knowledge that

Christian and Jacobson would use FH’s password. This

attack fails because, “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (emphasis in original). Extensive testimony revealed
UNITED STATES V. NOSAL 29

that Nosal wanted his team to obtain information from

Searcher all while maintaining his distance from their

activities.

Although the conviction may be upheld solely under

Pinkerton, which “‘renders all co-conspirators criminally

liable for reasonably foreseeable overt acts committed by

others in furtherance of the conspiracy,’” United States v.

Bingham, 653 F.3d 983, 997 (9th Cir. 2011) (quoting United

States v. Hernandez-Orellana, 539 F.3d 994, 1006–07 (9th

Cir. 2008)), sufficient evidence independently supports the

aiding and abetting counts.

Christian’s testimony is illustrative:

Q. Did the defendant know you were using

[FH’s] password, after you left

Korn/Ferry, to get source lists and other

documents from Korn/Ferry?

A. Yes.

Q. Any doubt in your mind that he knew

that?

A. No.

This unequivocal statement, which more than satisfies the

Jackson v. Virginia standard, is bolstered by other evidence,

including extensive testimony that Nosal wanted his team to

obtain information from Searcher while maintaining his

distance from their activities but knew and understood that

none of them had access credentials. A juror also could have

easily surmised that Nosal, having worked with FH for years
30 UNITED STATES V. NOSAL

on a daily basis, would have known that she had herself never

run custom reports, developed source lists or pulled old

source lists. When Nosal specifically directed Christian to

access Korn/Ferry’s computer system to “[g]et what I need,”

Nosal knew that the only way Christian and Jacobson could

access the source lists was “without authorization” because

Korn-Ferry had revoked their access credentials.

We affirm Nosal’s conviction on the CFAA counts.

II. CONVICTIONSUNDERTHEECONOMICESPIONAGEACT

(EEA)

The jury convicted Nosal of two counts of trade secret

theft under the EEA: Count 5 charged “unauthorized

downloading, copying and duplicating of trade secrets” in

violation of 18 U.S.C. §§ 1832(a)(2) & (a)(4); and Count 6

charged unauthorized receipt and possession of stolen trade

secrets in violation of 18 U.S.C. § 1832(a)(3) & (a)(4). Both

counts relate to Christian’s use of FH’s login credentials to

obtain three source lists of CFOs from Searcher. Count 6 also

included a “cut and paste” of a list of executives derived from

Searcher. Christian emailed Nosal the resulting lists, which

contained candidate names, company positions and phone

numbers. Nosal primarily challenges the sufficiency of the

evidence on the trade secret counts.

A. Sufficiency of the Evidence—Counts 5 and 6

Violation of the EEA requires, among other things,

“intent to convert a trade secret” and “intending or knowing

that the offense will[] injure [an] owner of that trade secret

. . . .” 18 U.S.C. § 1832(a). The jury instruction for Count
UNITED STATES V. NOSAL 31

5—downloading, copying and duplicating trade secrets—set

out the following elements:

1. At least one of the three source lists is a

trade secret (requiring agreement on

which one);

2. Nosal knew that the source list was a trade

secret;

3. Nosal knowingly, and without

authorization, downloaded, copied or

duplicated the trade secret;

4. Nosal intended to convert the trade secret

to the economic benefit of someone other

than the owner;

5. Nosal knew or intended that the offense

would injure the trade secret owner; and

6. The trade secret was related to or included

in a product in interstate commerce.

The instruction for Count 6—receiving and possessing trade

secrets—replaced the third element with a requirement of

knowing receipt or possession of a trade secret with the

knowledge that it was “stolen or appropriated, obtained, or

converted without authorization” and added the “cut and

paste” list as one of the possible trade secrets.

Nosal argues that the government failed to prove:

1) secrecy and difficulty of development, because the search

information was derived from public sources and because
32 UNITED STATES V. NOSAL

there was no evidence the source lists had not been circulated

outside Korn/Ferry; 2) knowledge of trade secret status; and

3) knowledge of injury to, or an intent to injure, Korn/Ferry.

The notion of a trade secret often conjures up magic

formulas, like Coca Cola’s proprietary formula, technical

drawings or scientific data. So it is no surprise that such

technically complex cases have been brought under the EEA. 

See, e.g., United States v. Chung, 659 F.3d 815, 819 (9th Cir.

2011) (documents related to space shuttles and rockets);

United States v. Yang, 281 F.3d 534, 540 (6th Cir. 2002)

(scientific research in adhesives); United States v. Hsu,

155 F.3d 189, 191–92 (3d Cir. 1998) (processes, methods and

formulas for manufacturing an anti-cancer drug).

But the scope of the EEA is not limited to these categories

and the EEA, by its terms, includes financial and business

information. The EEA defines a trade secret as

all forms and types of financial, business,

scientific, technical, economic, or engineering

information, including . . . compilations . . . if

(A) the owner thereof has taken reasonable

measures to keep such information secret; and

(B) the information derives independent
UNITED STATES V. NOSAL 33

economic value, actual or potential, from not

being generally known to, and not being

readily ascertainable through proper means by

the public . . . .

18 U.S.C. § 1839(3).15

The thrust of Nosal’s argument is that the source lists are

composed largely, if not entirely, of public information and

therefore couldn’t possibly be trade secrets. But he overlooks

the principle that a trade secret may consist of a compilation

of data, public sources or a combination of proprietary and

public sources. It is well recognized that

it is the secrecy of the claimed trade secret as

a whole that is determinative. The fact that

some or all of the components of the trade

secret are well-known does not preclude

protection for a secret combination,

compilation, or integration of the individual

elements. . . . [T]he theoretical possibility of

reconstructing the secret from published

materials containing scattered references to

portions of the information or of extracting it

from public materials unlikely to come to the

attention of the appropriator will not preclude

relief against the wrongful conduct . . . .

 

15 This was the text of § 1839 at the time the offenses were committed. 

Congress recently amended § 1839, replacing “the public” with “another

person who can obtain economic value from the disclosure or use of the

information.” Defend Trade Secrets Act of 2016, Pub. L. No. 114-153,

§ 2(b)(1)(A), 130 Stat. 376, 380.
34 UNITED STATES V. NOSAL

Restatement (Third) of Unfair Competition § 39 cmt. f

(1995); see also Computer Care v. Serv. Sys. Enters., Inc.,

982 F.2d 1063, 1074 (7th Cir. 1992) (“A trade secret can exist

in a combination of characteristics and components, each of

which, by itself, is in the public domain, but the unified

process design and operation of which in unique combination

affords a competitive advantage and is a protectable trade

secret” (internal citation omitted)); Boeing Co. v. Sierracin

Corp., 738 P.2d 665, 675 (Wash. 1987) (holding that “trade

secrets frequently contain elements that by themselves may

be in the public domain but together qualify as trade

secrets”). Expressed differently, a compilation that affords a

competitive advantage and is not readily ascertainable falls

within the definition of a trade secret.

The source lists in question are classic examples of a trade

secret that derives from an amalgam of public and proprietary

source data. To be sure, some of the data came from public

sources and other data came from internal, confidential

sources. But cumulatively, the Searcher database contained

a massive confidential compilation of data, the product of

years of effort and expense. Each source list was the result of

a query run through a propriety algorithm that generates a

custom subset of possible candidates, culled from a database

of over one million executives. The source lists were not

unwashed, public-domain lists of all financial executives in

the United States, nor otherwise related to a search that could

be readily completed using public sources. Had the query

been “who is the CFO of General Motors” or “who are all of

the CFOs in a particular industry,” our analysis might be

different. Instead, the nature of the trade secret and its value

stemmed from the unique integration, compilation,

cultivation, and sorting of, and the aggressive protections

applied to, the Searcher database.
UNITED STATES V. NOSAL 35

Nosal takes the view that the source lists are merely

customer lists that cannot be protected as trade secrets. This

characterization attempts to sidestep the unique nature of the

source lists, which are the customized product of a massive

database, not a list of well-known customers. Regardless,

courts have deemed customer lists protectable trade secrets. 

