You may think that Star Wars and the case of Van Buren v. U.S. have nothing in common; however, this episode strives to show how the Computer Fraud and Abuse Act should have had greater impact on Princess Leia and the Resistance at large. Brett and Nazim discuss how the Court should interpret the term access, but not before revealing their favorite Star Wars characters. Nazim’s answer shouldn’t surprise you. Law starts at (13:50).
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The Citizen's Guide to the Supreme Court 
Hey nice episode – I can’t believe you didn’t address what the implications of the counterfactual if Van Buren had accessed the same information from a file cabinet. Why does doing the crime using a computer make it different or worse?
Thanks!
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Well, the law at issue only applies to accessing computer systems, so it wouldn’t apply if the information was in a filing cabinet.
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Sure, but you talk about the Myspace case and how the fact that it was done on a computer was not central to the crime. I don’t see anything essential about this guy’s malfeasance where doing it on a computer is central.
I guess my question is ‘if a computer we’re not involved, what would he be charged with, and why should it be different if he does it on a computer?’
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@Nick : if the crime did not involve a computer, officer Van Buren would be brought up on state charges of abuse of office, among other things. I’m not sure what federal criminal laws would apply, if any.
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Thanks – so why are the feds prosecuting him? If we want a federal level crime wouldn’t it be better to make an abuse of office offence at that level?
Or maybe a File Cabinet Fraud and Abuse Act? Of course then the question would be what would happen if the information was in a folder, rather than a cabinet?
Do we need a File Folder Fraud and Abuse Act?
I guess I’m just not sure why we need a set of crimes that relate to the tools used to commit a crime, rather than one law for the crime regardless of what took is used?
Thanks for your patience!
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> why are the feds prosecuting him?
Because he did a bad thing and did so in violation of federal law.
> If we want a federal level crime wouldn’t it be better to make an abuse of office offence at that level?
The problem is that abuse of (state) office may not be a behavior that has sufficient contact with the powers given to the federal government by the US Constitution. Like federal laws that may criminalize the use of guns that have travelled in interstate commerce, federal computer-abuse crimes are eligible to work federally because computer networks cross state lines, and perhaps even the computers themselves have been shipped across state lines.
It would be possible to make the argument that filing cabinets were probably shipped across state lines, and therefore their abuse might be criminalizable at a federal level, and that argument would have certainly worked a while ago, but it’s now less certain. More recent supreme court cases have demanded there be a slightly more significant nexus between the federal hook and the crime. In the case of guns and computers, this hook is very clear: those items are very important parts of those crimes. In the case of a filing cabinet, where any other container (or even no container at all) might have done the same job, the connection is less clear.
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Thanks – I really appreciate your patience. I guess I still don’t really understand why the computer is an important part of this crime – the guy literally looked up a file on a computer – he could just have easily looked up a file in a file cabinet, no?
Is the point that I’m missing that this is just a kind of an end-run around the fact that the feds don’t really have jurisdiction over this crime?
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> Is the point that I’m missing that this is just a kind of an end-run around the fact that the feds don’t really have jurisdiction over this crime?
Not unless the crime had some contact with interstate commerce, crossing state lines, or some other federal subject matter as defined by the constitution. Computer networks tend to cross state lines. Filing cabinets, in my experience, do not.
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Last one – I promise!
So if the crime was the same but the computer was not networked there would be no federal crime to prosecute?
Does that seem odd to you, or are you just used to how weird laws can be?
😉
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I don’t believe your promise.
> So if the crime was the same but the computer was not networked there would be no federal crime to prosecute?
I’ll answer your question with a question: how many non-networked computers have you seen this week? This month? This decade?
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Well, the decade’s young yet, but you’re right – most computers are networked these days.
There’s a serious question asked here though about using non-networked computers for secure storage in compliance with USGCB rules – the OP’s intent seems to be to use a non-networked computer to safely store information.
https://security.stackexchange.com/questions/42681/usgcb-on-a-non-networked-computer
It’s not an entirely frivolous question…
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Air-gapped computers are a thing, but they’re only literally not-networked. Metaphorically, they’re still quite networked.
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Isn’t ‘literally true’ the best kind of true? I mean, if I only metaphorically stole something, then I didn’t really steal it, no?
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People do go to prison for metaphoric theft all the time, though.
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Can you say more about that? I’m really not sure I follow.
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Well, for example, conspiracy to commit theft is not actual theft, but you go to prison for it. It’s metaphoric theft. Perhaps more of an example would be copyright infringement, where nothing is actually stolen, but you’re still liable for the taking of someone else’s property.
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Meh – conspiracy is not a metaphorical theft, it’s an agreement to commit a literal theft, and copyright infringement is not theft, because if it were, we would not need a crime of copyright infringement.
I get where you’re going with this – am I just trying to hard to make the law make sense?
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All I see is that you have questions. Your questions sometimes sound like they’re angling for some greater insight, and I’m not sure I can put that on the table tonight.
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OK – thanks friend – love the pod. 😉
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My pleasure! Be good to yourself.
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