What Does ‘So’ Mean?

On today’s podcast, David and Sarah engage in a riveting discussion about the meaning of ...

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On today’s podcast, David and Sarah engage in a riveting discussion about the meaning of the word “so,” specifically in conjunction with the Supreme Court’s ruling in Van Buren v. United States, which deals with the legality of accessing a confidential government database for improper reasons.  Our hosts then walk us through a free speech controversy at Stanford Law School involving a local Federalist Society chapter and a parody flyer, including discussing some previously hidden context.  Finally, they review the 6th Circuit Court ruling striking down racial considerations for COVID loans.

Show Notes:

–Van Buren v. United States

-“Law student’s graduation in jeopardy as Stanford investigates satirical email lampooning Federalist Society, Sen. Hawley, and Jan. 6 [UPDATED]” by the Foundation for Individual Rights in Education (FIRE)

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  1. GregS

    Wow, the Stanford case was more complicated, because there were three (three!! ohmygod!!!) emails saying that FedSoc had worked to put people in power who turned out to be fascist sympathizers (fact check: true).
    I didn't realize that calling Hawley, Cruz, and Paxton fascist sympathizers was bullying and harassment. And I didn't realize that saying that it was a bad thing to actively promote these people or saying that organizations who support them should be boycotted, was evidence of such a high degree of bullying that the University needs to have some legal recourse to stop such terrible harassment.
    I am frankly confused by the whole section on Stanford. I was expecting some new information that the guy who made the original flyer had done some other things that were potentially defamatory etc etc. Instead, we got the scoop that there had been a handful of emails sent that said that FedSoc held some responsibility for Trump's attempted coup.

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  2. Ben Moser

    Here I was all excited to hear about how the Stanford case was way more complicated than the news let on and Sarah’s big reveal is…people were hyperbolic over email?

    Are you kidding me? Is the Isgur doctrine seriously going to be “forget the 1st amendment when people are mean???”

    That you seriously spent time defending these FedSoccers because they got called names is beyond me. How is this not a blatant example of “cancel culture” and how does this not give conservatives pause when they weaponize that term against liberals??

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    John Russell

    At time stamp 39:42 Sarah refers to Regents of The University of California vs. Bakke, where she pronounced Bakke as “Bakey.” I’m old enough to remember the debate following this decision, in which Bakke was always pronounced like the last two syllables of the name Chewbacca (the Wookiee).

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    Doug

    You may have seen this but with your geek cred and legal orientation it seemed you might be interested https://movieweb.com/star-wars-judge-ruling-mediocre-schlocky/

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    JohnF

    The discussion of the Van Buren case got so wrapped up in the "meaning of So" discussion that it missed a much more important point, which was that Van Buren was charged under the "Computer Fraud and Abuse Act", a very broad anti-hacking bill that was written in the 1980's in the days before the World Wide Web and widespread personal computing, and was meant to deter hacking into systems maintained by the government or financial institutions. The law is vague, out-of-date, and has been used to characterize minor transgressions as malicious criminal activity. This is likely the reason that the SC took the case in the first place.
    The issue was not whether Van Buren had exceeded his authority or misused a computer system, but whether he had exceeded his 𝑎𝑢𝑡ℎ𝑜𝑟𝑖𝑧𝑎𝑡𝑖𝑜𝑛 under a law that is supposed to be used to prosecute people who break-in to computer systems. The court decision helps to put some better definition around this particular law, by specifying that accessing parts of a system that are specifically forbidden breaks CFAA rules, but simply accessing authorized areas in an unapproved way does not. Theoretically, prosecutors will now have to prove that someone accessed a system that they were explicitly barred from entering in order to use 𝑡ℎ𝑖𝑠 𝑝𝑎𝑟𝑡𝑖𝑐𝑢𝑙𝑎𝑟 𝑙𝑎𝑤.
    A deeper dive into the CFAA and its problems would have been much more interesting than an extended riff on the word "so."

