The Computer Fraud and Abuse Act, at 18 U.S.C. §1030(a)(5)(A)(1), imposes liability upon a person who “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer.”

In the recent Seventh Circuit case of International Airport Centers, L.L.C. v. Citrin, the plaintiff provided one of its employees with a laptop computer for him to use in connection with his work. The employee quit his job to start up a competing business. Before he turned in his laptop, however, he used a “secure-eraser” program to irretrievably delete the files on the laptop. According to the plaintiff’s version of the story, the defendant deleted not only information he had gathered as part of his job, but also information that would have demonstrated his improper conduct.

The plaintiff claimed that this conduct subjected the defendant to liability under the Computer Fraud and Abuse Act, and it filed suit in the U.S. District Court for the Northern District of Illinois. The district court dismissed the Computer Fraud and Abuse Act claim, holding that as a matter of law, the defendant’s alleged conduct did not give rise to a violation of the Act. Specifically, the district court determined that installing the program used to delete the material off the computer did not constitute a “transmission” as contemplated by the Act.

The Seventh Circuit disagreed and reversed the decision of the lower court. Departing from the lower court’s conclusion that a “transmission” under the Computer Fraud and Abuse Act requires some sort of “shipment or delivery of a code or a program,” the court found that the precise mode of transmission of the program onto the computer did not matter. The copying onto the hard drive, whether done through a download over the Internet, or by loading off of a disk, satisified the statutory requirement of “transmission.”

The Court of Appeals sent the case back to the District Court.

International Airport Centers, L.L.C. v. Citrin, (Slip Op.) No. 05-1522 (7th Cir. March 8, 2006).