The Ninth Circuit Court of Appeals ordered that U.S. v. Nosal be reheard en banc by all of the Appeals Court judges and that the “three-judge panel opinion [in U.S. v. Nosal, 642 F.3d 781 (9th Cir. 2011)] shall not be cited as precedent by or to any court of the Ninth Circuit.”
Accordingly, the ability of employers to sue employees who violate computer usage policies by stealing company data under the CFAA in the Ninth Circuit is again in question.
This comes after the three-judge panel Nosal opinion was beginning to gain momentum in district courts in the Ninth Circuit.
Should the Ninth Circuit reverse the decision, the U.S. Supreme Court may elect to take the decision as a Ninth Circuit reversal would cement the conflict between the Ninth Circuit and other Circuits, such as the Fifth and Eight Circuits. The U.S Supreme Court’s decision to take up the case may also be impacted by whether Congress passes amendments to the Computer Fraud and Abuse Act which would curtail the ability of the government and companies to sue for violation of usage policies, including violations of social media sites terms of service.