Van Buren v. US and Amy Coney Barrett's So-So Textualism

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: I don't like that I am on this side of this argument.

0:00:06 Thomas: Stop making me agree with Clarence Thomas. If I may be so bold, I feel like maybe she's incepted the idea that this so even means anything into your brain.

0:00:30 Thomas: Hello and welcome to Opening Arguments. This is episode 1220. I'm your host, Thomas Smith. And in a moment, I'll be joined by Dr. Jenessa Seymour for a fun classic OA. So here's the thing. I have so much to tell you. So as you've maybe heard the last Monday episode, Jenessa and I are going to start to do Mondays here. And we're trying to get back to the classic OA deep dive kind of thing. The episodes that are not so much news dependent, not so much like always Trump dependent, but like interesting law stuff. Legal deep dives, breakdowns. And I really feel like in this episode, for my taste anyway, we got back to what I find really interesting and hopefully you do too, which is really digging into a Supreme Court decision and one that isn't like super politicized. It's actually a decision that didn't have a split that would go the way you think, probably, and that you might not know which side you're on. Jenessa Jess and I recorded, and this was supposed to be a nice, calm, normal, chill episode. We recorded for like 140 minutes because this is just so tricky that we couldn't quite get on the same page. I edited that down to about an hour, which was a lot of work. But the thing is, I became so obsessed with this after we talked about it because it's just really interesting to me. I love when I feel like there's logical problems or inconsistencies, and I love trying to dig through them, figure out where either I'm wrong or maybe Amy Coney Barrett is wrong or something. And so after the recording, I did a bunch of kind of work on my own. And I think Jenessa and I are going to come back and record maybe a bonus to talk more about this. I'd see if we're on the same page now. I don't know if we are. But all this is to say this started off as Jenessa wanted to take us through this case that a really funny fact pattern. There's some real dirtbags involved. And she wanted to Take us through something where like the textualism came across to her as obnoxious. Then we started getting into it. It's interesting because we kind of were on opposite ends of it, I think. And I'm really curious to see what you all think. Either way, I just had so much fun doing this. We're still talking about it, even though we went all that time. And I promise I cut this way down so that it's not 140 minutes of us just arguing back and forth. So I hope you enjoy this half as much as I did. And like I said, we might be doing a bonus as well, because we've come back with a lot of thoughts that we've been chatting with with each other. So we'll take our break. Hey, please support the show, patreon .com slash law. Thank you so much to those who do. All right. After the break, I'll be on with Jenessa and the virus that I had, and we'll get into this case.

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0:03:02 Thomas: Okay. Professor Seymour, why don't you lay it on us?

0:03:05 Jenessa: Yeah, so this case is Van Buren v. United States from 2021, and it's a Supreme Court case. So what we've got is basically someone convicted of a crime in the district court, and there's two charges. One is a violation of the honest services fraud and bribery statutes. And at the 11th circuit they're going to say oh bad jury instructions you're going to have to do a new trial later but there's also a violation of the computer fraud and abuse act supreme court is going to have the question is this really a violation of the and from the legal side of this we are going to have an extended fight about the definition of the word so so it's a textualism oh my

0:03:55 Thomas: I think so. A needle pulling thread is my first exhibit, your honor. Your honor, let's pop on this VHS tape. Oh, great. And we're all textualists now.

0:04:06 Jenessa: It's so as in s o it's just a textualism nightmare apparently the decision really does open with the like well we could talk about all the policy implications but we have to start with the text and I'm just like what if I die instead it is an interesting, it's true, it does matter. It will actually present an interesting legal question about, you know, making sure you phrase these laws very carefully and government overreach.

0:04:14 Thomas: Mouth well it's not as though it's not yeah I mean it is a it is an element of good jurisprudence

0:04:39 Jenessa: Most of why I love this case is the fact pattern is absolutely wild. A friend brought it to me because they were interested in the computer side of things and I read it from the 11th circuit before it went to the Supreme Court. Often courts only include the facts that are relevant to the question they're asking. Supreme Court is not going to get into, in their decision, a lot of details that do appear at the 11th Circuit.

0:04:39 Thomas: Certainly oh darn I thought you're gonna tell me but in this case they were like hey with pleasure we're gonna add in all this crap just so everybody hears that that would have been

0:05:12 Jenessa: Will the 11th Circuit? I absolutely think did that. There is a footnote in here that is clearly, purely for our benefit to just to weave a tale for us of two douchebags and the trouble they get into. So 11th circuit, this originates in Georgia. We're going to have a local cop in Georgia as our defendant, Nathan Van Buren.

0:05:15 Thomas: Funny hey love it I'm

0:05:39 Jenessa: Well, the good news is I would argue he is not our main character. The real guy is Andrew Albo, a recent widower in his early 60s. How he's going to come to interact with the police department on a pretty regular basis is he's got a real habit of hiring a prostitute, paying them, and then then calling the cops and accusing them of stealing that money from him.

0:05:37 Thomas: Already not a fan of whoever that is wait what how does that work I don't yeah step three profit I

0:06:06 Jenessa: That doesn't work, actually. What happens is you get arrested for hiring a prostitute. They don't go, oh, I'm... Sir, this young woman has stolen from you. Here's your money back. There's an older guy hiring young prostitutes. It's just already gross. And then instead of just paying them and letting them go on their way, he'll hand them the cash and then call the cops and be like, she stole that money for me.

0:06:12 Thomas: Guess that's that's what I would would think that's what I would think are bad yeah oh wow that's you suck sir both these people one's a cop and one's that guy that's already hate both of them

0:06:34 Jenessa: Yeah, he's already gross, yeah yeah so he's gross he somehow thinks that's gonna work and what it really means is he is constantly getting arrested for prostitution they don't show up and believe him like absolutely not so he is well known to the police department and the chief of police is like hey maybe don't associate with this man he's volatile there's something not right about this guy like approach with caution and our cop is going to say I would like to be friends with this man I'll take all the calls I'll go there and you know if it was for entertainment value maybe I would get it but

0:07:12 Thomas: Yeah yeah I was gonna say I was going to make that same comment if it was just because it's a good

0:07:17 Jenessa: Um yeah not so much so he first meets him when he's arresting him for providing alcohol to a minor um this guy's just the worst the worst don't ever feel bad for this man everything that's going to happen to him.

0:07:23 Thomas: Goof oof done and

0:07:30 Jenessa: So our cop is grappling with some financial difficulties. He's going to approach this man, Albo, for a loan. He is going to say to him, I need $15 ,368 for medical bills for my son. His son is fine.

0:07:36 Thomas: Done huh

0:07:48 Jenessa: This is completely made up. I don't know why that extremely specific number, I guess. I do not know why he thought this man would have scruples about like, oh, well he he wouldn't just give me the money for anything he says this to him and unbeknownst to the cop Albo is recording this conversation and he approaches the sheriff and says I am being shaken down I think he pretty correctly interprets that he's being asked to bribe this guy basically

0:07:48 Thomas: Oh geez more believable you know yeah he's like I'm being shaken down or something I don't I don't know like or this guy's doing the weirdest thing ever I kind of hope I'm being shaken down because like otherwise what

0:08:20 Jenessa: The longest con I don't even know like why it will never be established why you would ever who knows why you would ask him of all people for money but yeah he immediately is like absolutely not uh this is a shakedown this I'm I'm pissed he goes to the sheriff and the sheriff is just like I would like nothing to do with this and I'm calling the fbi because I don't know crooked cop I I'm out and it's my department and I's not investigating my own officer probably the the only smart person in this entire

0:08:50 Thomas: Yeah okay all right fair enough yep that's why they're the chief or whatever you said

0:09:01 Jenessa: Story yeah deputy chief of police or something like that so okay the FBI is like let's instead of just you have a recording of this like this is enough right no we're gonna set up a sting operation how far can we get this to go this crooked cop

0:09:08 Thomas: Sheriff oh come on yeah are they just effing around just for fun I do feel like the fbi does a lot of that they're just like we're just

0:09:22 Jenessa: I don't I don' know it it's it really feels like that they say to this guy what you're gonna do is you're going to try to get him to out an undercover cop. We're going to invent one. So luckily we're not going to out a real undercover cop, but you're gonna pay him to do that. And if he takes money to do this terrible thing, we got him on a real big crime.

