Divided Argument

So What

Episode Summary

Will and Dan break down the Court's fascinating decision yesterday in Van Buren v. United States, which interpreted the Computer Fraud and Abuse Act.

Episode Notes

Will and Dan break down the Court's fascinating decision yesterday in Van Buren v. United States, which interpreted the Computer Fraud and Abuse Act. 

Episode Transcription

Dan (00:17):

Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

Will (00:26):

And I'm Will Baude.

Dan (00:27):

So, Will, we recapped a bunch of opinions last time, and the court had another opinion release day that we're recording today on Thursday, June 3rd. They only gave us one, Van Buren v. United States, but it's an interesting one, so we thought we would do another episode to talk about it. What do you think of this one?

Will (00:45):

Yeah, it's a big one, too. So I'll just start off by saying I feel like we sometimes have a pretense to objectivity around here. I just want to make clear, I don't think I could possibly be objective about this opinion. It is argued and won by one of my favorite Supreme Court advocates, Jeff Fisher, supported in an amicus brief by one of my favorite scholars, Orin Kerr, written by one of my favorite justices, Amy Barrett, employing textualism, one of my favorite methodologies to rule for the defendant in a federal criminal case, one of my favorite results.

Dan (01:14):

In support of computer hacking, which is one of your favorite activities, right?

Will (01:18):

It's not hacking, Dan. It's not hacking.

Dan (01:20):

Well, that's the question. Yeah. So there's a lot of things going on. Justice Barrett is already one of your favorites? She's been on the court for a month. I mean, come on.

Will (01:27):

Yeah.

Dan (01:27):

Don't you want to see some more opinions before you decide she's one of your favorites?

Will (01:31):

She hasn't had time to disappoint me yet.

Dan (01:33):

Okay. Fair. But, yeah, so a lot of things that you like here, and some of those things are things that I like, too. Jeff Fisher, friend of the show, I'd say, great advocate, one of the most impressive Supreme Court advocates. Orin Kerr, also a friend of the show, so lots of good stuff there. But what's the case about? It's not really about hacking, exactly. That's sort of the question. What's it about?

Will (01:56):

So the case is about a federal statute, the Computer Fraud and Abuse Act, that criminalizes the ... Well, what it criminalizes is probably what the case is about, but it criminalizes some kind of unauthorized access, accessing a computer without authorization or exceeding authorized access, and I think we can safely say it was enacted to in some way guard against hacking back in the day.

Dan (02:18):

Yeah, hacking and other things in the vicinity. But it was enacted in the 1980s when it was the dawn, perhaps, of what Justice Kennedy used to call the cyber age, and we use computers in ways that they didn't really imagine. But, yeah, you set up the statutory language, and then we should also mention the statute defines exceeds authorize, "To access a computer with authorization and to use such access so to obtain or alter information in the computer that the accuser is not entitled." So to obtain or alter, and that so is going to turn out to be kind of important. You might say so what, but it is going to matter.

Will (03:01):

Yeah, exactly. Okay. So that's the statute. Mr. Van Buren is a police officer or was. I don't know if he still is.

Dan (03:08):

Yeah, not anymore.

Will (03:10):

Let's just say, agreed to obtain the license plate, various kinds of information, police databases he had access to, to sell them to somebody else for nefarious purposes. So he's not hacking into the database in the traditional sense, right? He's got access to the database as a police officer, but he's-

Dan (03:28):

Yeah, because he's in his police car, he can just see somebody on the street, they're speeding, he can look up their license plate.

Will (03:33):

Right. I guess so. I don't know much about these databases. I try not to worry about them. But he's not supposed to be just going in there, pulling information off of associates of people who are offering him thousands of dollars. He did that, and he got in trouble.

Dan (03:48):

Yeah, he got stung, as the case was, because the unsavory individual he was dealing with, turns out, was involved with the FBI and they did this sting where the guy said, "I want you to look up this person, figure out whether they're an undercover officer." So, I mean, he was up to no good. He was up to no good, and what he did seems like it should definitely be criminal. One other thing I noted in the footnote is, in addition to being convicted of this Computer Fraud and Abuse Act charge, he was also convicted of honest services wire fraud, but that conviction was vacated for a different reason. I was kind of wondering why couldn't we just have gone after this guy for an ordinary bribery charge? I haven't figured out why that wouldn't work. Maybe it's because what he was doing wasn't an official act.

Will (04:34):

Well, so maybe we can. Let's just talk about that for a second.

Dan (04:37):

Yeah.

Will (04:37):

Because I think this is an important backdrop, and I do think in a lot of these criminal Supreme Court cases, you get somebody who's obviously a baddie, as my son would say, and yet maybe what they did did or didn't fall within the terms of the statute. So he was charged with honest services fraud. The Supreme Court, a couple of years earlier, had limited the constitutional definition of honest services fraud and said that has to be limited to bribes and kickbacks, basically. So he was charged with bribery honest services fraud on a theory that he's accessing this database as part of his job and then selling it off to some-

Dan (05:10):

I've always thought that that was ... That was from the Skilling case. That's always been super puzzling because the statute doesn't say anything about bribery, and I've always wondered what are the elements of honest services bribery as compared to 18 USC §666 and other, yeah, explicit bribery statutes. But that's-

Will (05:27):

So the Eleventh Circuit throws out this charge, but he could be tried again. This is the important thing. The Eleventh Circuit concludes that the way the jury was instructed on this bribery theory was a little too vague in terms of understanding exactly what the official act he had to have done was and how to define that and what counts. But they conclude there's enough evidence that he could actually be charged again. So, after this case, after his victory in the Supreme Court, he might still be going to trial again in the Eleventh Circuit and might still lose.

Dan (05:55):

As well he should, it seems like. In general, this doesn't seem like the kind of conduct we want to encourage. But is it computer fraud and abuse? So why wouldn't it be? Why do we think it might not be?

Will (06:08):

Well, so the Supreme Court has just said it's not. Let's tell everybody the answer.

Dan (06:11):

Yeah, but we got to walk people through that.

