information from a computer without authorization and to ensure comprehensive coverage the statute also prohibits quote exceeding authorized access as judges in ski put it the said this ensures that the statute covers not just outside but also inside hackers in this case however the government seeks to transform the supplemental prong of the c f a into an entirely different prohibition in the government's view this prong covers of caning any information via computer that the accessor is not entitled quote under the circumstances unquote to obtain it is no overstatement to say that this construction would brand most americans criminals on a daily basis the scenarios are practically limitless but a few examples will suffice i imagine a secretary who's her email resume account may be used only for business purposes or consider a person using a dating website where users may not include false information on the profiles to obtain information about potential mates or think of a law student who has issued a log log in credentials for westlaw or lexis for educational use only if the government is right that a computer user who disregards any of the stated use restrictions commits a federal crime for example any employee who used to zoom account over thanksgiving to connect with distant relatives would be subject to the grace of federal prosecutors the main argument the government offers in response to that startling result is that a single two letter word in a c f p a definition of exceed authorized access the term so demands it but that word requires no such thing the word simply clarifies or cues that the user must be for hidden from the tainting the information merely by a computer it relieves the government of having to negate every possible alternative means by which the defendant might permissibly have obtained the information an issue that is all over does it does not transform the c f a into its sweeping internet police mandate the court should reverse i don't have to take a question to mr fisher overseas united states this is what we said that statute provides two ways of committing the crime of improperly accessing a protected computer obtaining access without authorization and obtaining access with boss or authorization but then using that access improperly you didn't mention that case in your opening brief the government relied on it you didn't mention it in your reply brief i wonder what your your access proper hit and then moving and moving right along well but that's not what it that's what it says it says and this seems to me to go to the point at issue here that the nd way you can violate it is by obtaining access with authorization but then using that interviews go ahead i'm sorry i think my answer was simply be just to look at the words of the statute and i think the definition of exceeds authorized access doesn't talk about improper use it talks about obtaining information that the accessor is not a titled so to obtain and as we've explained in our papers we think the definition of that term leaves out improper purposes because we know congress in fact had those buying those words in the very original provision of the statute and they took them out in one thousand nine hundred and eighty six and we know from other ethnic nerds that we cited for example a page nineteen of our blue brief that when congress wants to criminalize or otherwise prohibit improper use or unauthorized purposes it does so expressly just to make sure i have your interpretations correct and if if a bank has a policy barring employees from  facebook an employee sixteen's or authorized access and would be covered if she goes on to facebook but it wouldn't be a violation if she used that access to look at customer social security numbers and sell them to  sword party right i'm not sure i follow this or chief justice i think my position is that it would not violate the c f a for the employee to go on facebook if you're asking me about the social security numbers for example it would depend on whether the employee actually had access to that information as we explained in our brief if if that employee has to use certain logon credentials that somebody else has for example to get that information that would  accessing zoom or something like that or facebook justice thomas not in the th circuit but the papers discussed for example the drew case out of the th circuit which was issued which was before the th circuit  own deterrent effect and so for people who use the internet every day they have to be aware of the criminal law both on the criminal side and remember the statute has a civil component and i think that's  critical thing is that the court said in there and alloa many other cases that you can't construe a statute simply on the assumption the government will use it responsibly so if the government has withheld the full brunt of the federal prosecutor oriel power that doesn't enable the court to simply construe the statute on that promise and so i think that's the that's the critical problem with the government's point here i'd also point to the committee for justice brief which gives another example of just not every day izumi use or facebook use but also so you seem to be making a point that well if you don't have the authority to act so certain area for example here you have a level a clearance but you access information that is a level authorization is limited as to what you can do with it for example you work for a car revelled and there you have the access to the g p s but rather than use it to determine the location of a car that may be missing you use it to follow a spouse or as in this case the use of the information is a problem so i don't understand why you make the distinction between these two levels or ways that you can have or not have authorization because because of the language of the statute justice thomas the statute simply asks whether the user has obtained is entitled to obtain the information and to use your car rental example the user there is entitled to and obtain that g p s information that it may be a breach of company policy it may be and the case of the stalking example that the government gives in its brief like that it may be a