Analysis

How A High Court Textualist Could Help Limit Anti-Hack Law

Law360 (September 24, 2020, 10:21 PM EDT) -- Appointing a textualist to the U.S. Supreme Court could boost efforts to curb the scope of a 1986 computer crime law and change the legal reasoning the high court uses in Fourth Amendment cases, although past rulings show that privacy law does not fit neatly within ideological lines.

A new jurist to replace the late Justice Ruth Bader Ginsburg would need to be confirmed before Nov. 30 to hear arguments in Van Buren v. U.S., a case about whether a former Georgia police officer committed a federal crime by using his authorized access to a government computer for inappropriate purposes. The officer, Nathan Van Buren, was the target of an FBI sting operation when he looked up what he thought was an exotic dancer's license plate number in the state's database in exchange for $6,000, court papers say. 

The federal government charged Van Buren with violating the Computer Fraud and Abuse Act, or CFAA, which bars "exceeding authorized access" to computers. Van Buren, who asked the high court to take the case after the Eleventh Circuit backed the government's reading of the CFAA in October 2019, has argued that the circuit court's ruling gives prosecutors the "dangerous" discretion to threaten prison time for innocuous online activities that may technically violate employer policies, website terms of service and other third-party restrictions.

The CFAA is considered the main federal anti-hacking law used by prosecutors when outside actors are accused of breaking into government or private computer networks. But the law, which also provides a civil remedy, has also been used over the years in other contexts, including when businesses sue employees for accessing company databases for allegedly improper reasons.

Federal authorities, a law enforcement trade group and the Electronic Privacy Information Center have all argued in briefs submitted to the high court that the statute is meant to cover not only outside hackers, but also internal security threats. But a textualist judge, such as the candidates the Trump administration is reportedly considering for nomination, might find that the officer did not violate the CFAA because the law does not explicitly say whether someone who has access to a system "exceeds" that access by searching that system for an improper purpose, said April Falcon Doss, who chairs the cybersecurity and privacy practice at Saul Ewing Arnstein & Lehr LLP.

"I suspect that someone who views themselves as more of a textualist might say that even if the search was for an unauthorized reason, it's one that the police officer's position might entitle them to take," Doss said, adding that the statute "does not make clear how it applies when the alleged exceeding is tied to the reason for accessing the database, as opposed to the access itself."

Andrew Crocker, a senior staff attorney at the Electronic Frontier Foundation — which has filed an amicus brief urging the high court to rein in the Eleventh Circuit's CFAA interpretation — said the high court should embrace a more narrow view of the statute regardless of whether a new justice is confirmed in time and is able to hear arguments in the case.

"The court has frequently been unanimous or close to it in requiring clear rules to enforce vague criminal laws, and I think that interpreting CFAA shouldn't be any different," Crocker told Law360.

How Might a Textualist Define 'Expectation of Privacy'?

Justice Ginsburg was considered among privacy advocates as a reliable vote in favor of privacy rights in cases concerning the scope of government surveillance, having joined the majorities in cases including 2018's Carpenter v. U.S. , in which the court found that the federal government generally needs a warrant to access cellphone location records. 

But it's unclear whether the addition of a textualist or someone who is embraced in politically conservative circles would swing the balance when the court is confronted with unresolved issues over the scope of Fourth Amendment protections in the digital age, including how they apply to searches of electronic devices at the border and the collection of location information in real time.

The late Justice Antonin Scalia, for example, voted to strike down broad law enforcement searches of homes, porches and cellphones during his 30 years on the bench, advancing a form of constitutional originalism that often put him at odds with his fellow conservatives.

"These questions of privacy in the digital age and protection against unreasonable government surveillance do not break down along traditional liberal-conservative lines," said Nathan Freed Wessler, an attorney at the American Civil Liberties Union who argued the high court case on behalf of Carpenter. "Justice Ginsburg will be deeply missed on the court, but these issues at least have a tradition of being taken very seriously by justices across the political spectrum."

An avowed textualist or constitutional "originalist" might apply different reasoning to a Fourth Amendment privacy case than Justice Ginsburg might have, however. Justices Ginsburg and Scalia clashed on a privacy issue in 2012, for example, when Justice Scalia authored a majority decision relying on the law of trespass to find that the installation and monitoring of a GPS device on a suspected drug dealer's car required a warrant.

Justices Ginsburg and Justices Samuel Alito, Stephen Breyer and Elena Kagan said at the time that they would have decided the case, U.S. v. Jones , by applying the "reasonable expectation of privacy" test, which dates back to the high court's 1967 ruling in Katz v. United States , in which the court found that someone making a call at a public telephone booth has such a privacy expectation. 

Justice Scalia's reliance on the law of trespass to reach that conclusion raises "particularly vexing problems" in an age when police can find ways to track suspects' movements without making physical contact with them, Justices Ginsburg, Alito and Breyer argued in a concurrent opinion at the time.

Still, a new high court justice's interpretation of Fourth Amendment issues could surprise some self-described conservatives if they expect the justice to always rule in favor of law enforcement, privacy attorneys say.

"It would be a mistake to assume that someone who considers themselves a constitutional textualist would write opinions that have a politically 'conservative' outcome," Doss said.

--Additional reporting by Allison Grande. Editing by Jill Coffey and Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.

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