Justice Samuel Alito expressed difficulty reconciling concerns about personal privacy with criminalizing a wide array of conduct that is generally considered to be innocuous, telling Feigin, “I find this a very difficult case to decide based on the briefs that we've received.” The Circuit Split Feigin responded that the CFAA was designed to address the exact kind of misconduct at issue in the case. Justice Gorsuch generally appeared skeptical of the government’s position, adding that there appeared to be broader pattern of conduct by the Department of Justice over the past ten years to significantly expand federal criminal jurisdiction. Justice Elena Kagan pointedly asked Feigin, “you would concede, wouldn’t you, that if the word ‘so’ wasn’t there you would lose this case?” to which he replied, “I think it would be a much tougher case for us without the word.” Justice Brett Kavanaugh and Justice Barrett further pressed Feigin on this definition. Conversely, Feigin contended that the word “so” deals with the way in which such information was accessed, either with permission or without it. Justice Clarence Thomas seemed somewhat unconvinced by the petitioner’s argument, telling Fisher, “I don’t understand why you make the distinction between these two levels or ways that you can have or not have authorization.” Justice Amy Coney Barrett compared the petitioner’s interpretation of the CFAA to an “on/off switch” that fails to account for the scope of the authorization.įisher expressed concerns of constitutional vagueness if the CFAA were to be interpreted broadly, claiming that the law would criminalize wide swaths of computer restrictions outlined in service contracts, employee handbooks, course syllabi at universities or even instructions handed down orally. Feigin argued that the petitioner was relying on a “wild caricature” of the government’s position based on “hypothetical prosecutions that he can't actually identify in the real world for seemingly innocent conduct.”Ī significant portion of the hearing focused on the meaning of a two-letter word buried within the definition of “exceeds authorized access.” Fisher argued that the word “so” simply means information obtained “in the manner described,” which would be through a computer (as opposed to information obtained by some other means). However, Justice Sonia Sotomayor questioned whether these types of behavior could be prosecuted under other federal criminal statutes-a sentiment echoed by Justice Neil Gorsuch. The justices seemed to agree that the CFAA attempted to address important concerns about employees’ misuse of sensitive personal data, such as stalking or selling personal information for a profit. Feigin attempted to persuade the nine justices that “authorization” refers to specific permission granted on an individualized basis. government, Deputy Solicitor General Eric J.
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