0:09:36 Thomas: Bored oh okay so this is that's real dirtbag stuff that's like get somebody killed potentially

0:09:52 Jenessa: It would be real dirtbag stuff. Yeah, right.

0:09:54 Thomas: But it's a fake cop fortunately all

0:09:56 Jenessa: It's not going out a person at least. And you know, critically, I know everybody's going to think like entrapment. Entrapment is really hard to prove. You have to prove like I would never do something like that. But but for all the ways that you coerced me into this. You know, think about like if a cop walks up to you undercover and goes, want to buy some drugs? And you're like, yeah, they didn't entrap you. You are a person who would have bought the drugs. Like that, there you go. Kind of same concept. If they're like you want to do an illegal thing and you're yes, I do pay me. It's not entrapment. You did an illegal things. I'm not saying I endorse these practices. I'm just saying from a legal perspective, this is allowed. So, okay. They give Albo some money, five grand they say pay him and here's what you're gonna do of course the story ends up being I went to a strip club I met this woman I'm in love but I gotta know I'm worried she's an undercover cop can you tell me can you figure it out

0:10:49 Thomas: So that's what what our dirtbag old guy is gonna say to the dirtbag cop to see if like for the money he will do that

0:10:53 Jenessa: Yes yes because if he does that for the money we're in like even worse shape you know it might have been harder to prove like he asked me for a loan for his son's medical bills and like even though his son doesn't really have medical bills

0:11:10 Thomas: Yeah he did phrase it as a loan maybe that's why they wanted more on him yeah

0:11:15 Jenessa: It's like a little harder to prove but if he is like actually he shakes down local criminals and tries to get bribes like all right let's just get him on something easier you know this would be this is rock solid okay so he does that he gives him the five grand he tells him this made -up story and he's like I got you I'll figure this out they have a phone call and he says okay here's what you're gonna do I need you to go into the police data space I've got her license plate look it up for me oh no albo says to van buren the

0:11:24 Thomas: Okay right all right to who just some guy at work oh okay so that's that's how he's presenting the do it okay gotcha

0:11:46 Jenessa: Cop yes I got the license plate go into the police database Look her up. Tell me.

0:11:51 Thomas: And the fbi is able to like put in the fake entry so that'll come up as a hit Okay, gotcha.

0:11:55 Jenessa: Correct. So they put a fake license plate with a fake name into that database. And if you're a cop looking it up, you would know so that you don't pull this person over and out them. Oh, that's an undercover cop. Don't out them, don't out him.

0:12:11 Jenessa: So it's in there. So he says, I want you to look this up. And there's this text back and forth. And what they find out is from the at first Van Buren hasn't actually run it yet. And he says I think they're texting at this point. I don't think I got the right plate numbers from you. Text me the plate number. He texts it to him. He first texts the letters and then the numbers like somehow that would cover it up.

0:12:22 Thomas: All right. What in the world?

0:12:37 Jenessa: That's the fake number created by the FBI. And Van Buren says, I'm going to need the item first. And Albo says, I have number two. It's two grand. He wants extra money for it. We're going to schedule to meet up for lunch. Like these criminal masterminds. I need the items before I look up the plates. Like what? Yeah, we know what the number two is. They meet up to lunch. He said he needed two grand The FBI has given Albo two grand. He passes Van Buren an envelope containing $1 ,000 and apologizes he did not have the $2,000 as discussed.

0:13:10 Thomas: I knew I was going to predict that, by the way. I was actually going to contradict that. That's so funny.

0:13:19 Jenessa: The footnote from the 11th Circuit, the FBI actually gave Albo $2千 to pass to Van Buren, so it appears Albo may have attempted to retain $1千 for himself.

0:13:20 Thomas: That is so good.

0:13:32 Jenessa: I know, he's like presumably wearing a wire and is saying like out loud, Hey, FBI, in my ear I just stole a thousand dollars from you

0:13:31 Thomas: Oh boy, the levels of dirtbaggery. What does he think is going to happen?

0:13:46 Jenessa: I don't know I don' know

0:13:46 Thomas: What in the world does he thing is going happen? That's incredible.

0:13:49 Jenessa: For the life of me I don''t know Van Buren says okay I got this don't worry about it I will get in there I'm gonna look this plate up and Albo says you'll get the rest of the money later don't worry about I got you so okay he searches the license plate number now like you said we've got the hit we got what we need he goes into the way he looks this up the Georgia Crime Information center database it's an official government database maintained by the georgia bureau of investigation it's connected to the national crime information center which is maintained by the fbi this is how we're getting our federal jurisdiction we've touched a national database and van buren then texts albo to tell him I have the information you are looking for at which point the fvi and the geurgia bureau investigation are going to arrive at our cups doorstep and conduct an interview and yeah he's gonna pretty much admit to the whole thing so basically at that point you are accessing a federal database to commit a crime and particularly to access information that technically has a right to access that database but uh not for not for this purpose not to be paid by local

0:15:06 Thomas: Not for crime purposes, not for corruption purposes.

0:15:07 Jenessa: Yeah, not generally to out an undercover cop to famous local criminal so thus ends our caper between these two and we will then have to ask the question does this violate the computer fraud and abuse act and surprisingly enough that's not an easy question question.

0:15:14 Thomas: I tell you, the woke left won't let you do anything anymore. Really? Okay.

0:15:33 Jenessa: Believe it or not.

0:15:34 Thomas: Well, then maybe we should take a break and talk about that after.

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0:15:40 Jenessa: Mainly, I just wanted to tell you about this because I just, I'll never get over that story.

0:15:44 Thomas: That's so good.

0:15:45 Jenessa: I'll NEVER get over the fact that he tried to steal from the FBI in the middle of all of this. It's absolutely bananas.

0:15:47 Thomas: It's so funny. The audacity is just incredible.

0:15:56 Jenessa: I KNOW. I mean, the whole time he's a CI, so you would think. I never really heard what happened to him. I guess, did he get get in trouble for that? I don't know. I don't know how he's living OUT HIS DAYS.

0:16:06 Thomas: He's a legend. I've almost turned the corner on this guy. Like, once you go that far, then I'm like, okay, that's so dumb and funny. And he's, I mean, a lot of his crimes he's kind of trying to do on the cops, sort of right so you know he's no luigi mangione or something

0:16:13 Jenessa: I know. I mean, he's also, yeah, he is also taking advantage of young prostitutes, so you know.

0:16:28 Thomas: But okay but he's getting busted for that right he's not getting away with

0:16:30 Jenessa: He is getting busted for it, it's true. He's not, like, getting away with that, so that's nice? Everyone sucks here. Certainly our cop is just the worst.