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    1. Lylegruby

      The reason the statute was originally enacted cannot limit the text of the statute itself. The text of the statute doesn't limit itself in the way you suggest.

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        JohnF

        The SC decision spends a considerable amount of time on the text of the statute and concludes that it has been interpreted overly broadly in the past. The decision narrows that interpretation.
        https://www.supremecourt.gov/opinions/20pdf/19-783_k53l.pdf

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          JohnF

          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. 𝑇ℎ𝑒 𝑝𝑎𝑟𝑡𝑖𝑒𝑠 𝑎𝑔𝑟𝑒𝑒 𝑡ℎ𝑎𝑡 𝑉𝑎𝑛 𝐵𝑢𝑟𝑒𝑛 𝑎𝑐𝑐𝑒𝑠𝑠𝑒𝑑 𝑡ℎ𝑒 𝑙𝑎𝑤 𝑒𝑛𝑓𝑜𝑟𝑐𝑒𝑚𝑒𝑛𝑡 𝑑𝑎𝑡𝑎𝑏𝑎𝑠𝑒 𝑠𝑦𝑠𝑡𝑒𝑚 𝑤𝑖𝑡ℎ 𝑎𝑢𝑡ℎ𝑜𝑟𝑖𝑧𝑎𝑡𝑖𝑜𝑛. 𝑇ℎ𝑒 𝑜𝑛𝑙𝑦 𝑞𝑢𝑒𝑠𝑡𝑖𝑜𝑛 𝑖𝑠 𝑤ℎ𝑒𝑡ℎ𝑒𝑟 𝑉𝑎𝑛 𝐵𝑢𝑟𝑒𝑛 𝑐𝑜𝑢𝑙𝑑 𝑢𝑠𝑒 𝑡ℎ𝑒 𝑠𝑦𝑠𝑡𝑒𝑚 𝑡𝑜 𝑟𝑒𝑡𝑟𝑖𝑒𝑣𝑒 𝑙𝑖𝑐𝑒𝑛𝑠𝑒-𝑝𝑙𝑎𝑡𝑒 𝑖𝑛𝑓𝑜𝑟𝑚𝑎𝑡𝑖𝑜𝑛. 𝐵𝑜𝑡ℎ 𝑠𝑖𝑑𝑒𝑠 𝑎𝑔𝑟𝑒𝑒 𝑡ℎ𝑎𝑡 ℎ𝑒 𝑐𝑜𝑢𝑙𝑑. 𝑉𝑎𝑛 𝐵𝑢𝑟𝑒𝑛 𝑎𝑐𝑐𝑜𝑟𝑑𝑖𝑛𝑔𝑙𝑦 𝑑𝑖𝑑 𝑛𝑜𝑡 “𝑒𝑥𝑐𝑒𝑒[𝑑] 𝑎𝑢𝑡ℎ𝑜𝑟𝑖𝑧𝑒𝑑 𝑎𝑐𝑐𝑒𝑠𝑠” 𝑡𝑜 𝑡ℎ𝑒 𝑑𝑎𝑡𝑎𝑏𝑎𝑠𝑒, 𝑎𝑠 𝑡ℎ𝑒 𝐶𝐹𝐴𝐴 𝑑𝑒𝑓𝑖𝑛𝑒𝑠 𝑡ℎ𝑎𝑡 𝑝ℎ𝑟𝑎𝑠𝑒, 𝑒𝑣𝑒𝑛 𝑡ℎ𝑜𝑢𝑔ℎ ℎ𝑒 𝑜𝑏𝑡𝑎𝑖𝑛𝑒𝑑 𝑖𝑛𝑓𝑜𝑟𝑚𝑎𝑡𝑖𝑜𝑛 𝑓𝑟𝑜𝑚 𝑡ℎ𝑒 𝑑𝑎𝑡𝑎𝑏𝑎𝑠𝑒 𝑓𝑜𝑟 𝑎𝑛 𝑖𝑚𝑝𝑟𝑜𝑝𝑒𝑟 𝑝𝑢𝑟𝑝𝑜𝑠𝑒.

