Jottings By An Employer's Lawyer

Wednesday, March 08, 2006

New Weapon Against Departing (and Deleting) Employees


The 7th Circuit today recognizes a federal cause of action against an employee who deletes information from his laptop computer AND makes the deletion undetectable by use of a "secure erasure" program. International Airport Centers, LLC v. Citrin (7th Cir. 3/8/06) [pdf].

The employee had been hired to help his employer identify properties which it might want to acquire. After deciding to go into business for himself (in violation of his employment agreement), he deleted data from his company issued laptop, including both data that the company did not have and data which would have shown the improper conduct he engaged in. He made sure the evidence could not be recovered by loading an erasure program which by writing over the deleted files prevented recovery of the missing data.

The act of loading the erasure program, whether by manual disk or via the internet, was his downfall. Judge Posner finds that act constitutes a "transmission" as defined under the Computer Fraud and Abuse Act, 18 U.S.C. ยง 1030. More particularly, that section of the Act designed to prevent those who would transmit viruses which damage computers. Although it takes more parsing of the statute to get there, the bottom line is the Court reinstated the employer's suit, reversing the trial court which had found no "transmission" and thus no cause of action.

Suits between employers and departing employees are every day events in almost every jurisdiction, and in today's age of computers, it would be the rare case where at least the possibility for such a secure erasure was not present. My guess is that after today, it is an issue that will gather much more attention.


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