Van Buren v. United States: Does a Police Officer Violate the Computer Fraud and Abuse Act if the Officer is Authorized to Access Certain Information on a Computer but the Officer Accesses the Information for an Improper Purpose?

Written By: Katelyn Pearson

The United States Supreme Court on November 30, 2020 heard oral arguments of an appeal from the Eleventh Circuit. Nathan Van Buren petitioned the United States Supreme Court on December 18, 2019 after the U.S. Court of Appeals for the Eleventh Circuit affirmed his conviction. Van Buren was a sergeant at the Cumming Police Department in Cumming, Georgia whenever he encountered a man through his capacity at the Cumming Police Department named Andrew Albo. Albo paid Van Buren to obtain information about a woman, including searching her license plate number for him, through the Georgia Crime Information Center database. This act led to Van Buren’s conviction under the Computer Fraud and Abuse Act. (United States v. Van Buren, 940 F.3d 1192, 1197 (11th Cir. 2019)). The Computer Fraud and Abuse Act makes it a crime to get information “from any protected computer” by “intentionally accessing a computer without authorization or exceeding authorized access.” (18 U.S.C. § 1030(a)(2)(C)). Van Buren was charged with a felony under this statute. According to the government, the portion of 18 U.S.C. § 1030(a)(2) that was applicable to Van Buren was “exceeding authorized access.”

During oral arguments before the Supreme Court, Van Buren argued that the government was essentially trying to transform the statute so that it covered any information obtained through a computer that the person was not entitled to “under the circumstances.” Van Buren argued that this standard would be way too broad and implicate too many people in their everyday lives. The government’s main argument was that they only needed to prove Van Buren “exceeded authorized access,” under the statute. Van Buren relied upon the fact that he obtained authorized access to the information but used that access in an improper manner. Therefore, he argued that this type of conduct does not fall within the statute. For support, Van Buren relied on the fact that Congress had “improper use” in the original draft of this statute in 1986 but it was left out when they finalized the Act. Thus, the debate was whether or not the removal of that language was to expand the interpretation of the statute or to purposely take away the improper use language.

When questioning Van Buren, Chief Justice Roberts focused on case precedent from Musacchio v. United States where the Supreme Court previously stated that, “the statute provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization and (2) obtaining access with authorization but then using that access improperly.” Van Buren argued that the statute itself does not and should not include “improper use” and relied upon the argument that Congress had left those words out when they revised the Act. Justice Breyer was interested in the legislative change but mentioned that the legislative history stated clearly that Congress did not mean to make a substantive change to the Act.

Justice Alito was concerned with the amicus briefs that had been filed regarding this matter and how Van Buren’s interpretation would affect personal privacy. More specifically, he asked if Van Buren thought that Congress already considered these issues when enacting the statute. Following questions by Justice Alito, Justice Sotomayor asked about the different ways an individual could be prosecuted for what Van Buren did. Van Buren could be prosecuted under other federal statutes, but he argued that he should not be prosecuted under this specific statute. The Justices were clearly concerned about the vagueness of the statute itself and what meaning should actually be given to the statute. Van Buren ultimately asked the Court to reverse his conviction under the Computer Fraud and Abuse Act.

This matter is currently pending before the United States Supreme Court and a decision is expected by July of 2021.

Edited by: Melanie Mitchell