The professor has return this assiegnment to me wants to fix it if i don’t she will give me a bad gradei need it to be fix it or write another onethe prevouis tutor did not do wellDo anything to fix itword doc is attachedDUE DATE FOR YOUR CYBER LAW APPELLATE OPINION ANALYSIS- 2 NOV. 20. Details are posted in the Course Documents. I urge you to consult with the Library for assistance on case selection.Appellate Opinion AnalysisGuidelines for Writing the Appellate Opinion Analysis, MemorandumThe following guidelines will enable you to prepare a suitable writing requirement based upon your research and discussion of an appellate judicial holding.1.Select a field of law of personal interest to you (professionally or simply personally) that also relates to our overall course objectives, that is, somehow relating to any matters within the field of Cyber Law, Privacy or IT Security.2.Use any search engine you are comfortable with to locate a suitable appellate opinion. You are also strongly encouraged to take advantage of the College Library research staff, who are excellent . Even Google Scholar, let alone www.findlaw.com () and many others, can quickly locate current, interesting materials. In addition, blogs and media items also suggest cases.3.Appropriate judicial holdings include those of the US Supreme Court, highest appellate tribunals of the states or state intermediate appellate courts, or of the Federal Circuit courts of appeal. I recommend that you NOT select “landmark” cases for which there is either too much complexity or too much scrutiny already (e.g. Roe v. Wade, Griswold V. CT).4.I do not reward verbosity or prolixity! Concise analyses, properly crafted and lucidly discussed, are preferred. Your entire project need not (and should not!) exceed 4 to 6 pages, double- spaced typed, exclusive of footnotes, if any. Longer papers should be on a par with Oliver Wendell Holmes and John Grisham. “Filler” will meet with an icy, cold reception! Having said that, I do not count words; use your best judgment regarding how much language you require to explicate your analysis.5.KEY FORMAT OUTLINE: Your objective is to prepare a legal memorandum at the request of the senior management echelon of your employer. You have been asked to brief your peers and colleagues on an important legal case…….but to keep it in layman’s terms, you, and not the employer’s attorney, are to prepare a memorandum which in turn will serve as the basis for an oral presentation. Your audience therefore are non-lawyers, they are your co-workers.6.Please prepare your opinion analysis along the following briefing lines, more or less: a) Identify the case clearly (including tribunal and date); b) summarize the facts very briefly; what is the basis for the legal dispute before the court; in sum, what is this case all about in its distilled essence; c) discuss the court’s ruling or holding; d) analyze the tribunal’s analysis; how did the court majority justify its holding (and were there any dissents filed?); what was the stated relationship between the key facts cited and the applicable law used by the majority court opinion; and e) what does this case have to say to us about the legal “big picture”, that is, how does this case conform to or fit into the wider body of relevant law and precedents. Lessons learned? Impact on employer behavior? Clearly, items d) and e) are the heart of this memo and should be the focus of your major efforts.7.“Brevity is the soul of wit”: Shakespeare. As noted, I do not count words and I hate to be petty but if you can do the job in 4 pages, bless you! Also, in evaluating the rationale of the court’s majority, you may ask if they are acting in a more or less “legislative capacity” and if this is healthy, appropriate and necessary.Professor (email)I attach an example of a quality appellate analysis, not as a model or format but only as one way to write such a paper. I also attach some interesting items/cases and notes on anti-trust and Google. I would love to hear more from you all beyond the minimal expectation which, as noted before, is not really “A” quality effort.please look at the exampleLegal Memorandum
FOR: Walmart Inc
PREPARED BY: Student’s Name
DATE: November 17, 2020
SUBJECT CASE: Authorized Use of Computer Information, The United States v David Nosal
The advancement of information technology has significantly impacted the operations of
various businesses. Despite its advantages in enhancing the operations of various business
operations, technological advancement must expose different firms to different forms of cyber
threats. In the United States, cybercrimes are among the leading growing problems the country
faces in the e-commerce sector. Barely a week passes without reports of a given online theft
being investigated or prosecuted1. This has forced the federal government to respond with
various cybercrime statutes meant to punish or deter cybercriminals from their acts. It is through
the established cybercrime statutes that various cybercriminals have been prosecuted and several
legal precedents set to guide future litigations regarding cybercrimes. Various decisions have
also been made in courts helping address the emerging issues of cyber threats in the country. One
of the major cases involving cybercrimes is the United States v Nosal 676 F.3d 854 (9th Cir.
2012)2. The case that deals with the scope of criminal prosecutions of former employees under
the Computer Fraud and Abuse Act are an American Court of Appeal for the Ninth Circuit case
which ruled in favor of the organization.
1
cybercrimes are among the leading growing problems the country has to face. Cybercrimes are computer related
thefts rather the misuse of computers technology by individuals with malicious intensions.
2
the United States v. Nosal, United States v. Nosal 642 F.3d 781 (9th Cir. 2011) is among the leading cases of unauthorized access to computer information.
FACTS
The court established that the prosecuted employees did not have the desired
authorization as defined in the CFAA to access computer information in the manner in which
they did. The case was established under the premise of computer information theft by former
employees. David Nosal who was the defendant in the case was a former senior-level employee
with Korn/Ferry. As a former executive search and recruiting officer, Nosal solicited the help of
the other three employees to assist him in starting his practice that would compete with his
former employer. Before the employees left Korn/Ferry, they downloaded a high volume of
highly confidential information from the firm’s servers and furnished Nosal’s new company
with. The federal government indicted the former employees for violating the CFAA. According
to the federal prosecutors, the defendants had “knowingly and with intent to defraud” exceeded
their authorized access to the firm’s servers.