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          1. Lylegruby

            Sure, I've read the opinion. I was making a narrower, but largely irrelevant, point.

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    2. GregS

      Yes! This law clearly makes it a federal crime to access a system you do not have authorization to access. It says absolutely nothing about the *reasons* you are accessing it - and why should it? If your reasons for access are illegal, they will fall under the statute making those reasons illegal (e.g. in this case, he was accessing drivers license information to provide it to a person not authorized to have it, in return for money - one would think this would fall under a bribery statute for example). There is no reason to think that your access depends on your intent - Sarah kept harping on the fact that he wasn't authorized because he was doing it for money, but that's utterly irrelevant to whether or not he was authorized to access the system (which he was).

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      1. Lylegruby

        It's not. Read the dissent. The more important word in the statute is "entitle," not "so." Entitle carries with it permission, and if one must have permission to do something, there must necessarily be parameters to that permission. Therefore, the reason one is accessing certain information is absolutely relevant. Also, there's an intent requirement in the statute.

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        1. GregS

          I agree that "so" is irrelevant, and that "entitle" is the more important word. He had permission to access the database. He used that access for a purpose that was illegal. The fact that he accessed the database is not a crime, that he used the information he gleaned for an illegal purpose is.
          Suppose he had accessed the database, but for a reason that was both legal, and not a part of his job.
          For example, suppose he was sitting at a computer one day and thought, "I wonder how many Ferraris are registered in this county?" Then he accessed the database and looked at a list of Ferraris, and said, "Huh, there are only two, that's interesting."
          On your reading of the law, he just committed a felony.
          On my (and the majority's) reading of the law, he did not commit a crime, unless he used the information about Ferraris for some purpose that was illegal.

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          1. Lylegruby

            That’s why there’s a mens rea element: either knowingly or intentionally exceeds authorized accesses to a computer. That would limit criminal exposure. So, no, that almost certainly would not criminalize the behavior you mention. Also, the majority expressly did not hold that the use of information is what is illegal. The CFAA is still about access. The majority held that the CFAA can only be violated if one accesses a data they do not have permission to accesses. It’s a gate up or gate down approach. If they don’t have clearance to access the data, it’s a crime. But they can access data to which they’re “entitled” for any reason, including to harvest it and sell to a competitor, and jt doesn’t violate the CFAA.

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  6. Mark Myers

    "If someone asks you to crime with them, probably don't." Very sound advice. Although it must be emphasized that there are something like 10,000 federal laws on the books and most of them don't fit the average person's concept of a crime (it's technically hacking to create a FB profile for the family dog, for instance).

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  7. Licia

    Have you considered that perhaps the "so" in question should have been "so as"? I inserted the "as" following the "so"when listening to the podcast today..... maybe?

    Enjoy the bicycle rental at Lost Pines! It's beautiful there! :)

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    Tracie

    Bastrop. My best friend and her husband used to teach there, and they lived outside of town off the river. Still remember the quiet there, especially in contrast to the city noise I'm used to.

    Bastrop has great history, a cute downtown, several blocks devoted to protected feral chickens, and an HEB meat dept that is a thoroughly authentic Texas experience.

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  9. Karin

    Surely "so" in this context means "thus" - or, as in another comments, "in this manner". No way is it a pronoun. This first example of this use that came to my mind is from the litrugy: "It is meet and right so to do"

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      An Actual Cat

      That’s the way I took it, too. My mind went to the Gettysburg address: “ Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.”

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    Denise Cote

    So, so many thoughts so relentlessly clogging my mind with so little value...my favorite part was the happy bird singing in the background. I hope Sarah got to enjoy the lazy river before the heavens opened.

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