The fact is that we live in an overcriminalized society where vague federal laws are dangerous for everyone, lawyers, judges and police officers included. This ambiguity invites varying interpretations and could stamp a permanent criminal record on the otherwise squeaky clean slate of an unknowing, harmless individual.
As attorney Harvey Silverglate argues in his book Three Felonies a Day, even the most honest and informed citizen “cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.” Silverglate even claims that the average American does something about three times a day that could be turned into a federal crime by an enterprising or overreaching prosecutor.
It seems implausible. But here are eight hypothetical situations — of many possible ones — with real instances pertaining to each.
You share a bathroom with your sister and you find her stash of illegal weed. You don’t want her to get in trouble, so you flush it down the toilet. Little did you know, she was under a police investigation for possession of marijuana that began days earlier. Thus, you have just committed obstruction of justice: “A criminal offense that involves interference, through words or actions, with the proper operations of a court or officers of the court.”
Real example: In 2007, a church in Greenwich, Conn. called and retained lawyer Philip Russell after they discovered child pornography on their musical director’s computer. According to the Wall Street Journal report, “Russell told the musical director to retain counsel because possession of child pornography was a federal crime. The employee resigned. The church turned the laptop over to Russell, who destroyed it. No one told the feds.” Russell was charged with obstruction of justice, a charge that can carry up to 20 years of prison time. However, the judge cited Russell’s years of good service as reason to only give him six months of home confinement, a fine of $25,000 and community service.
Let’s say you own a small business which imports fish from another country and then distributes it to restaurants. One day, you’re expecting your usual shipment and it arrives, but not in cardboard boxes the way it usually does. This time, it’s in plastic. It turns out that the originating country bans the shipment of fish in plastic. You’ve just violated a foreign law, or the Lacey Act. Under this act, it is unlawful to “import, export, sell, acquire or purchase fish, wildlife or plants that are taken, possessed, transported or sold: 1) in violation of U.S. or Indian law, or 2) in interstate or foreign commerce involving any fish, wildlife or plants taken, possessed or sold in violation of State or foreign law.”
Real example: Robert Blandford, Diane Huang, David McNab and Abner Schoenwetter — three American seafood dealers and one Honduran lobster-fleet owner — had no prior records. Yet they were given hard time in 2001 for “importing lobster tails that were the wrong size and that were packaged in clear plastic bags rather than in cardboard boxes.” The three men were sentenced to eight years; Huang, the mother of two young children, was sentenced to two.
Your best friend calls you on a Tuesday night and says he won two tickets to see your favorite baseball team play on Wednesday. The seats are incredible and you know this opportunity won’t come again any time soon, so you decide to call in sick to work on Wednesday morning. You figure that, after all, it’s something everyone does every now and then. You did not know, however, that you have just committed a “scheme or artifice to defraud” the company to their “intangible right to your “honest services” — arguably a federal crime.
Real example: This statute was so vague that a few years ago, the Supreme Court ammended it to apply only to “bribes” or “kickbacks” that illegally influenced lawmakers. Regardless of Court’s rewriting, Cato Institute policy analyst David Rittgers wrote that “little has changed” in how ambiguous the statute is. As Justice Scalia stated, it still criminalizes “a salaried employee’s phoning in sick to go to a ball game.”
You decide to take your motorbike for a ride in the woods, along the marked path where it’s permitted. You didn’t realize that a massive blizzard was coming and by the time there is a layer of snow covering the ground, you’ve lost track of the path. An officer finds you and charges you with having your motorbike in an area where it is not allowed, because you, unknowingly and without intent, have violated the Wilderness Act, which seeks to protect federally-designated areas of wilderness, partly by prohibiting motor vehicles.
Real example: In 1996 well-known automobile racer Bobby Unser was convicted of a federal crime and sentenced to six months in prison. Why? Because he got lost in a blizzard in Colorado for two days while snowmobiling, and was guilty of “unlawful operation of a snowmobile within a National Forest Wilderness Area.”
You’re an eager young reporter who has been sent to Washington, D.C., to write an investigative piece pertaining to national security. A government employee who works in national security offers to give you inside information on the condition that he remains anonymous. You oblige and your editors publish the piece, unaware that you (arguably) violated provisions of the Espionage and Censorship Act. The act criminalizes the receiving and distribution of confidential national security information by private individuals under circumstances where the statute appears to cover only governmental officials. You’ve potentially just gone from a young, eager reporter to a convicted federal felon.
Real example: James Rosen is a news reporter for Fox. In 2009 he had several contacts with a State Department employee. The FBI, in order to obtain a search warrant to look at Rosen’s phone records and email, claimed that Rosen had violated espionage laws. Judge Andrew Napolitano said, “This is the first time that the federal government has moved to this level of taking ordinary, reasonable, traditional, lawful reporter skills and claiming they constitute criminal behavior.”
You used to work at a financial services company but you were unhappy at the job for a while and finally quit. While you were still employed there, though, you realized that the transactions were not completely secure. You had alerted your boss to the problem at the time, but he never followed up. After leaving the job, you email people to let them know that the company’s system is not secure and a hacker could gain access to their financial information. Your intentions were pure, but a judge could argue that you violated the Computer Fraud and Abuse law, which outlaws anyone from sending information, with the intent to cause damage, to a protected computer. The law’s definition of “damage” includes “impairment to integrity” of a system or data, a phrase vague enough to turn you from an innocent ex-employee to a convicted felon.
Real example: In 2000 Bret McDanel served 16 months in prison after he alerted customers of his old company, Tornado Development, about a software problem that was never fixed. He explained that the company’s email system had a flaw that could allow an attacker to gain access to a user’s email records. The prosecutors argued that McDanel had damaged Tornado’s system. Wired called McDanel a “wrongly jailed security whistleblower.”