Are All Computer Crimes Now Federal Computer Crimes? A Review of Recent Legislative Changes:
One of the remarkable developments in federal computer crime law in the last few years is Congress's elimination of the federal jurisdictional hooks that Congress has traditionally required for crimes to be a matter of federal rather than merely state or local concern. These important changes have gone almost entirely unnoticed, but I was really struck by them in the course of putting together the 2nd edition of my computer crime law casebook. I think readers interested in federalism, as well as readers interested in criminal law generally, might want to know the details.
First, some background. As recently as 2007, federal computer crime prosecutions generally required a showing of an interstate communication involved in the crime, or at least use of a computer used in interstate communications. The exact meaning of the statutory jurisdictional requirements were often somewhat unclear, but the idea was conceptually very important: Not all computer crimes are automatically federal computer crimes. If a computer crime is purely an intrastate matter, it's not a federal question. Some hook to interstate commerce, no matter how small, must be shown.
In the context of the federal child pornography laws, the statutory hook was usually that the images of child pornography were distributed or had at some point been distributed "in interstate or foreign commerce." That means that for the feds to get involved, the images had to have actually crossed state lines. In the context of the federal unauthorized access law, Section 1030, the requirement was that the computer be "used in interstate commerce," and in some cases that the information obtained by the unauthorized access cross state lines. The requirement that the computer be "used in interstate commerce" was never exactly clear -- used how and when? -- but the basic idea was that the computer had to be a networked computer or some computer that could have some connection to data crossing state lines.
Enter Congress, acting, as always, in its infinite wisdom. In the last two years, Congress has essentially eliminated the jurisdictional hurdles in these important computer crime statutes. It has done so by adding language to both the child pornography and unauthorized access laws that expand the scope of the statute to computers and data merely "affecting" interstate commerce, not actually "in" interstate commerce. In 2007, the Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358, replaced the jurisdictional requirement “in interstate or foreign commerce” with the new requirement “using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce.” In 2008, Section 207 of the Former Vice President Protection Act, Pub.L. 110-326, expanded the definition of protected computer regulated by the statute to a computer that is "used in or affecting interstate or foreign commerce or communication" (new language in italics), and removed the requirement that information obtained had to be information that crossed state lines.
The switch from prohibiting conduct "in interstate commerce" to regulating conduct "affecting interstate commerce" is easy to overlook, but it turns out to be a critical change. When Congress uses the phrase “affecting interstate commerce,” that is generally understood to express Congress’s intent to regulate as far as the Commerce Clause will allow. See Russell v. United States, 471 U.S. 858, 849 (1985) (noting that prohibition regulating conduct “affecting interstate or foreign commerce” expresses “an intent by Congress to exercise its full power under the Commerce Clause”); Scarborough v. United States, 431 U.S. 563, 571 (1977) (“Congress is aware of the distinction between legislation limited to activities ‘in commerce’ and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce.”). When Congress uses the jurisdictional hook of “affecting interstate commerce,” or its close cousin “affecting interstate or foreign commerce,” then the scope of the jurisdictional hook is generally understood to be defined by Commerce Clause jurisprudence.
But here's the rub. Under Gonzales v. Raich, 545 U.S. 1 (2005), it seems awfully difficult to find any computer or any type of data that is actually beyond the scope of the federal commerce power. If you can aggregate the effect of all computers and all data, you're going to identify a rational basis for identifying a substantial effect on interstate commerce. Maybe I'm just too much of a Commerce Clause pessimist -- and if so, please let me know in the comment thread -- but it seems to me that under Raich, if it's a computer, it's going to be a computer that Congress can regulate. See, e.g., United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005).
The end result: In the last two years, Congress has essentially gutted the idea of computer crimes that are beyond the reach of the federal government. If a computer is involved -- any computer -- it's very likely to be a federal issue. The federal government can always decline to prosecute a case, and it can consider the fact that it's just a local crime in the course of making that call. But that's a matter of discretion, not law. For those of us who care about federalism, it's a very sad state of affairs.
