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Business Crimes BulletinFeaturesLitigationRegulationWhite Collar Crime

SCOTUS Set to Address Circuit Split in Interpreting CFAA

By Elkan Abramowitz and Jonathan S. Sack 
December 01, 2020

The Computer Fraud and Abuse Act (CFAA) is the sort of broadly worded criminal statute which gives white-collar prosecutors considerable power — and makes defense counsel and judges uneasy. The law prohibits obtaining information by "access[ing] a computer without authorization or exceed[ing] authorized access." Computer hacking — "access[ing] a computer without authorization" — clearly violates the law. But the meaning of the other operative words, "or exceed[ing] authorized access," is not so clear.

The different ways of interpreting the statute have led to a split in the Courts of Appeals. Four circuits have read the statute broadly: An individual "exceeds authorized access" when she accesses a computer and obtains information for an improper purpose, even if the person's access to the information is authorized. Four other circuits have read the statute narrowly: An individual "exceeds authorized access" only if she obtains information that she is not allowed to access, even if the purpose is improper. In practical terms, if a company Human Resources officer peeks at sensitive information out of idle curiosity, not because of work, would that be a crime because of the improper purpose, or would it not be a crime because the HR officer had the authority to review personnel files?

The meaning of "exceeds authorized access" will soon be taken up by the Supreme Court in United States v. Van Buren, 940 F.3d 1192 (11th Cir. 2019), cert. granted, 2020 WL 190655 (Mem.) (U.S. April 20, 2020). Oral argument was scheduled for Nov. 30, 2020. This article describes the circuit split and explore different methods used by appellate courts to interpret the operative words of the CFAA. In Van Buren, the Supreme Court will have the opportunity once more to articulate its approach to interpreting white-collar criminal statutes.

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