CLE Presentation: Michael Kass, Litigation Partner, Armstrong Teasdale The choice of a lawyer is an important decision and should not be based solely on this presentation. All rights are reserved and content may not be reproduced, disseminated or transferred, in any form or by means, except with the prior written consent of Armstrong Teasdale.

1. © 2013 Armstrong Teasdale LLP

2. Trade Secrets and Computer Tampering:
The Convergence of Two Ways to Protect Important
Company Assets and Information
Presented by:
Michael B. Kass
© 2013 Armstrong Teasdale LLP

3. The ways employees can steal from you . . .
INTRODUCTION
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4. What is computer tampering?
 Sophisticated espionage not needed.
• Ease of copying/transferring large amounts of data more
common among departing employees.
− Email, thumb-drives, hand-held devices, laptops . . .
• Computer tampering statutes may make a lot that type of
activity unlawful.
• You may be able to protect your information as trade secrets
• But . . . depends upon your policies and procedures.
− These laws are important whether or not your company
restricts employees with non-compete agreements.
© 2013 Armstrong Teasdale LLP

5. Why is this important to me?
 Encourages steps to prevent theft in the first place and adds
to your “menu” of potential weapons to use in your fight
against the bad-acting departing employee.
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6. Why is this important to me?
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7. The Laws
 Computer Fraud and Abuse Act
 Missouri Computer Tampering Act
 Uniform Trade Secrets Act
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8. Computer Fraud and Abuse Act (“CFAA”)
18 U.S.C. § 1030
 Conduct prohibited by CFAA
• Statute not “elegantly” drafted
• Most commonly relevant provision prohibits: Intentionally accessing a
computer without authorization or by exceeding authorized access and
thereby obtaining information from a protected computer.
• Knowingly causing the transmission of a program, information, code or
command, and in doing so intentionally causing damages to a protected
computer.
• Requirement for Civil Action: Economic damages > $5,000
− May include cost of forensic investigation (depending on jurisdiction)
• Key Issue: When does an employee “exceed authorized access”?
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9. Missouri Computer Tampering Act
 Tampering with Computer Data (§ 569.095 RSMo.)
 Tampering with Computer Equipment (§ 569.097 RSMo.)
 Tampering with Computer Users (§ 569.099 RSMo.)
 It’s “tampering” if done either:
• Knowingly (i.e. knowing it is unauthorized); or
• Without reasonable grounds to believe one has authorization
• (Slightly broader than CFAA “authorization” requirement)
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10. Remedies
 CFAA – Economic Loss, plus attorneys’ fees
 MCTA – Costs associated with uncovering the breach and
fixing any damage done to CPU systems, plus attorneys’ fees.
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11. Trade secrets defined*
 Information, data, technique, etc. that:
• Derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by other persons who can
obtain economic value from its disclosure or use
• Reasonable efforts under the circumstances are taken to
maintain its secrecy
*Source: Missouri Statute (RSMo. § 417.453(4))
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12. Trade secrets defined*
 Factors used to determine if information is a trade secret
• Extent to which the information is known outside the business
• Extent to which it is known by employees and others involved in that
business
• Extent of measures taken to guard the secrecy of the information
• Value of information to the one claiming the trade secret and its
competitors
• Amount of effort and/or money expended in developing that information
• Ease or difficulty with which the information could be acquired or
duplicated by others
*Source: Baxter International, Inc. v. Morris, 976 F.2d 1189, 1194 (8th Cir. 1992)
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13. Convergence of computer tampering and
trade secret protection
 Steps to prevent data theft before it happens
 Steps to help establish liability in the event of a breach
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14. Convergence of computer tampering and
trade secret protection
 Safeguard your computer systems and electronic files.
 Password access only
• Additional password access for most sensitive documents for
those who need to know
 Computer and email usage policies
• Be clear about extent of “authorization”
− Employee access to files on system for authorized business
purposes only
− Not for employee’s personal benefit
© 2013 Armstrong Teasdale LLP

15. Convergence of computer tampering and
trade secret protection
 Confidentiality policies and agreements
• Policy
– Employee acknowledgement of receipt
– Periodic reminders.
• Policies and agreements
– general language
– specific language referencing greatest concerns
 Mark confidential documents “CONFIDENTIAL”
 Secure “confidential” documents (e.g., locked file cabinet)
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16. Side Bar: You should be “atwitter” about your
confidential information losing its trade secret status
on social media sites.
 Use of Twitter and LinkedIn by your employees
• Restrictions on information they can post?
− Visiting “ABC Customer about XYZ today . . .”?
 Who does your employee “follow” and with whom is she
“Linked”?
• Veritable customer list?
• De-Linking
 Consider addressing in policies and agreements.
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17. Closing comments
 Simultaneously prevent theft while bolstering your ability to stop a
bad-acting employee from harming you.
• Protect your electronic and confidential documents and
information with clear policies and agreements.
− Computer usage
− Email usage
− Confidential information
 See departing employee checklist
© 2013 Armstrong Teasdale LLP

18. Questions
Michael B. Kass
mkass@armstrongteasdale.com
314.552.6673
© 2013 Armstrong Teasdale LLP