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Van Buren v. United States

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  1. Newsgathering

Amicus brief filed by the Reporters Committee for Freedom of the Press and 41 media organizations

Court: U.S. Supreme Court

Date Filed: July 8, 2020

Background: A Georgia police officer, Nathan Van Buren, who was targeted as part of an FBI sting operation, allegedly used his credentials to access confidential information from a state criminal database in exchange for a private loan. He was charged with one count of honest-services wire fraud and one count of violating the Computer Fraud and Abuse Act for “exceeding authorized access” to a computer.

Van Buren argued that he did not violate the act because he did not “hack” into a computer — he was authorized to access the information, just not for the purpose that he did. The U.S. Court of Appeals for the Eleventh Circuit upheld his original conviction, adopting an expansive construction of the CFAA that threatens to chill First Amendment activity. The U.S. Supreme Court granted Van Buren’s appeal in April and he has since filed his opening brief.

Our Position: The Supreme Court should reverse the appeals court’s decision and adopt a narrower interpretation of the CFAA to avoid constitutional concerns.

  • Overly broad criminal statutes implicating the First Amendment are subject to a particularly stringent application of the vagueness doctrine.
  • The appeals court’s expansive interpretation is unconstitutionally vague and significantly chills First Amendment activity, including traditional newsgathering and new data-journalism techniques.

Amici took no position on whether Van Buren’s alleged activity could properly be a crime, but argued that the CFAA should be limited to hacking, as appropriately defined.

The Reporters Committee was represented in the matter by Paul, Weiss, Rifkind, Wharton & Garrison LLP. Kannon Shanmugam, chair of the Supreme Court and Appellate Practice Group and managing partner of the firm’s Washington, D.C., office, served as counsel of record. He was joined on the brief by Joel Johnson and Amanda Weingarten.

Quote: “The court of appeals’ interpretation is so broad that it could sweep in ordinary journalistic activity that is essential to the newsgathering process. If that interpretation is permitted to stand, it would significantly chill the exercise of speech and press rights protected by the First Amendment, dramatically altering the way in which government officials and corporate whistleblowers relate to the press, the means by which the press gathers and reports the news, and the degree of newsworthy information made available to the public.

Related: The Reporters Committee’s Technology and Press Freedom Project frequently writes about the Computer Fraud and Abuse Act in its weekly newsletter. In 2019, the Reporters Committee wrote about a ruling by the U.S. Court of Appeals for the Ninth Circuit that held that “scraping” public websites does not violate the act. Previously, the Reporters Committee published an analysis of the CFAA charge against WikiLeaks founder Julian Assange and a post in support of a letter proposing a safe harbor for journalists who want to scrape data from Facebook.