SCOTUS Should Reject Computer Statute Reading That Would Make Nearly Everyone Criminals

FOR IMMEDIATE RELEASE

November 30, 2020

Media Contact: Curt Levey

(202) 510-0128; clevey@committeeforjustice.org

Washington, D.C.—Today the Supreme Court hears oral argument in Van Buren v. United States, which presents the Court with its first opportunity to interpret the Computer Fraud and Abuse Act (CFAA), a 1986 federal statute that punishes unauthorized access of computers.

The Committee for Justice filed an amicus brief with the Court in support of Nathan Van Buren, a police officer who was charged with a felony under the CFAA for obtaining a license plate number for personal reasons from a law enforcement database he was otherwise authorized to use. The brief was authored by lead counsel Anthony Dick and his colleagues at Jones Day, and by Committee for Justice president Curt Levey.

Mr. Levey issued the following statement:

The Committee for Justice (CFJ) got involved in this case because several of the issues at stake – including overcriminalization, the federal-state balance in criminal law, the rule of lenity, and fair notice – are at the heart of CFJ's mission of promoting the rule of law and preserving the Constitution's protection of individual liberty and its limits on federal power.

While the language of the CFAA is arguably ambiguous, the expansive reading urged by the United States, which would make it a crime to access a computer or the internet for any purpose other than the authorized ones, cannot be correct. As our brief notes, that reading would "weaponiz[e] every set of computer use guidelines and every website’s terms of service, it would make a criminal of nearly everyone—public officials and ordinary citizens alike."

The "rule of lenity," which requires that ambiguity in a criminal statute be construed in favor of the defendant, as well as common sense, argue against the government's interpretation of the CFAA, which would make it a crime to check sports scores at work if your workplace's computer policy prohibits personal use.

The government's reading of the CFAA is also at odds with recent Supreme Court jurisprudence cutting back on overbroad interpretations of federal criminal statutes – for example, the Court's decision earlier this year in the New Jersey bridge case (Kelly v. United States).

CFJ's brief points out that the government's overly broad interpretation of the CFAA "would eviscerat[e] this Court’s overcriminalization cases … invit[ing] all of the dangers those cases sought to avert. It would upset the federal-state balance in criminal law; invite selective targeting by opportunistic or politically-motived prosecutors; criminalize a vast swath of ordinary behavior; and deprive the public of adequate notice as to what the law requires."

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