Last week the Supreme Court decided an important case concerning the scope of the federal government’s main cybercrime law, the Computer Fraud and Abuse Act. I wrote this post about the case, Van Buren v. United States, late last year when it was argued. As I expected, the Court has ruled in favor of the defendant and rejected the government’s sweeping interpretation of the CFAA. That was a welcome development — but the Supreme Court’s Van Buren decision leaves unresolved at least one important question concerning what kinds of computer-related misconduct might still be subject to prosecution.
Van Buren’s Prosecution
This case involves a particular subsection of the CFAA, 18 U.S.C. §1030(a)(2)(C). Under that subsection, a person commits a crime if he “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from that computer. The term “exceeds authorized access” is further defined to mean, “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.” §1030(e)(6). The key issue in the case was what it means to “exceed authorized access” under this provision.
Nathan Van Buren was a police officer in Cumming, Georgia. In exchange for a bribe, he searched a police database for a vehicle license plate number. The person who paid the bribe, Andrew Albo, told Van Buren the car belonged to a woman he had met and he wanted to be sure she was not an undercover police officer. Van Buren knew that, pursuant to police department policy, he was allowed to use the database only for legitimate law enforcement purposes. What he didn’t know was that Albo was actually cooperating with the FBI in an undercover investigation.
Van Buren was convicted for violating section 1030(a)(2). There was no question he was authorized to access the police database. But the government argued Van Buren had exceeded his authorized access, and thereby obtained the license plate information, by performing the search for an improper purpose – namely, in exchange for a bribe.
Van Buren argued that the CFAA is primarily a computer hacking statute. He claimed the prohibition against exceeding authorized access criminalizes obtaining information from a computer only when a person has no right at all to access that information. It does not apply to obtaining otherwise accessible information for an improper reason – which is what Van Buren did when he ran the license plate number, in a database where he was authorized to be, in exchange for a bribe.
The government had argued for a broader interpretation. It claimed the prohibition against exceeding authorized access applies whenever a defendant was not entitled to obtain the information under the circumstances in which he did — even if he could have properly obtained that same information under other circumstances. Here, Van Buren was authorized to access the database to obtain license plate information for legitimate police purposes. But, the government argued, he exceeded his authorized access when he searched that same database in exchange for a bribe.
The Court’s Decision
Writing for a 6-3 majority, Justice Barrett found that Van Buren had the better of the argument. Much of the opinion is devoted to a detailed parsing of the statutory language. But in the end, it mostly came down to the meaning of one little word: “so.”
The statutory definition of “exceeds authorized access” prohibits obtaining information that the defendant is not entitled “so to obtain.” The word “so,” Barrett wrote, requires an antecedent; it necessarily refers back to a “word or phrase already employed.” In this statute, she wrote, the antecedent is the act of accessing of a computer. “So to obtain” therefore refers to obtaining information by accessing a computer, as opposed to by some other means. Because Van Buren was authorized to obtain license plate information from this database, he was authorized “so to obtain” the information that he did. Doing so for an improper reason did not exceed his authorized access within the meaning of the statute.
The government had argued that “so to obtain” prohibits any obtaining of information under circumstances or conditions that were not authorized. The problem with the government’s approach, Barrett wrote, is that “the relevant circumstance—the one rendering a person’s conduct illegal—is not identified earlier in the statute. Instead, ‘so’ captures any circumstance-based limit appearing anywhere—in the United States Code, a state statute, a private agreement, or anywhere else.” But, she wrote, the word “so” is not a “free floating term that provides a hook for any limitation stated anywhere.” Van Buren’s approach, which links the word “so” to a specific statutory provision, is the more logical reading of the statute.
Hackers and Gates
The majority agreed with Van Buren that this portion of the CFAA is concerned with “hackers” — a term that the Court uses rather loosely. The prohibition against accessing a computer without authorization applies to “outside hackers,” those who break into a computer system from the outside. The prohibition against exceeding authorized access complements this provision “by targeting so-called inside hackers—those who access a computer with permission, but then ‘exceed’ the parameters of authorized access by entering an area of the computer to which [that] authorization does not extend.” Van Buren was not an “inside hacker,” however, because he did have authorization to be in that database.
