Yesterday, the whistleblower law firm Kohn, Kohn and Colapinto, LLP (KKC) filed an amicus curiae brief, in the case of Nathan Van Buren v. United States, on behalf of the National Whistleblower Center (NWC) before the U.S. Supreme Court. The brief urges the Supreme Court to protect employee whistleblowers from retaliatory lawsuits under the Computer Fraud and Abuse Act (“CFAA”). Enacted at the dawn of the internet era, the CFAA made it a federal crime under 18 U.S.C. § 1030(a)(2)(C) to “access a computer without authorization or exceed authorized access, and thereby obtain information from any protected computer.” Though it was intended to address the growing threat of hacking, this provision of the CFAA has nevertheless been exploited to attack whistleblowers for disclosing evidence of crime from their workplace computers to federal law enforcement.
The question before the Court is whether an employee, who has authorized access to information on a workplace computer for a certain purpose, is liable under the CFAA for “exceeding authorized access” if s/he accesses that information for an improper purpose. In the underlying case, Van Buren v. United States, the Eleventh Circuit joined the First, Fifth, and Seventh Circuits by holding in the affirmative and adopting a broad reading of “exceeds authorized access.” The Second, Fourth, and Ninth Circuits, on the other hand, have ruled that employees only “exceed authorized access” when they access information on a work computer that they have no right to view for any purpose.
The NWC urges the Court to reverse the Eleventh Circuit’s ruling since a broad reading of “exceeds authorized access” could inadvertently apply to whistleblowers with rightful access to evidence on a workplace computer and where their sole disclosure was to law enforcement regarding a federal crime.
“The federal obstruction of justice statute encourages employees to report criminal activity and protects whistleblowers from undue retaliation. The CFAA cannot be read so broadly as to allow employers to bring retaliatory lawsuits against federal informants and thereby obstruct justice,” said whistleblower attorney Stephen M. Kohn, who represented NWC on the brief.
The brief advised that a broad reading would directly undermine Congress’s intent to enact a scheme of incentives and protections, encouraging employees to report crime to law enforcement. The federal obstruction of justice statute, for example, is implicated when whistleblowers provide evidence of possible crimes to federal law enforcement – “the CFAA cannot be read so broadly as to immunize those who bring retaliatory lawsuits against federal informants and thereby obstruct justice.” Even as recently as February 2018, the brief explains, Congress encouraged employees to report federal crimes by amending the Internal Revenue Code to clarify that whistleblowers are entitled to a portion of any criminal fines that the government collects based on their disclosures.
The Supreme Court is unlikely to issue its decision, which will harmonize the application of 18 U.S.C. § 1030(a)(2) across Circuits, until 2021. This amicus brief is the thirteenth the partners of Kohn, Kohn and Colapinto have submitted to the Supreme Court, on behalf of the NWC, to protect whistleblower rights.
For more information, see the National Whistleblower Center’s press release.