Three Felonies a Day
Attorney Harvey Silverglate has a new book entitled Three Felonies a Day: How the Feds Target the Innocent. In it he explains how advances in technology have created a matrix of vague laws with Draconian penalties and how these laws make us all criminals. Later this week, Silvergate will testify before Congress about how our current system of Internet regulation has gotten so terribly out of hand.
Hard Cases Make Bad Law
Take for instance the anticyberbullying legislation currently being proposed before Congress. Ostensibly, this bill is to protect young people against anonymous attacks. The actual bill however, makes no mention of age or anonymity. If enacted, the law would make it illegal to for anyone to coerce anyone “using electronic means to support severe, repeated, and hostile behavior[.]” This includes the use of phones and the Internet, as well as other types of electronic communication we have not even thought of yet. Violation of this law will net you a fine and/or two years in federal prison. If this ever gets enacted, I know a lot of lawyers that may need to go looking for a different line of work.
Criminalizing the Possession of Fire
Cyberbulling is terrible. So are online predators, Nigerian scams, spam emails and identity thefts. To many lawmakers, defining the difference between these crimes and acceptable online activities is beyond their lawmaking prowess. Granted, drafting legislation which carves out these activities as crimes, without punishing people exercising their Constitutionally protected civil liberties can be difficult, but that is the job you pay your lawmaker to do. If Congress cannot come up with a law that avoids persecuting the innocent, it must go back to the drawing board. Unfortunately, rather doing enough research to draft online laws more carefully, Congress drafts overly broad legislation, making many legal activities crimes and leaving it to the courts to separate the good guys from the bad guys. This is not how our criminal justice system is supposed to work. Making ten innocent people criminals just to catch one actual bad actor is not acceptable.
When They Come For You
One of the principal tenets of our criminal justice system is that serious crimes require an intent element. As we move into the world of online enforcement, this intent requirement has steadily disappeared. According to Silverglate, as a result of vague laws, the average American unknowingly commits three felonies every day. The harsh penalties associated with these vague, confusing and over-broad laws has created a perverse climate for criminal prosecutions. Rather than having to find a crime and track down a perpetrator, federal prosecutors can now simply pick out an individual and then track down a crime. Even if you successfully prove your innocence, a federal trial can take six years or more and cost you hundreds of thousands of dollars. While this may seem far fetched, in his book, Silverglate details the prosecution of honest, innocent business people, for things which were helping others. But don’t take my word for it, investigate things for yourself. Let your Congressional representatives know how you feel about being made a criminal. Just be sure to wrap up your research before you hear that knock at your door.