Federal Guide Federal Statutory Criminal Law

  1. Aggravated Identity Theft, 18 U.S.C. § 1028A

    1. Introduction

      This statute imposes criminal penalties for transferring, possessing, or using the means of identification of another person without lawful authority during and in relation to certain enumerated felony violations (generally related to fraud). It may be useful to victims where the perpetrator has assumed the victim’s identity; for example, where the perpetrator creates a fake social media account or sends emails as the victim.

    2. Text of Statute(s)

      (a) Offenses.—

      (1) In general.—Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

      (b) Consecutive Sentence.—Notwithstanding any other provision of law—

      (1) a court shall not place on probation any person convicted of a violation of this section;

      (2) except as provided in paragraph (4), no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment imposed on the person under any other provision of law, including any term of imprisonment imposed for the felony during which the means of identification was transferred, possessed, or used;

      (3) in determining any term of imprisonment to be imposed for the felony during which the means of identification was transferred, possessed, or used, a court shall not in any way reduce the term to be imposed for such crime so as to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section; and

      (4) a term of imprisonment imposed on a person for a violation of this section may, in the discretion of the court, run concurrently, in whole or in part, only with another term of imprisonment that is imposed by the court at the same time on that person for an additional violation of this section, provided that such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28.

      (c) Definition.—For purposes of this section, the term “felony violation enumerated in subsection (c)” means any offense that is a felony violation of—

      (1) section 641 (relating to theft of public money, property, or rewards 1), section 656 (relating to theft, embezzlement, or misapplication by bank officer or employee), or section 664 (relating to theft from employee benefit plans);

      (2) section 911 (relating to false personation of citizenship);

      (3) section 922(a)(6) (relating to false statements in connection with the acquisition of a firearm);

      (4) any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7);

      (5) any provision contained in chapter 63 (relating to mail, bank, and wire fraud);

      (6) any provision contained in chapter 69 (relating to nationality and citizenship);

      (7) any provision contained in chapter 75 (relating to passports and visas);

      (8) section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. 6823) (relating to obtaining customer information by false pretenses);

      (9) section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. 1253 and 1306) (relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card);

      (10) any provision contained in chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. 1321 et seq.) (relating to various immigration offenses); or

      (11) section 208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act (42 U.S.C. 408, 1011, 1307(b), 1320a–7b(a), and 1383a) (relating to false statements relating to programs under the Act).

    3. Cases

      1. United States v. Ledgard, 583 F. App’x 654 (9th Cir. 2014)

        • Procedural Posture: After a bench trial, defendant was convicted of three counts of violating the Computer Fraud and Abuse Act (CFAA) through unauthorized access to the computer of a financial institution, two counts of violating the CFAA through unauthorized access to a protected computer, and three counts of aggravated identity theft. Defendant appealed.

        • Law: CFAA, 18 U.S.C. § 1030; Aggravated Identity Theft, 18 U.S.C. § 1028A

        • Facts: Defendant and victim worked together and began dating. During the relationship, the victim allowed defendant to take nude photos of her, including photos in which she and the defendant were engaged in sexual activity. A few days later, the victim asked defendant to delete those photographs from his computer hard drive, and he did so in front of her. Defendant knew that the victim’s family and Armenian culture would make distribution of those photographs to her family and friends particularly upsetting. However, defendant had not actually deleted the photos, and threatened to distribute them when the relationship began to deteriorate. Victim delayed breaking up with defendant, in part because of his threats, but eventually took a new job and broke up with him. After the breakup, defendant hacked into her bank, email, and Amazon accounts; made purchases and issued checks in her name; and sent emails to her family and others attaching the sexually explicit photographs.1

        • Outcome: All convictions were affirmed on appeal. The court held that there was sufficient evidence to support all counts and that applying 18 U.S.C. § 1030(c)(2)(B)(ii) to incorporate the state tort of intentional infliction of emotional distress did not make the statute unconstitutionally vague.

      2. United States v. Wadford, 331 F. App’x 198 (4th Cir. June 10, 2009)

        • Procedural Posture: Defendant pled guilty to two firearm counts and a jury found him guilty of the remaining nine counts at trial. On appeal, defendant challenged the sufficiency of the evidence for seven of the counts of which he was convicted at trial.

        • Law: Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030; Aggravated Identity Theft, 18 U.S.C. § 1028A; attempted possession of flunitrazepam with intent to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 846; Mann Act, 18 U.S.C. § 2422(a); sending threatening emails in interstate or foreign commerce, felon in possession of firearms, 18 U.S.C. § 875(b), (d); attempted witness tampering and carrying a firearm during that offense, 18 U.S.C. §§ 1512(a)(2)(A), 3147(1), 924(c)(1).