Will (06:13):

Yeah. Okay. One of the core evil, the core mischief, that the statute is addressed at is, again, what we might colloquially think of as hacking. There's a computer somewhere or a database somewhere that you're not supposed to have access to, you don't have the password, it's not for you, but you use your special 1980s-style hacker tricks to get into the computer anyway. That's, like I said, a classic form of trespass, of breaking and entering. That's clearly the paradigm case.

Dan (06:40):

Like Ferris Bueller going and looking up the password on the assistant principal's desk or whatever.

Will (06:45):

Sure. He didn't do that, right? In a way, what he's done here, misusing information he has as a government employee, is not really ... I mean, he happened to do it on a computer, but it's not really a computer-y thing he did wrong. It'd be just as wrong and just the same kind of problem if they still had all the information in a filing cabinet and he went and opened up the filing cabinet and he got the information out that way. So part of the question, I think, is whether to think of this, of just misusing access you actually have, as the same kind of crime as hacking, and that [crosstalk 00:07:20]-

Dan (07:20):

Can we just linger on that file cabinet metaphor for a second? Because that's interesting. Because you can imagine two different things. One is someone just has access to a file cabinet that they're supposed to use for various business purposes and they just look into it for improper purposes, thinking, "Okay, I'm going to read this file because I'm curious who are undercover agents or something like that, and I'm going to sell it to my mob friend," versus someone doesn't have access to the file cabinet and they go steal a key or maybe they have access to part of the file cabinet but not to some of the files in the file cabinet and they peek into those. Maybe that kind of maps onto some of the distinctions that we're going to talk about in this case.

Will (08:00):

Yeah, again, those are different kinds of crimes. Maybe it's also bad for government officials to misuse information they're supposed to have access to, but it's a different thing than breaking into the office so you can Watergate, like breaking into something so you can rummage through their files.

Dan (08:17):

Did you just use Watergate as a verb? Because I love that, if so.

Will (08:20):

Maybe.

Dan (08:20):

Or was that just you were just sort of saying the word?

Will (08:23):

I'm not sure.

Dan (08:24):

Okay. Well, I'm going to use it as a verb from now on.

Will (08:26):

Great.

Dan (08:27):

Okay. So that's the distinction. He basically has access to this. I mean, he has access to the information. He's not just relaying information he already knows, but he's allowed to use this database, he can plug in all sorts of things, but now he's doing it in a way he's not supposed to be doing.

Will (08:43):

And let's just do two hypos to see why this could be a problem, right? One of the classic hypos that I think everybody agrees can't be criminal is: suppose you're one of the many people who has a computer or device that you're supposed to use only for work-related purposes and you check your personal email or surf Twitter for a few minutes or whatever. You're now using a computer in a way that you're not authorized to use it, so under a broad definition of the statute, that would seem to be this same crime, and that seems-

Dan (09:13):

That seems kind of bad. That seems like-

Will (09:15):

It's bad.

Dan (09:15):

... a lot of people are criminals.

Will (09:17):

And now if you want to do a slightly more, I don't know, let's say, more real world hypothetical, there are these databases like PACER, which contains all the federal court filings, or the AALS Faculty Appointments Register, which contains all these appointments candidates' information. When you get access to the database, you agree to various limits on how you use it, so you agree to use the faculty information only for hiring and promise not to do any studies to find out if there's bias against various kinds of people. You agree with PACER not to ... I don't know, various things. So what if somebody downloaded a bunch of documents on PACER and then put them on the Internet? What if somebody downloaded a bunch of stuff from the Faculty Appointments Register and then did an empirical study? Are they committing the federal crime of exceeding their authorized access? Those are not-

Dan (10:02):

Even if they're just downloading stuff in ways that are inconsistent with the terms of use that are on the website, right, even if they haven't explicitly agreed to anything and have a password, that seems like a real problem. You and I both have some great colleagues who do a lot of empirical work, Adam Shelton, Kyle Rozema, give those guys a shout-out. One way that empiricists get data is they scrape stuff off websites, and, all of a sudden, if the website just says, 'Don't do this," that's now a federal crime? That seems crazy.

Will (10:29):

Right. Now, I'm sure Adam and Kyle would never violate the terms of service on a website but somebody less scrupulous than them could get in trouble. So, okay, now we can talk about whether the court limits it in the way that makes sense and where those hypos end up at the end of the case. But that's part of the motivating sense, that there's something about this broad language, that it seems counterintuitive at least, if it just applies to everybody who does stuff online that they're not supposed to.

Dan (10:55):

Yeah, and we're going to come back to this in a second. The thing that's interesting about this is that I kind of think this is the most important part of the case. But, as we'll see, the Court thinks it's the least important part or it's, as the Court describes it, just icing on a cake that's already frosted. This is not the thing that drives most of the analysis, which, for me, maybe illustrate some concerns about textualism, but we'll get to that.

Will (11:17):

Well, okay. So wait a minute. It's not what drives the opinion, right, but you might wonder. That might be what drove the outcome. So it could well be that the justices come to this case with the intuition that something has gone wrong here, and that may be what sets them up to be so receptive to the textual argument we're about to talk about.

Dan (11:34):

Yeah. I guess, before we get deeper, we should tell you what the lineup looks like because this is kind of interesting. As you noted, it's an opinion by Justice Barrett, but it's joined by Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, and then we have a dissent by Justice Thomas joined by the Chief and by Justice Alito, so kind of an unusual lineup. It-

Will (11:58):

Why is that unusual Dan?

Dan (11:59):

Well, it's apparently the first time Justice Breyer has ever gotten to assign a majority opinion in his-

Will (12:05):

Good for him.

Dan (12:06):

... gosh, what, 27 years on the court because you have the now two justices who are more senior than he, the Chief Justice and Justice Thomas, in dissent. So that's big for him. You have the liberal justices plus the Trump-appointed justices versus the other justices appointed by Republicans. That's kind of interesting. There's also a little bit of a young/old thing going on. It's not perfect, but you have, I think, Breyer, who's one of the older ones, but then the five youngest justices or at least the five most recently appointed justices and then some of the less recently appointed justices in dissent, which I always look for in these digital cyber age cases because there's some reason to think that people's views of technology may differ depending on what generation they're in.

