Deloitte & Touche LLP v. Carlson, 2011 WL 2923865 (N.D. Ill. July 18, 2011)
Defendant had risen to the level of Director of a large consulting and professional services firm. (There is some irony here – this case involves the destruction of electronic data, and defendant had been in charge of the firm’s security and privacy practice.)
After defendant left the firm to join a competitor, he returned his work-issued laptop with the old hard drive having been replaced by a new blank one. Defendant had destroyed the old hard drive because it had personal data on it such as tax returns and account information.
The firm sued, putting forth a number of claims, including violation of the Computer Fraud and Abuse Act (CFAA). Defendant moved to dismiss for failure to state a claim upon which relief can be granted. The court denied the motion.
Defendant argued that the CFAA claim should fail because plaintiff had not adequately pled that the destruction of the hard drive was done “without authorization.” The court rejected this argument.
The court looked to Int’l Airport Centers LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006) for guidance on the question of whether defendant’s alleged conduct was “without authorization.” Int’l Airport Centers held that an employee acts without authorization as contemplated under the CFAA if he or she breaches a duty of loyalty to the employer prior to the alleged data destruction.
In this case, plaintiff alleged that defendant began soliciting another employee to leave before defendant left, and that defendant allegedly destroyed the data to cover his tracks. On these facts, the court found the “without authorization” element to be adequately pled.
Welch v. Theodorides-Bustle, — F.Supp.2d —, 2010 WL 22365 (N.D. Fla., January 5, 2010)
Plaintiff sued the Florida Department of Highway Safety and Motor Vehicles and a number of state officials for violation of the federal Driver’s Privacy Protection Act, 18 USC §2721-25. Plaintiff claimed that the defendants turned over a large amount of protected personal information to a private party, and that that party then further disclosed the information to another entity that published the information on the web.
As a result, the personal information of a number of Florida drivers became available for viewing online by anyone.
The defendants moved to dismiss the suit for failure to state a claim. The court denied the motion.
There is an exception to the Driver’s Privacy Protection Act’s prohibition on disclosure of personal information when the disclosure is made by a government agency “in carrying out [the agency’s] functions.” The defendants did not deny that their conduct would violate the Act, but argued that the exception applied. The defendants essentially argued that the mere fact that the disclosure was made by a governmental entity made the disclosure to be automatically carried out in connection with that agency’s function.
The court rejected this ipse dixit assertion, holding that disclosure by a government agency being treated as automatically protected would accordingly make any violation of the Act by the government impossible.
Similarly, the court rejected the defendants’ argument that language in the contract with the entity to which the information had been provided rendered the disclosure proper. The receiving entity promised to use the information only for a proper purpose. But the self-serving recitals in that agreement, without specifying in detail what a proper purpose would be, would not bind third parties.
Alligator car photo courtesy Flickr user jeffdhartman under this Creative Commons license.