Three Felonies a Day

by Harvey Silverglate

  Judge Ellis was not cavalier in ruling as he did. He was clearly disturbed. “In the end, it must be said that this is a hard case,” he admitted at the conclusion of his 68-page opinion. But, of course, it is a harder case for the two defendants who were indicted under a radical expansion of the Espionage Act and ordered to stand trial, facing decades in prison for doing what many lobbyists and private policy analysts in the nation’s capital consider to be their jobs. When the Court of Appeals added to the DOJ’s burden of demonstrating unlawful intent, however, the new administration gave up the ghost and sought dismissal of this beleaguered indictment.68

  Meanwhile, Congress, which has the authority to rewrite the espionage statute to clarify its boundaries and terms, has remained silent. The Department of Justice remains the primary arbiter of how far the statute should be expanded, and the judiciary seems loath, in an “age of terror,” to second-guess or otherwise interfere.

  The lesson of all of these cases, and countless others like them, is clear enough, even if the statutes are not. The Department of Justice has the tools to charge a wide range of members of civil society with serious national security-related violations, even when those alleged violations do not, by any reasonable stretch of the imagination, truly pose a danger to the nation’s security. More striking, however, is the fact that these statutory and regulatory tools do not tell the average citizen quite what it is that they need to avoid doing in order to stand clear of the government’s snare.

  CONCLUSION

  For Whom the Bell Tolls

  Creativity and inventiveness are honored and valued in many areas of life. Crafting innovative legal theories to ground criminal prosecutions should not be one of them. Congress should muster the political will to create whatever cutting-edge criminal statutes it deems essential that reflect contemporary conditions and needs. But it is unacceptable, meanwhile, to tease prosecutions out of statutes that do not clearly proscribe the conduct involved. New wine should be put into new, not old, bottles. Liberty and fairness are at stake.

  In a special section on white collar crime published in The National Law Journal in July 2005, co-authors and attorneys Stephen G. Sozio and Earnest B. Gregory noted an “emerging trend.”1 Federal prosecutors were suddenly bringing criminal cases “against corporations and their managers in connection with work-place injuries and deaths.” Having previously reserved criminal liability “for conduct showing the most flagrant disregard for worker safety,” the feds were now prosecuting a broader array of conduct. The same trend has been seen in state enforcement of workplace safety, the authors noted, but only because state legislatures have amended old laws or passed new ones that redefine criminal behavior in the workplace. In contrast, federal prosecutors were seeking “to marshal a spectrum of existing laws that carry considerably stiffer penalties than those governing workplace safety alone,” wrote Sozio and Gregory, citing a New York Times report.2

  In other words, the statutes enacted by the Congress to deal with workplace safety issues were not sufficiently all-encompassing and onerous for the taste of federal prosecutors. So they have proceeded to do precisely what former Attorney General Robert Jackson, in 1940, warned his U.S. attorneys against: “pick people that he thinks he should get” and “then [search] the law books…to pin some offense on him.”

  It is not that Congress is unable to enact legislation tightening the criminal law governing workplace safety to carry a heavier penalty. A Wrongful Death Accountability Act, doing just that, was brought before Congress in 2003 and again in 2005, but it was going nowhere.3 The Justice Department, in the meantime, did not feel the need to await passage of new legislation. Federal prosecutors simply combed the federal criminal code for an existing vehicle sufficiently vague (and severe) to arguably cover the targeted offense. And this, of course, lowered Congress’s incentive to get its legislative act together.

  It is tempting to see such prosecutorial zeal as heroic in its effort to compensate for weaknesses or paralysis in the legislative branch. But it also enhances the power of the executive branch in ways too few Americans, who over the past 30 years have been preoccupied with other forms of executive overreaching, fully grasp. This particular form of empowerment of the executive would have alarmed the nation’s founders, to whom the power to indict, convict and punish was rightly seen as a potential engine of oppression.

  Law under our chosen system performs its highest purpose when it limits government power, since history and experience show that governments tend to overuse their perceived authority. The King of England obtained his powers through divine anointment, aided by the accident of lineal succession. It was a crucial turn in the history of civilization and the rule of law when the English barons imposed the Magna Carta on King John in 1215, thereby circumscribing executive power and endowing the people with fledgling civil liberties. When it came time for the Americans to draw up their own constitutional charter, they too stressed the limitations on federal authority.

  The assertion of federal criminal jurisdiction over a wide variety of matters, including those thought to be quintessentially local, has provoked something of a backlash among those who describe themselves as “federalists.” However, federalists, who are primarily concerned with empowering states and regions while reducing the federal government’s role, attend to those areas where federal jurisdiction is often clear (even if onerous) and where federal mandates are set forth in language all-too-readily understood by those subject to regulation. For their part, “libertarians” concern themselves primarily with the breadth and depth of both state and federal control over too many aspects of life. What has received little attention, however, are those areas where the Justice Department has asserted, on the basis of the vaguest provisions of federal law, the authority to severely punish conduct either not intuitively malignant or that state authorities should pursue, if at all, via civil or administrative proceedings.

