Friday, November 14, 2008

Stealing confidential information in New Jersey

New Jersey thieves of confidential information have a bit of a safety net.

The internetdefamationlawblog, describing State v. Reid, 194 N.J. 386 (2008), wrote:

In Reid, the State prosecuted a case where a company alleged that a former employee was stealing its proprietary information using a confidential Internet password. The underlying act was traced to a Comcast IP address. IP addresses are generally anonymous, and the identity of the person or persons who act through a particular IP address is not generally evident. Comcast refused to provide the user information relating to that IP address when initially requested. However, when a subpoena was issued to it, Comcast revealed the defendant’s Internet subscriber information. Notably, Comcast’s response to the subpoena was without notice to the defendant and without a judicial hearing. The defendant then sought to suppress this information as evidence on the basis that Comcast had revealed the user information in a manner that violated her constitutional right to privacy.

The New Jersey Supreme Court determined that while it might not have violated her privacy right under the United States Constitution, the New Jersey Constitution provides enhanced privacy rights that were violated. Specifically, Article I, Paragraph 7 states that people who live in New Jersey have a right of privacy; while the federal constitution does not explicitly guaranty such a privacy right. In fact, the United States Supreme Court has held that the Fourth Amendment to the Federal Constitution is not violated by a subpoena seeking such information.

BUT the federal government helps out a bit. From a law review article:

It is not uncommon for a departing employee to leave with confidential or trade secret information, and employers are hardly without recourse against their former employees and the new companies for which they work. The employer may sue for misappropriation of a trade secret n6 If a confidentiality agreement exists, a suit for breach of the agreement may be filed in addition to, or in lieu of, a statutory trade secret claim. The CFAA [Computer Fraud and Abuse Act], however, puts another arrow in the employer's quiver, and the new arrow is proving increasingly popular. The most likely explanation is that, like mountains that get climbed because they are there, the CFAA get used against employees because it is possible to do so. However, proceeding under the CFAA may also have potential advantage over the trade secret claim. To establish the latter, the employer must show that the employee actually obtained the information in question; in a suit under
the CFAA, the employer need only show that the employee accessed a computer system without authorization
, not that the employee thereby obtained any information.


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