different crime but the question of and for in front of a earlier statute which did pretty clearly it's a crime to use your access for purposes to which such authorization does not extend and then that was changed to the present language but at that time the history says they didn't mean to make a substantive change so what do you respond to think justice prior remember st of all that that original provision of the statute was exceedingly narrow it applied just to certain federal employees and certain information when congress changed that law two years later in one thousand nine hundred and eighty six you're right that in one part of the committee report it talked about simply clarifying the statu in the other part of the committee report dealing with exactly the same words with what the congress said is that they had removed one of the murkier grounds for arrive for liability and refocused the statute on its principle object and so you have those cross cutting pieces of legislative history and even the government i would stress does not argue that all that amendment is clarified and government says that that and then actually dramatically expanded the statute to go even beyond improper purposes to a violation of any stated use restriction so nobody here is arguing that the statute didn't change in one thousand nine hundred and six it's just a question of whether it expanded dramatically or took away that purpose language and i think just as far as a whole other thing i would stress about the legislative history is because this is a criminal case we think it's improper it's not it's very least very dangerous to rely on legislative history to resolve ambiguity instead what you should look to are things like the rule of lenity and the mr fisher in this case we've received amicus briefs from a number of organizations and individuals who are very concerned about what your interpretation would mean for personal privacy there are many government employees who are given access to all sorts of highly personal information for use and performing their jobs but if they use that for personal purposes to make money protect or carry out from ill activity to harass people they don't like they can do same thing for people who work for private entities of the person and the fraud detection section a bank who has access to credit card due respect i do not think it was but congress was concerned about with computer hacking and that's up and down the legislative history this new problem of computer of hacking and i think that the two things i would add to that as i understand the concern and there is there are powerful briefs about the policy question you raise and it's possible congress may want to step in and regulate that and even criminalize it to some effect but the question is what is the statute you have in front of you right now do and the problem with the government's view or those are those amicus brief is there is no way to reach the federal the government employee or the or the financial employee that you're imagining without also reaching every doing that you read the provisions of this section very very broadly take the natural person who puts the lies about weight on a dating website how would that be a dating website for example about a potential mate so you are updating information from the web site through a profile that is false and that violates the terms of service of that website and it falls squarely within the government theory because you obtain gotten on that website with authorization with your logon credentials because you're a single person and not married etc and you have obtained information in violation of the stated use restrictions on that website so i don't see how the including the one addition here your client the local police officer your client i'm sorry yes your client a local police officer who paid for information she got from the federal computer system  for personal reasons but the fact that there isn't this federal crime doesn't mean this condo isn't prosecuted in other ways  talks about like the stalking example or like ms obtaining health information misuse of trade secrets all of those things can be prosecuted under different federal statute and if the if this congress decided it couldn't act of the proposal the department of justice has given it a couple times over the last several years to expand the c f a in certain limited respects but as i was trying to say earlier justice sotomayor the core of the problem is there is no foothold in the statute to interest the statute forward to cover the conduct in this case without also covering all kinds of other violations of purpose based restrictions that could appear in terms of service contract employee handbook course syllabus is still about universities or even oral dictate to just take go back to the facts of this case and imagine mr van buren supervisor had told him please don't do any license plate searches this evening until you've finished your paperwork or yes just a sort of my or the government itself has proposed amendments to the statute that we cite in our briefs professor kerr and his amicus brief describes those proposals as well an indoor system but i think again the critical point i would make is that that should come from congress just back to the statute as i was saying what about oral directives to an officer that tomorrow when you're out on patrol don't run license plates just an ordinary traffic stops i want you to be more efficient to know there's any number of questions that would have to be addressed just look at subsection one of the statute just aside i mean or it does restrict federal employees use of information and giving it to rd parties that is not part of the provision issue here so so again that would be a choice for congress to make and all these things should be done on a legislative basis justice kagan mr fischer can you tell me what you think so means in the manner so described that's the black's law definition and so translated to the statute what it means is that you have access to finucane information via computer as opposed to some other means to do just parse for me a little him back to to access a computer with authorization for justice