Gates Down! Barrett Forecloses Expansion of Federal Criminal Liability Under the CFAA

Bizar Male

In last December’s column, this writer made a forecast that the U.S. Supreme Court, in a case pending before it at the time, Van Buren v. United States, 593 U.S. ___ (2021), 2021 U.S. LEXIS 2843 (decided June 3, 2021), would probably place a “speed bump” in the way of certain future prosecutions under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. §1030(a)(2) et seq., the federal criminal computer trespass statute. Although my prediction was in the target area, and would have been award winning, if I were a weatherman, it fell short of the mark, and was actually an underestimation given the High Court’s decision this month. Instead of placing a speed bump, the Supreme Court, in a 6 to 3 decision authored by Associate Justice Amy Coney Barrett, resolved to shut the road completely down by interpreting the CFAA narrowly.

Van Buren specifically concerned the meaning of computer access under the statute’s terms “without authorization,” or one that “exceeds authorized access” under 18 U.S.C. §1030(a)(2). A specific element of the crime requiring proof beyond a reasonable doubt, is that the offender accessed the computer or computer network “without authorization or exceeds authorized access.” 18 U.S.C. §1030 (a)(2). This article will address the reasoning of the court which resulted in this significant decision.

Expansive vs. Narrow Reading

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