0:16:35 Thomas: That yeah we all agree

0:16:41 Jenessa: He is going to try to shake down a local criminal and then help him out with an undercover cop for less than he asked him for 15 grand. And then he was like, I'll take six. So at the 11th Circuit, they say the honest services fraud, the bribery statute, you did bad jury instructions. That just means you can do a new trial. So remand for that. But the Computer Fraud and Abuse Act, you're good. And he will appeal to the Supreme Court and they are actually going to have a giant fight and come out on his side because of the word so literally the good news I guess ish you know that other one still stands right you have to go back for another trial

0:17:17 Thomas: Of the word so yeah we'll have to go yeah okay okay

0:17:26 Jenessa: And he'll plead guilty to that and Lydia looked this up for me because I was so struggling the internet just gave up on caring about this guy they were so interested in the Supreme court case ultimately he's gonna plead guilty guilty to those charges when it goes back down. He was sentenced to 12 months of probation after everything.

0:17:43 Thomas: Wow even after sorry even after the other trial the redo on

0:17:45 Jenessa: Yeah. Yeah, so the other trial, instead of going to trial, very smartly, I think he pled guilty because that would have been rough, I Think, to try to argue to a jury that everything you did was not that bad. And he'd been found guilty of it before, right? All of this was appealing his guilty verdict. So, like, you know it's gonna, I guess you could have hoped that with with better jury instructions, you would have gotten away with it? I mean, come on. Pleading to 12 months probation and no longer being a cop was probably his best case scenario. On the other hand, if he had gotten this Computer Fraud and Abuse Act, this could have been, I think, like something like 10 years in federal prison. Like, this would have been bad.

0:17:51 Thomas: That okay right yeah no kidding wow so the supreme court saved him and he already got a light sentence because of, I don't know, just in general privilege. I'm not sure. Just getting the 12 probation or whatever. Is that not a light sentence or no?

0:18:29 Jenessa: Yep. You know, I'd have to look into what the sentence could have ben for the other charge, the bribery statute. I'm not not quite sure of that. You know, obviously when you plead, you anticipate that you would get way less than what would have happened, you know, but yikes. On the other hand, if you are somebody who's really worried about government overreach on these things, this is going to come out 6-3. I swear to God, I should reconsider some of my positions on this because otherwise it puts me on the side of Alito, Thomas, and Roberts and against Sotomayor.

0:18:53 Thomas: Right. Fair, fair. Oh, no. Yeah. That can't be right. You're just wrong. Whatever that, whatever that is. I am sorry.

0:19:16 Jenessa: Yeah, yeah, yeah. So keep an an open mind here. They're going to ultimately say this law needs to be restricted to a meaning that excludes what he did. Computer Fraud and Abuse Act, it has a couple of things. One is geared at hacking. So if you were to access a computer without authorization, you know, anything that you are not supposed to be getting into, it also includes this. Intentionally accesses a computer without authorization or exceeds authorized access and thereby obtains computer information. Defining exceeds authorized access, we're going to say it means to access a computer with authorization and use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.

0:20:10 Thomas: That sounds in the spirit of the law, exactly what this person's doing, right?

0:20:15 Jenessa: Absolutely. Yeah.

0:20:15 Thomas: They are obtaining information that they could get. They could get, so that's the key. It sounds like that's the crux. If this were a real, you know, this person's just, this cop's just doing cop stuff, normal cop stuff. Lulu, normal cap stuff. Then, then he, yes, of course he could look up a plate number, but are they trying to make the obnoxious point that so to obtain stuff you wouldn't otherwise have access to, but you said it was dependent on so, so I'm not, okay, actually I better let you explain. I'm not totally sure actually. Thought I knew, but maybe, maybe not.

0:20:43 Jenessa: No, you are. You are absolutely correct. It's the spirit of the law, I think, just so obviously is about like, yeah, you are accessing it without authorization. We all know what that means. To exceed your authorized access means you had access in some sense, but you were not entitled to obtain or alter that information in that manner, right?

0:21:07 Thomas: Really?

0:21:07 Jenessa: You were not entitled so to obtain or alter I swear to god there will be like five pages about the definition of the word so they're going to start off with the Black's Law Dictionary so we're not talking about like precedent and previous cases and getting into the public policy issue

0:21:27 Thomas: Well, okay. But in fairness, is there a good like case history for them to point to is the reason that there isn't, maybe? Sounds like a new -ish law, right?

0:21:31 Jenessa: Here it is the computer fraud and abuse act it comes from they said it in here the Comprehensive Crime Control Act of 1984. A few years later, Congress passes the CFAA. So it's relatively old in my mind for something from the 80s. And then we're in a case in 2021. It's been around. And as far as I'm aware, this is the first major challenge to say like, oh, this this is way overbroad. This is a huge problem.

0:22:01 Thomas: I don't know why. I can't imagine thinking that there's a problem, like just broad strokes, thinking that there's a problem.

0:22:06 Jenessa: It just it feels right. Right. It feels logical.

0:22:08 Thomas: Yeah, feels fine. Yeah.

0:22:10 Jenessa: It really is. It is going to be dictionary definitions all over the place. It will be a little bit public policy. I think in the oral arguments, they're going to get much, much more into the public policy issue. And what's interesting, I find Barrett is ultimately going to write this decision. And she's going to right all about how you're defining words wrong, and this is too broad and blah, blah, but if you go into the oral argument, you'll hear her at 2743. She's going gonna talk about the scope problem and it it feels so strongly like she's making the opposite argument so I think if you listen to oral arguments you could have easily thought it would go the other way

0:22:53 Thomas: Let's check that out.

0:22:55 Clip: Thank you for one second, Mr. Fisher, because I'm actually getting, I think, at a different point, perhaps, inartfully. It seems to me that the way that you're reading the statute views authorization as an on-off switch. You know, either you're authorized to use a computer or you're not. Either you're authorised to get into a particular database or get a piece of information or you'RE not. So here Van Buren could get the license plates, and it didn't matter if he was getting them for a reason that he was not supposed to get them for. So it seems to me that you are looking at authorization in a bright gates up or gates down kind of way, whereas the government is looking at scope of authorization as included. So, for example, my babysitter might have a key to my car so she can pick up my kids from school, but then she uses the car to go run some personal errands.

0:23:41 Thomas: That's a good example.

0:23:42 Clip: She's exceeded the scope of her authority. And I guess what I'm trying to get at is why should we understand entitlement or authorization to be just an on-off switch and not to have a scope component?

0:23:54 Thomas: Yeah that seems pretty straightforward. Correct me if I'm wrong, I guess you didn't say for sure, but that would be my argument. Is that what you agree with too?

0:24:00 Jenessa: Yeah I came into this thinking like that was so obviously going to be the kind of analogy you would use and that like that is what Alito will write in the dissent that's the dissenting opinion I know

0:24:13 Thomas: Wow. Huh. What in the world?

0:24:18 Clip: One is that the statute itself doesn't have a Scope component or a Purpose component or anything like that. It simply asks whether the person, now I'm back to our prong, was entitled to obtain the information. And the answer here is yes, he was. But doesn't the idea of entitlement or authorization itself have a scope component? You know, that's what we would think of in, you know, an agent's authority that the principal has given him, for example. It can sometimes, Justice Barrett. And so, but the question is whether it necessarily does. We don't think it's a statutory construction matter. It necessarily does, and when you compare this to other statutes that do carve out improper purpose, We think that's evidence that Congress didn't think this was one of those kinds of statutes. And so I think that the other piece of it is to compare back again to the prong that you started with, which is the without authorization prong. We know from the provision I was starting to read to you that Congress thought of that as sort of a password-type restriction or a technological-based restriction, and that's what Congress was concerned about, out, not other kinds of softer scope-based restrictions.

