What ever happened to mens rea?

There is an interesting new book that most criminal lawyers, and potential defendants, should read: Harvey Silverglate’s"Three Felonies a Day".

Silverglate is a Boston civil-liberties lawyer and his title refers to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

For example, a man named Bradford Councilman was charged in Massachusetts with violating Federal wiretap laws in 2001. This was because Mr. Councilman worked at a company that was both  an online book-listing service and Internet service provider for the book dealers.  The company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients as part of its ISP role.

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." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly 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 Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. 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.

Recently, a Philadelphia, Pennsylvania man, Bruce Shore was indicted in Kentucky under an obscure Federal statute (43 U.S.C. §223) alleging that he "did utilize a telecommunications device, that is a computer, whether or not communication ensued, without disclosing his identity and with the intent to annoy, abuse, threaten, and harass any person who received the communication."

It turns out that Mr. Shore was an unemployed fellow who e-mailed Senator Jim Bunning of Kentucky after Bunning’s one man obstreperous activities several months ago blocking unemployment extensions for every American.  Mr. Shore’s mistake was signing the e-mail “Brad Shore from Lousiville”.  Forget First Amendment.  Forget writing a Senator to complain of the Senator’s position on important issues.  He was indicted because he changed his name from Bruce to Brad and called his hometown Lousiville instead of Philly to get the Senator’s attention.  Instead, Shore got more attention than he wanted!

Mr. Silverglate is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.

Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.

In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.