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On June 3, 2021, the United States Supreme Court issued a 6-3 opinion in Van Buren v. United States, No. 19-783, resolving the circuit split regarding what it means to “exceed[] authorization” for purposes of the Computer Fraud and Abuse Act (CFAA). The Court held that only those who obtain information from particular areas of the computer which they are not authorized to access can be said to “exceed authorization,” and the statute does not — as the government had argued — cover behavior, like Van Buren’s, where a person accesses information which he is authorized to access but does so for improper purposes. This was a long-awaited decision interpreting the CFAA, which has become an important statute in both criminal and civil enforcement relating to computer crime and hacking.
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Why Are Courts Making Cybersecurity Forensics Reports Not Privileged?
By David P. Saunders
Internal corporate investigations can be, and frequently are, privileged. However, it is difficult to square that concept with the recent spate of federal court opinions that have concluded that cybersecurity forensic reports generally are not privileged.
Are Government Investigation Disclosures Protected Under the Common Interest Doctrine?
By Elkan Abramowitz and Jonathan S. Sack
This article discusses whether disclosures made when a subject of a government investigation borrows money or sells all or part of its business are protected from discovery on the basis of the attorney-client privilege and pursuant to the common interest doctrine.
By Robert J. Anello and Richard F. Albert
The Van Buren decision fits into a pattern of the court’s modern criminal law jurisprudence that appears motivated by concerns about the ever-expanding reach and severity of federal criminal law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
By Emil Sayegh
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks now target the critical infrastructure of the most powerful country on the planet.
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