        • Facts: Defendant gave coworker-victim a date rape drug while they were on an interstate business trip, then took photographs of her naked from the waist down while she was unconscious. Over a year later, defendant was fired when an anonymous person reported that he had been sexually harassing employees. After he was fired, defendant hacked into former coworkers’ work email accounts to send false, fraudulent, and threatening emails to other coworkers. Some of the emails attached copies of the photographs he had taken of the victim while she was unconscious.

        • Outcome: Convictions affirmed except one count of sending threatening emails. The court held that there was sufficient evidence to support all convictions except for one that was based on the email defendant sent from one coworker’s personal account to other coworkers’ work accounts because there was neither any direct evidence nor any circumstantial evidence to show this email was sent across a state or national border.

        • Special Notes: Defendant did not directly challenge his aggravated identity theft conviction; rather, he contended that conviction could not be sustained because it depended on his CFAA conviction, which defendant argued was not supported by sufficient evidence. Because the court upheld his CFAA conviction, it also affirmed his aggravated identity theft conviction.

    4. Practice Pointers

      • Aggravated identity theft is a crime that also requires conviction on an enumerated predicate offense. Of the offenses listed in the federal guide, the only predicate offense is the CFAA. 18 U.S.C. § 1030.

      • Under the statute, a defendant convicted of Aggravated Identity Theft will receive a two-year term of imprisonment to run consecutively with the sentence imposed for other offenses.

    1. Many of these facts are taken from the district court opinion. See United States v. Ledgard, No. CR 08-000982(B) DDP, 2012 WL 3996855 (C.D. Cal. Sept. 12, 2012). 

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  2. Computer Fraud and Abuse Act, 18 U.S.C. § 1030

    1. Introduction

      The Computer Fraud and Abuse Act (CFAA) criminalizes intentionally accessing a protected computer without authorization, or exceeding the scope of the authorized access. “Protected” computers include those that are used in or affecting interstate or foreign commerce or communication, including a computer outside the United States that is used in a manner that affects interstate or foreign commerce or communications of the United States. As a practical matter, because of the interstate and international nature of the Internet, most ordinary computers, including cell phones, will qualify as “protected” computers under the CFAA.

      The CFAA may be useful to victims where a perpetrator uses the victim’s computer to secretly record him or her, or where the perpetrator has hacked the victim’s computer or otherwise accessed it without authorization to distribute or obtain sexual photos or videos.

    2. Text of Statute(s)

      18 U.S.C. § 1030: “(a) Whoever-- […] (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—[…] (C) information from any protected computer; […] (4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period; […].”

      Note: The other sections of the Act primarily involve accessing U.S. Government computers, damaging computers remotely, and the punishments, which include imprisonment, fines, and a private cause of action.

    3. Cases

      1. United States v. Ledgard, 583 F. App’x 654 (9th Cir. 2014)

        • Procedural Posture: After a bench trial, defendant was convicted of three counts of violating the Computer Fraud and Abuse Act (CFAA) through unauthorized access to the computer of a financial institution, two counts of violating the CFAA through unauthorized access to a protected computer, and three counts of aggravated identity theft. Defendant appealed.

        • Law: CFAA, 18 U.S.C. § 1030; Aggravated Identity Theft, 18 U.S.C. § 1028A

        • Facts: Defendant and victim worked together and began dating. During the relationship, the victim allowed defendant to take nude photos of her, including photos in which she and the defendant were engaged in sexual activity. A few days later, the victim asked defendant to delete those photographs from his computer hard drive, and he did so in front of her. Defendant knew that the victim’s family and Armenian culture would make distribution of those photographs to her family and friends particularly upsetting. However, defendant had not actually deleted the photos, and threatened to distribute them when the relationship began to deteriorate. Victim delayed breaking up with defendant, in part because of his threats, but eventually took a new job and broke up with him. After the breakup, defendant hacked into her bank, email, and Amazon accounts; made purchases and issued checks in her name; and sent emails to her family and others attaching the sexually explicit photographs.1

        • Outcome: All convictions were affirmed on appeal. The court held that there was sufficient evidence to find that defendant’s conduct had been committed “in furtherance of.. a tortious act,” because it constituted intentional infliction of emotional distress. This conduct increases the available statutory penalty under 18 U.S.C. § 1030(c)(2)(B).

      2. United States v. Powers, No. 8:09cr361, 2010 WL 1418172 (D. Neb. Mar. 4, 2010), adopted by 2010 WL 1418168 (D. Neb. Apr. 6, 2010)

        • Procedural Posture: Defendant moved for change of venue and to dismiss the indictment for vagueness and for failing to state an offense.