An interesting question is, how did this happen without anyone noticing? I'm not entirely sure, but here are two possibilities. First, the press isn't too likely to pick up on a subtle change like this. In a bill, the language is easy to overlook: it will be something like, "insert 'or affecting' after the term 'used in'." You would need to be pretty sharp to see the issue. Second, there are no natural constituents to object to Congress gutting federalism provisions in criminal law. These sorts of changes are generally framed as efforts to help the feds catch the bad guys by getting rid of annoying technicalities. Framed in that way, the legislation is likely to have broad popular support.
Finally, I'm more than a little annoyed with myself for not seeing this earlier, while the legislation was pending, and when there was at least a chance (albeit extremely remote) that blogospheric objections could make a difference. I didn't really sit down to look at these changes until I was putting together the jurisdictional chapter of the 2nd edition of my casebook in the past few weeks. When I looked closely at the new legislation, I was very surprised by the textually subtle but (to my mind) far-reaching changes. I'll try to watch these issues more closely in the future, but that's easier said than done.
First, some background. As recently as 2007, federal computer crime prosecutions generally required a showing of an interstate communication involved in the crime, or at least use of a computer used in interstate communications. The exact meaning of the statutory jurisdictional requirements were often somewhat unclear, but the idea was conceptually very important: Not all computer crimes are automatically federal computer crimes. If a computer crime is purely an intrastate matter, it's not a federal question. Some hook to interstate commerce, no matter how small, must be shown.
In the context of the federal child pornography laws, the statutory hook was usually that the images of child pornography were distributed or had at some point been distributed "in interstate or foreign commerce." That means that for the feds to get involved, the images had to have actually crossed state lines. In the context of the federal unauthorized access law, Section 1030, the requirement was that the computer be "used in interstate commerce," and in some cases that the information obtained by the unauthorized access cross state lines. The requirement that the computer be "used in interstate commerce" was never exactly clear -- used how and when? -- but the basic idea was that the computer had to be a networked computer or some computer that could have some connection to data crossing state lines.
Enter Congress, acting, as always, in its infinite wisdom. In the last two years, Congress has essentially eliminated the jurisdictional hurdles in these important computer crime statutes. It has done so by adding language to both the child pornography and unauthorized access laws that expand the scope of the statute to computers and data merely "affecting" interstate commerce, not actually "in" interstate commerce. In 2007, the Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358, replaced the jurisdictional requirement “in interstate or foreign commerce” with the new requirement “using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce.” In 2008, Section 207 of the Former Vice President Protection Act, Pub.L. 110-326, expanded the definition of protected computer regulated by the statute to a computer that is "used in or affecting interstate or foreign commerce or communication" (new language in italics), and removed the requirement that information obtained had to be information that crossed state lines.
The switch from prohibiting conduct "in interstate commerce" to regulating conduct "affecting interstate commerce" is easy to overlook, but it turns out to be a critical change. When Congress uses the phrase “affecting interstate commerce,” that is generally understood to express Congress’s intent to regulate as far as the Commerce Clause will allow. See Russell v. United States, 471 U.S. 858, 849 (1985) (noting that prohibition regulating conduct “affecting interstate or foreign commerce” expresses “an intent by Congress to exercise its full power under the Commerce Clause”); Scarborough v. United States, 431 U.S. 563, 571 (1977) (“Congress is aware of the distinction between legislation limited to activities ‘in commerce’ and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce.”). When Congress uses the jurisdictional hook of “affecting interstate commerce,” or its close cousin “affecting interstate or foreign commerce,” then the scope of the jurisdictional hook is generally understood to be defined by Commerce Clause jurisprudence.
But here's the rub. Under Gonzales v. Raich, 545 U.S. 1 (2005), it seems awfully difficult to find any computer or any type of data that is actually beyond the scope of the federal commerce power. If you can aggregate the effect of all computers and all data, you're going to identify a rational basis for identifying a substantial effect on interstate commerce. Maybe I'm just too much of a Commerce Clause pessimist -- and if so, please let me know in the comment thread -- but it seems to me that under Raich, if it's a computer, it's going to be a computer that Congress can regulate. See, e.g., United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005).
The end result: In the last two years, Congress has essentially gutted the idea of computer crimes that are beyond the reach of the federal government. If a computer is involved -- any computer -- it's very likely to be a federal issue. The federal government can always decline to prosecute a case, and it can consider the fact that it's just a local crime in the course of making that call. But that's a matter of discretion, not law. For those of us who care about federalism, it's a very sad state of affairs.
An interesting question is, how did this happen without anyone noticing? I'm not entirely sure, but here are two possibilities. First, the press isn't too likely to pick up on a subtle change like this. In a bill, the language is easy to overlook: it will be something like, "insert 'or affecting' after the term 'used in'." You would need to be pretty sharp to see the issue. Second, there are no natural constituents to object to Congress gutting federalism provisions in criminal law. These sorts of changes are generally framed as efforts to help the feds catch the bad guys by getting rid of annoying technicalities. Framed in that way, the legislation is likely to have broad popular support.
Finally, I'm more than a little annoyed with myself for not seeing this earlier, while the legislation was pending, and when there was at least a chance (albeit extremely remote) that blogospheric objections could make a difference. I didn't really sit down to look at these changes until I was putting together the jurisdictional chapter of the 2nd edition of my casebook in the past few weeks. When I looked closely at the new legislation, I was very surprised by the textually subtle but (to my mind) far-reaching changes. I'll try to watch these issues more closely in the future, but that's easier said than done.
I believe you cited the wrong case- rather than Gonzales v. Raich, shouldn't that have been National Labor Relations Board v. Jones &Laughlin Steel Corporation? There hasn't been any real limitation on the commerce power since the New Deal.
http://en.wikipedia.org/wiki/United_States_v._Lopez
It seems to me that you might as well say, "if it's an 'x', it's going to be an 'x' that Congress can regulate." If growing and consuming your own product -- that not only never crosses state lines, but is also never even bought, sold, or given away -- if that can be claimed to 'affect' interstate commerce, what could not? At this point, I don't see that the commerce clause constrains the federal government in any meaningful way. The bit of verbiage tacked on about "affecting interstate commerce" seems at this point just a empty, vestigial formality.
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There have been federal prosecutions of bomb threats made from one phone to another -IN THE SAME BUILDING- where the telephones could and did obtain outside dialtone.
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When I was a kid, the joke was "don't make a federal case out of it." The new joke will be "Hey, don't make a local case out of it!"
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ROTFL. I haven't checked EFF or others, but I bet a substantial number of people (> 10,000) noticed. I think your more interesting question came later. So what if anybody notices and objects?
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No law is enforced against every actor, so the notion that such a law would be impossible to enforce is false. Popularity is no bar to enactment, the only consequence is some of the legislators are vote out of office, but as a practical matter, the public re-elects them regardless of the unpopularity of any individual Congressional enactment.
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The 1st amendment argument has some play. I would not be so quick to assume that hate speech laws are "clearly unconstitutional." There is some line drawing to be done there.
And unlike the Second Amendment we were discussing on the other thread, modern jurisprudence interprets First Amendment guarantees fairly broadly. Since the internet doesn't use public airwaves, the case for FCC-like speech regulation is pretty weak. And in light of Yates v United States, Brandenburg v. Ohio, and the ACLU Skokie case, I can't see how prohibiting hate speech would be constitutional. (Ok, technically that last one involved prior restraint, but I think we can reasonably expect the courts to stick to the basic philosophy)
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Another way to break down the issue is as between the public and the politicians, rather than as between political factions. If one were to compose hate speech directed against a politician, one might obtain a visit from the Secret Service. Strongly worded objection to an individual legislator is one form of unprotected hate speech.
http://en.wikipedia.org/wiki/United_States_v._Lopez
Four justices of the Supreme Court wanted to hold that the commerce power extended even that far. If the only thing holding back the government is the cohesiveness of the Rehnquist federalist majority on any given day, I don't consider that a "real limitation": witness Raich.
(To be fair, even random happenstance is a "real" limitation albeit far from a reliable one, and reliability is what we're looking for here.)
Even that analysis is too optimistic in its expectation of the press. Legislative reporters focus mostly on politics, not policy. Reporters are not lawyers, and typically they do not read legislative language at all. Rather, they rely on paraphrased explanations from interested parties in Congress (mostly staff), the administration or outside interest groups to understand what a bill would do. And that is easily spun.
As a result, very often even top-rank news organizations get the legislative facts all wrong.
For that matter, I doubt that most members of Congress study the language of legislation they are voting on.
The most reliable documentary explanation of legislative language is typically found in committee reports, which are not always fully informative and often not available publicly during the heat of congressional debate. It would be interesting to see if the significant expansion of scope that Orin describes was noted in such reports.
I hope you are still following this site for the next couple years so I can at least have the satisfaction of saying "I told you so", FWIW.
If you go back and look at the posts here for the last month or so, you will find a couple at least that deal with legislation already proposed that attempts to control/criminalize content on the internet.
Add that to:
- the FCC's Orwellian "Diversity Committee" packed with every leftwing group in existence, and local "advisory" boards dominated by "community organizers" designed to be a backdoor approach to reinstalling the also-Orwellian "Fairness Doctrine" on Talk Radio without calling it that
- the growth of state level "human rights" commissions modelled after the kangaroo versions of the Canadian system which is heavily involved in regulating politically incorrect speech on the internet
- the "speech codes" that are already in place on nearly every university in the country
I find these trends to be very troubling. I understand that some others do not, because there is little control exercised over their hate speech by the above.
First, the overwhelming majority of computer crimes are "in" interstate commerce, and that proportion will only increase going forward.
Second, federal criminal law already has a broad reach over other types of crimes. For example, narcotics and fraud. Your post could just as easily be entitled -- Are All Narcotics Crimes Now Federal Narcotics Crimes? -- and the answer was just as easily be yes. Mail/wire fraud has almost as expansive of a reach ... it's hard to imagine a fraudulent scheme that doesn't use some form of wire communication or the mail.
Your distinction may be interesting from an academic perspective, but in the real world it's not as big of a deal as your post makes it seem.
You're on, Cboldt. Here are 4 quick google searches for you:
"former vice president protection" site:eff.org yields 0 results.
"effective child pornography" site:eff.org yields 0 results
"effective child pornography" site:cdt.org yields 2 results, neither substantive (both just listing the fact that there is a pending bill by that name.
"former vice president protection" site:cdt.org yields 0 results
And keep in mind, these are references to the Acts as a whole, not specifically to the parts of the acts that gut the federalism provisions.
The biggest impact is probably in the CFAA context. Almost every electronic device has a chip in it, which means that almost every electronic device is a protected computer. Given the extremely broad interpretations of the CFAA, the gutting of the federalism provisions are hugely important. For example, looking at someone's digital watch when the owner asks not to could now be a federal crime -- an unauthorized access into a protected computer. All laptops, thumb drives, etc. are now covered whether they are connected to the net or not.
What Congress has done is gut those protections that "protect people."
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See US v Gary Sigmund Corum (8th Cir., 2004) (It is well-established that telephones, even when used intrastate, are instrumentalities of interstate commerce.); US v. RJS, (8th Cir, 2004) (extends Corum to the case where both phones are in the same building)
Sadly our judges are sick, pathological. If we take just one metric, the number of people incarerated in this country, compared to the rest of the world, we are many times over the global average. If Americans were to correct for even just this single outrage, (say a Constitutional Amendment to scrub the courts this one time), we would make a quantum leap towards the salvation of Humanity in this land.
With our present courts, Americans cannot give informed consent, i.e., are not allowed to challenge the national security apparatus that sucks up the entire data stream and data mines it for inside information for its possessors to use to their advantage both financially and politically, toward their perpetual increase of money, power and control.
According to the best thinkers at the Department of Defense, technology won't just double or triple in the next few decades. Following Moore's Law, technology will multi-fold by a billion times in the next 21 years.
According to The Register, DARPA is even now working towards having the machines figure out for themselves, what they will have by way of their own weapons systems design even as they they are being designed.