See, e.g., Hollingsworth Solderless Terminal Co. v. Turley,

622 F.2d 1324, 1332–33 (9th Cir. 1980) (setting out in detail

how to analyze whether a customer list is a trade secret);

Hertz v. Luzenac Grp., 576 F.3d 1103, 1114 (10th Cir. 2009)

(holding that a customer list may be a trade secret where “it

is the end result of a long process of culling the relevant

information from lengthy and diverse sources, even if the

original sources are publicly available”).

Our approach is not novel. This case is remarkablysimilar

to Conseco Finance Servicing Corp. v. North American

Mortgage Co., 381 F.3d 811 (8th Cir. 2004). Conseco was a

financial services company that issued subprime mortgages. 

Id. at 814. It generated potential customer leads through a

database of information on over 40 million individuals. Id. at

815. A computer program compiled lists of potential

customers, which were sent to branch offices as “customer

lead sheets,” coded from most promising (red) to decent

(blue). Id. Several departing staff took copies of the lead

sheets and went to work for a competitor. Id. at 816. Even

though all the information in the lead sheets was public, the

Eighth Circuit held that they were trade secrets: they “are a

product of a specialized—and apparently quite effective—
36 UNITED STATES V. NOSAL

computer program that was uniquely Conseco’s.” Id. at

819.16

Nosal also takes aim at the secrecy of the three source

lists in question, an argument that is intertwined with his

public domain/compilation claim. The jury heard more than

enough evidence to support its verdict. Christian

acknowledged that the only place she could obtain the source

lists she needed was on Korn/Ferry’s computer system. 

Notably, some of the downloaded information came from a

source list for an engagement that was opened only twelve

days prior to the April 12 downloads underlying the trade

secret counts.

Although Nosal claims that Korn/Ferry’s sharing of lists

with clients and others undermined this claim of secrecy,

witnesses who worked at Korn/Ferry did not budge in terms

of procedures undertaken to keep the data secret, both in

terms of technology protections built into the computer

system and the limitations on distribution of the search

results. For example, the Vice-President of Information

Services testified that, to her knowledge, the source lists had

never been released by Korn/Ferry to any third parties. As a

matter of practice, Korn/Ferry did not show source lists to

clients. In the occasional instance when a client was given a

source list or shown one at a pitch, it was provided on an

understanding of confidentiality, and disclosing the lists was

16 See also Rivendell Forest Prods., Ltd. v. Ga.-Pac. Corp., 28 F.3d

1042, 1046 (10thCir. 1994) (defining a trade secret as including “a system

where the elements are in the public domain, but there has been

accomplished an effective, successful and valuable integration of the

public domain elements and the trade secret gave the claimant a

competitive advantage which is protected from misappropriation”).
UNITED STATES V. NOSAL 37

contrary to company policy. It is also well established that

“confidential disclosures to employees, licensees, or others

will not destroy the information’s status as a trade secret.” 

Restatement (Third) of Unfair Competition § 39 cmt. f

(1995).

In light of the above, it would be naive to conclude that

Nosal was unaware that the information pirated by Christian

included trade secrets or that the piracy would harm

Korn/Ferry. As a former senior executive at Korn/Ferry,

Nosal was deeply familiar with the competitive advantage

Searcher provided, and was cognizant of the measures the

company took to protect the source lists generated. He signed

a confidentiality agreement stating that “information

databases and company records are extremely valuable assets

of [Korn/Ferry’s] business and are accorded the legal

protection applicable to a company’s trade secrets.” The

source lists were also marked “Korn/Ferry Proprietary &

Confidential.” While a label or proprietary marking alone

does not confer trade secret status, the notice and protective

measures taken by Korn/Ferry significantly undermine

Nosal’s claim he was unaware the source lists were trade

secret information.

Nosal’s argument that he and his colleagues were

unaware their actions would harm Korn/Ferry also holds no

water. They launched a direct competitor to Korn/Ferry and

went to great lengths to access the source lists, fully aware of

the competitive advantage Searcher gave Korn/Ferry as they

attempted to populate their own database. Christian

underscored the value of the lists through her testimony that

she and Nosal used the source lists to complete searches

faster and gain credibility with clients. They recognized that

the required substantial investment of time, money and elbow
38 UNITED STATES V. NOSAL

grease to even try to replicate the source lists would have

destroyed their prime value—immediacy.

At trial, Nosal’s counsel endeavored to attack the secrecy,

knowledge and other elements of the trade secret counts. The

jury heard extensive testimony and argument. Construing the

evidence in the light most favorable to the government, a

rational juror could have concluded that the evidence

supported convictions under §§ 1832(a)(2), (3) and (4) of the

EEA. As the Supreme Court explained just this year, our

“limited review does not intrude on the jury’s role ‘to resolve

conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” 

Musacchio, 136 S. Ct. at 715 (quoting Jackson, 443 U.S. at

319). It was no stretch for the jury to conclude that the source

lists were trade secrets, that Nosal knew they were trade

secrets and that Nosal knew stealing the source lists would

harm Korn/Ferry by helping a competitor—Nosal’s own

company.

B. Conspiracy Jury Instruction

With respect to trade secrets, the conspiracy jury

instruction stated that “the government need not prove the

existence of actual trade secrets and that Defendant knew that

the information in question was a trade secret. However, the

government must prove that Defendant firmly believed that

certain information constituted trade secrets.” Nosal argues

that the court constructively amended the indictment because

the indictment alleges theft of actual trade secrets while the

jury instruction did not require proof of actual trade secrets. 

Constructive amendment occurs where “the crime charged is

substantially changed at trial, so that it is impossible to know

whether the grand jury would have indicted for the crime
UNITED STATES V. NOSAL 39

actually proved.” United States v. Howick, 263 F.3d 1056,

1063 (9th Cir. 2001) (citations and alterations omitted). Here,

there was no constructive amendment. In indicting Nosal for

theft of trade secrets under 18 U.S.C. § 1832(a), the grand

jury necessarily considered whether Nosal “knowingly” stole

the source lists; “firmly believed” is a lesser standard. A

grand jury that indicted on this more inclusive “knowing”

standard would necessarily have indicted on this lesser

standard.

In a related vein, Nosal claims that the instruction unfairly

removes the requirement to prove an actual trade secret. The

instruction reflects our circuit’s precedent on conspiracy

charges—a conviction may be upheld even where the object

of the crime was not a legal possibility. See United States v.

Rodriguez, 360 F.3d 949, 957 (9th Cir. 2004) (upholding

convictions for conspiracy to rob cocaine traffickers where

“neither the narcotics nor the narcotics traffickers actually

existed” since “[i]mpossibility is not a defense to [a]

conspiracy charge”). We agree with the other circuits that

have applied this same principle to trade secrets. See Yang,

281 F.3d at 544 (holding that the government did not need to

prove theft of actual trade secrets because the defendants

“intended to commit the crime and took a substantial step

towards commission of the crime”); United States v. Martin,

228 F.3d 1, 13 (1st Cir. 2000) (holding the “key question is

whether [the defendant] intended to steal secrets,” not

whether he actually did); Hsu, 155 F.3d at 204 (“A defendant

can be convicted of attempt or conspiracy pursuant to

18 U.S.C. §§ 1832(a)(4) or (a)(5) even if his intended acts

were legally impossible.”). In any event, the jury found theft

of actual trade secrets, and therefore any error was harmless. 