        • Law: Computer Fraud and Abuse Act, 18 U.S.C. § 1030

        • Facts: Victim gave defendant the password to her email account. Defendant used the password to access her email account, looked through her old emails, found photos the victim had previously sent to someone else showing her partially nude and/or engaging in provocative poses, and sent those photos to several people in her email account address book, including a coworker, as well as several email addresses she did not recognize.

        • Outcome: The court concluded that venue was proper in the district of Nebraska, even though neither the defendant nor the computer he used to facilitate the offense was located in Nebraska, because the victim was located and injured in Nebraska, recipients of some of the emails were in Nebraska, and the violation of the CFAA was committed in furtherance of violations of Nebraska state laws on invasion of privacy and intentional infliction of emotional distress. The court also held the indictment properly alleged all necessary elements of the CFAA. Finally, the court held that “protected” computers were not limited to computers used by financial or government institutions, but included the servers used to host the victim’s email account because those servers can be used in interstate communication. The statute accordingly provided sufficient notice and warning of prohibited conduct that it was not void for vagueness. The indictment was eventually dismissed without prejudice on motion of the government.

      3. United States v. Wadford, 331 F. App’x 198 (4th Cir. June 10, 2009)

        • Procedural Posture: Defendant pled guilty to two firearm counts and a jury found him guilty of the remaining nine counts at trial. On appeal, defendant challenged the sufficiency of the evidence for seven of the counts of which he was convicted at trial.

        • Law: Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030; Aggravated Identity Theft, 18 U.S.C. § 1028A; attempted possession of flunitrazepam with intent to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 846; Mann Act, 18 U.S.C. § 2422(a); sending threatening emails in interstate or foreign commerce, felon in possession of firearms, 18 U.S.C. § 875(b), (d); attempted witness tampering and carrying a firearm during that offense, 18 U.S.C. §§ 1512(a)(2)(A), 3147(1), 924(c)(1).

        • Facts: Defendant gave coworker-victim a date rape drug while they were on an interstate business trip, then took photographs of her naked from the waist down while she was unconscious. Over a year later, defendant was fired when an anonymous person reported that he had been sexually harassing employees. After he was fired, defendant hacked into former coworkers’ work email accounts to send false, fraudulent, and threatening emails to other coworkers. Some of the emails attached copies of the photographs he had taken of the victim while she was unconscious.

        • Outcome: Convictions affirmed except one count of sending threatening emails. The court held that there was sufficient evidence to support all convictions except for one that was based on the email defendant sent from one coworker’s personal account to other coworkers’ work accounts because there was neither any direct evidence nor any circumstantial evidence to show this email was sent across a state or national border.

        • Special Notes: The court held that the computers in question were “protected computers” because they were used by employees in South Carolina to communicate with employees in Italy, and used by employees in Italy to access electronic data stored in South Carolina. Thus, they were protected computers because they were “used in or affecting interstate or foreign commerce or communication.” 18 U.S.C. § 1030(e)(2)(B).

    4. Practice Pointers

      • Greater punishment applies if the offense was committed in furtherance of any criminal or tortious act.2 To determine whether any predicate criminal or tortious acts are available, consult the WMC guide for the applicable state.

      • Although it may seem obvious that computers connected to the Internet are “used in or affecting interstate or foreign commerce or communication,” 18 U.S.C. § 1030(e)(2)(B), this jurisdictional element still needs to be established by the evidence.3

    1. Many of these facts are taken from the district court opinion. See United States v. Ledgard, No. CR 08-000982(B) DDP, 2012 WL 3996855 (C.D. Cal. Sept. 12, 2012). 

    2. See 18 U.S.C. § 1030(c)(2)(B)(ii). 

    3. See Wadford, 331 F. App’x at 202-03 (citing specific evidence that the computers accessed without authorization by the defendant were used to communicate between South Carolina and Italy and vice versa). 

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  4. Federal Wiretap Act, 18 U.S.C. § 2520

    1. Introduction

      The federal Wiretap Act protects individual privacy in communications with other people by imposing civil and criminal liability for intentionally intercepting communications using a device, unless that interception falls within one of the exceptions in the statute. Although the Wiretap Act originally covered only wire and oral conversations (for example, using a device to listen in on telephone conversations), it was amended in 1986 to cover electronic communications as well (for example, emails or other messages sent via the Internet).

      If a WMC victim’s sexual photos or videos are obtained through interception of an electronic communication, the perpetrator may be criminally and civilly liable under this statute.

