(6) Sholom Rubashkin; Judicial Disqualification

You Commit Three Felonies a Day

Laws have become too vague and the concept of intent has disappeared.

The Wall Street Journal -- Information Age
SEPTEMBER 27, 2009, 11:09 P.M. ET

http://online.wsj.com/article/SB10001424052748704471504574438900830760842.html

When we think about the pace of change in technology, it's usually to marvel at how computing power has become cheaper and faster or how many new digital ways we have to communicate. Unfortunately, this pace of change is increasingly clashing with some of the slower-moving parts of our culture.

Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can't keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case 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. New technology adds its own complexity, making innocent activity potentially criminal.

Mr. 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.

In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.

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.

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