The case of Van Buren v. United States will have oral arguments before the Supreme Court on November 30, 2020. At issue is whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose. Prof. Orin Kerr joins us to discuss the case, the oral arguments, and its implications.
Prof. Orin Kerr, Professor of Law, UC Berkeley School of Law
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Nick Marr: Welcome, all, to The Federalist Society's Teleforum Conference call, as this afternoon, November 30, 2020, we have a special "Courthouse Steps Oral Argument Teleforum on Van Buren v. United States." I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on today's call are those of our expert.
We are fortunate to have with us this afternoon Professor Orin Kerr. He's a Professor of Law at UC Berkeley School of Law. After Professor Kerr gives his opening remarks and covers the case, we will then go to audience questions. So be thinking of those and have them in mind for when we get to that portion of the call.
Okay. Without much more delay, Professor Kerr, thanks for being with us today. The floor is yours.
Prof. Orin Kerr: Great. Thank you all for showing up on this call for us to talk about a Supreme Court case that was argued just a few hours ago, Van Buren v. United States. Let me talk about what the case was about and then I'll talk about how the oral argument went. And I'll offer some broad thoughts about how the case fits in with the Supreme Court's work more broadly.
So this is a case about the federal computer hacking statute, the Computer Fraud and Abuse Act, Title 18 Section 1030, which was enacted in the 1980s, and it has a very broad prohibition in the statute that it's a crime to access a computer without authorization or exceed authorized access to that computer to obtain information. And that is a federal misdemeanor, and then it can become a federal felony if that act of unauthorized access is undertaken in certain situations to make money, make a profit out of it, or in further instances of tortious or criminal act.
But the basic prohibition is unauthorized access to a computer, either accessing the computer without authorization or exceeding authorized access. And the question was whether that statute was violated by a police officer, Mr. Van Buren, who accessed a sensitive state database for non-official reasons.
He's a police officer and he's been given a username and password to access a state database of Georgia State database that had basically personal information about the, I think it was like parking tickets or that sort of thing, sort of tickets -- legal issues that different people had had in the database, and he was paid by somebody to access that database.
There was a guy in town who offered him a couple thousand dollars to look up someone for a personal reason because the guy wanted to do basically a personal background check on someone that he was interested in. And the officer took the money and did the query of the database.
Turned out, the guy who was offering to pay him that money was working undercover with the FBI. And so Van Buren is then charged with a violation of the Computer Fraud and Abuse Act. And then also he has wire fraud charges which are still pending based on basically a bribery query which is probably when you hear those facts is more what you think this case should be about.
And so it so happens that this case was charged in the Eleventh Circuit. And the Eleventh Circuit has a prior precedent which had very similar facts which it said that that was an unauthorized access under the Computer Fraud and Abuse Act. And the Second Circuit and the Ninth Circuit, depending on how you look at it, maybe some other circuit, had their own precedent saying that that was not an unauthorized access under the Computer Fraud and Abuse Act.
So the U.S. Supreme Court takes the case to figure out which one of those views is right. So the case gets to the Supreme Court and what's interesting about it, to my mind, is that the statute doesn’t to my mind really seem to answer how far the statute goes. And let me read the relevant text to you.
So the basic prohibition again is "access of a computer without authorization or exceeding authorized access," that's the basic language. And then access without authorization is not defined, but exceeding authorized access is defined. So let me read that to you. Section 1030(e)(6) says, "The term exceeds authorized access means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter."
There was a lot of discussion in the oral argument today about the word so. What does so mean? So usually is some sort of a reference to some other prior act, and there was a lot of discussion as to what is the prior act that the word so is referencing?
To my mind, that discussion ultimately goes nowhere because the answer is the statute doesn't say. The statute is terribly unclear as to what it is that's prohibited, and in fact, the definition of exceeds authorized access is basically circular. It achieves authorized access to have access and then to do something you're not allowed to do, but the statute doesn't then answer what determines whether you're allowed to do something.
And there are these two basic ways of thinking about the statute. One is that it's limited to breaking in. It's limited to hacking. It's limited to bypassing a code-based restriction like guessing somebody else's password and accessing their account or hacking in by exploiting some sort of security flaw that gives you access to a closed account or computer that you're not supposed to have access to. And everybody agrees the statute covers that.