See Neder v. United States, 527 U.S. 1, 19 (1999).
40 UNITED STATES V. NOSAL

C. Evidentiary Challenges 

Nosal disputes evidentiary rulings made regarding his

non-competition agreement. Although Nosal was permitted

to testify that he believed the agreement was illegal, the court

struck certain testimony by government witnesses about the

agreement and also precluded evidence about the

enforceability of the agreement under California law. The

jury was instructed that whether “Mr. Nosal breached or did

not breach this covenant is not relevant to the question of

whether he is guilty of the crimes charged in this case.” The

district court did not abuse its discretion.

In closing rebuttal, the government argued that Nosal’s

use of the name “David Nelson” showed his intent to conspire

to steal information from Korn/Ferry. Importantly, the

government did not link Nosal’s charade to the legality of the

non-competition agreement. This passing reference, which

was not objected to at trial, was harmless and certainly does

not rise to the level of plain error.

III. RESTITUTION ORDER

The district court awarded Korn/Ferry $827,983.25 in

restitution. We review de novo the legality of the restitution

order and review for clear error the factual findings that

support the order. United States v. Luis, 765 F.3d 1061, 1065

(9th Cir. 2014), cert. denied, 135 S. Ct. 1572 (2015) (citations

omitted). If the order is “‘within the bounds of the statutory

framework, a restitution order is reviewed for abuse of

discretion.’” Id. (citation omitted).

The restitution order identified three categories of

recoverable losses: 1) Korn/Ferry’s internal investigation
UNITED STATES V. NOSAL 41

costs incurred in attempting to ascertain the nature and scope

of Nosal’s breach, in the amount of $27,400; 2) the value of

Korn/Ferry’s employee time spent participating in and

assisting the government’s investigation and prosecution, in

the amount of $247,695; and 3) the attorneys’ fees incurred

by Korn/Ferry in aid of the investigation or prosecution of the

offense, in the amount of $595,758.25. While the

government asked for a higher amount, the district court

reduced the award, primarily by cutting the request for

attorneys’ fees from $964,929.65 to $595,758.25 for invoices

“not demonstrably reasonably necessary to the government’s

investigation and prosecution,” for “staffing inefficiencies,”

and for “time spent on ‘press’ and file/order reviewing

charges.”

The district court relied on the Mandatory Victim

Restitution Act (MVRA), which “makes restitution

mandatory for particular crimes, including those offenses

which involve fraud or deceit.” United States v. Gordon,

393 F.3d 1044, 1048 (9th Cir. 2004) (citing 18 U.S.C.

§ 3663A(c)(1)(A)(ii)). The MVRA requires that restitution

awards “reimburse the victim for lost income and necessary

child care, transportation, and other expenses incurred during

participation in the investigation or prosecution of the offense

or attendance at proceedings related to the offense.” 

18 U.S.C. § 3663A(b)(4). Although the MVRA was passed

as part of the Violence Against Women Act and directed in

part to concerns related to women victims of crime, such as

child care costs, see Pub. L. 103-322, § 40504, 108 Stat.

1796, 1947 (1994), we have joined other circuits in holding

that the language “other expenses incurred during the

participation in the investigation or prosecution” also

authorizes the award of investigation costs and attorneys’ fees

in some circumstances. See, e.g., United States v. Abdelbary,
42 UNITED STATES V. NOSAL

746 F.3d 570, 574–79 (4th Cir. 2014); United States v. Elson,

577 F.3d 713, 728 (6th Cir. 2009); United States v. Waknine,

543 F.3d 546, 558–59 (9th Cir. 2008); United States v.

Amato, 540 F.3d 153, 159–62 (2d Cir. 2008); Gordon,

393 F.3d at 1056–57.

We must initially decide whether, as Nosal urges, the

restitution award is invalid because it exceeds the actual loss

that the district court determined for the purposes of the

Sentencing Guidelines U.S.S.G. § 2B1.1(b)—calculated at

$46,907.88. The answer to that question is found in our

observation that “calculating loss under the guidelines is not

necessarily identical to loss calculation for purposes of

restitution.” United States v. Hunter, 618 F.3d 1062, 1065

(9th Cir. 2010). Rather, restitution loss is governed not by

the criteria of the Sentencing Guidelines, but by the

MVRA’s purpose of “mak[ing] the victim[] whole.” 

Gordon, 393 F.3d at 1052 n.6. To this end, the plain

language of 18 U.S.C. § 3663A(a)(1) makes restitution

mandatory “[n]otwithstanding any other provision of law”

and “in addition to . . . any other penalty authorized by law,”

including the Sentencing Guidelines. See also Amato,

540 F.3d at 160–62.

In contrast with the MVRA, which includes expenses

related to investigation and prosecution, such costs are

categorically excluded under the Sentencing Guidelines

applicable here. The guidelines provision for actual loss for

crimes of fraud explicitly excludes “costs incurred by victims

primarily to aid the government in[] the prosecution and

criminal investigation of an offense.” U.S.S.G. § 2.B.1.1 cmt.

3(D)(ii). From that, Nosal appears to assume, without any

support, that “actual loss” is a term-of-art, such that in this

category of offenses a restitution order could never include
UNITED STATES V. NOSAL 43

investigation costs or attorneys’ fees in aid of the

government. That assumption is not warranted under the

plain language of the MVRA, which notably never uses the

terminology of actual loss.

In an effort to overcome the differences between the

MVRA and the guidelines, Nosal points to our decision in

United States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir.

1998), which states that “[r]estitution can only be based on

actual loss.” We acknowledge that Stoddard’s use of the

phrase “actual loss” in discussion of restitution generates

some confusion, but Stoddard does not answer the question

at hand. In Stoddard, the difference between the loss under

the Sentencing Guidelines and the restitution award ($30,000

versus $116,223) related to profits that the defendant received

from a business opportunity linked to the fraud, not for

anything remotely resembling the investigation costs at issue

here. See id. at 1147–48 (Ferguson, J., dissenting).

Nosal is also mistaken that this reading of the statute

creates a circuit split with the Seventh Circuit. See United

States v. Dokich, 614 F.3d 314, 318–20 (7th Cir. 2010). 

Dokich addressed whether a $55.9 million restitution award

was calculated using intended loss or actual loss. Based on

an unclear record, the court was forced to conclude that the

restitution award (which was higher than the $20–$50 million

loss used for sentencing under the guidelines) was based on

intended loss, not actual loss, and therefore barred. Id. As in

Stoddard, the case had nothing to do with inclusion of

investigation costs as part of the restitution loss calculation.

Having determined that the restitution award was “within

the bounds of the statutory framework,” we turn to whether

the district court nevertheless abused its discretion in
44 UNITED STATES V. NOSAL

awarding nearly $1 million in restitution. See Waknine,

543 F.3d at 555 (quoting Gordon, 393 F.3d at 1051). With

respect to investigation costs and attorneys’ fees, our rule is

clear: restitution for such losses “‘may be recoverable’”

where the harm was the “‘direct and foreseeable result’ of the

defendant’s wrongful conduct . . . .” Gordon, 393 F.3d at

1057 (quoting United States v. Phillips, 367 F.3d 846, 863

(9th Cir. 2004)). But see Amato, 540 F.3d at 162 (disagreeing

with Gordon’s approach of basing restitution on the

foreseeable results of the criminal conduct). We require the

government to present evidence “demonstrat[ing] that it was

reasonably necessary for [the victim] to incur attorneys’ and

investigator’s fees to participate in the investigation or

prosecution of the offense.” Waknine, 543 F.3d at 559. 

