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Amy Coney Barrett Writes for Unusual SCOTUS Majority, Sides With Former Cop Who Used Computer for Improper Purpose


All nine Supreme Court justices pose for a group picture in 2021.

The Supreme Court of the United States ended its unanimous opinion streak Thursday with a 6-3 ruling containing a judicially odd lineup. Junior Justice Amy Coney Barrett wrote for the majority which included Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh.  The case is the first time in which we’re seen Barrett on opposite sides of a ruling from Justice Clarence Thomas, who penned a dissent joined by Chief Justice John Roberts and Justice Samuel Alito.

The case is Van Buren v. United States, and it involves a former police sergeant who ran a license plate search in exchange for money. Nathan Van Buren had been a police sergeant in Georgia when he met Andrew Albo. After the two became friendly, Van Buren asked Albo for a personal loan. Albo secretly recorded Van Buren’s request, then reported it to the local sheriff ’s office and accused Van Buren of attempting to  “shake him down” for cash.

As a result of the incident, Van Buren became the target of an FBI sting that used Albo as a lure. Albo offered Van Buren $5,000 to run a license plate search through a state database, purportedly to do a background check on a woman Albo had met.  Van Buren ran the check, then told Albo he had information to share. For his trouble, Van Buren was charged and convicted with a felony violation of the federal Computer Fraud and Abuse Act of 1986 (CFAA) and sentenced to 18 months in prison.

Van Buren appealed his conviction, arguing that he had not violated CFAA. He argued that because he had been authorized to access the computer and license plate information, his actions did not line up with CFAA’s specific prohibition. Van Buren’s argument did not fly with Eleventh Circuit but did convince the Supreme Court to rule in the former officer’s favor. The majority ruled that despite Van having violated department policy, he did not violate CFAA by running an improper license plate check.

Justice Barrett rested much of the majority’s reasoning on the specific context and language of CFAA, which was enacted in the 1980s in response to the increasing trend of computer hacking; the act makes it a crime 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.” The question for the justices was whether Van Buren’s specific misdeed fit CFAA’s prohibition. While Van Buren clearly used a database for the wrong reason, he did not break into the computer system to do so.

Ruling that Van Buren’s actions failed to line up with the statute, Barrett wrote that the statute prohibited people from accessing areas “such as files, folders, or databases — to which their computer access does not extend.” However, she said the statute “does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.”

Justice Barrett provided a law-school-esque analysis of the precise wording of CFAA, including several pages about the implication of the word “so” in CFAA’s phrase “entitled so to obtain.”

To support the majority’s conclusion that Van Buren’s actions did not violate CRAA, Barrett also pointed to a lack of specific harm caused by the officer.

“His run of the license plate did not impair the ‘integrity or availability’ of data, nor did it otherwise harm the database system itself,” Barrett explained. Her analysis suggests the CRAA was designed to protect data, not the people whose information is stored on computer systems. The opinion did not talk about data privacy at all, and the “woman” Albo allegedly met didn’t really exist. She was made up for the sting.

Stepping away from strict statutory analysis, the majority went on to offer a more pragmatic line of reasoning: if CFAA were to criminalize authorized access simply used for an improper purpose, the door would swing wide open for an inordinate amount of prosecutions.

“To top it all off,” Barrett wrote, “the Government’s interpretation of the statute would attach criminal penalties to a breathtaking amount of commonplace computer activity . . . If the ‘exceeds authorized access’ clause criminalizes every violation of a computer use policy, then millions of otherwise law-abiding citizens are criminals.” Such an interpretation, Barrett argued, could mean that everything from a Facebook pseudonym to an embellished online dating profile might give rise to criminal liability.

In his dissent, however, Justice Thomas had a different take on Van Buren’s behavior. Framing the officer’s actions as having exceeded the scope of consent, Thomas likened Van Buren’s license plate run to a valet who takes an unauthorized joyride.

Thomas bluntly framed the query the majority should, in his opinion, have asked and answered:

The question here is straightforward: Would an ordinary reader of the English language understand Van Buren to have “exceed[ed] authorized access” to the database when he used it under circumstances that were expressly forbidden? In my view, the answer is yes.

Van Buren, Thomas argued, was not “entitled” to access the license plate data because he had no right to do so. “Everyone agrees that he obtained it for personal gain, not for a valid law enforcement purpose,” Thomas wrote. “And without a valid law enforcement purpose, he was forbidden to use the computer to obtain that information.”

Thomas went on to criticize the majority’s logic for ignoring the plain meaning of the word “entitled” while simultaneously creating a conflict with basic principles of property law. Equating Van Buren’s actions to a person exceeding the scope of consent in a trespass, bailment, or theft scenario, Thomas accused the majority of being “[u]nable to square its interpretation [of CFAA] with established principles of property law.”

Thomas also took time to address the majority’s argument that a ruling against Van Buren could create a deluge of criminal liability in the modern context of computer use. Thomas argued that the Court should have deferred to Congress’ statutory intent when CFAA was passed, rather than rule in a manner tailored to a decades-later context.

“The majority’s reliance on modern-day uses of computers to determine what was plausible in the 1980s wrongly assumes that Congress in 1984 was aware of how computers would be used in 2021,” Thomas said. “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.”

The Supreme Court reversed Van Buren’s conviction and remanded his case back down the chain.

[image via Erin Schaff/POOL/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos