You Commit Three Felonies a Day

[R.A. Hettinga]

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The Wall Street Journal
OPINION: INFORMATION AGE
SEPTEMBER 27, 2009, 11:09 P.M. ET

You Commit Three Felonies a Day
Laws have become too vague and the concept of intent has disappeared.

By L. GORDON CROVITZ

When we think about the pace of change in technology, it's usually to  
marvel at how computing power has become cheaper and faster or how  
many new digital ways we have to communicate. Unfortunately, this pace  
of change is increasingly clashing with some of the slower-moving  
parts of our culture.

Technology moves so quickly we can barely keep up, and our legal  
system moves so slowly it can't keep up with itself. By design, the  
law is built up over time by court decisions, statutes and  
regulations. Sometimes even criminal laws are left vague, to be  
defined case by case. Technology exacerbates the problem of laws so  
open and vague that they are hard to abide by, to the point that we  
have all become potential criminals.

Boston civil-liberties lawyer Harvey Silverglate calls his new book  
"Three Felonies a Day," referring to the number of crimes he estimates  
the average American now unwittingly commits because of vague laws.  
New technology adds its own complexity, making innocent activity  
potentially criminal.

Mr. Silverglate describes several cases in which prosecutors didn't  
understand or didn't want to understand technology. This problem is  
compounded by a trend that has accelerated since the 1980s for  
prosecutors to abandon the principle that there can't be a crime  
without criminal intent.

In 2001, a man named Bradford Councilman was charged in Massachusetts  
with violating the wiretap laws. He worked at a company that offered  
an online book-listing service and also acted as an Internet service  
provider to book dealers. As an ISP, the company routinely intercepted  
and copied emails as part of the process of shuttling them through the  
Web to recipients.

The federal wiretap laws, Mr. Silverglate writes, were "written before  
the dawn of the Internet, often amended, not always clear, and  
frequently lagging behind the whipcrack speed of technological  
change." Prosecutors chose to interpret the ISP role of momentarily  
copying messages as they made their way through the system as akin to  
impermissibly listening in on communications. The case went through  
several rounds of litigation, with no judge making the obvious point  
that this is how ISPs operate. After six years, a jury found Mr.  
Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First  
Amendment rights. A Saudi student in Idaho was charged in 2003 with  
offering "material support" to terrorists. He had operated Web sites  
for a Muslim charity that focused on normal religious training, but  
was prosecuted on the theory that if a user followed enough links off  
his site, he would find violent, anti-American comments on other  
sites. The Internet is a series of links, so if there's liability for  
anything in an online chain, it would be hard to avoid prosecution.

Mr. Silverglate, a liberal who wrote a previous book taking the  
conservative position against political correctness on campuses, is a  
persistent, principled critic of overbroad statutes. This is a common  
problem in securities laws, which Congress leaves intentionally vague,  
encouraging regulators and prosecutors to try people even when the law  
is unclear. He reminds us of the long prosecution of Silicon Valley  
investment banker Frank Quattrone, which after five years resulted in  
a reversal of his criminal conviction on vague charges of obstruction  
of justice.

These miscarriages are avoidable. Under the English common law we  
inherited, a crime requires intent. This protection is disappearing in  
the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress  
has delegated to various administrative agencies the task of writing  
the regulations," even as "Congress has demonstrated a growing  
dysfunction in crafting legislation that can in fact be understood."  
Prosecutors identify defendants to go after instead of finding a law  
that was broken and figuring out who did it. Expect more such  
prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on  
technology. An "anti-cyberbullying" proposal is making its way through  
Congress, prompted by the tragic case of a 13-year-old girl driven to  
suicide by the mother of a neighbor posing as a teenage boy and  
posting abusive messages on MySpace. The law would prohibit using the  
Internet to "coerce, intimidate, harass, or cause substantial  
emotional distress to a person." Imagine a law that tried to apply  
this control of speech to letters, editorials or lobbying.

Mr. Silverglate, who will testify against the bill later this week,  
tells me he figures that "being emotionally distressed is just part of  
living in a free society." New technologies like the Web, he  
concludes, "scare legislators because they don't understand them and  
want to control them, even as they become a normal part of life."

In a complex world of new technologies, there is more need than ever  
for clear rules of the road. Americans should expect that a crime  
requires bad intent and also that Congress and prosecutors will try to  
create clarity, not uncertainty. Our legal system has a lot of  
catching up to do to work smoothly with the rest of our lives.