News Gathering | Prior Restraint

Supreme Court Considers Federal Computer Fraud and Abuse Law

On November 30th, the United States Supreme Court heard oral arguments in Van Buren vs. United States, a case that could have huge implications for data journalists and cybersecurity researchers. 

The lawsuit was filed by Nathan Van Buren, a former Georgia police officer who used the state’s license plate database after he was offered $6,000 by an undercover agent to find out information about a local stripper. Buren had permission to access the database for law enforcement purposes, but because he used it for personal purposes, he was charged under the Computer Fraud and Abuse Act (CFFA), a federal law which prohibits an individual from intentionally accessing a computer “without authorization” or in such a way that “exceeds authorized access.” 

In 2017, a jury convicted Van Buren of taking bribes and illegally accessing sensitive law enforcement data. Later that same year, the United States Appeals Court for the Eleventh Circuit upheld Van Buren’s conviction, writing that he had “exceeded his authorized access and violated the computer-fraud statute when he obtained [the victim’s] personal information for a nonbusiness reason.

Van Buren’s lawyers petitioned the Supreme Court to review their case.

While the lawsuit is not directed at how journalists go about their work, it has nonetheless caught the attention of press freedom groups because its outcome could implicate First Amendment activities such as traditional newsgathering and newer data-journalism methods.

The Reporter’s Committee for Freedom of the Press (RCFP) and other media organizations filed an amicus brief on behalf of Van Buren. In it, they argue that if the Supreme Court adopts the 11th Circuit’s broad interpretation, the law could apply to a common data-journalism technique called “scraping” which involves using computer programs to quickly extract large amounts of data from websites. Scraping has been used to report on such issues as doctors who continue to practice after having been caught sexually abusing their patients, inhumane prison conditions, and to match missing people with the unidentified dead.

“The court of appeals’ interpretation of [CFFA] threatens to criminalize a wide range of ordinary journalistic activity without offering any means of guarding journalists’ First Amendment freedoms,” the RCFP warned.

During the hearing, Eric Feigin, the Assistant for the Office of the Solicitor General in the Department of Justice insisted the law only applied to a small subset of cases. At least two justices, Justice Neil Gorsuch and Justice Sonia Sotomayor, expressed skepticism that would be the case.

“You are giving definitions that narrow the statute that the statute doesn’t have. You are asking us to write definitions to narrow what could otherwise be viewed as a very broad statute,” Justice Sotomayor said during her questioning of the government attorney. 

Gorsuch commented that the law’s language could “make a criminal of us all.” 

The American Civil Liberties Union, The Knight First Amendment Institute, the National Association of Criminal Defense Lawyers, Committee for Justice, The National Whistleblower Center, the Electronic Frontiers Foundation, and The Center for Democracy & Technology have also filed amicus briefs on behalf of Van Buren. 

The Washington Post