Unlike some other circuits, see, e.g., United States v.

Papagno, 639 F.3d 1093, 1099–1100 (D.C. Cir. 2011), we

have “‘adopted a broad view of the restitution authorization

[for investigation costs].’” Gordon, 393 F.3d at 1056–57

(alteration in original) (quoting Phillips, 367 F.3d at 863).

We applaud the district court’s thorough review of the

voluminous time and fee records submitted by the

government and Korn/Ferry. We agree with the award for

internal investigation costs to uncover the extent of the breach

and for the value of employee time spent participating in the

government’s investigation and prosecution. See, e.g., United

States v. De La Fuente, 353 F.3d 766, 773 (9th Cir. 2003)

(upholding an award for a “cleanup and decontamination”

costs in response to an anthrax scare); United States v.

Hosking, 567 F.3d 329, 332 (7th Cir. 2009) (holding that

restitution included the value of “[t]he time and effort spent

by the bank’s employees and outside professionals in

unraveling the twelve-year embezzlement scheme”). 
UNITED STATES V. NOSAL 45

However, we part ways with the district court and the

government with respect to Korn/Ferry’s attorneys’ fees.

While the district court’s reduction of the fee award was

a step in the right direction, our review of the record

convinces us that the court should have gone further. Several

principles guide this conclusion. To begin, the fees must be

the direct and foreseeable result of the defendant’s conduct. 

Gordon, 393 F.3d at 1057 (quoting Phillips, 367 F.3d at 863). 

Next, as in other attorneys’ fee awards, reasonableness is the

touchstone. Reasonableness is benchmarked against the

necessity of the fees under the terms of the statute, thus

excluding duplicate effort, time that is disproportionate to the

task and time that does not fall within the MVRA’s

mandate.

17 Finally, fees are only recoverable if incurred

during “participation in the investigation or prosecution of

the offense.” 18 U.S.C. § 3663A(b)(4) (emphasis added). 

The company’s attorneys are not a substitute for the work of

the prosecutor, nor do they serve the role of a shadow

prosecutor. To be sure, nothing is wrong with proactive

participation. But participation does not mean substitution or

duplication.

Even after reduction, the total amount of fees awarded is

striking, particularly given that the trial ultimately involved

only three discrete incidents of criminal behavior. Although

resulting in multiple counts, at bottom the events were

temporally circumscribed and limited in scope. We note that

a highly disproportionate percentage of the fees arose from

17 We agree with the district court’s decision to accept the hourly rate of

Korn/Ferry’s attorneys. Recognizing the importance and impact of the

breach, Korn/Ferry cannot be faulted for selecting an “excellent,” or

“premium,” law firm.
46 UNITED STATES V. NOSAL

responding to requests and inquiries related to sentencing,

damages, and restitution. The reasonableness of the fees

needs to be reexamined to consider (i) whether the sizeable

fee related to restitution matters was reasonable; (ii) whether

there was unnecessary duplication of tasks between

Korn/Ferry staff and its attorneys since the court awarded a

substantial sum for the time of Korn/Ferry employees; and

(iii) whether the outside attorneys were substituting for or

duplicating the work of the prosecutors, rather than serving in

a participatory capacity.

We vacate the restitution award with respect to the

attorneys’ fees and remand for reconsideration in light of the

principles and observations set out above.

AFFIRMED, EXCEPT VACATED IN PART AND

REMANDED WITH RESPECT TO THE

RESTITUTION AWARD.

REINHARDT, Circuit Judge, dissenting:

This case is about password sharing. People frequently

share their passwords, notwithstanding the fact that websites

and employers have policies prohibiting it. In my view, the

Computer Fraud and Abuse Act (“CFAA”) does not make the

millions of people who engage in this ubiquitous, useful, and

generally harmless conduct into unwitting federal criminals. 

Whatever other liability, criminal or civil, Nosal may have

incurred in his improper attempt to compete with his former

employer, he has not violated the CFAA.
UNITED STATES V. NOSAL 47

The first time this case came before us we examined

whether Nosal’s former colleagues acted “without

authorization, or exceed[ed] authorized access” when they

downloaded information from Searcher while still employed

at Korn/Ferry and shared it with Nosal in violation of the

firm’s policies. United States v. Nosal (Nosal I), 676 F.3d

854, 864 (9th Cir. 2012) (en banc). We said “no,” rejecting

the approach of a few other circuits which had interpreted the

CFAA looking “only at the culpable behavior of the

defendants before them, and fail[ing] to consider the effect on

millions of ordinary citizens.” Id. at 862. In doing so, we

stated that they turned the CFAA into a “sweeping Internetpolicing mandate,” instead of maintaining its “focus on

hacking.” Id. at 858. We emphatically refused to turn

violations of use restrictions imposed by employers or

websites into crimes under the CFAA, declining to put so

many citizens “at the mercy of [their] local prosecutor.” Id.

at 862. Since then, both circuits to rule on the point have

agreed with our interpretation. See United States v. Valle,

807 F.3d 508, 526–28 (2d Cir. 2015); WEC Carolina Energy

Sols. LLC v. Miller, 687 F.3d 199, 204 (4th Cir. 2012).

Today, addressing only slightly different conduct, the

majority repudiates important parts of Nosal I, jeopardizing

most password sharing. It loses sight of the anti-hacking

purpose of the CFAA, and despite our warning, threatens to

criminalize all sorts ofinnocuous conduct engaged in daily by

ordinary citizens.

At issue are three incidents of password sharing. On

these occasions while FH was still employed at Korn/Ferry,

she gave her password to Jacobson or Christian, who had left

the company. Her former colleagues then used her password

to download information from Searcher. FH was authorized
48 UNITED STATES V. NOSAL

to access Searcher, but she did not download the information

herself because it was easier to let Jacobson or Christian do

it than to have them explain to her how to find it. It would

not have been a violation of the CFAA if they had simply

given FH step-by-step directions, which she then followed. 

Thus the question is whether because Jacobson and Christian

instead used FH’s password with her permission, they are

criminally liable for access “without authorization” under the

Act.1

The majority finds the answer is “yes,” but in doing so

commits the same error as the circuits whose views we

rejected in Nosal I. My colleagues claim that they do not

have to address the effect of their decision on the wider

population because Nosal’s infelicitous conduct “bears little

resemblance” to everyday password sharing. Notably this is

the exact argument the dissent made in Nosal I: “This case

has nothing to do with playing sudoku, checking email, [or]

fibbing on dating sites . . . . The role of the courts is neither

to issue advisory opinions nor to declare rights in

hypothetical cases.” 676 F.3d at 864, 866 (Silverman, J.,

dissenting) (internal quotation and citation omitted).

We, of course, rejected the dissent’s argument in Nosal I. 

We did so because we recognized that the government’s

theory made all violations of use restrictions criminal under

the CFAA, whether the violation was innocuous, like

checking your personal email at work, or more objectionable

like that at issue here. Because the statute was susceptible to

a narrower interpretation, we rejected the government’s

1 Nosal was charged as criminally culpable for Jacobson’s and

Christian’s alleged violations under a theory of either aiding and abetting

or conspiracy.
UNITED STATES V. NOSAL 49

broader reading under which “millions of unsuspecting

individuals would find that they are engaging in criminal

conduct.” Id. at 859. The same is true here. The majority

does not provide, nor do I see, a workable line which

separates the consensual password sharing in this case from

the consensual password sharing of millions of legitimate

account holders, which may also be contrary to the policies

of system owners. There simply is no limiting principle in

the majority’s world of lawful and unlawful password

sharing.

