January 23, 2020

Jenner & Block Partner Clifford W. Berlow and Associate Grace C. Signorelli-Cassady wrote the brief on behalf of the National Association of Criminal Defense Lawyers, a bar association of criminal defense lawyers who work to ensure due process for those accused of a crime or misconduct.  Previously, in Van Buren v. United States of America, the Eleventh Circuit held that a person violates the Computer Fraud and Abuse Act (CFAA) by using a computer to access information for an improper purpose, even if that person is otherwise authorized to access that information.  According to the brief, the appellate court’s decision reinforced a conflict of authority regarding the meaning of “authorized access” under the CFAA.  The brief argues that this conflict of authority has resulted in inconsistent prosecutions for similar acts, and that the Eleventh Circuit’s decision, and the decisions of other courts on its side of the conflict of authority, threaten to transform “seemingly innocuous activities,” such as “utilizing a work computer” to “check the weather report,” into federal crimes.  The brief expresses urgency for the Court to grant certiorari to address the split of authority and to ensure the CFAA is being interpreted in a manner that is consistent with Congress’ intent and the Rule of Lenity, which requires that imprecise criminal laws be construed “strictly” and in a manner that “favors the defendant.”