0:25:32 Thomas: I know you've already said it, but just 'cause this is a very specific technical thing. Can you read us the language that they're talking about one more time?

0:25:38 Jenessa: Yeah so the law again there's the what is illegal and then we'll get the definition to intentionally access a computer without authorization or exceeds authorized access and then you will get this information defining exceeds authorized access to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter

0:26:09 Thomas: Oh, now I see the so part. Now that's becoming more clear. Okay.

0:26:13 Jenessa: Yeah so it's like does that mean for a purpose or does that mean in a way via a method

0:26:19 Thomas: Yeah. Oh my gosh. Do we get some really pedantic so stuff that in the orals that we're going to play?

0:26:25 Jenessa: You know it doesn't really come up in the oral argument it comes up for pages and pages in the writing it it really kills me I think the part that will make it make a little more sense why people were actually to to some extent, worried about this. They'll keep saying this phrase, the like parade of horribles. It's this idea of like all the terrible things that could happen. What would be illegal? Why this is so overly broad.

0:26:30 Thomas: Oh. That's, that's frigging weird. Like if you went with our idea, which is yes, yes, obviously, if you give your babysitter the keys to your house in order to do one specific thing or your car, and then they later go and steal your car. Now, that complicates it. If they open your car for some personal reason of theirs, they're unauthorized to do that.

0:27:08 Thomas: That's our, like, no-nonsense, that's what you and I think. Just making sure we're all straight. And so you're saying that they're going to list a parade of horribles that comes about if that interpretation is what you use?

0:27:19 Jenessa: Yes, exactly. Like all these bad things that could happen. So at 1247, we're going to hear Alito, who again is going to write the descent, but he's going to walk us through this parade of horrables. I think the first example is going to sound very silly. But as we go through, you know, these these things that are overreaching and things that could be accidentally illegal if it's just, oh, anytime you had authorization, but you exceeded it.

0:27:48 Thomas: Okay, this is fun. This is mirror universe. We get to agree with Samuel Alito. I love it.

0:27:54 Jenessa: I don't like it. I feel gross.

0:27:58 Clip: Fisher, in this case, we've received amicus briefs from a number of organizations and individuals who are very concerned about what your interpretation would mean for personal There are many government employees who are given access to all sorts of highly personal information for use in performing their jobs. But if they use that for personal purposes to make money, protect or carry out criminal activity, to harass people they don't like, they can do enormous damage. And the same thing for people who work for private entities. Think of the person in the fraud detection section of a bank who has access to credit card numbers and uses that information to sell for a personal profit. Do you think that none of that was of concern when Congress enacted this statute? Justice Alito, with due respect, I do not think it was. What Congress was concerned about was computer hacking, and that's up and down the legislative history, this new problem of hacking.

0:29:11 Thomas: It turns out we went a little before you wanted to, but I actually want to talk about that because that seems like such a stupid argument to me. But I want to make sure I'm going to once again, I'm gonna go to that language because we're all textless now. So I'm not going to go ahead and say call bullshit on this is about hacking, because when you hack, do you exceed authorized access? Exceeding authorized access implies to me that you have some amount. And so hacking, if he's going to say that Congress was just concerned with hacking and And that's why they wrote this. Why would they even think of like exceeding authorized access, right?

0:29:43 Jenessa: That's a really good point, because if you are that almost inherently implies you didn't have to hack anything to get in here.

0:29:49 Thomas: Yeah. Or just if you have some authorized access of some kind, you're almost definitionally not a hacker. You may be doing something else, but a hacker would be like any number of things. It's, you know, there's the stupid TV version, but there's also the like fishing version. Every single version that's that I can think of is like you're gaining access to something you don't have authorization to. It's got to be a vast minority where it's like, oh, it turns out I have some amount of authorized access to whatever this is. But my hat, but doing my hacking skills, I'm going to click into this folder that I'm not supposed to get.

0:30:20 Thomas: I don't like, this seems like a terrible argument to me, but just wanted to make that point. And we'll continue on to the part that you wanted to hear.

0:30:26 Clip: And I think that the two things I would add to that, because I understand the concern, and there are powerful briefs about the policy question you raise, and it's possible Congress may want to step in and regulate that and even criminalize it to some effect. But the question is, what does the statute you have in front of you right now do? And the problem with the government's view or those amicus briefs is there's no way to reach the government employee or the financial employee that you're imagining without also reaching every other ordinary employee who violates an employee handbook, every student who violators the course. Yeah, let me ask you about that, because you rely heavily on former Judge Kaczynski's parade of horribles, but in doing that, you read the provisions of this section very, very broadly. Take the example of the person who lies about weight on a dating website.

0:31:27 Thomas: No, come on. That was in this judge's parade of horribles. Is that an actual, oh

0:31:27 Clip: Site, how would that be a violation of this statute?

0:31:32 Thomas: My God.

0:31:36 Clip: Well, under the government's theory, it's a violation to use a website in violation

0:31:31 Jenessa: Swear to

0:31:44 Thomas: What? No, what? That does not sound right.

0:31:46 Jenessa: God I yeah I don't really the government's I think the fatal flaw is that they needed to like say that's not what we mean as opposed to like they get a little wishy -washy about they're trying to reserve possible things in the future they might want to do so they don't come out and say like we are restricting ourselves to this this and this and only this

0:32:08 Thomas: So it could have been maybe argued badly a little bit.

0:32:11 Jenessa: I feel that way a little bit that like in the briefing they probably could have done a better job of like Like we solemnly swear, you know, not that that's necessarily enough, but a little bit of like, we solemnLY swear we are only prosecute. Like these are the things we're committed to. No, not these other things. They, they don't do a great job of like we would never prosecute about this particular type. I don't think they go in on this.

0:32:33 Thomas: It also it just seems so weird to me structurally to say here's our interpretation which is on its face silly which is that no this just means hacking and this is totally fine and if you don't use our interpretation then this other far weirder interpretation is going to be used it's like what I wait you don't get to use a weirder interpretation to make yours look better by it's like it's like the uh the overton window of interpretations you've you've swung it by by presenting a stupid one? Well, let's hear what the answer is here.

0:33:07 Clip: Well, let the statute say, obtain information, obtain or alter information. How is that person obtaining or altering information? No, it's not the entering of the false information, Justice Alito. It's been obtaining information on a dating website, for example, about a potential mate. So you are obtaining information from the website through a profile that is false,

0:33:29 Thomas: Oh yeah, because the dating website has a section that says, hey, no short people. And you only get to see these profiles in this corner of the thing if you're above a certain height. That's very silly.

0:33:44 Jenessa: Uh yeah just saying that like yeah you used false information on the site and that somehow lets you obtain other like

0:33:53 Thomas: Gets you into this elite dating pool.

0:33:55 Jenessa: You could have told the truth about your weight and gotten the same information right I would think

0:34:00 Thomas: You need to stay in your lane. You're not good enough for this particular dating area. That's very silly. Okay. Let's, let's, let's keep it going

0:34:14 Clip: And that violates the terms of service of that website, and it falls squarely within the government's theory because you've obtained that, you've gotten on that website with authorization, with your login credentials because you're a single person and not married, et cetera, and you have obtained information in violation of the stated use restrictions on that web site. So I don't see how the government gets out of that hypothetical.

0:34:30 Thomas: Now. You, by saying no, that's effing stupid. That'S how I would get out of it.