kagan two things that might flesh this out for you want to give an example of another federal statute on page two of our yellow brief that uses so in this matter  just picks up what was said before that was earlier and maybe the government's own hypothetical i think is the best way this plays out of the government worries about a federal contractor obtaining salary information from the salary database that he does not ha access to and so does it prohibits that person from defending himself in a prosecution for hacking into that database by saying oh i could have filed a foil request or i could have called the employees themselves and asked them what they made literally obtaining the words or pictures out of instagram and it would violate the government's rule remember the prosecutor himself told the jury this a closing argument it would violate the government's rule because of the employee would be least theoretically prohibited from using her work computer for personal reasons and so checking instagram through your work computer would be an improper purpose of improper use and you would have taken the information from the computer in the form of those pictures or words or whatever they might be morning mr fisher picking up on your parade of horribles could you explain to us what the constitutional implications are of your parade to give an opportunity rather than just make a policy argument try to link it up something bigger under the government's view remember using training information via computer that you're not entitled quote under the circumstances to obtain violates a statute that is impossible they have a problem because either one of two things has to be correct either under the circumstances i mean literally every possible circumstance you could imagine right down to somebody orally telling you not to do that and there jim edge in a parent telling telling her teenager don't government is right in literal terms the only alternative is that under the circumstances somehow put some of those circumstances in and some of them out but that's a wholly indeterminate problem that i think violates this the most fair notice principles of the criminal law and then on the reverse parade of horribles we've heard from the other side i guess i'm struggling to imagine how pow long that prayed would be given the abundance of criminal laws available so that this one didn't cover that kind of conduct but there were troublesome forms of it like your client's favor in this case misusing a police database i assume there are ample state laws available criminalize a lot of that conduct government gives you hypotheticals in its briefs and almost every one of them is already addressed by some other provision of even the us code let alone state law and even remember my client cell has already lost his job and has other forms of punishment that have already been brought to bear so if congress decides somehow that is not enough and i want the c f a to also be available in situations like this it could amend the statute but but i don't think there's a anything like or a a question there at the end and following up on questions from earlier one of the concerns i suppose is government employees or financial company employees or health care company employees who have access to very sensitive personal information and then disclose it and prescience if you could give us a sense of the federal statutes  think would cover such such disclosures if any i would take your reference to state statutes but are there any federal statutes that you want to identify that would cover that kind of situation sure i think i'd start with pa nineteen of our blue brief justice kavanagh where we cite a federal statute that perhaps obtaining classified information and using it for unauthorized purpose so that's one very important statute we cite a couple of others involving social c f a and so when congress wanted to criminalize an improper purpose it knew exactly how to do so and it did so with respect to trade secrets so i think those are the ones that i would highlight the government of course in this case also try to use the wire fraud statute and that may be available in some situations as well so i think you have for the most part already fairly comprehensive coverage and as i said i know one more time sort interrupt mr fisher on the nine hundred and eighty four version of the statute likely would covered this kind of activity why do you think congress would have narrowed it in one thousand nine hundred and eighty six when they were still concerned about this kind of activity i get your textual point but i'm just trying to figure out why congress would have narrowed it in that sense congress expanded the statute eventually to cover all computers basically the united states it also did at the same time i removed the red of liability because it was not this congress said in a report of a horrific statutory o no that's take your point and i meant to say this kind of activity right now at this case but and in a different context i take your point about the kind of computer covered why would a mens rea requirement solve your problems if the core were to read intentionally to require knowledge of the law not just the facts well i think the most the mens rea requirement could require would be knowledge that you are violating and use restriction and well what if we read it let me just challenge your promise what if we read it to avoid the concerns to require knowledge of the law as we do with statutes that use the term willfully for example i think even there justice kavanagh it would just be good afternoon mr fisher we've been focusing on the exceeds authorized access problem you know which is the problem that mattered for mr van buren but i want to ask you how that promise relates to the other problem the access is a computer without authorization prohibition let's imagine that van buren faced a very firm departmental policy that said he could not use the computer itself for any personal purpose and he gets into the computer and does what he did here and looks up you know either you're authorized to use a computer or you're not either you're authorized to get into a particular database or get