    2. Text of the Statute(s)

      18 U.S.C. § 2511

      (1) Except as otherwise specifically provided in this chapter any person who--

      (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

      (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--

      (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

      (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or

      (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or

      (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

      (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;

      (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

      (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or

      (e)

      (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter,

      (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation,

      (iii) having obtained or received the information in connection with a criminal investigation, and

      (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,

      shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)

      […]

      (4) (a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both. […]

    3. Cases

      1. United States v. Ronan, NMCCA 200800154, 2009 WL 1154111 (N.M. Ct. Crim. App. Apr. 30, 2009)

        • Procedural Posture: Defendant was convicted by a general court-martial, and petitioned for a new trial.

        • Law: Federal Wiretap Act, 18 U.S.C. § 2520; Uniform Code of Military Justice, 10 U.S.C. §§ 933, 934.

        • Facts: Defendant, a physician assigned to the United States Naval Academy, participated in the U.S.N.A.’s “sponsor program,” whereby midshipmen were invited into sponsors’ homes during liberty periods. Defendant granted up to 13 midshipmen access to his home. These midshipmen stayed in bedrooms where, unbeknownst to them, defendant had hidden “nanny cam” surveillance cameras that recorded midshipmen masturbating and having sex. Defendant used sophisticated audiovisual technology to capture this footage and download it onto DVDs, which he then labeled with the initials of the midshipmen who had been recorded. The DVDs were eventually discovered in his home.

        • Outcome: The court concluded that the findings and sentence were correct in law and fact, that no error materially prejudicial to the defendant’s substantial rights had been committed, and that there was no basis to grant the petition for a new trial.

    4. Practice Pointers

      A person convicted of violating the Federal Wiretap Act faces a term of imprisonment of up to five years.1

    1. See 18 U.S.C. § 2511(4)(a). 

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  5. Interstate Stalking or Harassment, 18 U.S.C. § 2261A

    1. Introduction

      A person who published private, intimate images of another as a means of harassment and used an interactive computer service to do so may be charged in federal court for interstate stalking or harassment.

    2. Text of the Statute

      18 U.S.C. § 2261A:

      “Whoever--

      1. travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or
      2. with the intent--
        1. to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or
        2. to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to--
          1. that person;
          2. a member of the immediate family (as defined in section 115 of that person; or
          3. a spouse or intimate partner of that person; uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B); shall be punished as provided in section 2261(b) of this title.”
    3. Cases

      1. United States v. Osinger, 753 F.3d 39 (9th Cir. 2014).

        • Procedural Posture: Defendant appealed his conviction at trial under 18 U.S.C. § 2261A and his 46-month sentence.

        • Law: 18 U.S.C. §§ 2261A(2)(A) and 2261(b)(5)

        • Facts: Defendant and victim were in a romantic relationship for nine months, during which time the victim allowed defendant to take nude photographs of her. When victim ended the relationship and moved to a different state, defendant sent several threatening and sexually explicit text messages, emails, and photographs of the victim to the victim, her family, and her friends. He also created a Facebook page with a name very close to the victim’s, added her family and friends as Facebook friends, and posted sexually explicit photos and demeaning statements as if they had been posted by the victim.

        • Outcome: Both conviction and sentence affirmed on appeal.

        • Special Notes: The court rejected defendant’s facial and as-applied First Amendment challenges, holding that the proscribed acts are tethered to the underlying criminal conduct, not to speech. The court also found that defendant’s speech was not protected because it was integral to criminal conduct and because it involved sexually explicit publications about a private individual. The court also was not convinced by defendant’s vagueness challenge because it determined that “harass” and “emotional distress” are not esoteric or complicated terms devoid of common understanding and that the statute’s “intent” requirement undermines any argument that defendant could not know his actions were prohibited by the statute.

      2. United States v. Sayer, 748 F.3d 425 (1s Cir. 2014)

        • Procedural Posture: Defendant pled guilty to one count of cyberstalking and was sentenced to the statutory maximum of 60 months in prison. He appealed the district court’s denial of his motion to dismiss on constitutional grounds, and further contended that his above-Guidelines sentence was unreasonable.

        • Law: Cyberstalking Statute, 18 U.S.C. § 2261A

        • Facts: Defendant and victim dated for two years, during which time defendant took sexually explicit photos of the victim and videos of their consensual sexual acts. When victim ended the relationship, defendant stalked her in person, then posted videos of their sexual activity on pornography sites, posted ads on Craigslist, and created several fake social media profiles. Through all of these Internet channels, defendant used sexually explicit pictures of the victim to direct viewers to the videos on adult pornography sites, and posed as the victim to encourage men online to visit her at her home. Even after the victim moved from Maine to Louisiana and changed her name, men who saw the ads online were able to find her and attempt to visit her in person.

