Thursday, July 8, 2021

PLW: SCOTUS Narrows Statute That Could Expose ‘Millions’ to Prosecution

Matthew T. Mangino
The Legal Intelligencer
July 6, 2021

The U.S. Supreme Court recently narrowed the Computer Fraud and Abuse Act of 1986 (CFAA), 18 U. S. C. Section 1030, a federal law that makes it illegal “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.”

The high court decided, by a 6-3 margin, a former police officer who used his position to search a computer database for license-plate records for an illicit purpose, did not violate the CFAA.

The officer, Nathan Van Buren, from Georgia, sought a loan from a man he befriended. The man went to the FBI. As part of a sting operation the man agreed to offer Van Buren $5,000 if he would search the license-plate database for a specific vehicle owner. Van Buren’s job gave him access to the database; however, his search on that occasion violated department policy because it was not done in connection with his duties.

Van Buren was charged with violating the CFAA. The act subjects a person to criminal liability who “intentionally accesses a computer without authorization or exceeds authorized access,” and thereby obtains computer information. According to Justice Amy Coney Barrett’s majority opinion, “It defines the term ‘exceeds authorized access’ 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.’”

Barrett’s opinion was joined by an unusual coalition made up of the other two justices appointed by President Donald Trump— Justices Neil M. Gorsuch and Brett M. Kavanaugh—and the court’s three-member progressive wing, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The government argued that Van Buren’s violation of department policy—accessing the computer for nonpolice-related data—resulted in a violation of the CFAA. Barrett disagreed. “This provision covers those who obtain information from particular areas in the computer—such as files, folders or databases—to which their computer access does not extend,” wrote Barrett. “It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.”

Barrett wrote, “If the ‘exceeds authorized access’ clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals.”

Barrett continued, “So on the government’s reading of the statute, an employee who sends a personal e-mail or reads the news using her work computer has violated the CFAA.” Barrett goes on to site amici briefs that expound on the potential to “criminalize everything from embellishing an online-dating profile to using a pseudonym on Facebook.”

Barrett summed up her opinion in this way, “The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could. Van Buren accordingly did not ‘exceed authorized access’ to the database, as the CFAA defines that phrase, even though he obtained information from the database for an improper purpose.”

Interestingly, in this case Van Buren has the mens rea to commit an illicit act. However, his conduct was a violation of the police department policy and not federal law.  Barrett’s concern that an overly broad interpretation of the CFAA could mean “millions of otherwise law-abiding citizens are criminals.” Her position is laudable. Yet, the federal crimes code is loaded with crimes that don’t require ill intent.

In fact, the government argues in Van Buren’s case that the “mens rea requirement ‘might” preclude liability in some cases.”

That is an interesting argument in light of the tireless effort by Congress to expand the number of federal criminal laws that do not require mens rea.  Mens rea is the intent to commit a crime or more simply a guilty mind.

People who do their best to remain law-abiding members of society can no longer be confident that they are safe from prosecution.

This is not the sentiment of some bleeding heart criminal defense attorneys. The Heritage Foundation, a conservative think tank, issued a report suggesting, “Honest mistakes should not result in prison time. Every criminal conviction should require proof beyond a reasonable doubt that the person acted with criminal intent.”

Even the conservative Koch brothers are alarmed. A report by The Charles Koch Institute reported that when the federal criminal code was enacted in 1790, there were just 30 crimes. By the 1980s, the number had exploded to more than 3,000. Today, the number of federal crimes and regulations is unknown. Some studies estimate that there are as many as 5,000 statutes and 300,000 regulations that carry federal criminal penalties.

With too many criminal statutes and too little needed to get a conviction everyone is at risk.

Here are a couple examples, cited by The Charles Koch Institute, of the ridiculousness of crime without intent. A river guide was charged with “obstructing government operations” when he dove into the water to save a child instead of waiting for a search and rescue team to arrive. A Christian outreach group offered food to homeless people in a Fort Lauderdale park and its members were arrested because a local regulation disallowed such food sharing.

Even Justice Clarence Thomas acknowledged in his dissent in Van Buren that, “It is understandable to be uncomfortable with so much conduct being criminalized.”

Throughout history, criminal statutes have required some form of criminal intent such as negligence, recklessness, knowledge, intent or willfulness. In 2015, the U.S. Supreme Court acknowledged the need for an adequate mens rea requirement in criminal cases.

In Elonis v. United States, 575 U.S. ___ (2015) the court declined to identify exactly what the appropriate mens rea standard is under that statute used to prosecute Anthony Elonis. The court recognized that a defendant’s mental state is critical when he faces criminal liability and, as The Federalist Society—another bastion of conservative thought—suggested, when a federal criminal statute is “silent on the required mental state,” a court should read the statute as incorporating “that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”

There is more work to be done. Courts should demand clear standards for mens rea in criminal statutes; Congress should begin to review statutes that lack mens rea; and closely scrutinize future legislation when it comes to criminal intent.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is the author of “The Executioner’s Toll,” 2010. Contact him at, and follow him on Twitter @MatthewTMangino.

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