a piece of information are your not so here vendor and could get the license plates and it didn't matter if he was getting them for a reason that he was not supposed to get them for so it seems to me that you are looking at authorization and bright gates up or gates down kind of way whereas the government is looking at scope of authorization as included so for example my babysitter might have a key to my car so she can pick up my kids from school but then she uses the car to go run some personal errands she's exceeded the scope of her authority and i guess what i'm trying to get at is why should we understand entitlement authorization to be just an on off switch and not to have a scope component well i think for two reasons one is that self doesn't go component or purpose components or when you compare this to other statutes that do carve out improper purpose we think that the evidence the congress didn't didn't think this was one of those kinds of statutes and so and i think that's the other the other piece of it is to compare back again to the problem that you started with which is the without authorization prong we know from from the provision i was starting to read to you that congress thought of that as sort of a password type restriction or a power or a technological base dialogue that i'm just having with justice fair and justice cavanagh just the core problem here is that once you take if you think the statute ambiguous as to whether or not go prescriptions or purpose restrictions come in the statute gives you no tools to distinguish the kinds of hypothetical some of which are troubling and some of which are more every day you like justice breyer was asking me about you cannot distinguish all those hypotheticals from the ones that  the government wants to point to the most troubling so you have this cascade of contract based restrictions employee handbook perceptions course syllabus restrictions oral restrictions all the other things that could that could directly  restrict the scope of use in a way that even a justice kavanaugh imagine if the reader knew the user knew that violated the statute and that would be just the vast sweeping criminal law that would bring the over criminalization for concern spend much time on the text and i want to start right there in the words of section one thousand and thirty petitioner used his access that is the credentials untrusted to him as a police officer to obtain database information that he was quote not entitled to obtain when he looked up a license plate in return for abroad such serious breaches of trust by insiders are precisely what the statutory language is designed to cover if a st prohibit it accessing a warehouse with authorization with authorization and using such access to obtain items in the warehouse that the accessor is not entitled to obtain everyone would understand that language to cover an employee who is allowed to take items for work instead take some for himself section ten thirty uses the same language to extend the same property based protection to the private computer records that contain our most sensitive financial medical and other data petitioners trying to gut the statute and we all of that data at the mercy of anyone who ever has any legitimate grounds to see it under any circumstance but in doing don't caricature of our position that tries to bury his own heartland statutory violations beneath an imaginary avalanche of hypothetical prosecutions for the can actually identify in the real world for seemingly innocent conduct but those invented cases would implicate textual limits such as the need for an authorization based system and use of the access to reach otherwise inaccessible data that his own conduct clearly satisfies mr fagan is you're correct that everyone who violates the website's terms of service or workplace computer use policy is violating a absolutely not your honor and i think the reasons are different in the two hypotheticals you have given first of all and on the public website that is not a system that requires authorisation it's not one that uses require credentials that reflect some specific individual lived consideration ok my limit my my question to any computer system where you have to log your own i don't think a let me explain why what congress was the daming at here were people who are specifically trusted people i can to employ the kind of person you had actually been specifically considered and individually reading of the word authorization to me require individualized consideration makes sense in this context it's consistent with the court's decision in washington county and the dictionary definitions cited in pages thirty seven and thirty eight of our brief and i think it makes sense is just a matter of plain english i don't think you'd say that system or the museum of national african american history and culture required authorization to enter when you had a sign up sheet and anybody from the public could come in they just had to register for a particular time services like facebook and double give counts to anybody who has a pulse and even people who don't because they don't really check those are an authorization based systems and i think that narrow meaning makes a great deal of sense in the statute authorization is a limiting term well your honor i think authorization clearly at the core you did in washington county and as various dictionaries use it refers to some level of consider is a consideration and use which i think really has to require that the access is instrumental to obtaining data that the user that would otherwise be inaccessible if you'd like i can than course we have a change in the few words and that flows a bit better but would you were through would you explain your without getting too much in the legislative history the change in language and why do you think it actually expands its coverage as opposed to compressing it as mr fisher seems to think you're on i don't know that it expanded so much as it really just clarifies it i mean it's much simpler and more concise and i think one thing that it does is if you look at the previous language i think it was potentially subject to the interpretation that you had to look