The majority also described this approach as a “gates up or gates down” analysis: “one either can or cannot access a computer system, and one either can or cannot access certain areas within the system.” The CFAA is violated when an individual breaches one of these “gates” without authorization. It is not violated when an individual is authorized to open the gate but does so for an improper reason.
The Parade of Horribles
“In sum,” Barrett concluded, “an individual ‘exceeds authorized access’ when he accesses a computer with authorization but then obtains information located in particular areas of the computer— such as files, folders, or databases—that are off limits to him.” Because Van Buren did have authority to be in this police database, his use of that database in a way contrary to police department policy did not violate the CFAA.
Justice Thomas dissented, joined by Chief Justice Roberts and Justice Alito. He argued that the plain language of the statute resolved the case. “An ordinary reader of the English language,” he wrote, would agree that Van Buren exceeded his authorized access when he used the police database for an improper purpose. Thomas also argued the majority’s interpretation was contrary to traditional common-law property rules that criminalize the behavior of someone authorized to use another’s property who then exceeds the scope of that authorization.
Thomas noted that the majority’s interpretation placed a great deal of misconduct out of reach of the CFAA. Suppose, he argued, a scientist was authorized to obtain blueprints for atomic weapons under some circumstances. According to the majority, that scientist would therefore be “immune” if he obtained those blueprints for the improper purpose of helping an enemy power.
Finally, Thomas rejected the parade of horribles argument, suggesting that such concerns were speculative and far-fetched: “I would not give so much weight to the hypothetical concern that the Government might start charging innocuous conduct and that courts might interpret the statute to cover that conduct.”
Analysis of the Opinion
As I argued in my earlier post, I think the majority got it right here. Its interpretation is most in line with the overall purpose of the CFAA: preventing unauthorized intrusions into computer files owned by others. And it avoided the interpretation that would have made unwitting criminals of the vast majority of computer users – whether or not such cases would ever be prosecuted. Ruling against Van Buren would have turned the CFAA into a draconian personnel regulation.
I was surprised that the rule of lenity did not come into play in the majority’s decision. Frequently invoked in white collar cases, the rule provides that if there is any ambiguity in a criminal statute the court will err on the side that favors the defendant. It’s based on the rule that due process requires criminal prohibitions to be clear so people can know what is and is not permissible. The majority dismissed the rule of lenity as unnecessary, stating its interpretation was so clearly correct reliance on the rule was unnecessary. In a complex statutory case decided 6-3, I think that displays a certain — lack of humility. Shocking, I know.
As for Justice Thomas’s arguments about property law, the majority reasonably pointed out that common law property doctrines – many of which have their roots in medieval England – don’t necessarily adapt well to the area of cybercrime. Better to focus on the precise definitions in this particular statute, which deals with a very specialized area.
Thomas’s concern about the nuclear scientist who sells weapons blueprints being “immune” from liability is not well-founded. Such wrongdoers are not immune; other statutes, such as those against espionage, would easily cover that criminal conduct. There is no need to stretch the boundaries of the CFAA to cover it as well. Van Buren engaged in misconduct and deserved to be punished, but a conviction under the CFAA is far from the only way to do that.
When it comes to the parade of horribles, here I am more inclined to agree with the dissent. Many white collar statutes potentially encompass relatively trivial conduct that, in the real world, is never prosecuted. It’s unlikely that if the case had gone the other way we would have seen a wave of prosecutions of employees for unauthorized Facebook use at work. But here Thomas was swimming against the tide of a Supreme Court trend. In a series of recent decisions the government has argued for broad interpretations of criminal statutes by saying essentially, “trust us – even if this interpretation might criminalize some trivial conduct, we won’t bring those cases.” The Court has refused to go along. Van Buren is in accord with this line of cases.
The 6-3 Breakdown
The breakdown of the Justices in the majority and dissent is interesting. The newest, Trump-appointed Justices – Barrett, Kavanaugh, and Gorsuch – joined with the liberals – Breyer, Sotomayor, and Kagan – to form the majority. The other three conservatives – Thomas, Roberts, and Alito – were the dissenters.