        • Outcome: Both conviction and sentence affirmed.

        • Special Notes: The court found “meritless” the defendant’s argument that the First Amendment prohibited his conviction because his course of conduct involved speech or online communications, noting that any speech involved in his conduct was not protected by the First Amendment because it was integral to criminal conduct.

      3. United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012)

        • Procedural Posture: Defendant appealed his convictions for four counts of interstate stalking and two counts of interstate extortionate threats, as well as his 96-month sentence.

        • Law: Interstate stalking, 18 U.S.C. § 2261; interstate extortionate threats, 18 U.S.C. § 875

        • Facts: After the victim ended her relationship with the defendant, defendant threatened to publicize pictures of her in the nude or engaging in sexual activity, including videos that he had secretly captured during their sexual encounters. When she permanently ended the relationship anyway, he sent physical copies of the pictures with derogatory language to her friends, family, and coworkers, and launched a website posting sexually explicit photos and videos, as well as the text messages that she had sent him about her private and intimate thoughts, including her suicidal thoughts and history. The website also included her contact information and the social security numbers of her children. When the victim found the website, she “had a breakdown” and “wanted to die.” The victim’s sister eventually managed to have the website taken down for a few days, but defendant relaunched with a message offering to take down the site if the victim provided him with $100,000 and several items of property.

        • Outcome: Convictions and sentence affirmed.

        • Special Notes: The court rejected the defendant’s as-applied and facial First Amendment challenges to the stalking statute because the statute was viewpoint neutral and because the intimately private communications and photographs defendant communicated were not previously part of the public domain, were highly offensive, and the public has no legitimate interest in the private sexual activities of the victim or in the intimate details revealed about her life. Further, the court rejected defendant’s overbreadth argument because the statute required both malicious intent from the defendant and substantial harm to the victim, meaning that it would be applied to protected First Amendment activity only in rare cases.

      4. United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009).

        • Procedural Posture: Defendants in this case appeal their convictions for, among other things, conspiracy to commit interstate stalking, stalking, and conspiracy to use a telecommunications device to abuse, threaten and harass.
        • Law: 18 U.S.C. § 2261A (stalking) and 47 U.S.C. §223(a)(1)(c) (telecommunications abuse/threat/harass); also conspiracy to violate Animal Enterprise Protection Act.
        • Facts: This case is about animal rights activists engaging in a violent campaign against animal product testing. Of interest, the activist group’s website “not only communicated the victims’ personal information, but the website also disseminated the information that made the victims’ fears reasonable: threats that people associated with Huntingdon [organization that engages in animal testing] would be treated like Brian Cass [who had been assaulted by three masked people in front of his home], photos of extreme vandalism, ultimatums, and threats.”1
        • Outcome: Conviction affirmed. Court found that this evidence supported the jury’s conviction of the website administrator for stalking and harassment. United States v. Rose, 315 F.3d 956 (8th Cir. 2003). Procedural Posture: Defendant convicted of stalking and threatening communications appealed the trial court’s increased sentencing.
      5. United States v. Rose, 315 F.3d 956 (8th Cir. 2003).

        • Procedural Posture: Defendant convicted of stalking and threatening communications appealed the trial court’s increased sentencing.
        • Law: 18 U.S.C. §2261A (stalking); and 18 U.S.C. § 875(c) (threatening communications)
        • Facts: After discovering that the woman he had been communicating with online was actually married, defendant posted pictures of her children on pornographic websites that solicited sex along with their full names, addresses, and telephone number. He also threatened to murder her children and send letters to her neighbors. He in fact sent letters to her neighbors stating that a “path of terror” was coming to their neighborhood.2
        • Outcome: Sentence of 120 months in prison affirmed. Court noteed that “posting pictures of [victim’s] children on pornographic web sites and publishing their names, addresses, and phone number constituted extreme conduct.”3
    4. Practice Pointers

      • A person convicted under this statute faces: (1) up to life in prison (if the victim dies), (2) a maximum of 20 years in prison (if the victim suffers permanent disfigurement or life threatening bodily injury), (3) a maximum of 10 years in prison (if the victim suffers serious bodily injury or the offender uses a dangerous weapon during the offense), (4) as provided for applicable conduct under the sexual abuse chapter of the criminal code, or (5) a maximum of 5 years in prison (under any other circumstances). If the offense involved a violation of a temporary or permanent civil or criminal injunction, restraining order, no-contact order, or similar court orders, there is a one-year mandatory minimum sentence.4

      • Defendants frequently challenge this statute as violating the First Amendment right to freedom of speech, but courts have universally rejected these challenges to date.