Will (13:02):

Mm-hmm (affirmative). That's true. I think you should also look for this in Jeff Fisher cases, and this is one of Jeff Fisher's several magic powers, is the ability to assemble these kind of coalitions of usually conservative formalist justices and more liberal justices together. Did that in Melendez-Diaz and Crawford and a bunch of his criminal procedure victories, so this is kind of perfect.

Dan (13:24):

Yeah. And we'll get to the dissent in a minute. But back to what you were saying, I thought that was a good point, that maybe these concerns about over-criminalization, maybe they are really driving the outcome, even though the court tells us, "Well, that's not the most important thing. The most important thing is the text." And then the majority spends quite some time talking about the text, talking about the word. So where do we end up?

Will (13:51):

Okay. So the question is what does "not entitled so to obtain" mean, right? What does it mean to obtain information that you're not entitled "so" to obtain? The court says, Justice Barrett says, "That plainly refers to information one is not allowed to obtain by using a computer that he is authorized to access." So they're saying, "Here, the reason Van Buren can't be convicted is this is information he was entitled to obtain using the computer he was using." There's nothing about his use of the computer or about his obtaining the information that was wrong. Now, maybe he wasn't supposed to use it the way he did, but there's nothing about the obtaining it using that computer that's forbidden.

Dan (14:32):

So what this means, as the court explains it, I think, is that if you're not authorized to get the information via computer, even if you're authorized to get it by requesting hard copies of the files, you don't have a defense-

Will (14:45):

Right. So in a way, I mean-

Dan (14:46):

... which is kind of a weird thing for them to have been worried about. I mean, I don't know how often that would even come up.

Will (14:51):

So, whether they're worried about it exactly, I think the point is-

Dan (14:54):

I mean Congress when they're writing the statute, not the court.

Will (14:57):

Right. Again, I think it's less weird if you just ... The core of the statute is hacking into or breaking into computers you're not supposed to access. That's the core of the statute.

Dan (15:05):

Yeah.

Will (15:06):

And then, in a way, they're saying, sort of closing a loophole, that somebody who breaks into a computer and then says, "Well, look, in theory, I could have gone around and gotten it in paper," shouldn't be allowed to somehow say, "Oh, this is actually stuff I was entitled to obtain," the same way you're not allowed to break into somebody's house to repossess the book they borrowed from you and haven't given back.

Dan (15:27):

Sometimes, you can. Right?

Will (15:30):

Can you?

Dan (15:31):

Depends. I don't know. Depends.

Will (15:32):

Okay. I didn't do great in criminal law.

Dan (15:33):

Stuff can get repoed. There's repo men. It's a whole thing. That hasn't really happened to me, so I'm not sure. Yeah, but, just to be clear, this part of the statute is about situations, though, where you're not just hacking into a computer you have no access to. The presumption is you're exceeding authorized access, you have some ... There's also a separate version, which is just you're hacking into the computer. This is the situation where you have some access but you're going beyond that access, right?

Will (16:01):

Right. So part of the statute interpretation fight is whether those are two equally important parts of the statute or not. We've got one part of the statute that says no breaking into computers without authorization and then a separate rule about exceeding authorized access. So the government, not implausibly, says, "Well, that's got to be doing some work, so it's got to cover stuff like this where you're exceeding what you're supposed to do." That's why Van Buren and the Court have to say, "No, no, exceeds authorized access still has some meaning." It still deals with the hypo we were just talking about, but it's more like closing the loophole for the core thing the statute's supposed to do.

Dan (16:37):

Yeah. The one thing I struggled a little bit with this opinion is trying to figure out exactly what the Court thinks it does cover in the end and what those fact patterns look like, and the Court is a little bit vague about that. So here's one argument that defendant Van Buren makes that I think the Court agrees with. The argument is that if a person has access to information stored in a computer in folder Y, from which the person could permissibly pull information, he doesn't violate the CFAA by obtaining such information, regardless of his purpose. But if the information is in folder X, to which the person lacks access, he violates the CFAA by obtaining such information. Does that make sense to you as a distinction?

Will (17:22):

I think so. I don't know. My university has a big shared drive where a bunch of faculty put stuff, right? So there's a bunch of servers and databases I'm allowed to access because I'm allowed to access various shared drives that I'm part of. If I somehow wormed my way into the shared drives where I'm not supposed to be, like the confidential litigation files or some set of grades that I'm not supposed to access, that's still a problem, right? I'm not supposed to be over there in that room, in that part of the warehouse, at all.

Dan (17:50):

Yeah. I guess the thing I'm having trouble with there is when you talk about computers, this whole idea of what is a folder is just kind of a fiction. I mean, there's just a bunch of information stored on the computer, and it can be organized in any number of ways, and then how it's represented visually to people can differ. Isn't there some sense to say that the defendant had the right to access discrete pieces of information, he had the right to access particular license plate registries based on stuff that happened to him in his job and whether he encountered people, but he didn't have the right to access your license plate registry, absent some something that gave him that authorization. Think of each license plate registry as kind of like a folder. Is that the wrong way to think about it?

Will (18:41):

Well, I mean, this is where the opinion starts to fall apart a little bit, despite everything I like about it. You could. I think the majority would say, "No, that's different." He has the right to access all the license plates. It's just he has to access them for the right reason, and so that's not something the federal statute is is concerned with.

Dan (18:59):

Yeah. But you don't really have the right to access that. You only have the right to access ... It's like your shared drive. If they call you up and they say, "Okay, now you can look in the confidential litigation folder or whatever," you can do that. Or they can say, "You can look at that if you're given this authority over to deal with lawsuits or something," but you're not given that authority. It starts to be kind of a slippery slope for me, kind of a blurry situation.

Will (19:24):

Yeah. This is sort of where the dissent comes in, right? So I think the dissent, despite everything I like about the majority, the dissent has a good point, that when we think about these property law analogies or these entitlements to access various things, sometimes they are qualified by purpose. They have the great example of if you park your car somewhere and give your car to a valet, giving him your car but only for a specific purpose, and he is actually violating your property rights if he takes your car on a joyride, again, to be Ferris Bueller about it.