0:34:43 Jenessa: I know, I really struggle with this you know they do I know they make a couple of examples that are like it to me they all feel silly but it's a lot of like oh you you violated the student handbook, you violated the employee handbook. Your employer said this can only be used, this computer is for only work. And, like, let's be real, everybody has checked their personal email on their work computer at some point, right?

0:34:46 Thomas: That's a dumb example. Yeah. But yeah, but it, it, I, it seems to me that it's about accessing information that you're NOT otherwise authorized, like extent exceeding your authorization it doesn't just being on a computer is not really the same thing and certainly no one would think that's what congress was talking about right like who would who would think

0:35:16 Jenessa: Like, right. So to say, like... Right. I obviously have a right to access my personal... the information inside of my personal email in general. And like, even if you said you're technically not supposed to do that on your work computer if you did that for 15 seconds like not even thinking you just did that that you technically you had authorization to this computer but you were not entitled so to obtain to obtain it through this method and therefore you could be prosecuted and it's like okay but you won't though right

0:35:58 Thomas: No well and it's in that example again you didn't get on the computer exceed your authorization so to obtain any information that you aren't otherwise authorized right that would be like if you got on your work computer to access your co -workers files that you don't have authorization to get. In which case it's like, okay, that might work.

0:36:17 Jenessa: That would obviously be and it should right, and that would be almost the equivalent. Like, I'm not entitled to access. And they are going to argue, they will ultimately come out on that one in favor of that. That like, you're not entitledto access your co -worker's email, period. So there's obviously, if I'mnot entitled to get on this computer at all, that's a problem. If I'm entitled toget on thiscomputer and that were to, you know, by some oversight, give me the ability to access my co -workers email, mail that would still be exceeding authorized access they will come out on that

0:36:23 Thomas: This is so dumb. And I'm sure the usual things like prosecutorial discretion and all that and reasonableness would apply. Like you can't just take like, well, this will be the most abusive form of prosecution. So therefore we have to interpret the law a totally different way. Like I have to imagine if there's an edge case where someone, you know, was, oh, oh whoops. I clicked looked on something, didn't realize I shouldn't have access to it, got out of it. Like, they're not going to execute that person on the spot. That's silly.

0:37:08 Jenessa: Side

0:37:22 Thomas: It just seems so weak to use that. Again, to agree with the worst person you know has a good point.

0:37:20 Jenessa: Right yeah I know, and like the way thomas writes this the opening of the dissent the common law and statutory law have long punished those who exceed the scope of consent when using property that belongs to others a valet can take possession of your car to park it he cannot take it for a joy ride like I just I don't like that I am on this side of this argument

0:37:53 Thomas: Stop making me agree with Laird Stamets.

0:37:56 Jenessa: Sotomayor makes a really good point about like hey um don't uh wouldn't this be illegal in other ways and and I do think that is probably the strongest point is they're like okay but it's really when somebody does this kind of thing like this cop did well it's obviously illegal in other ways well really what they're getting at is if your public policy argument which obviously the liberal justices are going to be less interested in this textualist bullshit and more interested in like what happens as a result of this if this was literally the only you know it wouldn't make it it's not the only consideration but if this Was the only way to criminalize this extremely terrible behavior we would be more reluctant to get rid of it right but she's like I mean this is illegal in like 15 different ways and all the things that would become not like if we got rid of the you know know we if we severely narrow the cfaa the things that we would make legal under the cfa they're still illegal right like there'll be other statutes and alito will come back in the oral arguments and say well you haven't you're saying that but I wouldn't you don't you didn't put in front of me a list of all the other statuts that make it illegal I you know

0:38:14 Thomas: Why does that matter? Sure. Okay. I mean, yeah, okay.

0:39:12 Thomas: Hmm. Hmm. Was that an argument that was briefed or was that just Sotomayor just offering that one?

0:39:17 Jenessa: I believe that it appears very briefed because both sides have very well prepared answers so I'm gonna guess that was very brief

0:39:23 Thomas: Yeah. Yeah. That makes sense. So then in that case though, where you're saying that they presented that argument, but didn't bother to actually say which laws it was. Cause yeah, I mean, once again, I mean I can't agree with Alito on that point.

0:39:34 Jenessa: Yeah I know when he's like okay you're telling me don't worry these behaviors will end up being illegal either way but like I mean the list of laws you would need to give me to make me sure of that I think the biggest argument is going to be if you're going to be very libertarian about it the government can sit here and promise me I swear you know cross my heart I'll never prosecute you for that but if the literal text of the law makes it so that accessing my personal email on my work computer is a crime punishable by 10 years in jail I know it really it only does if you define so in a particular way

0:40:07 Thomas: Doesn't though. It doesn't. There's no way. I don't wait. Okay. How do you get there? Cause I was thinking the so so was a different thing. So do you think the so makes that true?

0:40:21 Jenessa: I mean no I don't actually insofar as they're saying if you are not entitled to obtain it via this particular method then that That would mean despite the fact that I am entitled to obtain the information inside my personal email, I am not entitled to attain it on my work computer. And so I am NOT so entitled so to obtain or alter would cover anything where you violate the terms of service, anything where you violate, the employee handbook, the student handbook. You know, click wrap agreements on every website. Site technically you are not so entitled to obtain that by that method and the other side is going to be like or you're not entitled to attain it for that purpose and they're going to say that's not what so means and I find this entire thing extremely painful but I don't want to agree with thomas and alito I don'T like I I think the concern was really just the government overreach each aspect that you know could the fbi start prosecuting all kinds of bullshit under this especially if we set a precedent right now that it is okay then you're gonna have to come back to me later and I'm gonna haveto distinguish this

0:41:38 Thomas: Guess, man. I don't know. Okay.

0:41:43 Ad: [Ad break 3 — ad music]

0:41:44 Thomas: I'm going to take one more stab at this language. So to try to make that argument make sense, intentionally access a computer without authorization or exceeds authorized access. Okay. So, so we could say right there, the example of work computer, where you check your Gmail and your off hours, right? Is that, or is it just work computer where you Check your Gmail in your on on hours. I guess it depends on your contract, right? Your job. It could be either, right.

0:41:46 Jenessa: Case yeah yeah

0:42:07 Thomas: Yeah. So, okay. So we'll say on your off hours, you're using the work computer to access your Gmail. Is that the thing we're trying to make sense of?

0:42:06 Jenessa: Yeah sure that that's probably the example that's the like god the dating website I just find horrific and nonsense that the work computer is probably the easiest to understand.

0:42:18 Thomas: The dating one's terrible. That's just absolutely stupid. Yeah, yeah.

0:42:25 Thomas: I'm trying to go with that one. So plugging that into the language, I was trying to start there. So intentionally accesses a computer without authorization. Okay. Or exceeds authorized access. Okay, so that hypothetical fits, but we keep going and thereby obtains computer information well that would just mean anything what is computer information what if you just looked at your gmail and it wasn't that you didn't have any new emails you know like that I mean it just seems so much sillier yeah it defines I don't know if the so is important it defines the term exceeds authorized access to mean to access a computer with authorization and to use such access to obtain or alter information in the computer in the supercomputer well that's it's already not true if it's your Gmail, that the accessor is not entitled so to obtain or alter. It's really interesting. I guess I can kind of see where they're going with it in some places, but I think it really just comes down to like, if I'm working, I guess, I don't want to complicate it with HIPAA. So I won't use a health example. Let me think.

0:42:49 Jenessa: I didn't technically obtain. Sure, sure.