to the purposes of hind the authorization like why is this particular person authorized to use the system where the current language is much more focused on the expressed limits that are inherent in the authorization itself and i think it relates clarifies that agree to the following terms of access and then you have a big lift in small print that goes on for quite a long ways to pages and i take it that would be covered in the terms of access would be what's permitted  correct no your honor no no authorization and the statute has a meaning being granted specifically individualized permission and not granted that when they say in this piece of paper o paper it says in the film you hear the terms of access you connect you can use whatever we're giving on this for the following purposes but not for the other purposes now that is uncovered no your honor no more so than i think you would think that you have been specifically authorized to enter if you walk into a building and there's a sign post outside about some things you're not supposed to do in a building in the world there is a sion under the dictionary definitions of of course make clear in washington county requires some kind of individualized permission knows you mr jones you work for me here is a p c you will get all kinds of e mails in this b c you are never to use e mail for a personal purpose and then he does do that for personal purposes  violate the statute so your honor this gets to the nd limiting feature of the statute so let's assume it's an employee who is satisfied with the definition of authorization cases and specifically individually authorized to a computer i don't think the word you use necessarily requires that the user do something that a user couldn't otherwise do and i think there's two reasons for that in the statute st the statute refers separately to accessing the computer and using the access which shows that using the access has a further narrowing function and nd the user has to use the access not just the computer itself so if you decide to send an email your friend about when you're going to have lunch together and may not something you could do from your phone there's nothing special about using the access point you back to the warehouse example i gave in my in troductory remarks but just substitute the word warehouse for computer and items for information i don't think we have any trouble really understanding the distinction the vat is a statute that is aimed at insiders who or people trust them to get into the warehouse who do we have taney items in why is that they're not supposed to obtain and i don't think we we think it would be covering the u s if other kind of scenarios if i were to tell you that if i were to talk about a strategy of where somebody steps on a ladder and uses such dad to retrieve an item you'd think it was an item that the person couldn't get without stepping on the ladder and using the ladder night on that was easily reachable from the ground justice alito i find this a very difficult case to decide based on the briefs that we've received in response to the concerns about the effect on personal property personal privacy of about being mr fisher's recommended interpretation he says don't worry about that because there are other statutes that cover up but i don't really know what those statutes are in many of those instances a innocuous you suggest that there are limited instructions by the limiting interpretations but i don't know exactly what they are and i would really be helpful to see them in writing so what exactly is authorization what exactly does it mean to obtain or alter information and what is this status you talking about when it speaks of information in the computer  all information that somebody obtains on the web is in the computer in a sense i have a feeling that's what congress was thinking about when i so i don't really know what to do with i don't really understand the potential scope of the statute without having an idea about exactly what all of those terms mean what help can you give us on that this is something that would be would be helpful to have specific briefing on the meaning of all these terms your honor i actually think the answer to that is now in the problem you're facing is because of the way the petitioner has teed up the case for you because sure is focusing on only one very small bit of the language here the entitled so language and hi all the privacy protection that the statute provides there are all these other limitations that your honor has pointed to i don't think this is the case in which we can brief them because he knowledge of his own conduct satisf them we have identified for the court the ways in which some ways in which courts could limit these things i think the proof is in the posting which is that i believe it was your honor to ask him where the parade really is and he could identify two members of the parade one was the drew case that didn't actually result in a sustained conviction in the other was a ticket master case in which the defendant hired ovarian hackers to circumvent some technological limitations and i think that shows that everybody's understood this statute not to cover that kind of conduct and to cover the kind of conduct that's an issue here today importantly to me you said that there is no ambiguity at the statute but let me give you an example a magical law that says anyone who drives on elm street who is not authorized to drive shall be punished the so to drive to me could mean if you are not authorized to drive on elm street but under your theory it could be very possibly be read as saying you can't drive down elm street if you're doing driving on it with an illegal you're speeding you're breaking the law and few you're texting it could even cover people who drive on algerie on their way to commit a different crime because they weren't authorized to be on elm street for the purpose of critical crime to me if all you're relying on is that word so i don't get around the ambiguity especially when the other side points to so many examples in the criminal code where the so refers to them in the manner that has just been described your honor what i think he right i think