I n today’s technology driven workplace, departing employees often leave with more than a few notepads and office supplies. Most companies have a wealth of information available by electronic means that proves to be too tempting for some who have designs to unfairly compete with their former employer.
The latest trend among noncompete law practitioners has been the assertion of various computer theft statutes to reign in this activity. On the federal level, the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq. (CFAA), is being brought with more frequency in noncompetition enforcement and trade secret cases. The statute requires a showing of intentional access to a protected computer without authorization or beyond authorization that results in damages. It also provides for attorneys’ fees if the plaintiff is successful in proving its case.
Delaware has its own version of the CFAA, yet its scope is distinctly broader. The Misuse of Computer System Information Statute, 11 Del. C. § 935 et seq., makes it a crime to knowingly access a computer system without authorization. The statute prohibits not only the unauthorized copy and disclosure of electronic data, but the knowing deletion of data from a computer system.
Section 941 of the Delaware Code also has a civil component to this law which allows an aggrieved party to bring an action in the Delaware Court of Chancery for injunctive relief, restitution, and the appointment of a receiver. The Court has authority under 11 Del. C. § 941 to award treble damages for willful and malicious conduct as well as other relief as it may deem appropriate in equity. The Court of Chancery also is required to award reasonable attorney's fees to an aggrieved person who prevails under the statute.
To fall within the jurisdiction of the Court of Chancery under this law, the misuse of computer system must have occurred in Delaware, or at the there must have been some form of unauthorized access within the State.