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

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🗓️ 29 December 2025

⏱️ 67 minutes

🔗️ Recording | iTunes | RSS

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Summary

OA1220 - What’s an FBI agent to do when a notorious low life reports a local cop is asking for a bribe? Turn him into a confidential information of course, and see how far you can get that dirty cop to go. A tale of two assholes, steadily making each others’ lives worse and worse, while one is wearing a wire.

Now, why does the Supreme Court care about any of this? Half the conviction hinges on whether this cop “exceeded authorized access” under the Computer Fraud and Abuse Act (CFAA), and no one can agree what that means… including your cohosts. Hear Thomas try to figure out why Amy Coney Barrett is so obsessed with the definition of the word “so”, and Jenessa… defend Clarence Thomas?! This case is a hot mess, but the good news is everyone sucks here and no one wins.

The relevant language: “The Act subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access,” and thereby obtains computer information. 18 U. S. C. §1030(a)(2). 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 accesser is not entitled so to obtain or alter.” §1030(e)(6).”

Barrett’s ruling: “In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.”

Van Buren v. United States, 593 U.S. 374 (2021)
United States v. Van Buren, 940 F.3d 1192 (11th Cir. 2019)
Full text of the CFAA: 18 U.S.C. § 1030

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Transcript

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0:00.0	I don't like that I am on this side of this argument.
0:06.5	Stop making me agree with Clarence Thomas.
0:16.5	If I may be so bold, I feel like maybe she's incepted the idea that this so even means anything into your brain.
0:30.8	Hello and welcome to opening arguments. This is episode 1220. I'm Harold's Thomas Smith. And in a moment, I'll be joined by Dr. Janessa Seymour for a fun
0:39.8	classic OA. So here's the thing. I have so much to tell you. So as you've maybe heard the last
0:44.7	Monday episode, Janessa and I are going to start to do Mondays here and we're trying to get back
0:49.1	to the classic OA deep dive kind of thing. The episodes that are not so much news dependent,
0:54.7	not so much like always Trump dependent, but like interesting law stuff, legal deep dive's breakdowns. And I really
1:01.4	feel like in this episode, for my taste anyway, we got back to what I find really interesting
1:07.4	and hopefully you do too, which is really digging into a Supreme Court decision
1:11.7	and one that isn't like super politicized. It's actually a decision that didn't have a split that
1:17.0	would go the way you think, probably, and that you might not know which side you're on.
1:21.1	Janessa 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
1:32.9	tricky that we couldn't quite get on the same page. I edited that down to about an hour,
1:38.1	which was a lot of work. But the thing is, I became so obsessed with this after we talked about it
1:43.0	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 Janessa 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 Janessa wanted to take us through this case that had 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.
2:19.4	Then we started getting into it.
2:21.2	It's interesting because we kind of were on opposite ends of it, I think.
2:25.3	And I'm really curious to see what you all think.
2:27.6	Either way, I just had so much fun doing this.
2:30.0	We're still talking about it, even though we went all that time.
2:33.5	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 each other. So we'll take our break. Hey, please support
	...

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