Nosal

Dissent by

ORDER

The opinion filed on July 5, 2016, and appearing at 828 F.3d 865 , is hereby amended. An amended opinion is filed concurrently with this order.

With these amendments, Chief Judge Thomas and Judge McKeown vote to deny the petition -for rehearing en banc. Judge Reinhardt votes to grant the petition for rehearing en banc.

The full 'court has been advised of the petition for rehearing- en banc;- and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is denied. No further petitions for en banc or panel rehearing shall be permitted.

OPINION

This is the second time we consider the scope of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 , with respect to David Nosal. The CFAA imposes criminal penalties on whoever “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.” Id. § 1030(a)(4) (emphasis added).

Only the first prong of the section is before us in this appeal: “knowingly and with intent to defraud” accessing a computer…

dissenting:

This case is about password sharing. People frequently share their passwords, notwithstanding the fact that websites and employers have policies prohibiting it. In my view, the Computer Fraud and Abuse Act (“CFAA”) does not make the millions of people who engage in this ubiquitous, useful, and generally harmless conduct into unwitting federal criminals. Whatever other liability, criminal or civil, Nosal may have incurred in his improper attempt to compete with his former employer, he has not violated the CFAA.

The first time this case came before us wé examined whether Nosal’s former colleagues acted “without authorization, or exceeded] authorized access” when they downloaded information from Searcher while still employed at Korn/Ferry and shared it with Nosal in violation of the firm’s policies. United States v. Nosal (Nosal I), 676 F.3d 854, 864 (9th Cir. 2012) (en banc). We said “no,” rejecting the approach of a few other circuits which had interpreted the CFAA looking “only at the culpable behavior of the defendants before them, and fail[ing] to consider the effect on millions of ordinary citizens.” Id. at 862 . In doing so, we stated that they turned the CFAA…