Therefore, despite the majority’s attempt to construe

Nosal I as only applicable to “exceeds authorized access,” the

case’s central lesson that the CFAA should not be interpreted

to criminalize the ordinary conduct of millions of citizens

applies equally strongly here. Accordingly, I would hold that

consensual password sharing is not the kind of “hacking”

covered by the CFAA. That is the case whether or not the

voluntary password sharing is with a former employee and

whether or not the former employee’s own password had

expired or been terminated.

I.

“Congress enacted the CFAA in 1984 primarilyto address

the growing problem of computer hacking,” Nosal I, 676 F.3d

at 858. United States v. Morris, the first appellate case under

the CFAA, illustrates the core type of conduct criminalized

by the Act. 928 F.2d 504 (2d Cir. 1991). There a student

created a worm which guessed passwords and exploited bugs

in computer programs to access military and university

computers, eventually causing them to crash. The Second

Circuit found that the student had accessed those computers
50 UNITED STATES V. NOSAL

“without authorization” in violation of the Act. Id. at 506,

509–511.

“Without authorization” is used in a number of places

throughout the CFAA, but is not defined in the Act. The

phrase appears in two subsections relevant to this case:

§ 1030(a)(2)(C) and (a)(4). Subsection (a)(2)(C) criminalizes

“intentionally access[ing] a computer without authorization

or exceed[ing] authorized access, and thereby obtain[ing] . . .

information from any protected computer.” This is the

“broadest provision” of the CFAA. Nosal I, 676 F.3d at 859. 

Subsection (a)(4) in essence increases the penalty for

violating (a)(2)(C) if the perpetrator also acts “with intent to

defraud,” and “obtains anything of value.”2 Nosal was

charged and convicted under (a)(4).

Our definition of “without authorization” in this case will

apply not only to (a)(4), but also to (a)(2)(C) and the rest of

the Act. In Nosal I, the government contended that “exceeds

authorization” could be interpreted more narrowly in

(a)(2)(C) than in (a)(4), but we concluded: “This is just not

so: Once we define the phrase for the purpose of subsection

1030(a)(4), that definition must apply equally to the rest of

the statute pursuant to the ‘standard principle of statutory

construction . . . that identical words and phrases within the

same statute should normally be given the same meaning.’”

676 F.3d at 859 (quoting Powerex Corp. v. Reliant Energy

Servs., Inc., 551 U.S. 224, 232 (2007)). That holds here. 

Indeed, the government so concedes.

2 The penalty for violating § 1030(a)(2)(C) may also be increased if the

government proves an additional element under (c)(2)(B).
UNITED STATES V. NOSAL 51

It is thus necessary to consider the potential breadth of

subsection (a)(2)(C) if we construe “without authorization”

with less than the utmost care. Subsection (a)(2)(C)

criminalizes nearly all intentional access of a “protected

computer” without authorization.3 A “‘protected computer’

is defined as a computer affected by or involved in interstate

commerce—effectively all computers with Internet access.” 

See Nosal I, 676 F.3d at 859. This means that nearly all

desktops, laptops, servers, smart-phones, as well as any

“iPad, Kindle, Nook, X-box, Blu-Ray player or any other

Internet-enabled device,” including even some thermostats

qualify as “protected.” Id. at 861. Thus § 1030(a)(2)(C)

covers untold millions of Americans’ interactions with these

objects every day. Crucially, violating (a)(2)(C) does not

require “any culpable intent.” Id. Therefore if we interpret

“without authorization” in a way that includes common

practices like password sharing, millions of our citizens

would become potential federal criminals overnight.

3 Computer is defined under the Act as “an electronic, magnetic, optical,

electrochemical, or other high speed data processing device performing

logical, arithmetic, or storage functions, and includes any data storage

facility or communications facility directly related to or operating in

conjunction with such device.” 18 U.S.C. § 1030(e)(1). See also United

States v. Mitra, 405 F.3d 492 (7th Cir. 2005) (finding a radio system is a

computer); United States v. Kramer, 631 F.3d 900, 902 (8th Cir. 2011)

(noting the Act’s definition of a computer “is exceedingly broad,” and

concluding an ordinary cell phone is a computer).

To violate § 1030(a)(2)(C) a person must also “obtain information,”

but it is nearly impossible to access a computer without also obtaining

information. As we noted in Nosal I, obtaining information includes

looking up a weather report, reading the sports section online, etc. See also

Sen. Rep. No. 104-357, at 7 (1996) (“‘[O]btaining information’ includes

merely reading it.”).
52 UNITED STATES V. NOSAL

II.

The majority is wrong to conclude that a person

necessarily accesses a computer account “without

authorization” if he does so without the permission of the

system owner.4 Take the case of an office worker asking a

friend to log onto his email in order to print a boarding pass,

in violation of the system owner’s access policy; or the case

of one spouse asking the other to log into a bank website to

pay a bill, in violation of the bank’s password sharing

prohibition. There are other examples that readily come to

mind, such as logging onto a computer on behalf of a

colleague who is out of the office, in violation of a corporate

computer access policy, to send him a document he needs

right away. “Facebook makes it a violation of the terms of

service to let anyone log into your account,” we noted in

Nosal I, but “it’s very common for people to let close friends

and relatives check their email or access their online

accounts.” 676 F.3d at 861 (citing Facebook Statement of

Rights and Responsibilities § 4.8).5

Was access in these examples authorized? Most people

would say “yes.” Although the system owners’ policies

4 The term “system owner” refers to the central authority governing user

accounts, whether the owner of a single computer with one or several user

accounts, a workplace network with dozens, or a social networking site,

bank website, or the like, with millions of user accounts.

5 For example, a recent survey showed that 46% of parents have the

password to their children’s social networking site, despite the fact that the

largest site, Facebook, forbids password sharing. See USC Annenberg

School Center for the Digital Future, 2013 Digital Future Report 135

(2013), http://www.digitalcenter.org/wp-content/uploads/2013/06/2013-

Report.pdf.
UNITED STATES V. NOSAL 53

prohibit password sharing, a legitimate account holder

“authorized” the access. Thus, the best reading of “without

authorization” in the CFAA is a narrow one: a person

accesses an account “without authorization” if he does so

without having the permission of either the system owner or

a legitimate account holder.

This narrower reading is more consistent with the purpose

of the CFAA. The CFAA is essentially an anti-hacking

statute, and Congress intended it as such. Nosal I, 676 F.3d

at 858. Under the preferable construction, the statute would

cover only those whom we would colloquially think of as

hackers: individuals who steal or guess passwords or

otherwise force their way into computers without the consent

of an authorized user, not persons who are given the right of

access by those who themselves possess that right. There is

no doubt that a typical hacker accesses an account “without

authorization”: the hacker gains access without permission –

either from the system owner or a legitimate account holder. 

As the 1984 House Report on the CFAA explained, “it is

noteworthy that Section 1030 deals with an unauthorized

access concept of computer fraud rather than the mere use of

a computer. Thus, the conduct prohibited is analogous to that

of ‘breaking and entering.’” H.R. Rep. 98-894, 20, 1984

U.S.C.C.A.N. 3689, 3706. We would not convict a man for

breaking and entering if he had been invited in by a

houseguest, even if the homeowner objected. Neither should

we convict a man under the CFAA for accessing a computer

account with a shared password with the consent of the

password holder.

Nosal’s conduct was, of course, unscrupulous. 

