Sunday, October 18, 2009
Three Felonies a Day
"Sometimes even criminal laws are left vague, to be defined 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. ... 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. ... 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. Prsoecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impremissibly 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 [Bradford] Councilman not guity. ... 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. ... Under the English common law we inherited, a crime requires intent. ... Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it", my emphasis, L. Gordon Crovitz, at the WSJ, 28 September 2009, link: http://online.wsj.com/article/SB10001424052748704471504574438900830760842.html.
Another problem the DOJ has is Vincent Broderick Syndrome, favoring summary arrests, not investigations, my 28 November 2007 post: http://skepticaltexascpa.blogspot.com/2007/11/law-is-ass-6.html. Silverglate is too kind, mindless, unscrupulous DOJ clowns seek easy prosecutions. I think the ISP case was brought in bad faith. Imagine, we want judges to apply Daubert. The DOJ operates like Laverntiy Beria's NKVD. A Federal Bureau of Prisons (BOP) 2007 report showed the BOP had 200,000 persons in custody, 53.5% of whom were in prison for drug offenses. Only 10.6% were in for immigration offenses and 0.5% for "banking, insurance, counterfeit, embezzlement". In reading the BOP's list, only 11.9% of those in BOP custody were convicted of exclusively federal crimes. Most AUSAs are innumerate. Try having one understand a complex securities fraud case. Good luck. Federal prosections rarely follow the CSI model, i.e., we have a corpse, now "whodunit"?