  Our Constitution includes a substantial number of procedural rights that guarantee a fair trial: representation by legal counsel, trial by jury, trial before an independent judiciary, and the right of a defendant not to self-incriminate. But all the procedural rights in the world are for naught if the defendant is unable to understand what it is for which he or she stands indicted.

  The more subtle theme of this book, which deserves greater stress here, is that over the years the federal judiciary has acted too often as a handmaiden to federal prosecutors in their misguided efforts to nail their targets with vague, outmoded statutes badly in need of clarification or revision. Perhaps no other case better illustrates the point than that of Bradford C. Councilman, who was tried before the U.S. District Court for Massachusetts on wiretap charges. This was the same court that heard the Anzalone cash transaction reporting case in 1984, and saw through the feds’ strategy to prosecute conduct that Congress had not yet outlawed. After a long, expensive battle, Anzalone was finally exonerated, thanks to the federal appellate bench that then sat in Boston. Nearly twenty years later, Councilman found himself in the maw of a changed court (and a changed judicial culture) and wasn’t so fortunate.

  Councilman was vice-president of Interloc, Inc., a company based in Greenfield, Massachusetts, that provided an online listing service for rare and out-of-print books. Interloc supplied a number of its bookdealer customers with electronic mail addresses (ending in @interloc. com) and acted as an Internet service provider (ISP) for those customers. 4

  Councilman was charged in 2001 with making, without his customers’ knowledge, extra copies of email messages passing on the Interloc system between book dealers and Amazon.com, the giant Internet bookstore. The government charged that Councilman had made the extra copies to learn what the dealers were doing, in terms of pricing and such, which gave him and his company an unfair commercial advantage. In other words, Councilman and his company allegedly took advantage of their role as ISP in order to secretly gain a commercial advantage in their role as book dealers. Councilman maintained that he ne
ver read the messages and that those copies that were made would have been made solely for back-up storage purposes.

  The two issues in the case were whether Councilman was indeed the person who made the copies of the emails (the factual question) and, if so, whether that conduct violated federal criminal law (the legal issue). The DOJ claimed that Councilman’s alleged actions violated the federal wiretap statute, which outlawed the unauthorized interception and disclosure of electronic communications. All parties to the case, as well as District Judge Michael Ponsor, agreed that the determinative legal question was whether the conduct, attributed by the government to Councilman, violated the Wiretap Act.

  This seemingly simple question proved anything but. The federal wiretap laws (originally written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change) contained an apparent exception. Both sides agreed that the communications had been intercepted and copied while the messages were in temporary storage on Interloc’s computer system on their way from sender to receiver, not while streaming through wires. Interloc’s computer system, in other words, was a way station where a message stopped briefly during its journey from sender to recipient. The message would be in Interloc’s system completely properly. Councilman argued that any copy made there, for whatever reason, was not the product of an unlawful interception or “wiretap.” And here was the rub.

  Councilman’s lawyer, my then-law partner Andrew Good, moved to dismiss the indictment for failure to charge an activity that amounted to a crime. Councilman’s position was that because the government agreed that the communications were in electronic storage rather than in electronic transit when the extra copies were made, no wiretap had occurred. The government argued that a violation of the Wiretap Act had occurred even though the communications were not traveling in a “wire” when intercepted.

  It was the fabled question of “how many angels can dance on the head of a pin?”—a quintessential technicality. But it was a crucial technicality, for the answer determined whether the routine making of such extra copies, by Councilman or by thousands of other ISPs, even for a perfectly benign purpose, violated a serious federal criminal statute. Yet there was another consideration that should have been taken into account: Was the correct interpretation of the statute (whatever that might be) obvious enough that Councilman could be said to have knowingly and intentionally violated the law?

  It is crucial to understand that Councilman, working for an Internet service provider, was not in the same position as an outside party seeking to tap into the line and intercept the emails involved. Such interception by a stranger would easily be deemed wiretapping; it would clearly violate the statute but also would be intuitively wrong. In contrast, Councilman argued that the law enabled him, as an ISP, to have lawful access to the emails while in electronic storage. Interloc and its employees did, after all, have lawful access to the messages in order to perform their assigned ISP task of sending the messages further along. The question was whether the interception statute was violated by Councilman’s allegedly making extra copies of the contents of messages while they were momentarily, and lawfully, in his custody. Furthermore, there would have been a perfectly reasonable purpose for making extra copies of the transmitted messages—to provide back-up in the event of a system failure. If such an action were to be declared a crime, it should be done by clear statute, not by twisting an existing law to perform a function for which it was not obviously meant. It was particularly dangerous to seek to stretch the wiretap law to cover such a ubiquitous and seemingly proper practice, where an ISP would have no clue that it was committing what the DOJ deemed a felony.

