Nosal

with whom TALLMAN, Circuit Judge concurs, dissenting:

This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values. It has everything to do with stealing an employer’s valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited in the defendants’ employment contracts. The indictment here charged that Nosal and his co-conspirators knowingly exceeded the access to a protected company computer they were given by an executive search firm that employed them; that they did so with the intent to defraud; and further, that they stole the victim’s valuable proprietary information by means of that fraudulent conduct in order to profit from using it. In ridiculing scenarios not remotely presented by this case, the majority does a good job of knocking down straw men—far-fetched hypothetical involving neither theft nor intentional fraudulent conduct, but innocuous violations of office policy.

The majority also takes a plainly written statute and parses it in a hyper-complicated way that distorts the obvious…

*856 OPINION

Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Sometimes we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030 .

FACTS

David Nosal used to work for Korn/Ferry, an executive search firm. Shortly after he left the company, he convinced some of his former colleagues who were still working for Korn/Ferry to help him start a competing business. The employees used their log-in credentials to download source lists, names and contact information from a confidential database on the company’s computer, and then transferred that information to Nosal. The employees were authorized to access the database, but Korn/Ferry had a policy that forbade disclosing confidential information. 1 The government indicted Nosal on twenty counts, including trade secret theft, mail fraud, conspiracy and violations of…

Jenny C. Ellickson (argued), Lanny A. Breuer, Jaikumar Ramaswamy, Scott N. Schools, Kyle Francis Waldinger, United States Department of Justice, San Francisco, CA, for the plaintiff-appellant.

Ted Sampsell Jones (argued), Dennis P. Riordan, Donald M. Horgan, Riordan & Horgan, San Francisco, CA, for the defendant-appellee.

Kathryn M. Davis, Law Office of Kathryn M. Davis, Pasadena, CA, filed a brief on behalf of amicus curiae En Pointe Technologies, Inc., in support of the plaintiff-appellant.

Geoffrey M. Howard, David B. Salmons, Bryan M. Killian, Bingham McCutchen, LLP, San Francisco, CA, filed a brief on behalf of amicus curiae Oracle America Inc., in support of the plaintiff-appellant.

Kenneth M. Stern, Law Offices of Kenneth M. Stern, Woodland Hills, CA, filed a brief in support of the plaintiff-appellant.

Marcia Hofmann, Electronic Frontier Foundation, San Francisco, CA, filed a brief on behalf of amicus curiae Electronic Frontier Foundation in support of the defendant-appellee.

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, BARRY G. SILVERMAN, M. MARGARET McKEOWN, KIM McLANE WARDLAW, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, RICHARD R. CLIFTON, JAY S.…