0:43:28 Thomas: If I work at the social security administration or something, and I am allowed to access everyone's social of whatever like cases I'm working on or something. But I just decide like, oh, I want to go see what Barack Obama's social security number is. And I just look that bad boy up.

0:43:45 Jenessa: Inappropriate, obviously.

0:43:46 Thomas: Yeah. So wouldn't you say I'm not really authorized to access or alter that information? Like even though you could say in general, I am authorized to assess social security numbers for a specific purpose. I guess I'm kind of reading that into it a little bit. You wouldn't really say I'M authorized to just access anyone's because I have the job that sometimes does that. Does that make sense?

0:44:07 Jenessa: Right. And that's kind of what they're saying, you know, in the dissent is like, so to obtain or alter, you're not entitled to that in what way? So meaning for the purpose of. I am entitled to obtain social security numbers while I work in in the tax department, but not to stalk my ex -wife. You know, like that's what so meant, not by this. One of the big arguments they make is if you define it as I'm entitled to get in here, but I'm not entitled by this method, that's redundant.

0:44:42 Jenessa: Of course, by definition, if I have authorized access to this computer, to this database, to that folder, by definition I am entitled so to obtain via this method I am entitled to get information out of that folder in general so has to mean for this purpose but they are going to go on four pages that that's the word so means by a method and for not for a particular purpose and you're not gonna we don't trust you the government to narrow yourself to the definition of for a particular purpose.

0:45:20 Thomas: I don't think the so even matter. I don't think the SO does anything. I don' t agree or disagree, I guess, with that. I think the So is nothing.

0:45:24 Jenessa: I think like the reason they put it in the law is to try to distinguish like, well, you have authorized access to obtain that information generally. And to my mind, what I'm reading in that is, but not for this purpose. Like that's where legislative intent becomes so important to me. Essentially what they land on is the way it's interpreted today. If you have access to the computer, but you do not have access to every folder on the computer, for example, accessing the folder you're not allowed to open, that's illegal under the CFAA. But if you have access to the folder, opening it for any reason is not illegal underthe CFAA, we hope there are other statutes that will cover this. Yeah, I can't get into it.

0:46:10 Thomas: I mean, gosh.

0:46:11 Jenessa: I just I can get on board.

0:46:12 Thomas: Okay, okay, maybe, maybe I can see the point. I don''t think it has anything to do with the SO. I actually think that's just a... Look,

0:46:20 Jenessa: That's just because Barrett wrote it.

0:46:20 Thomas: I'm not the lawyer. I haven't read the thing. But I think this SO is absolutely irrelevant. Because, like, I get what you're saying, but I think, if I may be so bold, I feel like maybe she's incepted the idea that this SO even means anything. Into your brain? Because there's no for the purpose of at all in this. Sorry, is there something before the text you sent me that has purpose or...

0:46:39 Jenessa: Not that I'm aware of that's all they're really focused on I mean

0:46:43 Thomas: Because that's a complete sentence in itself. It defines that this is a complete sentence. It defines the term exceeds authorized access to mean to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain, or alter. Look, maybe you can interpret this in a slightly different way, but in no universe is the so the thing it turns on.

0:47:06 Thomas: Like I could, the best argument I could see, and maybe this is why maybe the Sotomayor thing is kind of getting at that. I could See the idea that like, Hey, we're looking for computer hacking crimes, not exclusively, but like we're trying to punish and we don't want to over punish stuff. We're trying To punish the part where you're doing computer hacky stuff. And if you're just accessing information that it's kind of like snooping in folders that you can't otherwise do Oh, that's actually good. Maybe a good example, possibly. By analogy, let's say we're before computer times and there's two sets of personnel files. One is personnel files that you have access to, but you're only supposed to look at them when you're working with that actual employee on something, let'S say.

0:47:51 Thomas: The other, let'T say for some reason, is kind of a locked down thing. So it's in like a locked storage room. You're not even supposed to go there. Yeah.

0:47:56 Jenessa: You're not supposed to open this cabinet at all

0:47:59 Thomas: Or it's in a room you're not supposed to going. Just forget everything else. This is actually kind an interesting hypothetical, even if it doesn't apply. We'll see. But I think it does. Is it the same crime, just in a general layperson sense? If you had one employee who snooped and grabbed a folder they weren't supposed to be looking at, and one employee, who let's say the door was left ajar or something one day of the locked one, and they went in and grabbed a folder that they weren't... They both intended to do it, let's Say. And they both intended

0:48:28 Jenessa: And they both knew it was wrong

0:48:28 Thomas: No accidents. Would you you look at that as like a materially different crime or infraction? Because I wouldn't. The analogy would be, well, we're trying to punish, in general, there are a bunch of crimes where people tend to be slipping in open doors. There's a lot of cat burglary going around and we're trying to make sure we punish the sneaky cat burglar types for sneaky cat burglar type crimes. It's just like a thing that's going on in society. And so the sneaking through the open door is something where we're looking at that is like an additionally bad thing. Man, I might talk myself self into the other side of this. Holy shit. And that would be nice because then we agree with Sotomayor and not these other assholes.

0:48:42 Jenessa: And yeah yeah right

0:49:07 Thomas: It would be if he could go onto the lookup database thing and look up anyone's license plate for good reasons, he can look up someone's license plate for bad reasons. And he's not violating essentially a hacking law, computer crime law.

0:49:07 Jenessa: Yep

0:49:22 Thomas: If instead, yeah, even though he's non -authorized to do that, it's kind of implied, but in the this strict sense of this law, they're saying no. If he had, someone had their password written down on their desk who has access to, I don't know, more license plates or something, just whatever to go with it. And I looked at that and I used that to get in and look at a license plate that was similar. I guess you'd have to say it's similarly situated, like it's

0:49:16 Jenessa: Right he's probably violating some other law yeah right sure

0:49:48 Thomas: Something that you might somehow otherwise have access. Oh yeah, that makes it kind of weird, doesn't it? I guess I could see the logic that, so take that to my cat burglary example. Then you'd Have to say we're We're looking at the two criminals, the one employee who just went into a different folder, even though they were in that records room and they theoretically have access to all those records. And the other employee jimmied the lock or something, or I guess we'd have to make it like not an obvious breaking and entering crime, but like the door was ajar or something. And they got into the off limits area where they never have access to those personnel records. Now we're saying, oh my gosh, I might've talked myself into this. Now we're saying this cat burglary law is only intended to punish the person who kind of access that, you know, maybe they saw, oh, that's a good analogy. It's a keypad door and they saw someone's code written on their desk for the keypad. And they got into the personnel files where the whole room is kind of sectioned off. And I guess Barrett is saying that person did commit the crime that violates the cat burglary statute that we're trying to, we're just tired of people cat burgling their ways into rooms and not the person who just kind of, oh look, look at that folder over there. I want to grab that. Even though they were using it for the the same purpose. So they, they did intentionally grab the folder to get the information.

0:50:59 Jenessa: Because the person the person who saw the keypad and is not normally allowed in the room they don't have authorized access

0:51:05 Thomas: They have authorized access to personnel files. And this is just like a subsection of personnel files I'm trying to keep it like, even though it's computers is a little weird and I'm trying to do a non computer example.

0:51:17 Jenessa: Yeah the tricky part is if you have to steal a password to in the computer part if you Have to steal the password to do it you didn't have Authorized access not exceeds authorized

0:51:28 Thomas: Well, no, no. Yeah. But they're saying he didn't do that. They're saying the cop didn't do that. And I'm agreeing.