  The difficulty of the question threw the federal judicial system in Boston into almost comic paroxysms of confusion and disagreement. Judge Ponsor, an intelligent and conscientious trial judge, initially ruled in July 2002 that Councilman’s alleged conduct, at the very least, violated the spirit of the statute. He denied the motion to dismiss the indictment filed by Good and scheduled a trial.

  But then, as Judge Ponsor was preparing to conduct the trial, he learned that the U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over a number of states on the West Coast, decided a case (Konop v. Hawaiian Airlines5) involving the interpretation of the same provision of the Wiretap Act, and ruled in favor of the position advanced by Councilman’s lawyers in Boston. The Konop case involved a civil dispute between an employee and the company for which he worked. The employee claimed that the employer unlawfully gained access to his secure Website and disclosed the contents of that Website, in violation of the Wiretap Act and the Stored Communications Act. Admitting that the statutory scheme was “a confusing and uncertain area of the law” because technology had gotten so far ahead of Congress, the Ninth Circuit concluded that it did not constitute “wiretapping” for a party to access online communications after they were no longer in transit but instead had landed in storage.

  Judge Ponsor reversed himself and dismissed Councilman’s indictment in February 2003.6 The Boston federal prosecutors disagreed vehemently, even though in the Konop case the Justice Department, appearing as a non-party “friend of the court,” had informed the court that it was the government’s view that the Wiretap Act did not cover stored messages. There was some speculation, particularly among privacy advocates and civil libertarians, that in Konop the government may have narrowly read the statute in order to protect government agents from being sued for post-9/11 intrusions into stored messages, while on the East Coast it was trying to convict a private citizen under a broad reading.

  Judge Ponsor would not tolerate these double standards.7 He concluded that the DOJ and the legal system could have only one interpretation of the statute, that the Ninth Circuit opinion seemed correct, and hence there was no illegal “interception” of email in Councilman’s case.

  Unsurprisingly, the Justice Department appealed, but a three-judge appeals court panel affirmed Judge Ponsor’s decision. By a vote of 2-1, a panel of judges on the United States Court of Appeals for the First Circuit agreed with Judge Ponsor’s legal analysis. The dissenting judge, after a long and complex analysis of both the law and the technology involved, concluded, remarkably, that the statute did apply to Councilman’s conduct largely because “I find it inconceivable that Congress could have intended such a result” that would exclude such conduct from the statute’s ambit. Congressional intent, in other words, should trump what lawmakers actually say in the text of a statute, an odd notion if citizens are supposed to be able to figure out their legal obligations when their liberty is at stake. Under this tortured logic, the citizen is supposed to see into the minds of legislators, rather than to follow the statute’s words.8 The other two members of the court panel did not buy it and ruled in Councilman’s favor.

  The panel’s decision set off an uproar. Prosecutors, political figures, The New York Times, The Washington Post, industry officials, and privacy activists decried such a narrow reading of the Wiretap Act. Many filed friend-of-the-court briefs supporting the DOJ’s position, urging the First Circuit to reconsider the three-judge panel’s majority view. Vermont Senator Patrick Leahy, one of the key sponsors of the 1986 Electronic Communications Privacy Act, denounced the decision on the Senate floor. “If allowed to stand, this decision threatens to eviscerate Congress’s careful efforts to ensure that privacy is protected in the modern information age,” he charged. (Obviously, those “careful efforts” were not sufficiently careful so that ordinary people, or even extraordinary judges, could agree on what Congress meant and what the statute required.) The Electronic Privacy Information Center (EPIC), one of the nation’s premier Internet-privacy advocacy groups, warned that the First Circuit’s ruling would encourage ISPs to feel “free to monitor their customer’s email for their own competitive advantage.”

  Interestingly, the ambiguity of the statute put civil libertarians, in particular, at odds. Those who emphasiz
ed privacy protection were outraged by the panel’s decision. Those more concerned with the “due process” need for clear statutes before convicting citizens, saw it as something of a victory. And it surely created some unease that the Department of Justice took one position in the Ninth Circuit when it feared its agents being accused of invasion of a citizen’s privacy, but an opposite position in the First Circuit when the government was the accuser against the citizen.

  Under intense public and congressional pressure, the First Circuit agreed to reconsider the case en banc (that is, by the full membership of the court), and on August 11, 2005, the full court reversed the decision of the three-judge panel. The court’s en banc opinion pivoted on a question central in the criminal law: “whether Councilman had fair warning that the Act would be construed to cover his alleged conduct in a criminal case, and whether the rule of lenity or other principles require us to construe the act in his favor.” The five-judge majority of the court claimed to “find no basis to apply any of the fair warning doctrines.” Nor did they see fit to apply the “rule of lenity,” which would hold, essentially, that if there were reasonable doubt over the interpretation of a criminal statute, the defendant had to be given the benefit of that doubt.