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Nick Akerman

Partner, Dorsey & Whitney LLP, New York, USA


Biography:


A partner in Dorsey’s New York Office, Nick Akerman is a trial lawyer specializing in both complex civil and criminal cases.  He has a well-established expertise on the Computer Fraud and Abuse Act, the Racketeer Influenced and Corrupt Organizations Statute (RICO), securities fraud, state and federal trade secret laws and post employment restrictive covenants.

Prior to private practice Nick served as a federal prosecutor.  He was an Assistant United States Attorney in the Southern District of New York, where he prosecuted a wide array of white collar criminal matters, including bank frauds, bankruptcy frauds, stock frauds, complex financial frauds, environmental and tax crimes.  Nick was also an Assistant Special Watergate Prosecutor with the Watergate Special Prosecution Force under Archibald Cox and Leon Jaworski.

He is a nationally recognized expert on computer crime and the protection of competitively sensitive information and computer data.   Nick regularly obtains injunctions for his clients under the federal Computer Fraud and Abuse Act in various federal courts around the country requiring computer thieves to return stolen computer data and prohibiting the dissemination of the data to competitors.  He also consults with clients in developing systems, policies and protocols to protect computer data.

Nick speaks and writes regularly on protecting computer data, including in his regular computer data column for the National Law Journal and is the author of a book entitled, “The Computer Fraud and Abuse Act – A Guid for General Counsels and CIOs.”.  He has been a featured quoted expert on computer fraud and computer security issues in the New York Times, USA Today, the San Jose Mercury, the Boston Globe, the St. Louis Dispatch, the Sacramento Bee, Forbes, ComputerWorld, CFO Magazine, CNET, CNET Japan, ZDNet, MSN, Internet Week and the Weekly Homeland Security Newsletter.  His blog can be found at http://computerfraud.us

Nick received his JD, cum laude, from Harvard Law School; and his BA, magna cum laude, from the University of Massachusetts.  He is admitted to practice in New York, Massachusetts, and the District of Columbia.



Abstract:

Using The Computer Fraud and Abuse Act Against Insider Thefts 

The Computer Fraud and Abuse Act is a criminal statute with civil remedies that invites companies to take proactive steps so it can be used aggressively in the event of a computer attack and theft of data.  A critical element of five of the eight provisions of this statute that can form the basis for a civil action require proof that the person who accessed the computer did so “without authorization or exceeding authorization.” 


One of the most contentious issues surrounding “unauthorized access” has been focused on the employer/employee relationship and whether employees who have permission to access their employer’s computers can ever be said to have accessed their employer’s computer without authorization.  This is obviously a key issue since so many thefts of data are “inside jobs’ committed by employees who typical steal the company’s most competitively sensitive data when they are leaving to join a competitor.  


This sessions will review the current state of the law on use of the Computer Fraud and Abuse Act against insiders.  In particular, I will focus on the recent decision of US v. Nosal in the 9th Circuit which covers California, Oregon, Washington, Nevada, Alaska, Hawaii, Idaho and Montana.  David Nosal, a former Korn/Ferry executive, was indicted for stealing confidential data from the company computers prior to joining a competing head hunting firm.   Even though Nosal is a criminal prosecution for violating the Computer Fraud and Abuse Act, it applies equally to civil uses of the statute.


The Nosal decision which was handed down in April makes the 9th Circuit the only federal circuit to hold that the statute does not apply to employees.  As part of my discussion of Nosal, I will play a video of selected portions of the oral argument that occurred in the Nosal case before the Court last December, discuss the issues that are likely to be ultimately decided by the US Supreme Court and what companies should do in the meantime.



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