The child pornography laws are plain and simply wrong. They are a "cure" far worse than the "disease". They serve to kill the Arts and Humanities. They serve to enslave us and they violate the Constitution. They were meant to help abet the moral panic to keep us in check and control by the International Bankers long enough until the Grid is more fully in place so that those same eugenicists can eventually cull the population. It is a travesty that all that Art has been lost and/or never made because of those wicked laws and their dehumanizing and chilling effects. (If I were to give just one exmple, it would be the self-censored limited but otherwise wonderful display of the $multi-million legs on Dakota Fanning in the movie Push.
The laws against file-sharing that put penalties at a quarter million dollars and 5-years imprisonment per infraction are bought and paid for by a Fascist system and very emblematic of how our copyright laws were extended far beyond reason that our Founding Fathers gave. That system is broken and designed to enslave us and dumb us down, because those in power suck up EVERYTHING, and there is no other way at the moment, for the People to equalize for that.
Perhaps Sweden can ultimately save the world with their "Pirate Party", that our own US Government has been trying so hard to subvert and suppress.
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Thanks for those. I did a different one ("or affecting interstate" "hr 4120") ... and came up with these pieces of Congressional Record:
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House: Nov 13, 2007
House: Sep 25, 2008
Granted, the Congressional Record is not common reading, nor is it common for people to follow proceedings on C-SPAN or C-SPAN2. But some people do, and my guess is the number is in the thousands.
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Of course, I am a single data point, but I can tell you that I personally become aware of many PUBLIC activities in the area of legislation, court cases, etc. that fly under the radar of the public; and only occasionally do I make an effort to try to bring it to anybody else's attention.
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If you took my statement that thousands noticed to mean that thousands voiced objection, then you are right. My point was that thousands noticed the change, and perhaps didn't understand or care enough to comment.
Surely you're being at least a little facetious, a claim like that would be laughed out of court. And the statute you cite later only weakens your point:
...but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device;
emphasis mine
I don't think It's too crazy to conclude that a digital watch is similar to a hand held calculator, at least insofar as it's too "primitive" to be a computer, and possesses even less computing power. Unless, of course, the watch has a calculator function, then clearly the two combined would be enough to tip the scales and make it a federal crime.
I've asked a bunch of computer crime law experts if they were familiar with the legislation: they weren't. I don't think it's inaccurate to say that this was not widely known. As for your guess that more than ten thousand people read those statements in the Congresional Record, I wouldn't be able to comment: I don't know how many people read every page of the congressional record.
As to those cases you cite, I appreciate the cites. I was incorrectly assuming you were referring to the 875(c) cases, which would be the way to charge those cases if they involved computers. 875(c) has the interstate requirement. Of course, in the telephone setting, you need to use the network; in the computer setting, there no longer need be any network involved. Indeed, the old version of protected computer was a good match for the telephone cases you cite: the computer needed to be used in interstate commerce, even if the communication wasn't in interstate commerce. Now the computer never needs to be in interstate commerce at all: Tinkering with disk drive bolted to the ground is covered, as well.
Guy,
I admire your sense of confidence, but in recent years my sense of what would be "laughed out of court" in the context of a 18 USC 1030 case has become very different from what I would have said 5 or 10 years ago.
What "substantial" and "intentonal" requirements do you have in mind?
To pick an example, imagine you are a guest in my house, and when I'm not looking, you take a DVD of mine, put it in my DVD player, and watch it, when I didn't want you to watch it. That DVD is a protected computer under the statute; viewing it when I didn't want you to could now be a federal crime.
This reminds me of one time on C-SPAN someone (I'm fuzzy on the details, it was a while ago) asked a proponent of the federal partial birth abortion ban what the Constitutional source was for the law. The proponent was clearly taken aback, as this was a question rarely asked anymore. After regaining their composure, they thought for an answer and stammered "the Commerce Clause". Because, of course, when asked for the constitutional source of any law passed by Congress these days, the correct answer is always "the Commerce Clause". Like I said earlier in this thread, it's become something of a monster.
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I agree. Beyond the appearance in the Congressional Record, somebody was sufficiently incensed by United States v. Schaefer (10th Cir, 2007), to lobby for the change in the law. The entire point of HR 4120 seems to be to focused on adding the "or affecting" phrase.