Dan (19:56):

Yeah. This is an interesting part of the dissent, though. He does go into this kind of property law stuff and makes a bunch of analogies. I thought that there were some misfires in this part of the Justice Thomas dissent, though. So, first of all, there's this question about does it even make sense to look at this kind of property law background when you're interpreting this computer statute? Maybe. I'm not opposed to that. But some of the moves that he makes are a little strange.

Dan (20:19):

One of them, he says, "Consider the common understanding of theft," and then he starts talking about the Model Penal Code Section 223.2(1), and I know about this a little bit because I teach criminal law. The thing that's really weird is the Model Penal Code, it's not a restatement. It's an attempt to change the law. It's a modern attempt to change the law, and it's not at all consistent. This definition of theft goes way beyond common law larceny. It's actually deeply inconsistent with common law larceny. I read that. It was kind of like a record-scratcher. It was like, "Wait, what is he doing there? That's not" ... If we're looking for the property law, common law background, you should not be looking at the Model Penal Code theft provision.

Will (21:01):

Yeah. Though if we're looking for property law concepts available in the 1980s when Congress wrote this statute, then it's less crazy, right?

Dan (21:09):

Yeah.

Will (21:09):

I think-

Dan (21:10):

Although the Model Penal Code was not trying to summarize what people thought the law of theft was. It was an attempt to change the law of theft that hadn't been adopted everywhere.

Will (21:20):

Yeah.

Dan (21:20):

Hadn't been adopted in a lot of places.

Will (21:22):

Okay, so here's my reaction. It's that both the dissent and the majority have a point. Sometimes, maybe even canonically, we have these property law concepts like, "Well, once you're allowed to be there, you're allowed to be there." We don't second guess whether you're allowed to be there for a particular purpose. But the dissent's right that we don't always do that, the valet example, and there are, I think, actual jurisdictions that do this. My understanding is California, burglary, for example, does work like this so that shoplifting in California is frequently prosecuted as burglary because even though you're in a Walgreens, you didn't really trespass in the Walgreens, we say because you were there for the unlawful purpose of stealing whatever it is people steal from Walgreens, you actually weren't allowed to be there and you could be prosecuted for burglary, which I think is the analogy to what the federal government's trying to do here, too.

Dan (22:08):

Yeah, I don't know. There's some other wacky stuff about this. My wife, Danielle D'Onfro, teaches property, and I was chatting with her a little bit about this. So one thing Justice Thomas cites is the Second Restatement of Torts, which is apparently a controversial source among folks in that universe for reasons I don't fully understand. Then he says, "A bailee commits conversion, which many jurisdictions criminalize, when he having no authority to use the thing bailed nonetheless uses it." She said, "Well, it's not conversion unless you're actually depriving the owner of the use," which when we're talking about information doesn't really apply. But I don't know. I found this part a little bit slippery. They're just throwing a bunch of stuff against the wall and seeing what sticks. But I don't know.

Will (22:47):

I don't think it's just that. I do think it's that this is not a common law court. Most of what the Court does is statutory Constitutional law. So when they have to actually get into common law concepts, I don't think they're as well ... They just don't have as much of a canon to look to, right? So they're looking at restatements, Model Penal Code, Corpus Juris Secundum, because there isn't as ... They don't have their own body of common law cases to cite.

Dan (23:12):

Yeah, and they can screw that up. I think I may be picking on Justice Thomas a little bit because he's kind of screwed this up in the past. I don't know if you remember Staples v. United States. This is the case that reads in a mens rea requirement to this machine gun possession statute and say it says you have to know the gun you're possessing is a machine gun, which is a sensible result, as far as it goes. But in the course of getting there, Justice Thomas's opinion says something, that under common law, you always had to know all the facts that made your conduct criminal, which is false, which is just not anywhere close to being a correct statement of what common law rules on mens rea were, but now sometimes courts site that and they get confused and scholars cite that. So I don't know. Sometimes, these observations about what the common law rule is or was can be wrong and maybe confusing to people. But-

Will (24:02):

Although, sometimes, he gets the common law very right. So there's a great [inaudible 00:24:05] case called Atlantic Sounding v. Townsend about whether you can get punitive damages in an admiralty suit for maintenance and cure, which Justice Thomas writes for himself and the four more liberal justices to say, "Well, the common law rule is punitive damages are generally available even though we don't have any specific authority for that." He sort of walks through, actually masterfully, a bunch of common law principles, so I don't know.

Dan (24:27):

Okay. So the lesson is be careful while you're sailing and so forth.

Will (24:30):

Yeah, the lesson is you got to take care of your sailors. That's the lesson.

Dan (24:34):

Okay.

Will (24:34):

Part of what interesting here is just everybody agrees some of these common law backdrops and analogies are important, and this is exactly it. This is an area where they may be a little bit more disputed and at sea about what to do. The other weird thing about the opinion, the majority opinion, which we need to talk about is footnote eight.

Dan (24:52):

Yes. And this is something that Orin Kerr, who we're going to keep talking about, flagged on Twitter. It's a really significant limitation to the opinion. It's a really significant place where the opinion doesn't really tell us exactly what the statute means.

Will (25:08):

Okay, so here's the footnote, and then we talk about what it means. Footnote eight, "For present purposes, we need not address whether this inquiry turns only on technological or code-based limitations on access or instead also looks to limits contained in contracts or policies, CF, brief for Orin Kerr as amicus curiae." So one of multiple sites to Orin here.

Dan (25:29):

And the footnote is tagged onto a sentence that says, "Liability under both clauses under the defendant's reading stems from a gates up or down inquiry. One either can or cannot access a computer system and one either can or cannot access certain areas within the system." So, basically, to go back to our file cabinet analogy, I guess what this footnote is saying is, "We're not going to answer whether you have to actually pick the lock or just be told you can't access that drawer in the file cabinet."

Will (26:03):

Yes.

Dan (26:03):

Right?

Will (26:04):

And this is why it's weird, is this would have actually been the more natural way to resolve the case. So those hypos we started with about using your computer for work when you're told you're not supposed to or using that stuff you downloaded when you're told you're not supposed to, maybe what really sets those apart from the core crime of hacking is those are all violations ... You're not violating anything technological. You're not looking into a password or tricking the computer or doing anything. You're not violating any sort of technological limitation on access. All you're doing is violating a "we told you not to" limit on access.

