Van Buren Continues Supreme Court's Pattern of Statutory Interpretation to Avoid Criminalizing Trivial Acts

Indeed, the Van Buren decision well fits into a pattern of the court's modern criminal law jurisprudence that, while purporting to use only traditional tools of statutory interpretation and to eschew policy judgments, nevertheless appears motivated by concerns about the ever-expanding reach and severity of federal criminal law. Over the past decade, the Supreme Court increasingly has questioned the Justice Department's broad interpretations of various criminal statutes and their application to novel factual scenarios outside the perceived heartland of conduct at which the laws were aimed. Although in certain instances the court has tackled the overbreadth issue directly — for example, holding that the Armed Career Criminal Act's "residual clause" was void-for-vagueness in Johnson v. United States, 576 U.S. 591 (2015) — more often, the court takes a subtler approach of adopting less-than-obvious narrow interpretations of criminal statutes that appear broadly written. Nevertheless, the court tips its hand by injecting into its mix of textualist tools policy arguments regarding the absurd consequences that could result from the broad interpretations urged by the government. Indeed, one important thread that runs through these decisions is the court's disavowal of the notion that "prosecutorial discretion" provides any meaningful check on the excessive breadth of criminal statutes.

Van Buren

Van Buren called upon the court to interpret a provision of the CFAA that imposes criminal liability on anyone who "exceeds authorized access" of a computer, defined to mean "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." 18 U.S.C. §§1030(a)(2), (e)(6). Prosecutors had charged police sergeant Nathan Van Buren with violating this provision of the CFAA when he ran a license-plate search in a state law enforcement computer database in exchange for money during the course of an FBI sting operation. Specifically, the FBI had deployed Andrew Albo — a supposed friend of Van Buren's whom Van Buren had approached regarding a personal loan — to offer Van Buren $5,000 in exchange for running a license plate search to determine whether a woman Albo purportedly met at a local strip club was actually an undercover officer. Van Buren used his admittedly valid credentials to access the law enforcement database from his patrol-car computer and ran the requested search. He was convicted following a jury trial and sentenced to an eighteen-month term of imprisonment.