Does the Computer Fraud and Abuse Act cover that? Does violating a written restriction on the use of a computer violate the CFAA? And that's the issue on which -- that's really the heart of this case. Does the CFAA, does this Computer Fraud and Abuse Act, only apply to hacking? Or does it also cover somebody who has an account, who has access, or who is using the computer legitimately, who then violates the written restriction, violates the term of service on the website or violates the written restriction on the database.
And that mattered in Van Buren because Van Buren was told when he was trained on how to use the database. Hey, Van Buren, you can only use this database for work-related reasons. You're only allowed to do queries about private information of people when you're doing a query for your official duties as a police officer. You're not allowed to just check out people just because you want to. That violates the written term.
And everybody agrees that violating the written term was bad, and he could be fired for it. And accepting the bribe could be bribery. The question is whether violating the written restriction that said you're only allowed to access this computer for work-related reasons, whether that was a separate Computer Fraud and Abuse Act crime, essentially hacking into the computer because it violated the written restriction.
So the case was argued this morning. And Jeff Fisher, of the Stanford Supreme Court Clinic, was arguing for Van Buren. And he made the argument -- he made a couple arguments. First, he argued that the word so in the definition of exceeding authorized access only refers to hacking. And so the definition of exceeds authorized access basically covers insider hacking.
So his vision of the statute is that if you're an outsider, you get somebody else's username and password and access their account, you've committed an access without authorization. On the other hand, if you're an insider, you have your own account on a system and you hack into somebody else's account on that same system, well then, you're exceeding authorized access to that computer.
You have your own account rights on the computer, the server, for example, that is hosting, say, the email for your company. But you're exceeding authorized access when you hack into somebody else's email account, and that's how to understand the statute.
Fisher spent a lot of time pressing the implications of the government's reading and how broad those implications would be, which is an issue because the broadest version of the statute is just -- criminalizes unauthorized access, either access without authorization or exceeding authorized access, to any protected computer—and a protected computer is basically anything with a microchip. It doesn’t need to be connected to the internet even—and obtaining information.
And the legislative history of obtaining information is pretty clear that obtains just mean sees. Anytime somebody sees information, that counts as obtaining information. And it doesn't require sensitive information. It's any information. It doesn't require valuable information. It's any information. Those valuable or sensitive information parts can make it a felony violation, but the mere misdemeanor violation is really any information.
So Fisher says well, if you accept the idea that the government can prosecute somebody who violates a written restriction on any protected computer, that means that everytime anyone intentionally violates any term of service, they are committing a federal crime. And so that would mean, if you think about it, the majority of American adults have Facebook accounts. Well, Facebook requires that you post everything in your own name. You have to use your real name. You have to have real biographical information.
Well, if you lied, if you said you were married when actually you're divorced on your Facebook page, Fisher says well, that's an unauthorized access to Facebook because you're accessing Facebook in violation of its terms of service, rendering that exceeding authorized access under the government's view. And it can't be that the statute actually is that broad because if it's that broad, everybody is committing a federal crime all day long because we're all violating these terms of service. So that was Fisher's argument.
The government responds that actually, there's a difference between a core violation of the statute and the hypotheticals that Fisher is raising are really fanciful ideas. The government wouldn't prosecute somebody, and there are ways of reading the statute more narrowly such that the parade of horribles that Fisher is offering would not be the case.
So the government's version of the statute is first that the word so was intended to considerably expand the scope of the statute, that the access without authorization prong is hacking and the exceeds authorized access prong is violating a written restriction because of the word so. That's the government's argument.
And the government says there are all sorts of ways of limiting the statute to avoid overly broad results. This idea that everybody who is using a computer is committing a crime. And in a world where we're all using computers, we're basically all in violation of the CFAA. The government's view is that that wasn't the case because there are some implicit limits on the statute. What was the implicit limits?