Will (26:36):

Orin's point, which he's made at length in various contexts from articles to pro bono litigation to his amicus brief, is that the statute is about circumventing technological limitations on access, not about violating words, violating promises. So maybe the difference is if I have a filing cabinet and you're not supposed to go into it, one thing I can do is put a lock on it, and then we can have a special crime when you break into things that are locked that you're not supposed to. A different thing I could do is just tell you, "Don't open that," and the first is a crime and the second is not in Orin's analogy.

Dan (27:09):

Yeah. And so trying to figure on how that would map onto a case like this, if the broader reading is right, let's say Van Buren has access to the license plate database. Theoretically, he can look up out-of-state license plates, but he's told by his employer, by the police department, "You're only supposed to look up in-state license plates." Just assume that they do that for whatever reason. Then he sees somebody driving who's got an out-of-state plate and he wants to look that person up for some nefarious purpose and he does that. Then he would be, at that point, a federal criminal under this broad reading.

Will (27:47):

Yes. Yes, exactly. So, for instance, employers could respond to this opinion, I think, by saying, "Okay, nobody can look in these databases without the permission of their superior." You got to just do a quick check like, "Boss, looking up a license plate." Okay. Anybody who looks it up without the permission of their superior is now accessing something they're not supposed to access, if that broader view is right. So I think they're going to have to answer that question soon enough. That's actually, in a way, the more important question, I think, about the Computer Fraud and Abuse Act, is whether it applies to these kinds of instructions, especially because ... And this is another great point from Orin. Websites all have these terms of service to tell you, "You can't do X, Y, or Z," or, "You can't access this Facebook account unless you're at least 13 years old," and so on. If all those can still be binding gateways to federal crime, then we still have a super broad statute.

Dan (28:41):

Yeah.

Will (28:42):

We could say right now, "You can't access our podcast at all unless you promise to rate and review it on iTunes," and anybody who fails to rate and review it on iTunes is now a federal criminal.

Dan (28:52):

I can live with that.

Dan (28:54):

Yeah, this is puzzling. It's one of those things that can be kind of frustrating about the Court, is that there are these statutes that are out there for decades and they only interpret them every so often, and sometimes they just decide to leave pretty big questions unanswered. In the meantime, you can have a big circuit split developing, you can have people getting convicted under a broader interpretation, and it sometimes makes you wish that they would maybe just resolve the issue. Maybe this is not a good case to do that. Maybe it's not squarely presented. I could imagine a path of reasoning that would have gotten them to resolving that issue in this case, but maybe they couldn't form a majority around that, lots of possibilities.

Will (29:37):

Right. And, of course, it also depends on what they're going to say. The first duty of the Supreme Court is to do no harm, so if they were going to answer the question and say, "Oh, yeah, all those non-code based limitations count, too," I'm not sure whether that would be good.

Dan (29:49):

Yeah. Yeah.

Will (29:50):

So Orin speculated, and this seems right to me, tell me what you think, that this could well be one of those footnotes or limitations that got added sort of late in the drafting process. Much of the opinion is written in a way that makes a lot of sense if we think this is really about circumventing technological-based limitations. They talk about the hacking analogy and the purposes of the statute, or they talk a lot about the nature of the gates in a way that makes you think what they're really talking about is circumventing technological-based limitations. Then, suddenly, they had this footnote saying, "Oh, we're not resolving that," which is often something you do when somebody else in the majority read the opinion and said, "Well, this resolves that issue in a way I'm not totally comfortable with. Can we bracket it?"

Dan (30:31):

Yeah. And it could have been two people, right, and then, at that point, you have a problem with your majority. It could've just been one person. That strikes me as plausible. It certainly could have been in there from the beginning, but it could be ... Maybe it was even written to actually clearly resolve it and somebody got uncomfortable, a lot of possibilities.

Will (30:49):

Yeah. I guess that we're in agreement. That makes this a big case, still important, but, in a way, also kicking the can down the road for the more important question, which could be a little frustrating.

Dan (31:00):

Yeah. So there's an interesting cite in the majority to a prior dissent by Justice Kagan in Yates v. United States, which I think ... Did we talk about that one last time? Yeah, we did.

Will (31:15):

Yeah, we talked about it just-

Dan (31:17):

The fish case, right? The whether disposing of undersized grouper is obstruction with evidence.

Will (31:23):

[crosstalk 00:31:23]-

Dan (31:23):

Yeah, whether that makes you a federal criminal. There, Justice Kagan in dissent was actually arguing for the broader interpretation of the statute. She lost on that. But she was sort of saying, "Look, if you're into legislative history, this provides additional frosting." Is it frosting or icing?

Will (31:39):

Extra icing on a cake already frosted.

Dan (31:42):

Yes, extra icing on a cake already frosted. So it's always interesting when you see a majority opinion using language from a dissent like that. It obviously doesn't mean that the majority thinks the dissent was right in that case but seem to at least like that language.

Will (31:58):

Well, yeah. You can also imagine a dynamic, let's just say, where some of the justices in the majority maybe don't care so much about the policy arguments. Maybe Justice Barrett or Justice Gorsuch thought we shouldn't address these policy arguments because it's just a textualist case. Maybe Justice Kagan is a little more pragmatic, said, "I really think it's important we include the policy arguments," and then including that as a nice hat tip to say, "Well, okay, we're going to include the policy arguments." But, as Justice Kagan says, they don't count for that much.

Dan (32:25):

Yeah. I mean, this is something that I find a little frustrating about this mode of analysis, is, as I said, this strikes me as really, really important, and, yet, the Court says, "Well, it's not really the most important part of the case, it's just this extra icing." The Court says, "This doesn't tip the balance in terms of the rule of lenity," this idea, with an ambiguous statute, you read it in favor of the defendant. It doesn't matter in terms of the rule of constitutional avoidance, so you read a statute to avoid a serious constitutional problem. Basically, they're like, "Look, we think the text is clear enough that that stuff doesn't even come into play."

