July 10, 2020

Following the firm’s earlier amicus brief, the Supreme Court granted certiorari in Van Buren v. United States of America. The Court will determine whether 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. Jenner & Block Partner Clifford W. Berlow and Associate Grace C. Signorelli-Cassady wrote an amicus 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.

The brief argues that it is crucial that the Court construe criminal statutes consistent with the rule of lenity, and also observes that “adopting Petitioner’s view of the CFAA also respects the fundamental principle of judicial modesty,” which is “particularly important when criminal statutes are involved, as it ensures the judiciary does not create a crime that the legislature did not intend.”

The brief further explains how an expansive reading of the CFAA would raise due process concerns, give prosecutors and courts a “backdoor” means of updating criminal laws in response to changed technological realities, and further overcriminalization due to the statute’s broad reach. “[A]n expansive theory of CFAA liability would criminalize every situation where a person accesses information for an improper purpose, including in violation of business’ and websites’ computer access and use policies,” something which would be “punishable by fines and imprisonment of up to one year, or up to five years in certain situations.”

Jenner & Block Paralegal Mary F. Patston provided valuable assistance with the brief.