By Robert Milligan

The Ninth Circuit held oral argument on the key United States v. Nosal case yesterday before an en banc panel.

The Court has made the oral argument available on-line.

At stake is whether the government can maintain criminal charges and an employer can maintain a civil cause of action under the Computer Fraud and Abuse Act against an employee who steals company data by “exceeding authorized access” in violation of an employer’s computer usage policies.

Ninth Circuit Chief Judge Alex Kozinski repeatedly challenged the Justice Department’s position on the scope of the CFAA during the oral argument and questioned why the government should be able to prosecute individuals for providing false information on Facebook, Google, or in violation of terms of use agreements or using work computers in violation of employer policies.

Ninth Circuit Judge Richard Tallman challenged Nosal’s position by questioning why employees should not be held responsible under the CFAA for violating clear and express computer usage policies by stealing company data.

Oral argument revealed that the en banc panel is likely divided on whether to reverse to the Ninth Circuit’s April decision which permitted the government to maintain its indictment against the employee for violating the employer’s computer usage policies.