by:  GUEST BLOGGER Matt Dodge 

For the second time in our nation’s history, a public servant named Van Buren is headed to Washington, D.C.   Martin Van Buren occupied the White House more than 150 years ago as the eighth President of the United States. And now Nathan Van Buren, a police sergeant from Cumming, Georgia, will be at the United States Supreme Court next term.
 
On Monday, the Court granted Van Buren’s writ of certiorari, a writ signed by Rebecca Shepard of the Federal Defender Program, Saraliene Durrett of our CJA panel, and Jeffrey L. Fisher, Pamela S. Kaplan, and Brian H. Fletcher of the Stanford Law School Supreme Court Litigation Clinic.
 
The certiorari petition in Van Buren v. United States presents the following question: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”
 
Put another way: If, with your work computer, you use the internet to do something beyond the express mission of the job, have you committed a federal crime?
 
Van Buren, as a police sergeant, knew a local ne’er-do-well named Albo, who often invited prostitutes to his home, only to call the police and claim the women stole his money. Albo became an FBI informant and worked to set up Van Buren, who was supposedly low on money, by paying him to use his work computer as a personal favor to Albo.
 
As a law enforcement officer, Van Buren was permitted to access driver’s license and license plate information on the Georgia Crime Information Center’s computer database. Albo (and FBI agents) knew that. He asked Van Buren to run the tag of a (fictitious) local exotic dancer who caught his eye. Although Albo tried to pay Van Buren in cash, Van Buren demurred. But he did run the woman’s tag number in the GCIC database and offered to share what he learned with Albo. That was his downfall here. Or was it?
 
Under the CFAA, “[w]hoever intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from a “protected computer” commits a federal crime. 18 U.S.C. § 1030(a)(2). A “protected computer” is one “used in or affecting interstate or foreign commerce or communication”—in other words, any “computer[] with Internet access.” The phrase “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6).
 
The federal government indicted Van Buren for violating the CFAA. Although Van Buren’s job permitted (even required) him access to the GCIC database “for law-enforcement purposes,” the government indicted him for using the database for “non-business reasons.” At trial in front of Judge Orinda D. Evans, Van Buren’s FDP lawyers argued that Van Buren was not guilty of violating the statute because, as a law enforcement officer, he was authorized to access the GCIC database. Under the law, they said, it did not matter why he accessed the database. The district court and the Eleventh Circuit demurred. The appeals court affirmed the conviction because it was enough that Van Buren ran the tag for “inappropriate reasons.”
 
There is a 4-3 circuit split on this question. The Eleventh Circuit says a person violates § 1030(a)(2) if he uses a computer to access information that he is otherwise authorized to access but does so for an improper purpose or “non-business reason.” The Eleventh Circuit is not alone—the First, Fifth, and Seventh Circuits agree that a person violates the law when he uses a work computer for a purpose his employer prohibits. (Um, Van Buren asks in his petition, what about our ubiquitous NCAA March Madness brackets?) 
 
On the other end of the circuit split, the Second, Fourth, and Ninth Circuits each say that a person violates the CFA only if he accesses information on a computer that he is prohibited from accessing at all, no matter his reason.
 
In the end, Van Buren tells us why the majority’s rule is so dangerous not only to himself, but to all of us: “Reading the statute more broadly would criminalize ordinary computer use throughout the country.” What about corporate or university policies on computer use for employees and students? Under our home circuit’s view of the statute, “[a]ny trivial breach of such condition[s]—from checking sports scores at work to inflating one’s height on a dating website—is a federal crime.” Or maybe it’s not. The Court will hear argument early next term.

by:  Don Samuel

What better justification could there be for the application of the Rule of Lenity than the circumstances in United States v. Caniff.  In February of 2019, three Judges on the Eleventh Circuit had to decide whether 18 U.S.C. § 2251(d)(1)(A), which makes it a crime for any person to “make[] a notice to receive [child pornography]” applies to a person who, in a private person-to-person text message, asks a young girl to send him nude pictures of herself.  Does that request, in a private text, qualify as “making a notice” to receive child pornography?  In that February decision, 916 F.3d 929 (11th Cir. 2019), two out of three judges, reviewing various dictionary definitions of “notice” and “make,” decided that the defendant’s conduct did constitute “making a notice.” One judge dissented. Yesterday, the same three Judges thought about the same question some more and, once again citing various dictionary definitions of “notice” and “make,” all three Judges decided that the defendant’s conduct did not qualify as “making a notice.”  United States v. Caniff, --- F.3d --- (11th Cir. April 8, 2020).
This is the paradigm for the application of the Rule of Lenity: a distinguished Judge votes one way on the first day, and the other way on the second day.  And not just one Judge changed his mind, but two distinguished Judges changed their minds about the interpretation of the statute. Obviously, reasonable judges could differ about the interpretation of the statute: these two judges both disagreed with their own interpretation from a year earlier.

