The advantages of mediating Computer Fraud and Abuse Act disputes

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The advantages of mediating Computer Fraud and Abuse Act disputes

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Daily Journal

 

The advantages of mediating Computer Fraud and Abuse Act disputes

 

February 6, 2024

 

By Daniel Garrie, Hon. Gail A. Andler

 

The Computer Fraud and Abuse Act of 1986 (“CFAA”), codified as United States Code Title 18 Section 1030, is probably best known as the primary federal law governing cybercrime in the United States today. However, the CFAA also provides for civil remedies, which some companies have seen as an way to recover monetary damages for suffered losses from data breaches or cyberattacks that the government is either unwilling or unable to prosecute due to the explosion of cybercrime in recent years. For CFAA cases pursued as civil matters, mediation can be an effective tool for resolving disputes, saving the parties time and money in a way that gets to the heart of the technical issues.    

What is the CFAA?  

At a high level, the CFAA prohibits unauthorized access of protected computer systems and the distribution, theft, or damage of information from a computer or network. The CFAA also includes provisions prohibiting other computer related offenses such as computer espionage, trafficking in passwords, and transmitting malicious code.  

Notably, the CFAA also allows individuals to bring civil actions for violations of the CFAA. Pursuant to Section 1030(g) of the CFAA, “Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.”  The CFAA limits the right of a private individual to bring a civil action only where the violation: (1) modifies or impairs medical examination, diagnosis, treatment or care of a person or persons; (2) causes physical injury to any person; (3) causes a threat to public health or safety; or (4) causes “loss” to one or more persons during any one-year period aggregating at least $5,000 in value. 

This gives entities that have been the victim of cybersecurity breaches a useful tool in situations where law enforcement does not pursue the matter. There are also advantages for the plaintiff as the “preponderance of evidence” standard of civil cases is much lower than the “beyond a reasonable doubt” standard of criminal cases.

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Roles of E-Discovery and Digital Forensics

Understanding the Distinct Roles of E-Discovery and Digital Forensics

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Understanding the Distinct Roles of E-Discovery and Digital Forensics

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Roles of E-Discovery and Digital Forensics

Daily Journal

Understanding the Distinct Roles of E-Discovery and Digital Forensics

 

December 28th, 2023

 

By Daniel Garrie, Hon. Gail A. Andler

 

E-discovery and digital forensics are two distinct and nuanced concepts that are often conflated in the world of legal technology. While both fields converge in their utilization of digital data and may overlap once litigation is instituted, their applications, methodologies, and implications in legal proceedings significantly differ.

E-Discovery is by its nature employed once litigation (or arbitration, under some rules) has commenced; digital forensics implicates the prelitigation obligation of preservation, as discussed below, and perhaps other aspects of the discipline which may come into play for pre-litigation mediation or other forms of alternative dispute resolution.

Take, for example, the hypothetical situation of a key employee (“Former Employee”) leaving Business A to start a competing business, Business B. As soon as competing business enterprise Business B or Former Employee are put on notice that Business A may dispute some aspect of Former Employee’s actions in leaving Business A or engaging at Business B, Digital Forensics must come into play to identify, preserve and maintain certain electronically stored information of all concerned. Early mediation efforts may take place pre-mediation with the sides, separately or together, utilizing a digital forensics expert to review hard drives or phones to determine whether information has been accessed, downloaded or deleted. In our hypothetical, it is not until either litigation or arbitration permitting discovery commences that eDiscovery may come into play, potentially overlapping with Digital Forensics activities. Following below is a more expansive discussion of each. Understanding the roles and characteristics of these two critical facets of legal practice can aid legal professionals in managing the technical aspects of legal proceedings more efficiently and avoid costly pitfalls. This article provides an overview of the defining features of e-discovery and digital forensics and how they are used in distinct ways in the legal field.

To read the full article, go to JAMS