Well, the government said one limit is that authorization, the concept of authorization, is about some specific individualized authorization, not a mass or group authorization. And terms of service are really about telling everyone can't do something, and that's different from telling one person you can't do something. So this idea that's really -- there's some sort of clarity required or some individualization required and that when you do that, some of the abuses of somebody lying on a dating website, for example, those would no longer be a crime.
Another argument that the government made is that you implicitly need some sort of authorization to access the computer to trigger the unauthorized access statute. So this idea would be that maybe you can't commit an unauthorized access for a public website. So if somebody puts up a public website and has terms of service saying you're not allowed to do this on the website, the government is saying in this case, well, that wouldn't be or at least wouldn't necessarily be a crime because there should be a way of interpreting authorization to require that there be some sort of a password gate that a person has to get through, that maybe the answer is because this database that Van Buren accessed was not something publicly available, that's what makes violating the terms of service a crime and that different from a public website that anyone could use.
So the government says that this statute's actually a lot narrower than the defense is arguing, and you should read this word so to implicitly adopt a broader theory of unauthorized access but that the court should interpret other parts of the statute more narrowly to prevent the statute from being the statute that makes everybody a criminal.
So those were the two different arguments. Not only talked about how the different justices might've come out, there was a lot of trying to figure out first, how much does the word so tell us? I tend to think Justice Kagan had it right when she basically said this one word so, it doesn't tell us anything. There's plausible arguments on the government said and plausible arguments on the defense side. The word so itself is not so meaningful.
The government responded well, under the surplusage rule, you have to treat each word as having distinct meaning. But then the difficulty with that is what meaning do you give the word so? In that context, it's just not obvious that that word has any particular meaning and really suggests the dramatic expansion of the statute, which is a view that I think you can hear in echoes from questions by Justice Kagan and then also from Justice Kavanaugh. They echoed that view the most.
The questions of the justices that were the most -- sort of suggested which side the justices were on more than others, I think Justice Sotomayor and Justice Gorsuch were the two that stood out in that regard. Both of them suggesting that they were on Van Buren's side and not the government's side.
Justice Sotomayor focused on the breadth of the statute and the lack of clarity that the statute covered, these very far flung hypotheticals far removed from the kind of core problem of the statute. And Justice Gorsuch was particularly withering in his questions directed to the Eric Feigin, the Assistant -- or Deputy Solicitor General arguing for the government. Justice Gorsuch was asking questions like we've seen a bunch of these cases where the government takes these very broad interpretations. Why is the Solicitor General's Office bringing these cases? Why is this a federal case? And when do you hear the justice say why are you bringing this case?
He even said, I think at one point, his language was, "It's not the job of the Solicitor General's Office to rubberstamp theories of prosecution from the U.S. Attorney's Offices, suggesting that that's a perspective when you hear that. You're saying okay, well, Justice Gorsuch clearly of the mind that this statute should be read narrowly. And Gorsuch in particular was raising -- he said there's a bunch of these cases. There's Bond, and there's McDonald, and there's a bunch of cases where in recent years, the Supreme Court has adopted narrow interpretations of federal criminal statutes. And he seems to be saying isn't this just the next in line? What are we doing here, suggesting he was going to rule in Van Buren's favor.
Justice Kavanaugh also echoed that view. He reiterated some of Justice Gorsuch's view on that. Although, I think on the whole, Justice Kavanaugh's take was a little bit harder to read. I think he probably was leaning towards Van Buren's side, but it wasn't as, I think, clear as it would've been from the questions that Justice Gorsuch asked.
Justice Barrett, new Amy Coney Barrett, asked a question about can we interpret the word authorization to implicitly have scope? So she focused on the idea that the defense was treating authorization as an on off switch. Either you have authorization, or you don't have authorization. And Justice Barrett's question was is the concept of authorization one that actually implies scope? Kind of along the lines of agency principles where you might have an agent of a company, the bus driver, something like that, or a truck driver, who's implicitly authorized to use property for some things and not for other things, essentially maybe incorporating agency law, which would favor the government's view.
I think in a lot of ways, that's the gist of what the government is arguing. They have a textual argument based on the word so, but ultimately, I think, really, they're getting at kind of an agency-based view. The government, though, didn't immediately grab onto that idea. The government stuck with its textual approach for the most part.
