Does an Employee Deleting Emails Fall Under Computer “Damage?”

Illustration by Dreamstime
Illustration by Dreamstime

By Eric B. Meyer

Here’s a recent question: My employee deleted all of her work emails and quit. Can I sue her for that?

Well, sure, you can.

But winning that case — especially if you’re thinking about a claim under the Computer Fraud and Abuse Act — may be another story.

Damage under the Computer Fraud and Abuse Act

The CFAA is designed to prevent unauthorized access or malicious interference with a computer system. Often used as an employer-sword, to state a claim for a violation of the CFAA, a company must prove that an employee actually caused damage to its computer system or data. The CFAA defines “damage” as “any impairment to the integrity or availability of data, a program, a system, or information.”

In Instant Technology, LLC v. DeFazio, the former employee deleted all of her work emails from her inbox.

Well, damn, that sure sounds like an impairment to the availability of data.

Yeah, except, in this case, all those “deleted” emails remained in two places:

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  • The former employee’s email trash folder; and,
  • On the company’s email server.

Work emails are company property

Therefore, because the company did not show that any data was lost or impaired, it could not demonstrate “damage” and, therefore, lost its Computer Fraud and Abuse Act claim.

But, had the former employee double-deleted her email — like any good scoundrel — and the company’s email server been wiped, there could have been a CFAA violation.

To avoid these problems, as a best practice, be sure to remind your employees that any work emails are company property and should be held/deleted consistent with your company’s computer use/email policy

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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1 Comment on “Does an Employee Deleting Emails Fall Under Computer “Damage?”

  1. Great points. Unfortunately, I would think that “intent” has to enter into the equation. Many employee inboxes have rules in place that will temporarily archive and then automatically delete (the double-delete) after a period of time. Can you really pursue that person if their intent was just to maintain a high performing system and spare hard disk space, rather than trying to hide incriminating communications?

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