Legal News

Three Felonies a Day? Say It Ain?t So, Fellow Citizens!

By Ashby Jones

Some days, it seems that every other post we do touches on technology in some way. And often, in regard to technology and its rapid-fire pace of change, the law seems an exceptionally clumsy and awkward tool (see, e.g., the Lori Drew/MySpace Suicide case).

Former WSJ publisher and Yale law graduate Gordon Crovitz weighs in on this topic today in the WSJ. Crovitz’s topic: a new book, called “Three Felonies a Day,” written by Boston civil-liberties lawyer Harvey Silverglate. The thrust of Silverglate’s point: that the laws enacted to address technology are often hastily and sloppily drawn — and often can be applied to cover more than they were intended. Hence the title: Silverglate suspects that due to a glut of overly broad laws, the average American we commit three felonies a day.

Writes Crovitz:

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.

For instance, Crovitz mentions a case involving a Saudi student in Idaho was charged in 2003 with offering “material support” to terrorists. The student 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.

But despite that law — especially criminal law — often struggles to keep up with technology, it doesn’t have to be as bad as it is. Much of the problem involves the fact that increasingly prosecutors will file charges even when evidence of intent on the part of the alleged perpetrator is lacking. Writes Crovitz:

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.

Full post as published by Law Blog - WSJ.com on September 28, 2009 (boomark / email).