Dan (33:05):

This is the way opinions in criminal cases interpreting criminal statutes tend to work, is that there is, in theory, this rule of lenity, but it basically never applies because the Court never says a statute is ambiguous. Because they're like, "Oh, we've done all the work, and now we think the statute isn't ambiguous. We agree with our reading." And, yet, we see this fairly compelling debate between the majority and the dissent about how much work this word "so" is doing and all that. I don't know. It seems like a pretty close question to me. It seems like maybe this is a place where canons like that could be more useful.

Will (33:38):

Yeah, I agree. And I guess this is where I wonder if they actually are doing more work than they seem like. I wonder if they're just ... At this point, the idea of the rule of lenity, the idea that in criminal cases we got to be wary of inadvertent over-criminalization, is sufficiently in the air that it just affects the framing and the way the justices think about the case in the first place. So it's not really doing the work of a formal canon, but they come into this knowing this is a criminal case in which the government is trying to stretch this statute to put somebody in jail for something that's not obviously in the statute, and that's doing some work, even without a canon.

Dan (34:12):

Yeah. It is hard for me to believe that it isn't, but that's a little bit of a legal realist type point, that one might think you'd be a little bit uncomfortable with, Will, but I'm glad that you're willing to embrace that here.

Will (34:22):

You may not know this about me, Dan, but I am a legal realist and a formalist.

Dan (34:27):

Flesh that out for me.

Will (34:28):

I guess I just-

Dan (34:29):

You want people to be formalist, but you don't believe that they are. Is that how it works? You don't believe that they are-

Will (34:34):

No, I think it's a-

Dan (34:34):

... as much as you want them to be?

Will (34:36):

I think judges are, of course, influenced by the way they see the world, often in a kind of Gestalt way that brings into play all sorts of values and things like that. Judges are human beings, and human beings are not robots. That is why I think formalism is so important. It's because it's an attempt to minimize the role of those kinds of values to not be unreflective, about letting those values creep in and to create a common shared language in which we can transcend those values. So I think, in some ways, I'm a formalist because I'm a realist.

Dan (35:09):

Okay, interesting. You threaded the needle nicely there. We can have a whole conversation about that. I mean, one response is if we really think concerns like this are playing a pretty significant role underneath the surface, maybe it's better to surface them and have them just say, "Look, this is important." Also, by the way, it's not irrelevant to the task of textual interpretation to say, "We think Congress probably wouldn't have meant to, with this language, create so many federal criminals." Now, there's a response to that, which is this is 1984, maybe people don't know how computers are going to be used. But, sometimes, and this is something I tell my students in criminal law, sometimes, you're not just doing pure policy analysis. You're doing policy analysis as a form of textual interpretation. You read the statute and you're like, "What is the best way to read this? Well, do we really think Congress meant to do this, or do we think they meant to do something else if the language isn't clear?"

Will (36:04):

No, I completely agree. Actually, I think that is part of what the majority is doing with these policy arguments. That's probably what they mean when they say, "The fallout underscores the implausibility of the government's interpretation." They're saying these policy arguments wouldn't be allowed to drive the result if the text says something else, but they do help frame how implausible the government's interpretation is.

Dan (36:25):

Now, Justice Thomas has a response to that. He responds to the policy arguments and says, "Look, there's a lot of stuff that federal criminal statutes criminalize," and then gives some examples. I don't know if you noticed this, Will, but the Twitter account @crimeaday, which every day tweets out a funny description of something that actually does violate a federal criminal statute, noted that that account had previously flagged all these different statutes that Justice Thomas notes. So he says, "The act thus penalizes mine-run offenders about as harshly as federal law punishes a person who removes a single grain of sand from the National Mall, breaks a lamp in a government building, or permits a horse to eat grass on federal land."

Will (37:07):

Yeah, these are great. These are great examples.

Dan (37:10):

It could be just a coincidence, or it could be that Justice Thomas or Justice Thomas's clerk is on Twitter and reading A Crime a Day.

Will (37:17):

Mm-hmm (affirmative). I agree. Actually, I think that's a good point of Justice Thomas, is if the only point of these policy arguments is to ask is it plausible that Congress would have done this, it's totally plausible that Congress would have enacted a vastly over-broad criminal statute that sweeps in a large amount of conduct that it shouldn't really sweep in and they just counted on prosecutorial discretion to deal with it later. Congress does that all the time.

Dan (37:41):

Yeah. Although these examples don't show that, in the sense that these examples show situations where Congress may have punished stuff that isn't particularly blameworthy way too harshly. But they're not examples of places where Congress would have accidentally or intentionally made half the country federal criminals. I have never permitted a horse to eat grass on federal land.

Will (38:06):

[crosstalk 00:38:06]-

Dan (38:06):

I have never broken a lamp in a government building, to my knowledge. I don't think I broke any lamps when I was clerking. So they're a little inapposite. By the way, elsewhere, Justice Thomas has made that same kind of argument. He said in Staples, the case I mentioned a minute ago, that one problem with reading the machine gun statute not to have a mens rea requirement is that it would potentially make a huge swath of Americans unintentional criminals if their guns turned out to be machine guns. So it's not like he thinks those kind of arguments are off the table.

Will (38:40):

Mm-hmm (affirmative). Fair enough. Fair enough. Maybe a better analogy actually would have been the honest services fraud statute, where Congress did repeatedly keep trying to enact a statute that was broad and vague and swept in a huge amount of conduct and only stopped because the Court made it.

Dan (38:55):

Yeah. Yeah. Although the Court made it stop by using statutory interpretation. So if you accept that Congress was trying to do the other thing there-

Will (39:04):

No, they used the Constitution.

Dan (39:06):

They used constitutional avoidance, right?

Will (39:09):

I think not.

Dan (39:11):

Well, they didn't hold that it was vague. This is a Justice Ginsburg opinion in Skilling. There were three votes, as I recall, for the vagueness argument, and she says, "No, we've got to try to construe what Congress did, and this is the core of honest services. Let's leave the other stuff out."

Will (39:28):

Right. It's this kind of constitutional avoidance that's not real interpretation. Everybody understands the statute was broadly worded the first time, the Court interpreted it more narrowly in a case called McNally to reject honest services fraud, Congress reenacted honest services fraud, said, "No, no, we want honest services fraud." Then Justice Ginsburg said, "Well, this is as much honest services fraud as we're willing to give you because of the possible Constitutional constraints."

