The New York Law Journal consulted firm partner Tim Bukher on the First Department’s ruling in the cybersecurity case against former Goldman Sachs programmer Sergey Aleynikov.On Tuesday, a unanimous five-person panel of the First Department reinstated Mr. Aleynikov’s lower court conviction which had been overturned by the trial judge.
The Court ruled that Mr. Aleynikov made a “tangible reproduction,” within the meaning of of his former employer’s trade secrets when he uploaded them in violation of a 1976 law against the “Unlawful Use of Secret Scientific Material.” The pre-Internet law makes it unlawful to make “a tangible reproduction or representation of such secret scientific material by means of writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material.” New York Penal Law § 165.07.
Observers and even his own defense attorney, Kevin Marino, have mused that civil intellectual property and trade secret laws may better apply. But disagreement abounds about whether his act was criminal. And in a related debate, judges and lawyers take entrenched views about just how broadly antiquated criminal statutes can be interpreted in prosecuting crimes that weren’t envisioned, or even possible, when the laws were enacted.
But Tim Bukher, an internet law partner at Thompson Bukher in New York, said that the First Department panel “stretched” the definition of tangible to reach its conclusion.
“Basically, the First Department signaled that it is willing to interpret old laws to fit new technology, but that leaves an uncertainty as to how we should interpret these laws in light of the constant development of the technology,” he said. “Ultimately it should be left to the Legislature to update old laws.”
It’s dangerous, Bukher added, to expand old statutes to fit new crimes “when somebody could be losing their liberty over a judge’s interpretation of an old law. And think of it from companies’ perspective: The company does not really know what is covered by the law and what is not, going forward—and what protective policies to institute.
The full article is available at the New York Law Journal (subscription based).
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