Nevertheless, as the Second Circuit found in interpreting the

CFAA, “whatever the apparent merits of imposing criminal
54 UNITED STATES V. NOSAL

liability may seem to be in this case, we must construe the

statute knowing that our interpretation of [authorization] will

govern many other situations.” Valle, 807 F.3d at 528. The

construction that we adopt in Nosal’s case will apply with

equal force to all others, and the reading of “without

authorization” we adopt for subsection (a)(4) will apply with

equal force to subsection (a)(2)C). I would, therefore, hold

that however reprehensible Nosal’s conduct may have been,

he did not violate the CFAA.

III.

The majority insists that the text of the statute requires its

broad construction, but that is simply not so. Citing our

decision in Brekka, the majority defines “authorization” as

“permission or power granted by an authority.” After

appealing to “ordinary meaning,” “common sense meaning,”

and multiple dictionaries to corroborate this definition, the

majority asserts that the term is “not ambiguous.”

The majority is wrong. The majority’s (somewhat

circular) dictionary definition of “authorization” –

“permission conferred by an authority” – hardly clarifies the

meaning of the text. While the majority reads the statute to

criminalize access by those without “permission conferred

by” the system owner, it is also proper (and in fact preferable)

to read the text to criminalize access only by those without

“permission conferred by” either a legitimate account holder

or the system owner. The question that matters is not what

authorization is but who is entitled to give it. As one scholar

noted, “there are two parties that have plausible claims to

[give] authorization: the owner/operator of the computer, and

the legitimate computer account holder.” Orin S. Kerr,
UNITED STATES V. NOSAL 55

Computer Crime Law 48 (3d ed. 2013). Under a proper

construction of the statute, either one can give authorization.

The cases the majority cites to support its contention that

the statute’s text requires a broad construction merely repeat

dictionary definitions of “without authorization.” Those

cases do nothing to support the majority’s position that

authorization can be given only by the system owner. The

Fourth Circuit, quoting the Oxford English Dictionary, found

that “based on the ordinary, contemporary, common meaning

of ‘authorization,” an employee “accesses a computer

‘without authorization’ when he gains admission to a

computer without approval.” WEC Carolina Energy

Solutions LLC v. Miller, 687 F.3d 199, 204 (4th Cir. 2012). 

The Sixth Circuit, also quoting the Oxford English

Dictionary, explained that “[t]he plain meaning of

‘authorization’ is ‘[t]he conferment of legality’” and

concluded that “a defendant who accesses a computer

‘without authorization’ does so without sanction or

permission.” Pulte Homes, Inc. V. Laborers’ Int’l Union of

N. Am., 648 F.3d 295, 303–04 (6th Cir 2011). In both of

these cases, the important question in Nosal’s case –

authorization from whom – went unanswered. The Second

Circuit consulted the Random House Dictionary instead and

concluded that the “common usage of ‘authorization’

suggests that one ‘accesses a computer without authorization’

if he accesses a computer without permission to do so at all.”

Valle, 807 F.3d 508, 524 (2nd Cir. 2015) (emphasis added). 

With that, I agree. Contrary to the majority’s suggestion,

none of the cases on which it relies holds that the requisite
56 UNITED STATES V. NOSAL

permission must come from the system owner and not a

legitimate account holder.6

At worst, the text of the statute is ambiguous as to who

may give authorization. The First Circuit concluded that the

meaning of the term “without authorization” in the CFAA

“has proven to be elusive,” EF Cultural Travel BV v.

Explorica, Inc., 274 F.3d 577, 582 n.10 (1st Cir. 2001), and

an unambiguous definition eludes the majority even now. In

that circumstance, the rule of lenity requires us to adopt the

narrower construction – exactly the construction that is

appropriate in light of the CFAA’s anti-hacking purpose and

concern for the statute’s effect on the innocent behavior of

millions of citizens. The text provides no refuge for the

majority.

As the Supreme Court has repeatedly held, “where there

is ambiguity in a criminal statute, doubts are resolved in favor

of the defendant.” United States v. Bass, 404 U.S. 336, 348

(1971); see also United States v. Santos, 553 U.S. 507, 514

(2008) (“The rule of lenity requires ambiguous criminal laws

to be interpreted in favor of the defendants subjected to

them.”). If a “choice has to be made between two readings of

what conduct Congress has made a crime, it is appropriate,

before we choose the harsher alternative, to require that

Congress should have spoken in language that is clear and

definite.” Jones v. United States, 529 U.S. 848, 858 (2000)

(quoting United States v. Universal C.I.T. Credit Corp.,

6 The Tenth Circuit case the majority cites, United States v. Willis,

476 F.3d 1121 (10th Cir. 2007), has nothing to do with the meaning of

“without authorization.” In fact, Willis did “not contest that he provided

. . . unauthorized access” to the website at issue. “He merely argue[d] that

he had no intent to defraud in so doing. . .” Id. at 1126.
UNITED STATES V. NOSAL 57

344 U.S. 218, 221–22 (1952)) (internal quotation marks

omitted). We are therefore bound to adopt the construction

of CFAA that criminalizes access only by those without

permission from either an account holder or the system

owner. See also, e.g., Nosal I, 676 F.3d at 863 (applying the

rule of lenity to the CFAA); Valle, 807 F.3d at 527 (same);

Miller, 687 F.3d at 204 (same).

The “venerable” rule of lenity ensures that individuals are

on notice when they act. Santos, 553 U.S. at 514. It

“vindicates the fundamental principle that no citizen should

be held accountable for a violation of a statute whose

commands are uncertain. . . .” Id. We must, therefore, read

the CFAA not just in the harsh light of the courtroom but also

from the perspective of its potential violators.7In the

everyday situation that should concern us all, a friend or

colleague accessing an account with a shared password would

most certainly believe – and with good reason – that his

access had been “authorized” by the account holder who

shared his password with him. Such a person, accessing an

account with the express authorization of its holder, would

7 Moskal v. United States, 498 U.S. 103 (1990), relied on by the majority

for the claim that “the rule of lenity is not triggered [simply] because it is

‘possible to articulate’ a narrower construction of the statute,” is fully

consistent with my reading. Here, the narrower reading rises above the

possible and even the plausible: it is the natural reading from the

perspective of a number of the law’s potential violators. Moreover,

because the narrower interpretation better harmonizes with the antihacking purpose of the CFAA, the ambiguity here is exactly the kind

Moskal said does trigger the rule of lenity: “reasonable doubt persists

about [the] statute’s intended scope even after resort to ‘the language and

structure, legislative history, and motivating policies’ of the statute.” 

Moskal v. United States, 498 U.S. 103, 108 (1990) (citing Bifulco v.

United States, 447 U.S. 381, 387 (1980)).
58 UNITED STATES V. NOSAL

believe that he was acting not just lawfully but ethically.

8

“It's very common for people to let close friends and relatives

check their email or access their online accounts,” we said in

Nosal I. “Some may be aware that, if discovered, they may

suffer a rebuke from the ISP or a loss of access, but few

imagine theymight be marched off to federal prison for doing

so.” 676 F.3d at 861. The majority’s construction thus

conflicts with the natural interpretation its freshly minted

CFAA violatorswould have given to “without authorization.” 

That alone should defeat the majority’s conclusion.

Worse, however, the majority’s construction would base

criminal liability on system owners’ access policies. That is

exactly what we rejected in Nosal I. See 676 F.3d at 860. 

