• Wire Fraud
Hypothetical: You decide, as a prank, to create a fake username on the popular social-networking site, Facebook. Your digital identity is that of a famous athlete. You tell your friends they are inferior to your other-wordly skills. You have just committed an arguable federal felony. Federal Wire Fraud provisions have proven so elastic that this seemingly innocuous conduct could be defined as a federal crime.
Real-life example: The so-called “Myspace suicide” made headlines in 2009, when Missouri mother Lori Drew allegedly impersonated a teenage boy to taunt her neighbor, a young woman. After the young woman’s suicide, the case became a cause célèbre for those looking to criminalize “cyber bullying”—a decidedly modern phenomenon by which Internet users taunt and annoy, perhaps belittle, others. In the federal prosecution of Ms. Drew, prosecutors charged that she violated the Myspace terms of use, and thus had violated the aforementioned Computer Fraud and Abuse Act. Though the judge dismissed this charge this time, he did so only after a jury conviction, and there’s little reason to think a similar case could be brought on the equally elastic federal wire fraud provisions. And, even if that fails, Congress is currently considering a federal law that would specifically outlaw “cyber bullying,” or the transmission of “any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means.” As Harvey Silverglate pointed out when he testified against the bill in September 2009, the vaguely-worded law, if passed, would threaten the expression of almost every blogger, journalist, and publisher who uses the internet.
• False Statements to a Federal Official
Hypothetical: You and your family are spending the day in a national park. After a few miles of hiking, you decide it’s time for a lunch break. You eat, finish, and throw away your trash. Your son, however, isn’t so careful – he leaves behind a few leftover items from his meal. As you leave your picnic area, a park ranger asks if you or your family has left trash in the area. You tell him that you’ve cleaned up after yourself. You have just committed an arguable federal felony: False Statements to a Federal Official. Any false statement made to a government official – even when it is made in conversation and not under oath nor in writing – can leave a citizen vulnerable to a “false statement” charge.
Real-life example: Consider the case of Emadeddin Muntasser, a Massachusetts man (and one-time client of Harvey Silverglate) whom the feds suspected of having terrorist ties. When a federal judge tossed out charges claiming that Muntasser’s charity organization was linked to terrorist activity, the government was left with only a “false statements” charge. This was based on a single FBI interview in which Muntasser supposedly lied about his travel activity. A close examination of the transcript revealed that, when he voluntarily agreed to be questioned by two FBI agents, he had initially denied travelling to Afghanistan, but then immediately “requested to consult with an attorney” and asked interrogators to “not pursue the issue of travel to Afghanistan.” To any reasonable person, this would signify that Muntasser was not purposefully trying to deceive interrogators, but rather had doubts about his original answer and felt he needed advice from legal counsel. Nonetheless, he was convicted on this single count of “false statements,” which he has appealed. The text of the statute makes a false statement to any federal official—whether it is a park ranger or FBI interrogator—a federal crime. And the definition of “false” is often very strained and contrary to common sense, as in the Muntasser case.
• Federal Wilderness Act
Hypothetical: You are an avid outdoorsman, and you’ve decided that your next thrill-ride is a snowmobiling trip in Colorado. You set out on a sunny day, but you soon find foreboding clouds above. Before you can turn back, a blizzard has set in. Lost from your original path, and with your snowmobile out of gas, you abandon it and walk to seek rescue. Luckily, a park ranger eventually finds you. After authorities retrieve your vehicle, however, you come to find that you have arguably committed a federal felony. When you strayed from your path, you ended up snowmobiling in federally-protected wilderness area, thus violating the Federal Wilderness Act.
Real-life example: Well-known automobile racer Bobby Unser found himself in this position in 1997. He spent two nights in blizzard conditions; when he was finally rescued by Forest Service rangers, they charged him with a provision of the Wildness Act that prevented motor vehicles in protected areas. His presumed accident—he claimed he never meant to end up on that territory—did not spare him from the subsequent charges.