And if there's an agency -- one of the tricky things is that if there's an agency-based approach inherent in the word authorization, what that means is anyone who violates the agency of the computer owner in using somebody else's computer violates federal criminal law and can be arrested and prosecuted and jailed for that.
And what's remarkable about that, if we think about how many times you use somebody else's computer, you're probably using somebody else's computer right now. And you might be thinking wait a minute, I'm using my own computer. I've got my laptop or my phone. Ah, but you are getting files, you're getting data from a server somewhere. Federalist Society has a server where you are downloading this podcast or maybe you're getting your podcast from Apple Podcast or something like that or listening in through a telephone network. That's somebody else's server, and so that means even though the end computer is yours, the computer you're getting the data from is somebody else's.
And so are you an agent of them? What if they enact terms of service saying you can only download a podcast from Apple Podcast if you're first name is Ralph or some completely arbitrary line. Well, in that case, if your name isn't Ralph, sorry, you've violated the terms of service, and you've committed an unauthorized access and can be arrested and prosecuted.
So I think that's -- ultimately, some of the different ways of cutting this run into the extraordinary scope of the statute which is really what the defense was arguing for from Jeff Fisher.
Another issue that the justices spent a lot of time on was just trying to get a feel for how broad is the statute? So what's tricky here is that I think the statute itself is written in quite broad language, but there's not a lot of cases on how broad the statute is.
It's been the understanding that the real game with the Computer Fraud and Abuse Act is what authorization means. And if it's unauthorized access to violate terms of service or any sort of restriction, then that's it. That's the only statutory limit because protect the computer is incredibly broad and everything is obtaining information. Merely seeing one zero or one from the computer, and you're always going to see the information obtained, that's enough to cover the statute.
But the justices were trying to figure out was that necessarily the case that the statute was actually that broad. And if it's that broad where the case is that are the abuses that the defense was arguing in favor of? And so we ended up with a dynamic where the defense is saying the statute is incredibly broad if you reject my interpretation of this language. And the government is saying oh, no, no. There are all these narrowing principles that could be applied. The statute isn't nearly as broad. This is like the reverse of the normal position that usually the government is usually arguing that the statute's broad, and the defense is arguing the statute is narrow and everybody reverses.
So there are all these questions about well, I think four or five justices talked about the parade of horribles. There was a lot of talk about parades, and I suggest that there seems to be skepticism in the justices asking that question, big parade of horribles.
And they were like well, isn't there ways of narrowing the statute? Would lying on a dating website really be an unauthorized access to obtain information? What information is being obtained by lying about your age on a website? And I think the answer to that question is that it's still obtaining information because you're logging into the website in order to obtain information. Why are you logging into a website to obtain information? Well, because you're trying to receive some sort of data when you log into any of these accounts.
When you visit a website, let's say you're -- even you’re just -- let's stick with the dating profile example, somebody looking at dating profiles. They are looking to obtain information. They're looking to see something, they're trying to get -- see somebody else's profile, or get a response from someone, from a message that they've written or whatever it may be.
The statute I think really is written that broadly such that any letter or number that a person is receiving counts as obtaining information. And the justices were just not totally sure that was the case because there just aren't a lot of cases on some of these different elements of the crime. So there were a lot of questions about well, what do the other elements really mean? In fact, Justice Alito suggested -- he said, "Should we have briefing on some of these other elements just so we understand the full scope of the statute?" So that was one notable dynamic.
Justice Thomas also asked about the scope of the statute and the parade of horribles. He was the first to ask about them. He asked the question of well, if the statute is so broad, why have there not been many prosecutions that have been brought under these broad theories? And one answer to that, I think, is that the Eleventh Circuit, which is the circuit below, was the only circuit that had endorsed this theory. And in other circuits, they had rejected the government's argument in this case. And that it'd be a pretty bold, if not reckless, prosecutor to bring a criminal prosecution trying got put somebody in jail that several other federal circuits have said is perfectly legal. That's not really a recipe for success in terms of criminal prosecution.