0:51:33 Jenessa: Correct and he didn't correct he had every right he didn't need to steal a password he had every right to be in the system

0:51:35 Thomas: Yeah, so so exactly. So the policeman is that first employee who was in the records room and grab the thing. And so Barrett is saying they aren't guilty of cat burglary. And actually I'm kind of seeing it from that way. Whereas if he had gotten access to he, again, he, he looked at someone's password that was on their desk, let's say, and

0:51:54 Jenessa: Yes no that would be the first part of the law where he had no authorized access because if you need a password you'll hit the first part of the law you didn't have authorized access it very specifically has to be without you had complete right to being in that place like you had a password to go in there you had a key to go there whatever it is and you had the right to open that folder but not folder B. That's why this is so crazy.

0:52:20 Thomas: That's no, that that's still, no, no. That's still what I'm saying. We just, we're just at a different nested windows level of folders. No. So it's well,

0:52:26 Jenessa: Yeah, you just can't invoke the word password at any point in this analogy, or you're going to hit the first part of the law. Because without authorization means you stole a password.

0:52:31 Thomas: Well, but, but no, no, no. No, No. But it has to be to the computer. I'm talking about the computer versus like the folder.

0:52:39 Jenessa: Right, right, right. Sure. Once you're allowed in the computer, this would have to be, you're aloud in the folder A, you go in folder B.

0:52:51 Thomas: I think maybe the password might've thrown you off. So here's the issue. We're saying the exact same thing, but we're just at the different step in the analogy. So the two different locked rooms are different folders for me. The computer is the building. You're like allowed to be there.

0:53:03 Jenessa: I guess the only issue is you can't have a lock. You can't have a password. As soon as there's a lock or a password, you're unauthorized as opposed to exceeds authorized.

0:53:13 Thomas: Okay, the key is really just the level of where we are at the analogy and let me just make it more analogous because there has to be some equivalent to a folder that is off limits. But you're saying once the folder has a password, then that messes it up because for some reason that messES up the analogy for you. I don't see why it does, But no, again, it's based on the computer versus folders because we're being real textualists.

0:53:29 Jenessa: That makes it unauthorised as opposed to exceeding authorized. Oh, yeah.

0:53:39 Thomas: So if they're on a computer and there's a password protected folder, I think Barrett would say, well, they have access to the computer, but they access a folder regardless of whether or not it's like, hey, by word of mouth, you're not supposed to go in that folder or there's literally a password on it, but you overheard what the password is. She would say that's the same thing.

0:53:57 Thomas: Yeah, because she's being super literal about it. It's a computer, But a file folder database that it's off limits. It doesn't matter how it's offline. It's I don't think.

0:53:55 Jenessa: Maybe? Well, yeah, yeah, let's read that last paragraph because I think it helps. In sum, an individual exceeds authorized access when he accesses a computer with authorization, but then obtains information located in particular particular areas of the computer such as files folders or databases that are off limits to him the parties agree van buren accessed the law enforcement database system with authorization the only question is whether van baren could use the system to retrieve license plate information I think where we disagree is for what purpose both sides agree that he could use the system to retrieve license plates yeah no shit van beren accordingly did not exceed authorized access to the database as the cfaa defines that phrase even though he obtained information from the database for an improper purpose so yeah what she's really saying is like if he had a right to be on that computer and to use the license plate database for the cfa you don't get to inquire into why he used the database yeah

0:55:03 Thomas: Well I didn't hear that part of it I didn'T hear motive mattering at all it just mattered whether or not it was an area

0:55:08 Jenessa: Motive is just gone here almost

0:55:11 Thomas: No so I would want to ask barrett like okay what would the facts have to have been for that specific case for it to violate it so it would have had to been he's on the computer yeah I actually don't know how he even would he's on the supercomputer so he has access this is why I said I think it could be a password protected folder. I don't think it matters because she's literally saying access a computer. So you have access to a computer, but there's the database you're supposed to get on. Oh, I got, I got it. Oh this is interesting. All right, forget cat burglary.

0:55:18 Jenessa: You know that might be what I'm hung up on is like how how do you?

0:55:41 Thomas: What if, what if, okay, I got an idea. Let's say there's two versions of the license plate database. There's one that he has access to, normal. There'S another that's the Patreon tier 10 level that does the exact same thing, but it has bells and whistles and only the top officers on Patreon are allowed to get in that one, does the same thing though.

0:56:02 Thomas: I think by her argument, the first one, fine. The second one, if he was to snoop and get a password, even though he's using it for the exact same thing, that's a crime, right? Because it's an area of the computer that he's not supposed to be in.

0:56:14 Jenessa: You know what I'm getting hung up on? It's definitely a crime either way. I just can't seem to separate out. And maybe this is the problem with them.

0:56:20 Thomas: Well, no, it's not a crime either way. What are you talking about? The first one we're agreeing based on Justice Barrett, it'S not a Crime for the first One, where the actual case is, I'm saying. The actual case is the guy wasn't guilty of this, right?

0:56:31 Jenessa: He wasn't supposed to go on system B for any purpose.

0:56:35 Thomas: No, I'm telling the real guy was found to not have violated this law. Yes. That's what I'm Saying.

0:56:40 Jenessa: Yeah, correct. Because he was allowed on system A and he went on system a, but you're proposing there's a system B and he accessed it.

0:56:47 Thomas: No, I'm not. I think you, I think he lost track of what I was saying.

0:56:48 Jenessa: Damn it shit you were saying the fancy the patreon version

0:56:54 Thomas: I'm saying that hypothetical by her logic, that hypothetical person would be guilty, but the first person wouldn't, which is him.

0:57:00 Jenessa: Yes oh yes he's yes yes under that hypothetical the person who accessed system b really for the same purpose the same authorized the same value but he was only ever supposed to be in folder a the system a program a but not system B. You weren't supposed to be there.

0:57:08 Thomas: Same data. Yeah. Same data. And I'll tell you what, I'll tell you, what I might've come back around because now let's say it's like, well, yeah, the problem is people are stealing Patreon passwords or people are going on, they're accessing special parts of computers that they're not supposed to be in. So even though he was doing the exact same thing in the first example, he was allowed to be in that one. He wasn't allowed to Be in the super nice and forget passwords because that'll make you mad by word of mouth. He was not allowed to go in the SuperFancy platform for looking up license plates.

0:57:44 Thomas: He's not allowed by word -of -mouth to go on there. So that's interesting. Like I guess I could see the logic. That was why with the first I was trying to, I think it makes clear the same thing that in a way you could say, maybe they have a point that like the thing they're trying to punish is the doing computery unauthorized stuff.

0:58:02 Thomas: And not necessarily just like they're leaving the getting information they probably technically shouldn't be getting. They're leaving that to be a different thing.

0:58:07 Jenessa: As a separate it's just a different thing. I think what I'm really struggling with is the more we talk about this the way they've defined it I don't know that I can really tell the difference between unauthorized access and exceeds authorized access the way they have defined it. Like certainly if I if I just go on like old school hacking I get into to some company's computer that I'm not supposed to be in. Yeah, we know that's unauthorized. But like, I think this is where the problem broke in is, well, at what layer does it become unauthorised? I was authorised to get on the computer, but not that folder. I was authorized to go into that folder, but notthatfile. Like, I don't know. Is that exceeding authorised or is that unauthorise?

0:58:48 Thomas: Well, okay. I mean, I think I'm kind of, man, I think I've kind of been convinced because go back to my room analogy. They'RE all the same files. Let's say they're all personnel files, but in the first person, they're the the employee that like reaches over the files right next to each other. They reach over and grab a file that they're not supposed to. The other person again, and that's just understood to be duty wise. They're not opposed to look at that second file, right?