petitioner lives both in argument today and on page three of his reply brief is that when the statute doesn't refer back to accessing the computer it refers back to use such access everyone agrees that so means in that manner and the statute refers to a particular discreet act are superfluous the nd part of the statute i think what you're arguing is if not authorized to go on the computer for this purpose then we don't need the nd half of the statute are because if all congress were concerned about where people who get information they're not supposed to obtain it would have a simple one prong statute that criminalizes accessing a computer and obtaining information that the access or is not entitled to obtain instead of broke out piece for without people access without authorization the hackers and people who exceed authorized access the insiders and the main danger that insiders present is the precise danger that this case  mr fisher's argument he says so by accessing the computer and you just so me and by using your access and why is it we should pick your choice of  to make sure that the statute covers someone who could get similar information from a non computerized source then it's entirely surplusage i think she disputed senate i think he has a point here he cited what that is using the statute and as to cases where you could obtain the information in a non digital manner well your honor the information is all of the statutes already limited to information in the computer that the computer record the bits and bytes and i guess that has to be the case because the statute covers not only obtaining but also altering whenever st altering information on the computer surely it's referring to altering the specific record of say my birthday rather than the abstract fact of the day i was born simply because it happens to be contained in a computer or in the computer that was accessed and is so for limiting this to people who can't use their computer access is opposed to having somebody read them something over the phone then that limitations are already quite clearly baked into the statute bond you pick your favorite recent example and i'm just kind of curious why we're back here again on a rather small state crime that is prosecutable under state law and perhaps under other federal laws to try and address conduct that would be rather rather rather remarkable perhaps making a federal criminal of us all well no we don't think the statute   there is there's a pattern and i would have thought that the solicitor general's office isn't just a rubber stamp for the u s attorneys offices and that there would be some careful thought given as to whether this is a really specific narrow portion of the language that is at issue here we do not think that every prosecution that they're positing or even every prosecution we've brought let us take them through provocation as an example is one that would validly be brought under the statute but the kind of misconduct we have here where police officer tipped off a criminal about something is exactly the kind of medical and out of this that it was aimed at not allowed to get on and then exceeds all through authorized access and obtains information i would think means you're allowed on the computer but you go into a file that you're not allowed to access and that those two things are what the statute might speak to and that disclosure of information that you obtain or misuse of information is something distinct merely browsing around obtaining the information that you're not in a file you're not allowed to look at is what the nd prong is getting at so was that wrong as a text from a well a couple of points your honor st i  don't think that all the sec i don't think that if that's all the nd prong cover is then basically that's just like saying if we do brick and mortar analogy that's just like saying you can't it's a crime to go into the back office for a employ at a store to go into the back office and take money out of a shoebox for ek petty cash because he's not allowed ever to get the petty cash box but he can take as much money as he wants from self out of the register entitled to go into the cash register to make change it so it's not just limited to files we do think it's it goes to the limits of the authorization the nd point  make just to get back to the text here your honor is that as i was trying to explain earlier to the chief justice authorization has a meaning here and everyone i think can fairly agree that  of one meaning of authorisation is that you are given someone specific permission and that's the definition that we have cited in our brief and it's an play supported and the question there might be a question of how specific the permission asked to be but in context i think the permission needs to be fairly specific so there are going to be a number of systems that are necessarily covered by either a prong directly to start to run i want to get one more question and i think you acknowledged justice kagan that you would be in trouble here if the word so were deleted and you relied on the surplusage canon but she pointed out that there is some meaning offered by petitioner of the word so but even if it were surplusage you know that canon can only take you so far and this would be it's just as course it's fairly substantial expansion of federal criminal liability letters doesn't mean the end a circle if it can and not to apply the nd thing i'd say is that the word so here really does ensure that this is covering the kind of conduct that congress wanted to cover or he would be like in it without our interpretation this is going to leave open anybody to use any information or or look up any information for any under any circumstances whatsoever so long as there is some narrow conceivable circumstance under which they'd be allowed to do so and that doesn't just as there are a lot of sense good afternoon mr fay and so i want to follow up on justice kavanagh's question the interpretation that he offered to you of that language access as a computer without authorization or exceeds authorized access is similar to the kind of on off switch that i was describing to mr fisher in syria they're authorized to be there