And I think that was one of the reasons. Another reason is that in the few cases where there had been these really broad theories that the government had put forward that the defense was raising in Van Buren, those prosecutions had not been successful. Although, exactly why not was never definitively resolved or at least wasn't resolved at the appellate level on the meaning of unauthorized access.
And the case that was mentioned a few times, and it's a case that I was involved in from a pro bono perspective on the criminal defense side, was the case of United States v. Lori Drew that was prosecuted in Los Angeles about 10 years ago. And Lori Drew had helped create a Myspace profile and you may remember -- this is sort of a case sometimes called the Myspace Suicide case because once the social media profile was created, and it was created using a fake persona, it was then used to interact with a young woman who then later on tragically commits suicide [inaudible 25:19] in creating the fake Myspace profile.
And so that was a case where -- that was really sort of the best example of an abuse of the government's theory. It was a term of service violation. The term of service violation was not telling the truth in setting up a Myspace account.
Now, that's sort of a silly reason to bring a criminal prosecution because no one on Myspace told the truth in their account. That was just standard that everybody makes stuff up in their Myspace account. It was really just the government was looking for a theory to prosecute the case, and they realized there was a term of service violation. And so they prosecuted Lori Drew because of that.
That case ultimately was thrown out on vagueness grounds. The Court concluding that the prosecution couldn't go forward because to interpret the Computer Fraud and Abuse Act to apply to terms of service violations would result in an unconstitutional statute. It would be unconstitutionally vague. But that was only a district court case, and it never went up to the court of appeals.
So there weren't a lot of abuses that the defense could point to, in part because the few times the government had tried this really broad theory, those prosecutions had not panned out. And as a result, the Justice Department had been very cautious about bringing these cases. If the Court adopts the Justice Department's view, presumably, that period of caution will end. But that's, of course, just ultimately speculation on my part.
So if I had to guess, I would guess the Court probably reverses. I would guess that just based on the recent Supreme Court decisions on the scope of federal criminal statutes, the Court has tended to interpret statutes narrowly. And I think faced with a really unclear statute that either is narrow and covers a particular problem that everybody agrees is a problem or really, really broad and in a way that is unclear as to which Congress had in mind, I suspect the current Supreme Court would at least -- there would be five votes for the view that the narrower approach should prevail. And that will send it back to Congress for further amendments.
And one interesting aspect of this case is I think there's a consensus statute for -- or a consensus answer for what would happen if the Supreme Court reverses and says the statute has to be construed narrowly, which is that everybody has an interest in having there be an additional federal criminal law that prosecutes government insiders that abuse sensitive law enforcement databases.
Everyone wants that statute to exist. The government wants it to exist because they want to prosecute people for violations like Mr. Van Buren. The civil liberties community wants that to exist because that's really a privacy statute where you'd be protecting the sensitive government information that way. The defense bar is -- the benefit of having that approach is that you wouldn't have -- trying to extend the Computer Fraud and Abuse Act to cover everything. Have a narrow statute that's just about government employees and sensitive databases.
So I think this is a situation where if the Court does reverse, which I guess they would probably do, they send it back to Congress, and then Congress would have, through all the stakeholders, the privacy groups, and the governments, and the defense -- everyone sort of gets together. And there's actually a consensus answer to what should be a crime, it's just not in the Computer Fraud and Abuse Act.
So there should be a -- there's a way making everybody happy. I don't think the Supreme Court can make everybody happy. But ultimately, I think Congress can and that that's likely to be a new statute that's enacted if the Court reverses and adopts the narrow view.
Okay, Nick. That's my overall take and happy to answer any questions that people may have. I'll take it back to you.
Nick Marr: Great. Thanks very much, Professor. And someone already jumped to the front of the queue as soon as I opened the floor, so we'll go to you now.
Bob Fitzpatrick: Hi. This is Bob Fitzpatrick in D.C. It sounds like from what you said, Professor, that there was no discussion about what I as an employment lawyer see practically every day and which I think is the most common problem with the CFAA. And that is employees typically at the end of their employment having access and "exceeding access or an improper person," that's arguable, I understand, and typically either engaged in what is called self-help discovery, taking documents that they think somehow will help their claim against their employer or, even worse than that, taking documents and then transmitting them to a new employer, maybe trade secrets, maybe confidential, who knows?