Dan (39:51):

Yeah. Now, you left out part of the story, which is that in between the enactment and the Supreme Court ruling that there was 30 years of federal government and the lower courts just kind of running amuck and, basically, all sorts of crazy stuff being treated as federal honest services fraud. Then the Supreme Court finally got ahold of it and was like, "Wait, what have you all been doing? This is nuts. Let's reign it in. " It's one of my favorite topics.

Will (40:16):

And this is exactly the analogy, as I understand it. I mean, this is an area where a lot of the hypotheticals we've talked about are not totally hypothetical, and Orin's brief and some of the other briefs recount all sorts of very aggressive interpretations of the Computer Fraud and Abuse Act that the lower courts and lower court judges have been okay with. Now, the Supreme Court's stepping in to say, "Wait a minute, what do you all think is going on?"

Dan (40:36):

One other thing that the end of Justice Thomas's dissent reminded me of ... He says, "It is understandable to be uncomfortable with so much conduct being criminalized, but that discomfort does not give us authority to alter statutes." It reminds me at the end of, and I'm sorry to keep harping on this, Justice Kagan's dissent in Yates, where she has this closing passage which sort of says, "Look, I think what's really going on with the majority that is coming up with this strange reading to limit this destruction of evidence statute, you're just really worried about overcriminalization." Our friend of the show, Richard Ray, had a great blog post about this some number of years back, where he said underneath the surface, there's shades of the scholarship of Bill Stuntz. He's not explicitly cited in that Kagan dissent. I always thought that was a great blog post. Bill Stuntz was my criminal law professor. He's somebody who wrote a lot about overcriminalization. But it's a very similar move. They're basically saying, "Look, you have this policy concern overarching that's underlying the way you're approaching the statute, but that's just not what you're supposed to be doing here."

Will (41:37):

I'm sympathetic to the majority. I still think they may be right, although I think they probably should have written it Orin's way rather than the way they wrote it. Again, as a realist, I do wonder if for at least three members of the majority, this is partly a sense of, "The government's interpretation can't be right. We must adopt some limit on this interpretation of the statute. This is a limit, so let's adopt it without [crosstalk 00:42:03]"-

Dan (42:03):

So you said three. Are you saying those are the liberal justices and not the formalist justices or-

Will (42:06):

I'm not taking a position on which three. I just wanted it to be at least two, so-

Dan (42:10):

Well, you picked the number three for some reason, right?

Will (42:12):

I was going to say at least one, but one can't be enough to hurt the majority opinion, so I was going to say at least two, but then I figured they come in tidy groups of three, so let's say three.

Dan (42:21):

Okay. Fair enough. There are a lot of cites to academic work, Caleb Nelson, Patricia Bellia. Also, yet another cite, I think we're going to be seeing a lot of these for better or for worse, to the Scalia and Garner statutory interpretation book.

Will (42:36):

I think every Supreme Court practitioner has to own Scalia and Garner, right? Because in a Supreme Court statue interpretation case, that's an important authority, whether you like it or not.

Dan (42:44):

Yeah. So Justice Scalia's family, nine children, will collect a lot of royalties over the years because that is going to keep getting cited.

Will (42:52):

Presumably, the nine of them have to split it with Bryan Garner 50/50.

Dan (42:55):

Yeah, yeah. Well, I don't know what deal they worked out because you notice Justice Scalia's name is first, even though he's not first in alphabetical order. So maybe he got the lion's share. I don't know.

Will (43:05):

Actually, there is ... So Bryan Garner wrote a sort of a Justice Scalia memoir after he passed away that's just authored by Garner about his time working with Scalia that goes into some detail of their business arrangements and the ways he had to cajole and persuade Scalia to do this project and what they're working relationship was like. Actually, it's a really interesting read, if only for that inner life of the business of being a Supreme Court justice and author.

Dan (43:32):

Yeah, which, by the way, is basically the main source of extra income if you're a Supreme Court justice, is to get one of those book advances or get some book royalties, which a number of them have done. Justice Barrett has already done that. Even though she's been on the court for a couple weeks, she got a multimillion dollar advance some people are carping about. But maybe we'll talk about that more whenever we actually get the book.

Will (43:55):

Yeah. I actually collect books by Supreme Court justices because this goes way back. Justice Brandeis had a bunch of books. Justice, I think, Brewer was the author of the famous Holy Trinity statute interpretation case 100 and some years ago and wrote a book.

Dan (44:07):

Justice Story, right?

Will (44:09):

Yeah.

Dan (44:09):

You got to go back further.

Will (44:10):

Story on bailment, Story on conflicts. I think it's a really interesting genre. Chief Justice Rehnquist wrote a ton of books. It's a really interesting practice of genre.

Dan (44:19):

Do you have autographed ones?

Will (44:21):

No, none.

Dan (44:22):

Oh. You should be able to get some of those. Let's find some for you. Okay, so I think that's it about Van Buren, maybe a little bit more in terms of odds and ends. John Elwood on SCOTUSblog is continuing his fine work in the Relist Watch. If you don't know about it, Relist Watch is one of the most useful ways to get information a little bit ahead of the curve about what the Court is doing. John started doing this, gosh, a decade ago, more than a decade ago, where he realized, as someone who's familiar with the court, that when the Court relists opinions, so when opinions appear to be being discussed by the justices at multiple conferences, and the docket reflects that, the docket will say, "Distributed for conference of May 10th, distributed for conference of May 17th," that that gives you some information about what the court is up to. Maybe somebody's writing an opinion.

Dan (45:10):

Then, after he started doing that, it became even more important because the Court seemed to adopt a more informal policy of relisting before granting, perhaps to have a little bit extra work going in to make sure there's not some problem with the case that was going to require the case to be dismissed after being granted. So you can sort of see, "Oh, look, this case is being relisted. Something's going on here. Something weird's going on here."

Will (45:34):

Yeah, it's in the maybe pile.