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Pedophiles, Politics, and the Balance of Power (University of Denver, I don't know if this was published or not)
The pattern of adding "or affecting" to federal statutes was established some time ago. See Lopez and how Congress got around that decision. Same game, new venue.
Sometimes it is best to attack the totalitarians on the flank, instead of head on, such as by not forgetting that many of them are still unindicted war criminals, with hanging currently the penalty in many jurisdictions.
Other ways include supporting candidates outside traditional venues that do not appear to be beholden to the NWO, such as this young lady.
How broad can the definition of a computer really be?
IANAL, but the CFAA ( 1030 ) restricts computers to be "high speed data processing device"... "and includes any data storage facility or communications facility directly related to [such device]"
So presumably this is restricted to electronics ( ignoring any definition of biologicals as high speed data processing devices ), but would the physical space of a data center count as a related facility?
Even more scary is the definition used in the ITU model cybercrime tookkit:
(b) Computer
Computer means an electronic, magnetic, optical, electrochemical, or other data processing or communications device, or grouping or such devices, capable of performing logical, arithmetic, routing, or storage functions and which includes any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device(s), but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.
ITU Cybercrime Toolkit )
The "other data processing or communications device" sounds like it could be so broad as to include two cans and a piece of string or an abacus.
The definition of access is also remarkably over broad - it includes viewing a protected computer. Until the Lori Drew case, I wouldn't be so worried about these being interpreted broadly, but now I don't know.
Per United states v. Mitra, it would seem that the courts have no problem including everything under the sun in the definition of a computer. Aside from running into violations of constitutional law, is there anything to stop this from happening?
Exactly.
Orin, you are thinking about this issue harder than the people who wrote the statute were. It shouldn't be difficult to see why this sort of intellectual sloppiness would get missed in a bill intended to deal with child pornography -- which seems to imply some sort of communication of the material at some point. It's just a case of not being sufficiently attentive -- this may be problematic but that doesn't mean it would hold up in court if the issue you're articulating was actually presented.
Is there any caselaw that you're specifically concerned about or a decision that you think came down the wrong way? Raich seems pretty remote, and the holding in Jeronimo-Bautista is too politically-charged for me to worry much about it. Courts are generally pretty permissive about child-pornography prosecutions in ways they might not be in other cases, for obvious reasons.
This is your specialty, Orin, but is the computer-use issue really the lynchpin here? The market rationale alone seems sufficient for the court to justify its decisions, for better or for worse.
That same brand of propaganda was paid for by the DoJ and broadcast hours on end, day after day in my community, conditioning those within the broadcast's range, that those in possession of CP had no rights. "Obvious", to some, not so obvious to others.
The story of this country is a repeat history of one minority after another being denied its rights. The First Amendment is absolutely clear, "Congress may make no law", prohibiting like that.
One of the more compelling questions these days, is about the stories of Stanley Milgram's "secret" work, and what we don't yet know, about such blind obedience to "authority". Such lockstep gave rise to the likes of the Nazis' Nurenberg Defense.
Wilhelm Reich was persecuted to death by the US Government for his revolutionary ideas in the field of pychology:
The list is long of similar cases of such people the US Government has destroyed.
Since you seem to think the three-fifths clause was absurd, I take it you think the South should have been able to count all its slaves at 100% for purposes of congressional apportionment? Or maybe you think it was outrageous for the Radical Republicans to provide, in the 14th Amendment, that disenfranchised freedmen should be counted as 0/5 of a man?
(It annoys the piss out of me when people cite the three-fifths clause without any recognition that it was an effort to *restrict* the power of slaveholders to dominate the federal government.)
Suppose the USCode were in a wiki, so that so that Prof. Kerr and others could have that section in their "watchlist"? Or instead of amending by inserting words, lawyers were taught to draft legislation by repeating the whole section with the changes made and "before" and "after" was available on line, with links to the discussion on the floor of the intent. (After all, word processors have been able to do that for years.) Or suppose Thomas.gov were redone so the contents are accessible to Google, so Prof. Kerr could set up a Google Alert for this section? Or suppose there were links between the legislation and the implementing regulations? Or suppose--I'll shut my mouth now.
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