Yesterday, the National Whistleblower Center (NWC) filed an amicus brief with the Supreme Court in a case that could undermine whistleblower retaliation protections. The underlying case, Nathan Van Buren v. United States, concerns the interpretation of the phrase “exceeds authorized access” under the Computer Fraud and Abuse Act (CFAA).
The NWC is a Washington, DC-based whistleblower advocacy group dedicated to protecting and rewarding whistleblowers. The whistleblower attorneys at Kohn, Kohn & Colapinto (KKC) represented the NWC and filed the amicus curiae brief on its behalf.
In its brief, NWC challenges a ruling by the Eleventh Circuit Court of Appeals, which joined the First, Fifth, and Seventh Circuits in holding an employee liable under the CFAA for accessing information on a workplace computer for an improper purpose even though the employee was granted access to that information. This broad reading of “exceeds authorized access” could inadvertently expose employees to civil actions by their employers if they use their work computer to report a crime to law enforcement authorities. Meanwhile, the Second, Fourth, and Ninth Circuits have ruled that employees only “exceed authorized access” when they access information on a work computer, which they have no right to view for any purpose.
“The federal obstruction of justice statute encourages employees to report criminal activity and protects whistleblowers from undue retaliation. The CFAA cannot be read so broadly as to allow employers to bring retaliatory lawsuits against federal informants and thereby obstruct justice,” said KKC partner Stephen M. Kohn. Kohn is also a founder of the NWC, where he serves as Chairman of the Board.
“We hope and expect that the U.S. Supreme Court will respect Congress’s intent to protect whistleblowers from retaliation by their employers when they are assisting federal law enforcement authorities. There is no justification for penalizing those who put their livelihood on the line to assist a federal investigation,” said John Kostyack, NWC Executive Director.
The Supreme Court is unlikely to issue its decision in this case until 2021.