Using the criminal law computer misuse provisions to protect confidential information

Abstract

This article is about the criminal law provisions relating to crimes involving computers, and the risks these provisions may pose to people dealing with confidential information in the nature of a trade secret, as illustrated by recent cases. There is a growing international trend toward use of the criminal law to protect confidential information and trade secrets. A growing number of jurisdictions have criminal provisions applying in some form to the taking of trade secrets. United States law has included such criminal provisions for some years. New Zealand law has also had provisions since 2003, and requirements for such provisions are being included in trade agreements such as the Trans-Pacific Partner-ship Agreement (TPPA). The primary justification for criminalisation is generally concern about foreign hackers, but inevitably employees and ex-employees are among the likely defendants. There has not yet been a lot of case law involving the taking of confidential information under the New Zealand provisions, but there have been two significant recent cases. This article reviews the recent New Zealand cases and considers the implications for employees and others dealing with confidential information. It is arguable that the availability of the criminal law in these cases creates excessive risks for individual employees and more broadly for employee mobility and the sharing of information, perhaps most troublingly in knowledge-based industries.