On Disagreeing, Then Agreeing, Then Disagreeing with SCOTUS

Curmie first read about Van Buren v. United States from the NPR article by Nina Totenberg, with the headline, “Officer Who Sold Police Computer Data Gets A Pass From The Supreme Court.” (I’m hoping Totenberg didn’t write that misleading and ill-constructed headline.) 

Generally, Curmie reads one article about a SCOTUS decision, nods, and moves on. Occasionally, there’s a topic I really care about, and once in a while one of the Justices says something intriguing and I want to know the context. The reason I wanted to know more about this case, though, wasn’t any of these, or indeed the clickbait headline (NPR should be better than that). Rather, based on the article, Curmie found himself agreeing with the dissent (no surprise there)… and therefore agreeing with Clarence Thomas and disagreeing with the three liberals. That is a surprise.  This phenomenon required investigation! 

The facts of the case are not in dispute. The police force in Cumming, GA, was warned to treat a certain Andrew Albo with suspicion. Then-Sergeant Nathan Van Buren ignored this advice and struck up a friendship with Albo; after some time he asked Albo for a loan. Unbeknownst to him, Albo recorded that conversation and claimed Van Buren was trying to “shake him down.” 

The FBI got involved, and set up a sort of a sting operation. Albo said he’d pay $5000 to Van Buren to find out if a woman he’d met at a strip club was actually an undercover cop. He provided a (false) license plate number, which Van Buren checked out, accessing the information through the computer in his squad car. The FBI then closed in, and Van Buren was arrested and subsequently convicted of violating the 1986 Computer Fraud and Abuse Act. Of course, Van Buren was also fired from the police force. 

Ah, but he appealed the conviction, claiming that the law applies only to hackers who have no legitimate right to the information on a computer, not to people like him who had legal access but abused that right for personal gain. It is an argument only a lawyer, and a rather slimy one, could love. And it worked, as SCOTUS vacated his conviction on a 6-3 vote. 

Totenberg points out 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.” That’s cute, and Curmie sees what she means, but when policy is determined by an interpretation of a single two-letter word (remember “is”?), it’s not really a waste of anyone’s time, albeit that the topic seems rather arcane. 

The full context of that problematic monosyllable is this: that, according to the CFAA, the term “exceeds authorized access” means “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” (emphasis added). 

So (see what I did there?), when I started reading the decision, I expected to find myself rejecting the majority’s opinion. I didn’t. In fact, the argument about “so” appeals to Curmie’s inner Grammar Nazi. The law shouldn’t be written to allow scumbags like Van Buren to slither through unscathed, but it just might be. Without “so,” he’s got no case. With it, though, the majority can reject the common, logical (“common parlance” in legalese) definition of “exceeds authorized access” because, by precedent, “When a statute includes an explicit definition of a term, we must follow that definition, even if it varies from a term’s ordinary meaning.” 

That is, if the law didn’t define “exceeds authorized access,” since everybody knows what that means, Van Buren would be cooked. But since it does, we can now quibble over “so,” meaning, presumably “in the described manner.” Van Buren did, according to the majority’s reading, have authorized access according to the narrow definition of the statute, it was his purpose that was illegitimate. 

The majority even suggests that the Government’s reading of the law would make criminals of virtually everyone, since we are technically not allowed to use the work computer for anything but work. Thus, checking the news, scrolling through Facebook (or Curmie’s blog) during a break, sending a personal e-mail: all of these would be rendered illegal. 

So (I did it again, see?) I was persuaded. And then I read the dissent, which concentrates on the word “entitled,” centering on the idea that such entitlement is defined circumstantially. If a valet takes access to a car to park it, he is entitled to do so; if he takes it for a joy ride, he is not. This, too, is a persuasive argument, and one Curmie understands. 

For many years, one of Curmie’s departmental service functions was to determine students’ eligibility for production work. Our standards were rather complicated, so the process began with having the administrative assistant running a computer-generated report. Students whose names were not on the list were automatically eligible, but there were a variety of reasons why someone whose name did appear would still be eligible. 

All of this means I had to examine the transcripts of a number of students. Sometimes, because I mistyped, or because there are two students with the same name, I opened the file of a student whose transcript I had no legitimate right to see. Would such a mistake, corrected within seconds, subject me to criminal liability if the government had its way? I doubt that anyone would go that far, but technically… maybe, as there does not appear to be anything in the CFAA about intent.  But certainly I have no right to scroll through student records just for the fun of it.

But if we’re to believe the Van Buren team, as long as I have legitimate access to the system, I can use it however I want without breaking the law? I read about a case (can’t remember enough details even to look it up) in which the ex-husband’s new girlfriend looked up the transcript of the ex-wife to use as leverage in a custody dispute. Seriously, this doesn’t break some kind of law? 

Here’s where Curmie repeats that he’s not a lawyer, and that he understands that what is legal and what is ethical are not identical concepts. The law is unquestionably poorly written, and as I tell students all the time, I can only judge what you say, not the best-case scenario of what I think you might have meant to say. Similarly, it’s SCOTUS’s job to determine what a law says; only in cases of extreme ambiguity should they be deciding legislative intent. 

If nothing else, Curmie is actually encouraged by the fact that whichever side of this argument we ultimately support, it pretty easy to see why the other side disagrees. Even Justice Clarence Thomas’s supporters will grant that his lines of thought are sometimes, shall we say, eccentric, and Curmie has thought of him as an intellectual lightweight since his confirmation hearings (leaving aside the whole Anita Hill controversy). But his dissent is well-reasoned and compelling, even if we end up deciding in the other direction. We can hope for little more from SCOTUS.