Why the court’s younger conservatives sided with the liberals on a case of prosecutorial overreach.
In an important 6-3 decision, the Supreme Court pushed back against prosecutorial overreach in computer-related misconduct. What’s most interesting about the case is the breakdown among the justices: On one side, all five justices appointed since 2008 — by Barack Obama and by Donald Trump — plus Justice Stephen Breyer; on the other side, three conservative justices appointed before 2005, two by George W. Bush and one by George H.W. Bush. Generational change is afoot on the Supreme Court, at least with respect to cases involving computers. At issue in the case, Van Buren v. U. S., was the scope and meaning of the Computer Fraud and Abuse Act, enacted in the aftermath of the 1983 movie “WarGames” and the emergence of fears about hacking. The relevant sections of the law first say that someone who “exceeds authorized access” on a computer commits a crime. Then the law defines exceeding authorized access to mean accessing a computer with authorization “to obtain information… that the accesser is not entitled so to obtain.” The Department of Justice’s interpretation of exceeding authorized access was literal. The government took the view that anyone who was using a computer system with authorization but then broke the rules set by whoever granted access was committing a felony. Seen through the lens of ordinary criminal law interpretation, this reading of the law was not impossible. There are plenty of situations where we want to grant someone the right to do or use something in one way, but not another.
