Supreme Court’s Generational Divide Seen in Computer Fraud Case


In an important 6-3 decision, the Supreme Court pushed back against prosecutorial overreach in computer-related misconduct. What’s most interesting about the case is the breakdown among the justices: On one side, all five justices appointed since 2008 — by Barack Obama and by Donald Trump — plus Justice Stephen Breyer; on the other side, three conservative justices appointed before 2005, two by George W. Bush and one by George H.W. Bush. Generational change is afoot on the Supreme Court, at least with respect to cases involving computers.

At issue in the case, Van Buren v. U.S., was the scope and meaning of the Computer Fraud and Abuse Act, enacted in the aftermath of the 1983 movie “WarGames” and the emergence of fears about hacking.

The relevant sections of the law first say that someone who “exceeds authorized access” on a computer commits a crime. Then the law defines exceeding authorized access to mean accessing a computer with authorization “to obtain information … that the accesser is not entitled so to obtain.”

The Department of Justice’s interpretation of exceeding authorized access was literal. The government took the view that anyone who was using a computer system with authorization but then broke the rules set by whoever granted access was committing a felony.

Seen through the lens of ordinary criminal law interpretation, this reading of the law was not impossible. There are plenty of situations where we want to grant someone the right to do or use something in one way, but not another. Criminal law can and sometimes does enforce partial authorization.

Take the facts of the Van Buren case. Van Buren was a police sergeant in Georgia who took a bribe of $5,000 to look up a license plate in a police database and see if it was registered to an undercover police officer. Unfortunately for Van Buren, the bribe was part of an FBI sting operation.

As a cop, Van Buren was authorized to check the database. He obviously wasn’t authorized to check it for the criminal purpose of outing an undercover officer. To the Justice Department, that meant his act was a felony under the CFAA.

The problem with the government’s interpretation is that, in the hands of aggressive prosecutors, this reading of the law could criminalize every violation of terms of service set by any platform or app. As various parties before the court pointed out, in particular computer crime scholar Orin Kerr, whom the court cited, reading the law the government’s way would even criminalize “embellishing an on-line dating profile.”

In her sensible opinion for the court, Justice Amy Barrett cited the absurdity of the law’s potential extent to interpret it more narrowly. She noted that using a work email to send a personal note might be a crime under the government’s interpretation.

“Exceeds authorization” will now be understood to mean starting with authorized access but then breaking into parts of the system from which are “off-limits,” such as files or databases.

In dissent, Justice Clarence Thomas, joined by Chief justice John Roberts and Justice Samuel Alito, explained that there was nothing unusual about criminalizing unauthorized uses of property – and nothing especially forced about the government’s reading of the language.

There are two possible generational explanations of why all three very conservative Trump appointees — Barrett and Justices Neil Gorsuch and Brett Kavanaugh — voted against the government.

The first would posit that the court’s three younger conservatives are more libertarian and less statist than the court’s three older conservatives. On this view, they balked at how far prosecutors might take the CFAA.

It’s too soon to say whether this is so. Watching the voting trends will, however, provide an answer over the next few years.

The other possibility is that the division among the conservatives is about familiarity with current computer-use norms. The younger justices are hardly digital natives. But they may have more experience with today’s computer-use norms — including sometimes using work email for personal matters.

Breyer would be the generational outlier in this scheme. The court’s oldest justice joined Barrett’s opinion. But Breyer is, in addition to being a liberal, someone who prides himself on being technologically up to date. It makes sense that he would be with the young guns on this one.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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