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On November 30, 2020, the U.S. Supreme Court heard oral arguments for Van Buren v. United States, No. 19-783 (U.S.) to resolve a circuit split as to what it means to “exceed authorized access” under the Computer Fraud and Abuse Act (CFAA). At issue is whether the federal statute, which was intended to prevent hacking from “outsiders,” also applies to “insiders,” such as employees and others who have access to a database and exceed their authorized access for an improper purpose. If so, which “insiders” does the statute restrict and what exactly is an improper purpose?
Regardless of how the Court rules, this decision will have important consequences for all who have access to a database, computer, and/or website, including employees, independent contractors, and others, who must all abide by restrictions related to access. For example, a key question posed to the Court is whether the statute applies to an employee who is subject to the employer’s policies. What about the applicability to an employee who has access to a computer for work and uses it for personal reasons? An IT technician who has broad discretion to access the company network but exceeds the scope of his authority? Users who agree to abide by the terms and conditions on a social media or other website, but exceed the terms and conditions of the website? Students who are granted access to a database for a specific educational purpose? How will the Court apply the statute to these circumstances?
Since the statute contains a criminal component, the Court’s decision can dramatically expand or eliminate the range of conduct subject to criminal penalties and civil liability under the statute and could expand or limit claims in trade secret and employment litigation.