All of the conservatives on the Court profess to be textualists, whose decisions are driven primarily by the plain words of a statute. Indeed, Justice Barrett began her analysis by stating: “we start where we always do: with the text of the statute.” Both of the opinions seek support from the same book on statutory interpretation, which was co-authored by the late Justice Scalia, the father of modern textualism. The competing opinions are an interesting study in how even committed textualists can disagree over what the statutory language actually requires.
Some might also have expected the Trump appointees to vote to expand prosecutorial power, not to restrain prosecutors and free a criminal defendant. But decisions in criminal cases frequently do not break down along such ideological lines. Scalia, who is revered by today’s conservative Justices, was a strong voice against the expansive reading of criminal statutes and often ruled in a defendant’s favor. The Van Buren majority’s approach to the case is in the finest Scalia tradition.
What Kind of Gate Will Suffice?
The Van Buren decision does leave one major question unanswered. As noted above, the majority adopts a “gates up, gates down” analysis: the question is whether the defendant was authorized to be inside a particular file, database, or folder, or whether that area of the computer was off limits. But it did not answer a key question: what kind of “gate” will satisfy the statute?
Computer crime expert professor Orin Kerr argued in an amicus brief that the CFAA requires a technological gate. The information must be protected by a password or similar electronic barrier that the defendant breached, or “hacked,” without authorization, even if he was otherwise authorized to be inside the computer system that contained that information. But there are other possible kinds of gates as well, such as those imposed by a contract or office policy.
For example, consider an employee at a large company who works in the purchasing department. He is authorized to access the areas of the company’s computer system that relate to his job, but is not authorized to access employee personnel records that are contained within the same system. If those personnel records are contained in a separate folder that requires a unique password, that would be a technological “hard gate.” If the employee steals that password to access the records, he would exceed his authorized access by breaching that gate.
Now suppose the personnel folder does not require a separate password but is potentially accessible to anyone already inside the company’s computer system. But company policy and the employee handbook clearly prohibit any employee not working in human resources from accessing the personnel folder. If our employee in purchasing accesses the personnel records in violation of that policy, he has breached a “soft gate” – in this case, one imposed not by technology but by a written requirement.
In footnote eight of the opinion, the Court (while citing Professor Kerr’s brief) expressly says it is not resolving this question: “For present purposes, we need not address whether this inquiry turns only on technological (or “code-based”) limitations on access, or instead also looks to limits contained in contracts or policies.” But for now it appears either kind of limit would qualify under the majority opinion. The dissent also interprets the majority opinion that way, arguing that under the majority’s approach an employee could be prosecuted for playing a game of solitaire if company policy prohibited him from opening the “games” folder on his work computer.
The majority opinion and the metaphor of a “gate” suggest there does have to be some kind of barrier or partition, even if that only consists of storing the information in a separate file or folder. It envisions a computer system with different compartments or areas of data. Exceeding authorized access would mean the information obtained would not automatically be accessible to the employee based on his level of access, and he would have to take some additional step to reach it – which could mean simply clicking on a different folder. But exactly what kind of barrier would suffice, and whether some more significant steps by the employee would be required, is left unclear.
Portions of the majority opinion, such as the reference to those who exceed authorized access as “inside hackers,” do imply some kind of technological barrier or hard gate. The majority also criticized the dissent’s interpretation of “so” in part because it could make criminality turn on external factors like office policies outside the statute itself. But if a soft gate is sufficient to define the limits of an employee’s access, then the same issue arises; it’s simply been bumped from the definition of “so” to the definition of “authorized.” That might suggest the majority would require a hard gate if confronted with a case squarely raising that question.
But all that being said, it’s hard to find the requirement of a password or other technological gate in the definition of “authorized.” If an employee opens a folder that his contract or office policy forbid him to open, his actions seem pretty clearly “unauthorized,” even if no stolen password is required.
A requirement of a technological gate to define the scope of authorization would be much cleaner and easier to enforce. But we will have to await future court decisions – or a clarifying amendment by Congress – to learn whether that is required by the statute.
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