Precisely because it is unacceptable in our legal system to

impose criminal liability on actions that are not proscribed

“plainly and unmistakably,” Bass, 404 U.S. at 348–49, it is

also unacceptable to base “criminal liability on violations of

private computer use policies.” Nosal I, 676 F.3d at 860. Not

only are those policies “lengthy, opaque, subject to change

and seldom read,” id. at 860, they are also private – by

definition not addressed and perhaps not even accessible to

shared password recipients who are not official users

themselves. Just as the rule of lenity ensures that Congress,

not the judiciary, creates federal crimes, Bass, 404 U.S. at

348, the rule also ensures that the clear (and public) words of

8

It is evident that Nosal is not such a person. This case, however,

differs from Bush v. Gore, 531 U.S. 98 (2000). It is not “a ticket for one

train only.” Linda Greenhouse, Thinking About The Supreme Court After

Bush v. Gore, 35 Ind. L. Rev. 435, 436 (2002). The majority’s opinion

criminalizes the conduct of all the friends and colleagues mentioned

above.
UNITED STATES V. NOSAL 59

Congress – not the obscure policies of system owners –

delimit their scope.

If this were a civil statute, it might be possible to agree

with the majority, but it is not. The plain fact is that the Act

unquestionably supports a narrower interpretation than the

majority would afford it. Moreover, the CFAA is not the

only criminal law that governs computer crime. All fifty

states have enacted laws prohibiting computer trespassing. A

conclusion that Nosal’s actions do not run afoul of the CFAA

need not mean that Nosal is free from criminal liability, and

adopting the proper construction of the statute need not

thwart society’s ability to deter computer crime and punish

computer criminals – even the “industrious hackers” and

“bank robbers” that so alarm the majority.

9

IV.

In construing any statute, we must be wary of the risks of

“selective or arbitrary enforcement.” United States v.

Kozminski, 487 U.S. 931, 952 (1988). The majority’s

construction of the CFAA threatens exactly that. It

9

In fact, the ubiquity of state regulation targeting computer trespassing

counsels in favor of the narrower interpretation of the federal statute.

“Congress has traditionally been reluctant to define as a federal crime

conduct readily denounced as criminal by the States.” Bond v. United

States, 134 S. Ct. 2077, 2093 (2014) (quoting Bass, 404 U.S. at 349). As

such, “we will not be quick to assume that Congress has meant to effect

a significant change in the sensitive relation between federal and state

criminal jurisdiction.” Id. at 2089. Because the states are already

regulating such conduct, we deemed it appropriate in Nosal I to presume

that “Congress act[ed] interstitially” in passing the CFAA. We therefore

refused to adopt a broader interpretation of the Act in the absence of a

clear indication from Congress that such a reading was warranted. 

676 F.3d at 857. The same is as true of Nosal II as of Nosal I.
60 UNITED STATES V. NOSAL

criminalizes a broad category of common actions that nobody

would expect to be federal crimes. Looking at the fallout

from the majority opinion, it is clear that the decision will

have “far-reaching effects unintended by Congress.” See

Miller, 687 F.3d at 206 (rejecting a broad interpretation of the

CFAA producing such unintended effects).

Simply put, the majority opinion contains no limiting

principle.10 Although the majority disavows the effects of its

decision aside from dealing with former employees, it may

not by fiat order that the reasoning of its decision stop, like

politics used to, “at the water’s edge.” The statute says

nothing about employment. Similarly, Nosal I discussed use

restrictions, whether imposed by an employer or a third-party

website, all in the same way. It did not even hint that

employment was somehow special.11 676 F.3d at 860–61.

10 The government has not offered a workable standard for

distinguishing Nosal’s case frominnocuous password sharing either in the

context of employment or outside of it. With respect to things like

Facebook password sharing, for example, the government gamely states

that in other “categories of computer users,” aside from employees,

defendants might be able to claim password sharing gave them

authorization even if it was against the policy of the website, but does not

offer any line of its own or even a hint as to what in the statute permits

such a distinction.

11 The majority tries to dismiss Nosal I as irrelevant because in the end

it only interprets “exceeds authorized access.” This is wrong for two

reasons. First, while Nosal I’s holding applies directly only to “exceeds

authorized access,” its discussion of password sharing affects the meaning

of “without authorization” as well. This is because the “close friends [or]

relatives” have no right to access Facebook’s or the email provider’s

servers, unless the account holder’s password sharing confers such

authorization. Although in Nosal I we rejected the Seventh Circuit’s

holding in Int'l Airport Centers, L.L.C. v. Citrin, that court correctly

observed that the distinction between “exceeds authorized access” and
UNITED STATES V. NOSAL 61

It is impossible to discern from the majority opinion what

principle distinguishes authorization in Nosal’s case from one

in which a bank has clearly told customers that no one but the

customer may access the customer’s account, but a husband

nevertheless shares his password with his wife to allow her to

pay a bill. So long as the wife knows that the bank does not

give her permission to access its servers in any manner, she

is in the same position as Nosal and his associates.12It is not

“advisory” to ask why the majority’s opinion does not

criminalize this under § 1030(a)(2)(C); yet, the majority

suggests no answer to why it does not.

Even if the majority opinion could be limited solely to

employment, the consequences would be equally untoward. 

Very often password sharing between a current and past

employee serves the interest of the employer, even if the

current employee is technically forbidden by a corporate

policy from sharing his password. For example, if a current

Korn/Ferry employee were looking for a source list for a

pitch meeting which his former colleague had created before

retirement, he might contact him to ask where the file had

been saved. The former employee might say “it’s too

complicated to explain where it is; send me your password

and I’ll find it for you.” When the current employee

“without authorization” is often “paper thin.” 440 F.3d 418, 420 (7th Cir.

2006); see also Miller, 687 F.3d at 204 (recognizing the “distinction

between these terms is arguably minute”). Second, and more important,

Nosal I’s central message that we must consider the effect of our decision

on millions of ordinary citizens applies with equal force to “without

authorization” and “exceeds authorized access.”

 

12 To make the analogy exact, assume the wife had recently closed her

account with the bank or withdrawn as a member of a joint-account with

her husband and thus had her credentials rescinded.
62 UNITED STATES V. NOSAL

complied and the former employee located the file, both

would become federal criminals under the majority’s opinion. 

I am confident that such innocuous password sharing among

current and former employees is more frequent than the

improper password sharing at issue here. Both employees

and Congress would be quite surprised to find that the

innocent password sharing constitutes criminal conduct under

the CFAA.13

Brekka, cited repeatedly in the majority opinion, did not

threaten to criminalize the everyday conduct of millions of

citizens. Nor does that case foreclose the preferable

construction of the statute. Brekka primarily addressed the

question of whether an employee’s violation of the duty of

loyalty could itself render his access unauthorized. 581 F.3d

at 1134–35. Although we found that authorization in that

case depended “on actions taken by the employer,” that was

to distinguish it from plaintiff’s claim that authorization

“turns on whether the defendant breached a state law duty of

loyalty to an employer.” Id. Brekka’s alleged use of an

expired log-in presented a very different situation. Brekka

had no possible source of authorization, and acted without

having permission from either an authorized user or the

system owner. We therefore had no cause to consider

whether authorization from a current employee for the use of

his password (i.e. password sharing) would constitute

“authorization” under the Act. Moreover, it is far less

common for people to use an expired or rescinded log-in

13 This example also demonstrates the problem with the majority’s

reliance on the fact that ̄like all former Korn/Ferry employees ̄

Christian and Jacobson’s credentials had expired. The expiration of

someone’s credentials is not a reliable indicator of criminal culpability in

a password sharing case.
UNITED STATES V. NOSAL 63

innocuously than to share passwords contrary to the rules

promulgated by employers or website operators. Thus, unlike

this case, Brekka did not place ordinary citizens in jeopardy

for their everyday conduct. That difference alone is

dispositive in light of Nosal I.