Under your discussion, it sounds like this common problem that comes up literally almost in every -- and I'm a plaintiff's side lawyer, comes up almost in every case I have. It sounds like that issue was not addressed by the court. So my question is under this public-private dichotomy that you've talked about, if the employee accesses what he or she is already permitted to access at the employer, it sounds like that might be okay. But if he or she crosses the line and accesses something that the employer that in the course of the person's work, they're not supposed to access, that might be across the line. Sorry for the long question, but it intrigues me because this comes up every damn day of my life. Thank you.
Prof. Orin Kerr: Yeah, good question. And there was discussion of this problem. It was one of the hypotheticals that was bandied around. And as you mention, this comes up a lot in the cases. And the real issue is whether that's a CFAA issue or whether that's some other criminal statute. So the employee who is -- there are lots and lots of these cases as you suggest where the employee is thinking of leaving to start their own business and they look through the database and they take some sensitive files, and then they leave. And then the question is whether the insider, when at the time they accessed the computer, they were insiders, whether that was something that is a Computer Fraud and Abuse Act violation or not.
And then there was discussion of well, wait a minute, isn't that theft of trade secrets? That's something that's generally going to be theft of trade secrets. You don't need the Computer Fraud and Abuse Act in that setting. And in fact, that's one of the reasons the theft of trade secrets statute was enacted as far as the Economic Espionage Act of 1996. It's exactly to get at the insider who takes the trade secrets before leaving the company.
Now, when the employee has already left the company, if they've been fired, for example, and then they log into their email or log into their account after they have been fired, that's something which several circuits have said that's an access without authorization. So that scenario was not considered in the justice's question.
But what to do with the employee who's being disloyal and who's maybe planning on starting their competitor business, there was discussion of that. The real question -- a couple of the justices -- it was very interesting to me. A couple of the justices seemed to be guiding their answers based on their normative policy views of what should be covered. And then that gets really complicated when you’ve got the federal criminal code where there's so many overlapping federal criminal statutes.
So if you say well, we should interpret this statute to cover this serious problem, that's one thing, but what if it's a serious problem that five other criminal statutes already cover? What are you left with? And so there was -- it wasn’t clear to me that this was a -- if these are just interested questions or whether the justices thought that that was a really important consideration in their interpretation of the statute because they struck me as a lot of legislative styled discussion.
Justice Alito, for example, was focused on the Computer Fraud and Abuse Act as a privacy law and isn't that an important role if you interpret it narrowly, doesn't that cut some of the privacy role of the statute? And so it's not clear to me how much that will play out, but there was definitely discussion of the disloyal employee problem and whether that's a CFAA issue or not.
Bob Fitzpatrick: Thanks a lot.
Nick Marr: Great, thanks. So, Professor, we don't have any questions in the queue right now. We might be able to wrap up a little bit early. I'll send it back to you though if you want to touch on anything you didn't get to cover or go to closing remarks, up to you.
Prof. Orin Kerr: No. Happy to end it there. It'll be really interesting to see where the Court goes with this case, and we're just going to have to wait and see. And this is maybe a broad context that may be helpful is there are a lot of lower courts trying to figure out what to make of the Computer Fraud and Abuse Act. And they're waiting to find out what the Supreme Court's going to do in Van Buren. This is the first Supreme Court decision substantively interpreting the Computer Fraud and Abuse Act.
There was a case on jury instructions a few years ago, Mustachio, that in passing talked about the CFAA. But this is going to be really the first case on what the statute means. And so if you think about it, this is the computer hacking law, and it's been around since 1986. And it's never been interpreted by the Supreme Court before. So this'll be a really important statute going forward and important case.
Nick Marr: Thanks very much. And on behalf of The Federalist Society, I want to thank you, Professor Kerr, for the benefit of your valuable time and expertise this afternoon and to our audience for calling in. We welcome your feedback by email at email@example.com. And keep an eye on our website and your emails for announcements about upcoming Teleforum calls. We have a couple more of these courthouse steps oral argument Teleforums scheduled for this week, so check those out. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.