THE COURT’S HOLDING
The three were convicted of the charge by a federal jury who found them guilty of the all
the six counts levied against them. Nosal appealed the decision to the Ninth Circuit arguing that
the CFAA was mainly designed to deal with a computer hacker and that the Act did not address
employee misuse of organizational information or how to deal with employees that violate
contractual agreements with an organization. Nosal further argued that in principle, employees
had the permission to access key data in their roles as Korn/Ferry employees and that they did
not act without authorization or go against the said act as stipulated in its Section (a) (4)3.
The Computer Fraud and Abuse Act 18 U.S.C. § 1030 Section (a) (4)notes “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”
3
However, a three-bench judge at the appeals court ruled and held the lower court decision in a 21 decision. According to the majority ruling, Nosal and crew acted without authorization and
therefore warranted the conviction. In their second decision, the court made an attempt to clarify
what “without authorization” means as stipulated in the CFAA.
The decisions by the majority in the Ninth Circuit was heavily based on its interpretation
of the language used in the CFAA stature. In particular, the majority focus was on Section (a) (4)
which the charges against the defendants stemmed. Under the Section of the Act, it has been
made clear that any individual who “knowingly and with intent to defraud, accesses a protected
computer without authorization, or exceeds authorized access, and by means of such conduct
furthers the intended fraud and obtains anything of value” is liable to a criminal offense. It is
essential to note that the parties involved all agreed that Nosal’s accomplices had the
authorization to access Korn/Ferry servers. The case was, however, on whether they exceeded
their authorization access by downloading the data for fraudulent reasons.
THE HOLDING’S LEGAL CONFORMANCE & IMPACT
The decision of the Ninth Circuit was heavily reliant on the earlier decision in LVRC
Holdings v. Brekka where an almost similar occurrence took place. In the case, the employer
under the civil provisions in the CFAA sued an employee for transferring organizational business
documents to their email account4. In the case, a distinction between the phrases “without
authorization and exceeding authorized access” was established thus offering an interpretation of
the statutory language. The court observed “an individual who is authorized to use a computer
for certain purposes but goes beyond those limitations is considered by the CFAA as someone
In the case, distinction between the phrases “without authorization and exceeding authorized access” was
established thus offering an interpretation of the statutory language. The court observed “an individual who is
authorized to use a computer for certain purposes but goes beyond those limitations is considered by the CFAA as
someone who has ‘exceed[ed] authorized access.
4
who has ‘exceed[ed] authorized access.’ On the other hand, a person who uses a computer
‘without authorization’ has no rights, limited or otherwise, to access the computer in question.”
It is this interpretation that the Ninth Circuit court adopted in its ruling and moved to
expand its scope noting that an employee exceeds authorized to access under the CFAA when
the employee utilizes given technologies in a manner that is against the employee’s access
restrictions. This may include but is not limited to policies that govern how information on
computers may be used. Arguing against the approach used in deciding the International Airport
Centers v. Citrin, the Ninth Circuit Court observed that an employer’s actions are what
determines an employee’s authority towards accessing given computers. They, therefore, decided
that based on this, it is the employer’s actions that determine whether an employee has exceeded
authorized access as stipulated in the CFAA.
There was on dissenting voice to the case. The dissent, Judge Campbell, argued that the
decision of the court rendered the CFAA provisions unconstitutionally vague given that
computer use policies are not established with the definiteness or precisions that calls for a
criminal stature. The judge further noted such policies can always be changed without notice.
The ruling according to the judge placed an undue burden on the employees who have to stay
current on such policies to avoid facing criminal liabilities.
LESSON LEARNED AND INDUSTRY CONSIDERATIONS
Based on the dissenting voice in the ruling, one can argue that millions of employees are
likely to be turned into criminals due to the ruling. Employees that use company computers for
other purposes that may likely violate computer use policies such as checking of basketball
scores are likely to find themselves in trouble as a result of the ruling. However, in defending its
ruling the court noted that one must have an intent to defraud by obtaining something of value
for them to be judged to have violated set organizational policies regarding exceeding
authorization when it comes to data access. Every employee is therefore called upon to ensure
that they understand organizational set policies when it comes to who is authorized to access
given sets of data for organizational purposes.
As stipulated, the advancement of technology has exposed various organizations to
different cyber threats. It is for this reason that various statutes have been established to help
reduce cases of cybercrimes in various firms. The United States v Nosal is among the few cases
that have been prosecuted under the CFAA. The case which revolved around access
authorization was determined by a three-bench judge on a 2-1 in favor of the state. The judges
argued that employers’ actions are what determines an employee’s authorization to access given
data. Despite the ruling being dissented by one judge on the basis that it will open flag gates for
employees to be prosecuted, the ruling has been defended in that one has to have the intention to
defraud by gaining critical information for them to be deemed to have gone against the set
legislations. It is the recommendation of this investigation that every employee must be
conversant with set organizational policies regarding the authorized use of computer information
to avoid future occurrences.
BIBLIOGRAPHY
1.
Brar, Harmandeep Singh, and Gulshan Kumar. “Cybercrimes: A proposed taxonomy and
challenges.” Journal of Computer Networks and Communications 2018 (2018).
2.
The United States v. Nosal, United States v. Nosal 642 F.3d 781 (9th Cir. 2011).
3.
The Computer Fraud and Abuse Act 18 U.S.C. § 1030
4.
LVRC Holdings v. Brekka, 581 F.3d 1127 (9th Cir. 2009).
5.
LVRC Holdings v. Brekka, 581 F.3d 1127 (9th Cir. 2009).
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