by:  Don Samuel

Lawyers all know what the term “standing” means: It is not, when spoken in a courtroom, just a reference to what we all do when the judge (or jury) walks into the courtroom.  It also describes in a formal way, the parties’ relationship to the controversy.  If my neighbor to the south drives his car into the living room of the house belonging to my neighbor to the north, I can’t file a lawsuit, because I was not injured. I have no “standing” to complain.  If the Georgia Legislature passes a law that provides that only people with blonde hair can receive Medicaid benefits, somebody with brown hair who lives in Alabama cannot file a lawsuit, because a person from Alabama, regardless of hair color, has no beef with the Georgia legislature.  That person has no standing to complain.
            In criminal cases, the issue of “standing” is not often disputed.  In every case, the defendant who is charged with a crime has standing to defend against the charges.  That is clear.  And in all cases, the prosecutor (state or federal) has standing to bring the charges, assuming there is an allegation that a state or federal law was violated.  Both parties, therefore, have standing to participate in the case.
            But for the past century, an entirely different kind of “standing” has been the subject of dispute in criminal cases: specifically, prosecutors often claim that a defendant does not have “standing” to complain about a particular search that resulted in the discovery of evidence that is being used in the defendant’s prosecution. There is no doubt that the defendant has standing to defend against the charges.  But if I am the defendant, do I have standing to complain about a search of my wife’s pocketbook, from which the police seized a ledger that documented all of my cocaine sales? The police did not search my pocketbook. In fact, I wasn’t even with my wife when her pocketbook was searched. The prosecutor will argue that because my belongings were not searched, I have no “standing” to raise a Fourth Amendment challenge to the use of the ledger at my trial. 
            The prosecutor is right.  But that formulation of “standing” can be confusing, because it is entirely different than the concept of “standing” to participate as a party in the litigation.
            Why is the case of United States v. Ross getting attention now?  Because the Eleventh Circuit previously held that "standing" for Fourth Amendment purposes is also "jurisdictional" -- and (the earlier decision held), if the defendant does not have Fourth Amendment standing, then the prosecutor can challenge that at any time.  The right to challenge a defendant's claim if the defendant lacks that kind of standing can be raised at any time.  But if the government wants to challenge a defendant's standing to raise a Fourth  Amendment claim, that challenge must be made in a timely manner and not for the first time on appeal.  Because the Eleventh Circuit has that previous confused opinion, the Eleventh Circuit decided on March 23, 2020, that every judge in the Circuit is going to address this confusion in a case that the court agreed to hear en banc:  United States v. Ross, No. 18-11679.   When this case is decided, hopefully, we will all know where we stand on this issue.

by Don Samuel

Law and history occasionally have a fickle relationship.  Sometimes at war with each other, sometimes inseparable colleagues.
 
An important feature of law is precedent: the historical record of what a court has decided with regard to a similar or identical controversy.  Courts abide by precedent not only because a lower court is bound to follow the principles, rules, and commands of prior court decisions, but also because it enables the public to know in advance, what is right and what is wrong.  History informs our contemporary decisions.
 
Rarely, however, does an historical event other than a prior court opinion become the subject of a case.  
 
Enter:  Pitch v. USA, 17-15016  (11th Cir. 2020) (en banc), decided on March 27, 2020.  The last and one of the most horrific mass lynchings in the United States occurred not far from Atlanta, at Ford’s Moore Landing near Walton and Oconee Counties nearly 75 years ago.  Two African American couples were dragged from their cars and lynched.  A grand jury in Athens heard testimony for several weeks. What did the witnesses at the grand jury reveal? Nobody was ever indicted.
 
Historians today are interested in the proceedings of that grand jury.  One historian, the original Petitioner in this case (he died during the course of this litigation), asked the district court in Macon to release the grand jury transcripts.  But Rule 6(e) of the Federal Rules of Criminal Procedure provides that all grand jury proceedings are secret and the transcripts are only to be released in certain specifically identified circumstances.  Nevertheless, courts have occasionally held that historically significant events trump the grand jury secrecy rule.  
 
The 104-page opinion in Pitch ultimately decides that the “historically significant” exception to Rule 6(e) has no legitimate historical basis and holds that the Ford’s Moore Lynching grand jury transcripts will forever remain a secret.  Along the way, the Pitch court overruled its own precedent in another case (involving Congressman Alcee Hastings), ironically deciding that Rule 6(e)’s “historically significant” exception that was previously recognized in the Eleventh Circuit was an historical anomaly that needed to be revisited and abandoned.  Erase that history from the books.
 
Wouldn’t we all like to know about the testimony that exists in the secret grand jury testimony that exists in the Mueller investigation of Russian interference in the 2016 election?  What about the grand jury testimony in the Rosenberg espionage investigation in the 1950’s?  Or Watergate?  Or even Aaron Burr and John Wilkes Booth?