E-Commerce Law Week, Issue 593

Court's Decision Would Severely Limit Employer Use of CFAA

A federal district court in Illinois has weighed in on what constitutes "loss" under the Computer Fraud and Abuse Act (CFAA), ruling that civil claims cannot survive absent evidence of "impairment or unavailability of data or interruption of service."  This is an issue that has divided the courts; if the court’s reasoning is sustained on appeal by the Seventh Circuit and adopted by other federal courts of appeal, it would greatly limit the utility of the CFAA to employers.

Sacrebleu!  French High Court Limits Employees' Privacy Rights in the Workplace

The Cour de cassation Chambre sociale, the labor chamber of France's highest court of appeals, upheld a lower court's ruling that an employer is entitled to open employee files not marked "private," even without the employee's presence or consent.  The court’s ruling expands the scope of allowable employer monitoring of employees’ communications in France, and is the latest in a line of cases narrowing the Cassation Court’s 2001 decision in Nikon France SA v. Frédéric O.  Nikon established that employees have a right to privacy in personal messages transmitted using a workplace computer, even where an employer has banned non-business use of the computer.  Since then, though, the Cassation Court has issued decisions that refined Nikon in favor of employers, including a 2008 ruling that employers had the right to monitor an employee’s Internet usage without the employee’s knowledge or presence, and a 2009 ruling that an employee file could not be considered "private" merely because it was identified by the employee's initials. 

UK Government Approves Monetary Penalties for Data Breaches

The government of the United Kingdom has approved a proposal that would bring into force the authority of the Information Commissioner's Office (ICO) to impose monetary penalties of up to £500,000 for "serious" breaches of the Data Protection Act 1998.  The government has also approved the ICO's guidance detailing the criteria it will use in determining whether or not to impose a monetary penalty and, if so, the amount of the penalty.  As we previously reported, the UK government sought public comment on this proposal at the end of last year, and the majority of respondents favored the proposed maximum penalty.  The proposal now goes before Parliament.  If approved there, it will come into force on April 6, 2010.

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