Dan (45:35):

Yeah. So we've got what he described as the juiciest new relist, National Coalition for Men v. Selective Service System, which is a case challenging the constitutionality of limiting the draft. We're not actually drafting people, but men still have to register for selective service when you turn 18, the constitutionality of limiting that to men.

Will (46:00):

Mm-hmm (affirmative). Yeah, it's a great question. The Supreme Court upheld this, as you know, in a case called Rostker v. Goldberg now 40 years ago, I guess. But a lot of the underpinnings of that case are no longer true, among them that, at the time, women could not serve combat roles and now they can, so it's not quite clear why we would only draft men.

Dan (46:21):

I don't know whether it's going to get granted. It would be really interesting to see what happens. One wrinkle is the case addressing an equal protection challenge to something that the federal government is doing. The very notion that there is some equal protection limitation on the federal government is, I would say, deeply controversial. Maybe we can just treat it as settled at this point, but-

Will (46:39):

Not as controversial as it should be.

Dan (46:41):

Fair enough. But I think it might be more controversial amongst some of the justices because, as written, the Fourteenth Amendment does not apply to the federal government, and that's where the equal protection clause is, so the court has ... Back when it was dealing with desegregation cases in order to apply that rationale to District of Columbia, it said that there's an equal protection component of the Fifth Amendment. My guess is there's more justices than there used to be on the court who have some reservations about that.

Will (47:09):

I hope so. This came up in the 1990s, when the court held that federal affirmative action programs were subject to the same scrutiny as state affirmative action programs and other forms of race discrimination.

Dan (47:19):

That was Adarand, right?

Will (47:20):

Adarand.

Dan (47:21):

Okay.

Will (47:21):

Justice Thomas and Justice Scalia joined in that opinion and did not express any discomfort with the idea of applying strict scrutiny to federal race discrimination. I think they probably should've been open to reconsidering that in both directions. Maybe Justice Thomas has changed his mind. Maybe one of the new justices is willing to rethink that. It also then brings on the sex discrimination question, so the Court well established law that sex discrimination is subject to something very, very close to the same strict scrutiny as race is, but, certainly, the originalist pedigree of those decisions is pretty hotly contested, and I could imagine justices not being eager to reopen that question.

Dan (48:00):

Mm-hmm (affirmative). I think the government is saying here, "Push this off. Congress may change the rule anyways."

Will (48:09):

What are the odds?

Dan (48:12):

Yeah, because Congress is getting so much done these days. He also pointed to another one, FBI v. Fazaga, which is about the state secrets privilege, and we'll wait and see what happens with that one before digging into it any further. Other news, Kathleen Arberg, who has been the public information officer of the Supreme Court for 22 years, is retiring, and so tip of the hat to her. She's the person that has to deal with reporters and other people who are constantly asking for information about the Court that the court doesn't want to share, so it's kind of a tough job. It'll be interesting to see who serves in that role next and whether that person makes any changes, becomes more transparent, less transparent. We'll see.

Will (48:54):

Yeah. I guess then the last question, do we want to talk about this Justice Gorsuch order?

Dan (48:59):

Yeah. So maybe just very briefly. Basically, what happened here was this is a shadow docket situation. There were some Denver churches, and this went to Justice Gorsuch because I guess he's the Circuit Justice for the Tenth Circuit now, and they said, "We want you to enjoin these COVID restrictions which are interfering with our ability to engage in free exercise." Oddly, he kind of sat on that for a while. It was fully briefed on May 19th, and he sat on it and then on Tuesday denied it. But he denied it without referring it to the conference, which-

Will (49:44):

Yeah. Can we walk through how this works for people who don't know?

Dan (49:46):

Oh, yeah. Okay.

Will (49:48):

So when you want to file one of these shadow docket, like a stay request or really anything like that, the first thing you do is you go to your circuit justice for whatever the circuit it comes from is. Then they can, in theory, grant or deny it on their own, but the usual practice is if it's at all juicy or controversial they would ask the whole court to way in. Because if they grant or deny it on their own, you can do an en banc process where you say, "Well, Justice Gorsuch denied it, but I now want to bring this into the full court because he's totally wrong." [crosstalk 00:50:16]-

Dan (50:16):

I think you then go to a different justice and then they refer it, right?

Will (50:20):

I think that's right.

Dan (50:20):

So it seems to-

Will (50:20):

That seemed to happen to Justice Douglas a lot.

Dan (50:22):

Yeah, as Justice Douglas enjoined the bombing of Cambodia just on his own, and then they went to Justice Marshall, who ... I can't remember if he just overturned it on his own or referred it to the conference and overturned it. But, either way, that can happen. But, here, didn't refer it. I think referral has become much more normal.

Will (50:40):

Yeah, well, in the cyber age, it makes a lot more sense, right? You imagine in the middle of the night, when you got to get ahold of somebody, that they can't all phone tree around as easily. But now they can do everything by ...

Dan (50:54):

And they used to have oral arguments in chambers before one justice. That seems kind of fun. They don't do stuff like that anymore.

Will (51:01):

Yeah. Bring it back.

Dan (51:02):

Yeah. So he denied that, didn't refer it. I don't if maybe he spent a while thinking about it. Maybe it just didn't reach his desk. But that suggests that the court certainly is not automatically going to grant all of these requests brought by churches who want relief from COVID restrictions as some people feared.

Will (51:19):

Yeah, Steve Vladeck, the-

Dan (51:21):

That's all I said. As some people feared after the Tandon decision, which we discussed a bit on our shadow docket episode, which we kicked off this podcast with.

Will (51:30):

Yeah. And Steve Vladeck, the shadow docket maven, made the great point that it's a sign of how out of control shadow docket litigation has become that it was news that Justice Gorsuch denied this request. 10 years ago, I think nobody would've paid any attention to the fact that somebody asked a justice for a stay and the justice said no.

Dan (51:50):

Yeah, that's definitely true. Now, if he's the maven, what are you? Are you the shadow docket godfather? You can figure that out on your own, or our listeners can and offer us a suggestion.

Will (52:08):

Well, thanks for listening, and please remember to rate and review us on iTunes or wherever you listen to this podcast. It remains really crucial in helping people find us and get more listeners.

Dan (52:21):

And in making me feel good.

Will (52:22):

The most important thing.