0:59:10 Jenessa: Like, sure.

0:59:10 Thomas: We're just understand that's what the police officer doing. He's not some, he could hypothetically look at it if he had a good reason, but like, he's not supposed. Yeah. Yeah, yeah. So that's our, we're trying to, so that's tight with analogy one.

0:59:13 Jenessa: Well, he can look at it for reason A, but not right now he's not supposed too. Yeah, yeah, yeah.

0:59:23 Thomas: We're saying this person is working on an HR file and they they just go to a different one that they like they if they were working on that one they could but they're not right yes

0:59:32 Jenessa: There are circumstances where it would be totally okay K to look at file B, but not today.

0:59:36 Thomas: And then there's another where we're saying there's more personnel files and they're just not supposed to go in that room there's no password forget all that crap but they're saying like you're not supposed and they go in the room and they look at and they grab a personnel file even though it's the same files like I guess that's the difference they're saying like it's sort of like a breaking and entering thing because they want to they want to punish the part where you're accessing a room you're supposed to which is to make the analogy you work, you have to say like, we're trying to stop people accessing rooms they're not supposed to.

1:00:05 Thomas: And that's the thing this law is specifically about. And it's not about the personnel files, really. Yes.

1:00:08 Jenessa: I guess. It's sort of like it's weird because it's like, well, is it a room inside a building or is it this filing cabinet inside this room or is it this file in this filing?

1:00:15 Thomas: That's the very struggle you and I had.

1:00:17 Jenessa: Because it doesn't matter because it sounds like if you have authorized access to the building, but Not the room or if you've access to The Room, but Not the file that succeeds authorized access. But if you don't have any access to any of that, then it's unauthorized. And that's why that's dumb, because that doesn't mean anything. Thing so it's like it's you're not allowed in the building that's unauthorized you're allowed in the building but you're não allowed to take the candy bar without paying that's exceeding your authorization or isn't that just unauthorize this is collapsing the meaning of these terms I don't know here's what I feel like congress wrote something that was perhaps not clear in some ways and could have used some elaboration and the textualist approach is making a mess I also see your point of if they are normally allowed to look at it for purpose one, but they're not allowed to Look at it For Purpose two, perhaps that is not the thing we were the most worried about. And all this stuff about exceeding authorized access was them trying to close some loophole and they just did it extremely unartfully. That is absolutely, I think, a valid interpretation. I just also think Barrett closed it by making exceeds authorized access nearly identical to unauthorized access oh

1:00:31 Thomas: I don't know. I actually think I think I'm coming around. Okay. Yeah.

1:01:36 Thomas: Potentially. I also think regardless, one thing we can all agree on, I think, is that the so is irrelevant. I mean, I really don't think it does.

1:01:48 Jenessa: It literally pages pages of the word van buren says yes he notes that so is used in the statute serves as a term of reference that recalls quote the same manner as has been stated or quote the way or

1:01:52 Thomas: Oh my God. I'm I'm going to have to read this. Yeah,

1:02:05 Jenessa: Manner described citation to black's law dictionary it like on and on and on

1:02:09 Thomas: I think that's the normal. Isn't that the like the normal interpretation or no?

1:02:12 Jenessa: Well that would say that when you focus on the manner and not the purpose what you're saying is it doesn't matter why well

1:02:20 Thomas: There's no purpose is nowhere in that language. There's nowhere so can add a purpose.

1:02:24 Jenessa: In that case then you're on Barrett's side that it doesn't matter that he accessed it for bad reasons and he's only allowed to access it for good reasons it matters that he's normally allowed to open that computer and open that database and look up license plates and that's what he did so So there you go.

1:02:42 Thomas: All right. I think we'll have to call it there because I think I think I think it's a good idea. I think, I mean, I'm not sure if we're at an impasse because I, I, that I was looking at it a slightly different way than that based on what Alito said, which is that, or I forget who it was. I forget who it wasn't the arguments, but the idea that it's sort of implied that you don't have access to that license plate in that way.

1:02:44 Jenessa: Oh my God, it's a mess.

1:03:00 Thomas: Like it's sort of, that's sort of a part of it. It. So I'm not sure if, again, I don't think the so has any bearing on that. I wasn't looking at it as, well, the so is the part that determines that I was looking at that as, Well, no, it's just that like in common parlance, you would say that you aren't entitled to obtain this personnel file if you're not supposed to be looking at it. And it's not only relevant whether or not you literally are allowed to open that file drawer. Like that's not the important part. The important important part is, are you supposed to be doing it?

1:02:57 Jenessa: Yeah, yeah, like, yeah. Yeah,

1:03:30 Thomas: But I just don't think so hasn't, I look, maybe I'm missing something. I don't see how so makes any difference on that.

1:03:36 Jenessa: I, and that's pretty much what the dissent is going to say. Would an ordinary reader of the English language understand Van Buren to have, quote, exceeded authorized access to the database when he used it under circumstances that were expressly forbidden? In my view, the answer is yes.

1:03:51 Thomas: Right. Yeah, that doesn't depend on so, you know?

1:03:56 Jenessa: Yeah, and like, I think if you were not. Textualist like if Sotomayor wrote this I don't think she would spend pages debating the meaning of the word so and and maybe still come to the same conclusion but

1:04:05 Thomas: It would just be like a no duh. Yeah right. And I think she, she does. Yeah no. Okay well we'll see how much of that people heard but uh but that's, that's really interesting.

1:04:10 Jenessa: She signed on to

1:04:18 Thomas: I might, I may literally have to go like read this decision to see, yeah, because it's like, it's really interesting. I am like in the middle currently. I'm not totally sure. And I was very much on Alito's side, but now I'm like, I don't know. If Congress wanted to punish computery stuff, then maybe it's not really about whether or not, go ahead.

1:04:18 Jenessa: It it's wild it's it's intense yeah yeah well and we always have to ask right yeah there's right there's the question of what did congress intend which obviously matters if they pass a law even if it's stupid we're kind of stuck with it there's what is the best policy decision which is of course a separate question and then there's does Barrett's analysis of why we should come out this way match your feeling about why we Should Come Out That Way that is uh there's multiple questions here yeah

1:05:01 Thomas: Yeah, we can all agree no on that. Yeah I think that's a good way to go. We kind of agree there. And if we were to agree with the decision, it would be probably based on like Sotomayor's logic and not whatever the F she's talking.

1:05:14 Jenessa: Yeah that's Sotomayor's logic is what I find compelling that like this is overreach and

1:05:17 Thomas: Yeah. Yeah, well, that was a lot of fun. I love in the end, it was two dirtbags. We don't know. We'll have to see, you know, let's do the the ending where we say, where are they now? I don't know where that that other dirtbag is, but, you Know, the cop got off relatively light, too, it sounds like, but at least they got in trouble, you And they can still be a cop.

1:05:30 Jenessa: I don't know yeah yeah 12 months probation and

1:05:40 Thomas: Oh, thank God.

1:05:40 Jenessa: He's not a cop anymore imagine

1:05:41 Thomas: Okay, well, there you go. All right. Well, that Was a ton of fun, thanks so much, Jenessa, Melissa for tons of patience and paying us through that. And thanks so much to listeners, I suppose, for the same.

1:05:51 Jenessa: Yeah good talking to you want to buy some drugs and you're like yeah

1:06:35 Thomas: By saying no, that's effing stupid. That's how I would get out of it.

1:06:41 Thomas: Oh, I want to go see what Barack Obama's social security number is.