Harvey Silverglate, FIRE Co-founder and Chairman, recently published his second full-length book, Three Felonies a Day: How the Feds Target the Innocent. (His first, The Shadow University: The Betrayal of Liberty on America’s Campuses, led to the founding of FIRE and was co-authored with FIRE’s other co-founder, University of Pennsylvania Professor Alan Charles Kors.) A product of Harvey’s four decades as a criminal defense and civil liberties trial lawyer, Three Felonies a Day examines how federal authorities investigate, prosecute, and even convict people who had no way of knowing their conduct was criminal.
Harvey’s thesis is that because federal statutes have become increasingly vague, and because the ancient requirement of criminal intent as a necessary component of a criminal act has been steadily eroded, the average professional arguably commits three federal felonies each day.
In this past Sunday’s Wall Street Journal, "Information Age" columnist L. Gordon Crovitz discusses Harvey’s thesis in a technological context. Crovitz writes:
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.
Crovitz cites cases from Three Felonies a Day in which new technologies offered federal prosecutors new opportunities to criminalize individual conduct. One such story, involving a student and his First Amendment rights, is of particular interest to Torch readers:
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.
Harvey fleshes this case out further in his book, and he concludes that the post-9/11 political context allowed authorities to paint this rather ordinary conduct as "terrorist activity." And while there’s no doubt that the problem worsened under the Bush administration, this development—the unchecked expansion of the federal criminal code, coupled with an abuse of the more vague provisions by prosecutors—is not unique to any particular ideology or political party, as Harvey pointed out in a recent interview with the Boston Phoenix. Beginning in the mid-1980s, this trend has continued unabated under both Republican and Democratic administrations, Harvey says.
There’s a degree of synergy between this development and the trend identified by Harvey and Professor Kors in The Shadow University. Silverglate and Kors recognized that this widespread abandonment of freedom of expression and due process on campus accelerated in the mid-1980s, as well.
On a related note, Harvey will be testifying before Congress tomorrow (September 30) against a proposed "Cyberbullying" bill that seeks to criminalize the transmission, by electronic means, of communications with "the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person." As Robert pointed out when this bill was introduced in May 2009, the act’s vague terminology would potentially outlaw a significant amount of online speech. "Under the cyberbullying act as currently constituted, doing my job could potentially make me a criminal many times over, along with most of my colleagues," Robert wrote.
If this bill passes, Harvey might have to begin work on Five Felonies a Day.