or you're not and it doesn't really take into account questions of scope you say that so is what really makes your argument so are you saying that there isn't any kind of inherent idea of the scope of authorization simply in the word authorize itself there  exceeding a limit on your authorization but i think so actually refers back to the word access but i just to clear up a can any confusion here  the word authorization refers to specific individualized permission and there are going to be system that don't really work choir that at all and so if i access a public web site you know just like i wouldn't really normally talk about going getting an awful lot of specificity to the word authorization that doesn't you know have you can have very specific authorization from an employer i mean even from the professor what if a professor teaching a class a small class very individualized twelve seminar students and she says you may use a computer in class to take notes for no other reason one hundred personal g mail when you're on i don't think i don't think that's very kind of authorization the statute referring to is talking about authorization by the owner of the computer data not just some external constraint that is placed on anybody and i think that would be problematic even under petitioners reading of the statute because all of a sudden you're prevented from going into any file in your computer  and the person has flatly for ever did that for that period of time so you don't really avoid that the same way as a parent child hypothetical falters on his own reading of the statute because you get it i can construct my child not to go into a particular file or use a particular program i understand the court's reaction we are pointing to a bunch of limitations and trying to kind of spec them out but i really think that's a problem with the way petitioners teed up this case he's focused on this very limited specific portion of the language he has then argued that unless you do what he wants all of this other stuff is going to be opened up and we don't have much case law on the other stuff because nobody has ever really made any sustained effort to try to bring those kinds of cases they certainly haven't result in any kind of liability our point here isn't to defend or  any particular case but isn't this one and to the extent we start to see cases like that that will give courts including this court if necessary the opportunity to further articulate those limits to wrap up mr franken thank you ron i think just to continue what i was saying i think what the court should not do is to interpret this particular portion of the statute in a textual manner that is different from how the court d the plain language in massage to in order to avoid parade of hypotheticals but it hasn't really occurred i mean let me give you some examples of things that on his reading wouldn't be covered by this or any other federal statute so far as we know a police officer tipping off a friend with insider information that he got from a database he knows a friend is a criminal but he doesn't know the purpose to which the friend's going to put it so he can we can get him for a temp we can get him for conspiracy someone who the waiving a company and he takes the entire customer database with them it's not a trade secret he just wants to use from self or an i t technician at a court to reveals predisposing no emails from the courts  mr fagan said whether so refers strictly to accessing the computer with authorization or whether refers to such access either way it's referring to the manner of getting the information which is by computer and i think that also disposes of his surplusage argument about the words later in the statute in the computer yes it picks up in the computer but that same information might be available from some other source and so that's what so is doing the nd textual point is about the word  government clearly is putting an enormous amount of weight on that term in the statute but there's just very serious problems with that for one thing the statute talks about either with authorization or without authorization and so if you're going to say that none of these public facing web sites are being accessed with authorization then it might be they're all being accessed without authorization which would open up a whole other set of problems but even as to the plain meaning of the term that mr fagan proposes it just escapes me why logging into your work computer does not establish authorization or logging into your westlaw account or satisfying an age based restriction on facebook or being single and therefore being authorized to use a we had a dating website etc etc all of these  web sites and work computers are accessed only with authorization as even mr fagan defines the term and so that doesn't mean fully narrow the statute and then i think what you're left with is this problem about consequences and the best thing  government can say is we have brought a whole bunch of these prosecutions yet remember even the government two thousand and fourteen charging policy doesn't talk about any of these other restrictions mr fagan has been talking about today instead what it says is federal prosecutor quote made quote unquote decide not to bring these kinds of cases but for all the textual reasons we've scribed they would be available under the government's reading and then you're i think you're left with just of course it's just point which is the court over and over again has had cases in recent years and even further back cases like us minsky where the government offers of reading a federal statute that would sweep in every day conduct and it's never been an answer to that kind of an argument to say trust us we won't bring those kinds of cases or even saying construe the statute the way we have now and if those problems arise in the future then you can address them with the court has done and every one of those cases is apply the traditional tools of construction to say any ambiguity in the statute must be construed narrowly because a fair notice and other but that of federalism and related principles so for those reasons would ask the court ask the court to reverse thank you