The U.S. Supreme Court divided along unusual lines Thursday to reverse the conviction of a police sergeant who used his police car computer to access and then sell a license plate number in exchange for $5,000.
The vote was 6-to-3, with the court's newest justice, Amy Coney Barrett, writing the majority opinion for herself, liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan and conservative Justices Neil Gorsuch and Brett Kavanaugh. The dissenters were Justices Clarence Thomas and Samuel Alito, and Chief Justice John Roberts.
At issue was the interpretation of the 1986 Computer Fraud and Abuse Act, a federal law that makes it a crime for an individual to "exceed authorized access to a computer" in order to obtain information he is "not entitled so to obtain."
The court's decision narrowed the reach of the statute, which has long been used as the principal tool in fighting cybercrime. Though Congress could certainly amend the statute to once again broaden what conduct is covered, there are more groups that would fight such an expansion than existed in 1986 when the law was first enacted. Some of those groups filed briefs in the high court, urging Thursday's outcome — among them libertarian groups on the right and left.
The facts of the case were straight out of an episode of Law & Order. Except the place was Cumming, Ga., population about 6,500, outside Atlanta. Notwithstanding a warning from the deputy chief of police, Sgt. Nathan Van Buren developed a friendly relationship with a man named Andrew Albo and eventually asked Albo for a loan.
Unbeknownst to Van Buren, though, Albo recorded the conversation and took the recording to the local sheriff, claiming that Van Buren had tried to "shake him down" for cash. The taped conversation then made its way to the FBI, which devised something of a sting operation. Albo, claiming that he wanted to make sure that a woman he met at a local strip club was not an undercover officer, asked Van Buren to search the state law enforcement computer database for a license plate he said belonged to her. In return, Albo promised to pay Van Buren $5,000.
Van Buren did as asked, obtaining the information from his police car computer — information that had been planted there by the FBI. He was subsequently convicted and sentenced to 18 months in prison for violating the Computer Fraud and Abuse Act.
Van Buren appealed to the Supreme Court contending that the clause in the CFAA that makes it a crime to "exceed authorized access" to law enforcement computer data does not apply to those who are authorized to have access but misuse that access, like him.
The Supreme Court majority agreed. Suffice to say that much of the high court debate on the question turned on the meaning of the word "so." To say more than that would be a waste of the reader's time.
The debate, however, was a lively one in the examples cited by each side.
Writing for the majority, Barrett said the government's interpretation of the statute would "attach criminal penalties to a breathtaking amount of commonplace computer activity." She asserted it would allow the government to prosecute someone for embellishing an online dating profile, or using a pseudonym on Facebook; it would, she maintained, allow prosecution even of someone who sends a personal email or reads the news using her work computer.
Writing for the dissenters, Thomas accused the majority of, in essence, being deliberately obtuse. "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," said Thomas, adding that under the terms of the statute, Van Buren was not "entitled" to access the information from the computer. "Everyone agrees that he obtained it for personal gain, not for a valid law enforcement purpose. And without that valid purpose, he was forbidden to use the computer to obtain the information."
To illustrate his point, Thomas had a different set of "real-world" examples. A valet who obtains a car from a restaurant patron is, to use the term in the statute, "entitled" to access the car in order to park it, but not to take a joyride. And an employee who is entitled to pull a fire alarm in the event of a fire is not entitled to pull the alarm to delay a meeting for which he is unprepared.
If all this seems like so many self-proclaimed "textualists" dancing on the head of a pin, just keep in mind that there are 23 remaining cases to be decided in the next three weeks — at least a half dozen of them on major subjects with pins much larger than this one.