    1. United States v. Fullmer, 584 F.3d 132, 164 (3d Cir. 2009). 

    2. United States v. Rose, 315 F.3d 956, 957 (8th Cir. 2003). 

    3. Id. at 958. 

    4. See 18 U.S.C. § 2261(b). 

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  6. Interstate Threats or Extortion, 18 U.S.C. § 875

    1. Introduction

      This statute criminalizes communicating threats or extorting value from another person across state lines. A person who publishes or threatens to publish private intimate photos or videos of another with the intention of extracting money or otherwise forcing the victim into prescribed conduct the victim would not have otherwise engaged in may be charged with extortion if s/he transmitted the communication to the victim via interstate commerce channels.

    2. Text of the Statute

      18 U.S.C. § 875:

      “(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

      (d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.”

    3. Cases

      1. United States v. Howard, 759 F.3d 886 (8th Cir. 2014)

        • Procedural Posture: Defendant appealed his sentence after he pled guilty to one count of extortion in violation of 18 U.S.C. § 875(d).

        • Law: Interstate threats or extortion, 18 U.S.C. § 875

        • Facts: Defendant met victim through a gay social networking website. Victim was not open about his sexual orientation in part because the nature of his occupation meant revealing his sexual orientation would likely cause him to lose his job. A couple months later, defendant began repeatedly asking for money and referencing victim’s occupation, which victim interpreted as being a threat to disclose his sexual orientation. When the victim ran out of money, defendant mentioned he had nude photographs of the victim and provided proof by sending them via text message. By the time the victim contacted law enforcement, he had sent defendant a total of $53,625.25. After the victim contacted law enforcement, he paid defendant an additional $100 provided by law enforcement. Defendant then asked victim to take out a second vehicle title loan to send more money, and threatened to contact victim’s family, employer, and coworkers directly when victim refused. To prove he could make good on his threats, defendant sent a picture of victim to victim’s secretary, sent faxes to victim while victim was at a work retreat, contacted several people victim knew, and texted victim a photo of one of his colleagues.

        • Outcome: Term of imprisonment (21 months) was affirmed, but restitution award ($53,625.25) was reversed.

        • Special Notes: The defendant was indicted for conduct committed beginning on or about the date the victim contacted law enforcement, and pled guilty to conduct between the dates listed in the indictment. The Court of Appeals held that the district court had not clearly erred in using conduct that occurred before this period for sentencing purposes, but that restitution could only be provided for the period alleged in the indictment. Because the only “loss” that occurred during those dates was $100 provided by law enforcement, the Court of Appeals reversed the restitution award.

      2. United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012)

        • Procedural Posture: Defendant appealed his convictions for four counts of interstate stalking and two counts of interstate extortionate threats, as well as his 96-month sentence.

        • Law: Interstate stalking, 18 U.S.C. § 2261; interstate extortionate threats, 18 U.S.C. § 875

        • Facts: After the victim ended her relationship with the defendant, defendant threatened to publicize pictures of her in the nude or engaging in sexual activity, including videos that he had secretly captured during their sexual encounters. When she permanently ended the relationship anyway, he sent physical copies of the pictures with derogatory language to her friends, family, and coworkers, and launched a website posting sexually explicit photos and videos, as well as the text messages that she had sent him about her private and intimate thoughts, including her suicidal thoughts and history. The website also included her contact information and the social security numbers of her children. When the victim found the website, she “had a breakdown” and “wanted to die.” The victim’s sister eventually managed to have the website taken down for a few days, but defendant relaunched with a message offering to take down the site if the victim provided him with $100,000 and several items of property.

        • Outcome: Convictions and sentence affirmed.

        • Special Notes: The court affirmed a jury instruction stating that a sexual relationship could constitute a thing of value the defendant intended to extort under the statute.

      3. United States v. Wadford, 331 F. App’x 198 (4th Cir. June 10, 2009)

        • Procedural Posture: Defendant pled guilty to two firearm counts and a jury found him guilty of the remaining nine counts at trial. On appeal, defendant challenged the sufficiency of the evidence for seven of the counts of which he was convicted at trial.

        • Law: Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030; Aggravated Identity Theft, 18 U.S.C. § 1028A; attempted possession of flunitrazepam with intent to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 846; Mann Act, 18 U.S.C. § 2422(a); sending threatening emails in interstate or foreign commerce, felon in possession of firearms, 18 U.S.C. § 875(b), (d); attempted witness tampering and carrying a firearm during that offense, 18 U.S.C. §§ 1512(a)(2)(A), 3147(1), 924(c)(1).