In sum, § 1030(a)(2)(C) covers so large a swath of our

daily lives that the majority’s construction will “criminalize

a broad range of day-to-day activity.” Kozminski, 487 U.S. at

949. Such “[u]biquitous, seldom-prosecuted crimes invite

arbitrary and discriminatory enforcement.” Nosal I, 676 F.3d

at 861.

V.

Nosal’s case illustrates some of the special dangers

inherent in criminal laws which are frequently violated in the

commercial world, yet seldom enforced. To quote a recent

comment by a justice of the Supreme Court with regard to a

statute that similarly could be used to punish

indiscriminately: “It puts at risk behavior that is common. 

That is a recipe for giving the Justice Department and

prosecutors enormous power over [individuals].” Transcript

of Oral Argument at 38, McDonnell v. United States, 136 S.

Ct. 891 (2016) (No. 15-474) (Breyer, J.). Indeed, as this

opinion is being filed, the Supreme Court has issued its

decision in McDonnell and reiterated that “we cannot

construe a criminal statute on the assumption that the

Government will use it responsibly.” McDonnell v. United

States, 579 U.S. __ (June 27, 2016) (citation omitted). Here

it is far worse. Broadly interpreted, the CFAA is a recipe for

giving large corporations undue power over their rivals, their

employees, and ordinary citizens, as well as affording such
64 UNITED STATES V. NOSAL

indiscriminate power to the Justice Department, should we

have a president or attorney general who desires to do so.

Nosal was a senior member of Korn/Ferry and intended

to start a competing business. He was also due a million

dollars from Korn/Ferry if he abided by his departure

agreement. When Korn/Ferry began its investigation of

Nosal’s possible malfeasance, it brought on ex-FBI agents to

search through Christian’s garbage and follow Jacobson

around. It also hired a leading international corporate law

firm consisting of over 600 lawyers, O’Melveny and Myers,

which charged up to $1,100 per hour for the time of some its

partners.14

 One of O’Melveny’s lead attorneys had recently

left the office of the United States Attorney who would

prosecute any case against Nosal. She referred the case to her

former colleagues personally. O’Melveny also told the

prosecutor that the case was “time-sensitive” because

Korn/Ferry would have to file its civil case shortly, but that

it would provide the prosecutor with the facts necessary to

“demonstrate the criminal culpability of those involved.” The

law firm also provided the government with the liability

theories it believed necessary to convict Nosal under the

CFAA. Less than a month after O’Melveny approached the

government, the FBI searched the residences of Jacobson,

Christian, and the offices of Nosal’s new business. That same

day Korn/Ferry filed its civil complaint. In total, Korn/Ferry

sought almost a million dollars in attorneys’ fees from Nosal

14 It was recently reported that more than a few corporate firms,

including O’Melveny’s rival Gibson, Dunn and Crutcher, charge as

much as $2,000 per hour for some partners’ time. Natalie Rodriguez,

Meet the $2,000 An Hour Attorney, Law360, June 11, 2016, 

http://www.law360.com/articles/804421/meet-the-2-000-an-hour-attorney.
UNITED STATES V. NOSAL 65

to compensate it for the work O’Melveny did to “assist” with

the criminal prosecution.

To be clear, I am not implying that there is any

misconduct on the part of the prosecution in this case. 

Nevertheless, private assistance of such magnitude blurs the

line between criminal and civil law. Courts have long held

that “a private citizen lacks a judicially cognizable interest in

the prosecution or nonprosecution of another.” Linda R.S. v.

Richard D., 410 U.S. 614, 619 (1973). Korn/Ferry and its

counsel’s employment of their overwhelming resources to

persuade prosecutors to bring charges against an economic

competitor has unhealthy ramifications for the legal system. 

Civil suits ordinarily govern economic controversies. There,

private parties may initiate any good-faith action at their own

expense. In criminal cases, however, the prosecutor who

“seeks truth and not victims, [and] who serves the law and not

factional purposes” must decide which cases go forward and

which do not. Robert H. Jackson, The Federal Prosecutor,

Address Before Conference of U.S. Attorneys (April 1,

1940), in 24 J. Am. Judicature Soc’y 18, 20 (1940). These

decisions are inevitably affected by a variety of factors

including the severity of the crime and the amount of

available resources that must be dedicated to a prosecution.

Prosecutors cannot help but be influenced by knowing

that they can count on an interested private party to perform

and finance much of the work required to convict a business

rival. As the Supreme Court found recently: “Prosecutorial

discretion involves carefully weighing the benefits of a

prosecution against the evidence needed to convict, [and] the

resources of the public fisc.” Bond v. United States, 134 S.
66 UNITED STATES V. NOSAL

Ct. 2077, 2093 (2014).15 The balance weighs differently

when a major international corporate firm will bear much of

the cost which would otherwise have to be borne by the

prosecutor’s office. Prosecutors will also be able to use the

work product of the country’s finest and most highly paid

corporate litigators, rather than investing its meager human

resources in developing a complex commercial case different

in kind from the cases it is ordinarily used to preparing.

16

Undertaking such third-party financed cases which a United

States attorneymight not have prosecuted otherwise gives the

appearance of well-financed business interests obtaining the

services of the prosecutorial branch of government to

accomplish their own private purposes, influencing the vast

discretion vested in our prosecutors, and causing the

enforcement of broad and ill-defined criminal laws seldom

enforced except at the behest of those who can afford it. 

Moreover, to the extent that decisions to pursue such cases

are influenced bysuch extraneous concerns, and prosecutorial

discretion is tilted toward their enforcement, other criminal

cases that might otherwise be chosen for prosecution may

well be neglected and the criminal justice system itself

become distorted.

15 Indeed, the Court has recognized that limited government funds

sometimes play an important part in restraining potential executive

overreach. See Illinois v. Lidster, 540 U.S. 419, 426 (2004) (finding that

limited police resources would be a practical impediment to the

“proliferation” of sobriety checkpoints); see also United States v. Jones,

132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring) (arguing that

technologies like GPS which loosen the check of limited enforcement

budgets may necessitate greater judicial oversight).

16 The fact that the interested party may be able to recover its attorneys’

fees if the prosecution is successful does not affect this analysis.
UNITED STATES V. NOSAL 67

VI.

“There is no doubt that this case is distasteful; it may be

far worse than that.” McDonnell v. United States, 579 U.S.

__ (June 27, 2016). As the Supreme Court said in

McDonnell, “our concern is not with tawdry tales of Ferraris,

Rolexes, and ball gowns. It is instead with the broader legal

implications of the Government’s boundless interpretation”

of a federal statute. Here, our concern is not with tawdry

tales of corporate thievery and executive searches gone

wrong. “It is instead with the broader legal implications of

the Government’s boundless interpretation” of the CFAA. 

Nosal may have incurred substantial civil liability, and may

even be subject to criminal prosecution, but I do not believe

he has violated the CFAA, properly construed.17I

respectfully dissent.

17 Nosal argues that because the jury was instructed under Pinkerton, if

the conspiracy count and substantive CFAA counts are vacated or

reversed, so too must both the trade secrets counts. The government does

not contest this assertion in its answering brief. I would therefore vacate

the trade secrets counts. See United States v. Gamboa-Cardenas, 508 F.3d

491, 502 (9th Cir. 2007) (“Appellees . . . did not raise the . . . argument in

their briefs and thus they have waived it.”). For that reason I express no

independent view on the trade secrets counts, although I have substantial

concerns about the legality of the convictions on those counts as well.