By: David P. Miranda
In 1986 Congress passed the Computer Fraud and Abuse Act (CFAA), to address crimes that occur via unauthorized access to computer. In Van Buren v. United States, 206 L. Ed. 2d 822 (2020), Nathan Van Buren, a police officer in the state of Georgia, was charged under the CFAA after he accessed a license plate data base to obtain information for an acquaintance, who turned out to be an FBI informant. After conviction, Van Buren appealed to the United States Court of Appeals, Eleventh Circuit, and argued in defense that he legally had access to the data base. The Eleventh Circuit upheld the conviction noting that the CFAA’s language, “exceeds authorized access,” has been interpreted to mean “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.”
Van Buren is appealing this ruling by the Eleventh Circuit seeking to have it overturned by the Supreme Court, on the grounds the government has an interest in preventing public employees from using governmental databases for personal reasons, the usage of the CFAA to accomplish this end requires a broad interpretation of the law. Van Buren argues that if the government wants to prohibit these activities, laws should be passed that are more specific to the action they intend to prevent. As it stands under this interpretation, anytime a person breaches the terms of service of an online platform, they are violating the CFAA. This interpretation, taken to its logical extreme, could criminalize activities that do not strictly adhere to a platform’s terms and agreements, such as, beneficial computer security research, sharing a Netflix password, or submitting false information on a dating website. At least two Supreme Court justices, Justices Kavanaugh and Gorsuch, seem receptive to at least considering possible overbreadth, as evidenced by their questioning during oral arguments. Justice Gorsuch noted, in response to the government’s argument, that the statutory interpretation presented a danger of “making a federal criminal of us all.” It is conceivable that the Supreme Court could avoid addressing such broader constitutional issues and determine only whether prohibiting the officer’s conduct under the CFAA is permissible, deferring the broader issues for another case and another day.