        • Facts: Defendant gave coworker-victim a date rape drug while they were on an interstate business trip, then took photographs of her naked from the waist down while she was unconscious. Over a year later, defendant was fired when an anonymous person reported that he had been sexually harassing employees. After he was fired, defendant hacked into former coworkers’ work email accounts to send false, fraudulent, and threatening emails to other coworkers. Some of the emails attached copies of the photographs he had taken of the victim while she was unconscious.

        • Outcome: Convictions affirmed except one count of sending threatening emails. The court held that there was sufficient evidence to support all convictions except for one that was based on the email defendant sent from one coworker’s personal account to other coworkers’ work accounts because there was neither any direct evidence nor any circumstantial evidence to show this email was sent across a state or national border.

        • Special Notes:The court held that substantial evidence supported two of defendant’s convictions under § 875(b) and (d) because the threatening emails were sent from South Carolina and traveled through servers in Italy before they were received by other employees in South Carolina. But because there was no evidence establishing the locations of the servers through which the emails defendant sent from a coworker’s personal account traveled, substantial evidence did not support the final conviction.

      4. United States v. Kurtz, No. 08 Cr. 402-01 (RWS), 2009 U.S. Dist. LEXIS 61126 (S.D.N.Y. Apr. 3, 2009).

        • Procedural Posture: Defendant pleaded guilty to extortion after threatening to send nude photos to victim’s rabbi, and here was sentenced.

        • Law: Transmitting threats to injure the property and reputation of another in interstate or foreign commerce communications with the intent to extort money or other thing of value (18 U.S.C. § 875(d))

        • Relevant Facts: Defendant visited victim, a 62-year old woman, after contacting her on a Jewish dating website. While visiting the victim, defendant photographed her in the shower and in bed, all without her consent. Before defendant left, victim asked him to give her the camera and film, but he refused. Victim sent defendant an email asking for the photos and requesting he destroy all copies. Defendant replied that she owed him money and threatened to send the pictures to her friends, business associates and Rabbi.

        • Outcome: Defendant was sentenced to two years in prison.

      5. United States v. Mosley, 353 Fed. Appx. 49 (7th Dist. 2009).

        • Procedural Posture: Defendant appealed his conviction for using interstate communications to extort money.

        • Law: Criminal – 18 U.S.C. 875(d)

        • Facts: Defendant sent victim (NY Yankees’ player Garry Sheffield’s ex-wife) an email telling her that he had a sex tape of her and Robert “R” Kelley. After victim failed to respond to his email, defendant spoke to Sheffield’s agent and manager, Rufus Williams, who called the FBI. The FBI recorded the phone conversations and meetings that Williams had with defendant. Defendant said he could provide the videotape and spiritual counseling to victim for $20,000. Defendant threatened to “move forward” if they did not strike a deal. Defendant was subsequently arrested.

        • Outcome: Affirmed. The court found that the trial judge did not abuse his discretion by denying defendant’s requests to hire a private investigator. “This was an uncomplicated case, and [defendant] supplied most of the evidence with his e-mail and recorded statements. Under the circumstances, there is no reason to disturb the district court’s ruling.”

      6. United States v. Rose, 315 F.3d 956 (8th Cir. 2003).

        • Procedural Posture: Defendant convicted of stalking and threatening communications appealed the trial court’s increased sentencing.

        • Law: 18 U.S.C. §2261A (stalking); and 18 U.S.C. § 875(c) (threatening communications)

        • Facts: After finding out that victim, a woman he had been communicating with online, was actually married, defendant posted pictures of her children on pornographic websites that solicited sex along with their full names, addresses, and telephone number. He also threatened to murder victim's children and sent letters to her neighbors stating that a “path of terror” was coming to their neighborhood.1

        • Outcome: Sentence of 120 months in prison affirmed. Court noteed that “posting pictures of [victim’s] children on pornographic web sites and publishing their names, addresses, and phone number constituted extreme conduct.”2

      7. United States v. Draper, 8 F.3d 23 (5th Cir. Oct. 29, 1993) (per curiam) (unpublished table decision)

        • Procedural Posture: Defendant appealed four of six counts of transmitting threatening communications with intent to extort, contending that there was insufficient evidence to establish an intent to extort.

        • Law: Transmitting threatening communications with intent to distort in violation of 18 U.S.C. § 875(d)

        • Facts: Defendant and victim were high school sweethearts who maintained a secret intimate relationship during their marriages to other people. Victim left her husband and moved to be with defendant, but left defendant when he informed her that she was one of three women in his life. After victim returned to her husband, defendant sent victim letters threatening to expose the details of their sexual relationship and a videotape showing clips of their sexual activity with promises to release a far more detailed video. Defendant also left telephone messages for victim’s husband, threatening to release the video to their children, friends, and associates unless they paid defendant money for purported expenses.

