[You’ll also find this piece on Don Samuel’s Contemporary Legal Problems blog, where he and others write wise and witty hot takes on cool criminal-law questions. It’s a marvelous blog. Check it out.]
The Supreme Court has granted another victory lap—the second in three years—to lawyers (and clients) in our Northern District of Georgia community.
Nathan Van Buren, a police officer in Cumming, Georgia, logged into a work laptop, searched the GCIC database for a license plate, and sold the results to an FBI confidential informant. The officer violated the police department’s personnel policy. But did he commit a federal crime?
No, says the Supreme Court. In Van Buren v. United States, the Court held that the officer did not violate 18 U.S.C. § 1030(a)(2), known as the Computer Fraud and Abuse Act of 1986. Why not? “This provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.”
Put another way, the law applies only to hackers, including both the outside hacker who breaks into a computer system and the inside hacker who has legitimate access to a computer system, but breaks into a digital space that is forbidden to him. Van Buren was not a hacker because he had permission and credentials to search GCIC data. His motives—what he intended to do with the data and his violation of the employee handbook—were beside the point.
The list of names who joined Justice Barrett’s majority opinion is remarkable: Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. On many issues, the three progressives and three Trump nominees sit at distant poles on the political spectrum. Yet in Van Buren, these six justices crafted this judicial Möbius strip (a one-sided geometric figure formed by twisting a strip of paper and gluing together the opposite ends; check out Neil deGrasse Tyson’s demonstration.)
A person violates § 1030(a)(2) when he “intentionally accesses a computer without authorization or exceeds authorized access,” and thereby obtains computer information. Van Buren had authorization to access the computer, of course, but did he “exceed authorized access”? That phrase means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”
Van Buren’s fate rested on the meaning of two words: “so” and “entitled.” That’s it. Justice Barrett, writing for the majority, cited an entire bookshelf of reference materials—eight dictionaries and Scalia & Garner’s Reading Law—as she offered an exegesis of the text, a riff on legislative intent, and a take-down of Justice Thomas’s dissent. (Not to be out-done, he too cited dictionaries and Scalia & Garner, and even dusted off his copies of Restatement of Torts and Restatement of Contracts). All of that alone would be plenty to resolve the case in Van Buren’s favor.
Yet Justice Barrett went on to describe just why Van Buren’s prosecution is so dangerous to us all. With a there-but-for-the-grace-of-God tone, she noted that if the Eleventh Circuit’s view prevailed, all of us (including you, me, and Justice Kavanaugh) may violate § 1030(a)(2) every day: “If the ‘exceeds authorized access’ clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals.” Any employee, she warns, who uses his work computer to send a personal email, read the news, pay the bills, or check the Hawks score, would be guilty of this federal crime.
Once again, the Supreme Court has shined a light on the Eleventh Circuit’s fallibility. According to Ballotpedia, during the period between 2007 and 2020, the Supreme Court reversed our local appeals court no fewer than 48 times, an average of more than three cases each term. Indeed, among the 13 circuit courts (including the Federal Circuit), only three saw more reversals than the Eleventh Circuit.
And now we add another to the list, thanks to the Van Buren team: Rebecca Shepard of the Federal Defender Program, Saraliene Smith Durrett and Michael Trost of the CJA panel, and Jeffrey L. Fisher & Co. of Stanford Law School.