        • Outcome: Convictions affirmed.

        • Special Notes: The court held that each mailing should not be assessed inisolation; rather, the mailings needed to be considered within the totality of the evidence presented. Under that analysis, the court affirmed the jury’s verdict that each of the four mailings was extortionate and violated 18 U.S.C. § 875(d).

    4. Practice Pointers

      The focus of the term “thing of value” in the statute “is to be placed on the value which the defendant subjectively attaches to what is sought to be received.”3

    1. United States v. Rose , 315 F.3d 956, 957 (8th Cir. 2003). 

    2. Id. at 958. 

    3. See United States v. Petrovic, 701 F.3d 849 858 (8th Cir. 2012) (omission in original) (quoting United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986)) (internal quotation marks omitted).> 

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  7. Intimate Privacy Protection Act (forthcoming legislation)

    1. Introduction

      Representative Jackie Speier of California has been working on drafting a bill, tentatively titled the Intimate Privacy Protection Act, that would make the distribution or publication of nonconsensual pornography a federal criminal offense, but the bill has yet to be introduced. To express support for this legislation, contact your U.S. Representative or U.S. Senator.1

    2. Text of Statute(s)

      The current discussion draft of the proposed bill is available at http://digitalcommons.law.scu.edu/historical/1003/.

    3. Cases

      Not applicable because the statute has yet to be enacted.

    4. Practice Pointers

      Not applicable because the statute has yet to be enacted.

    1. See United States House of Representatives, Directory of Representatives, http://www.house.gov/representatives/ (last visited Nov. 5, 2015); United States Senate, Senators of the 114th Congress, http://www.senate.gov/general/contact_information/senators_cfm.cfm (last visited Nov. 5, 2015). 

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  8. Obscene or Harassing Telephone Calls in Interstate or Foreign Communications, 47 U.S.C. § 223

    1. Introduction

      A person who publishes the intimate photographs or videos of another without his or her consent and who uses a telecommunication device to harass the victim (perhaps by threatening that the intimate material will be published) may be charged under 47 U.S.C. § 223(a)(1)(C).

    2. Text of the Statute

      47 U.S.C. § 223(a)(1)(C):

      “(a) Prohibited acts generally
      Whoever—
      (1) in interstate or foreign communications—
      [. . .]
      (C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications […].”

    3. Cases

      1. United States v. Cope, 24 Fed. Appx. 414 (6th Cir. 2001).

        • Procedural Posture: Defendant pleaded guilty and nolo contendere on 13 counts of violating 47 U.S.C. § 223(a)(1)(C) and was sentenced to prison. He appealed the vulnerable victim enhancement to his sentence.
        • Law: 47 U.S.C. § 223(a)(1)(C)
        • Facts: Defendant harassed his ex-girlfriend, “a nationally recognized high school teacher,” by sending incriminating emails in her name to various people including her church minister and employer. The emails indicated that victim had been having sexual relationships with her students.
        • Outcome: Affirmed. The court noted that the vulnerable victim enhancements were proper.
      2. United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009).

        • Procedural Posture: Defendants in this case appeal among other things, their convictions for conspiracy to commit interstate stalking, stalking, and conspiracy to use a telecommunications device to abuse, threaten and harass.
        • Law: 18 U.S.C. § 2261A (stalking) and 47 U.S.C. §223(a)(1)(c) (telecommunications abuse/threat/harass); also conspiracy to violate Animal Enterprise Protection Act.
        • Facts: This case is about animal rights activists engaging in a violent campaign against animal product testing. Of interest, the activist group’s website “not only communicated the victims’ personal information, but the website also disseminated the information that made the victims’ fears reasonable: threats that people associated with Huntingdon [organization that engages in animal testing] would be treated like Brian Cass [who had been assaulted by three masked persons in front of his home], photos of extreme vandalism, ultimatums, and threats.”1
        • Outcome: Conviction affirmed. Court found that this evidence supported the jury’s conviction of the website administrator for stalking and harassment.
    1. United States v. Fullmer, 584 F.3d 132, 164 (3d Cir. 2009). 

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  9. Video Voyeurism Prevention Act of 2004, 18 U.S.C. § 1801

    1. Introduction

      This statute prohibits recording the private areas of individuals without their consent. However, the esoteric jurisdiction, “special maritime and territorial jurisdiction of the United States,” makes it unlikely that the statute will often be of use.

    2. Text of the Statute

      18 U.S.C. § 1801

      “(a) Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.

      (b) In this section--

      (1) the term “capture”, with respect to an image, means to videotape, photograph, film, record by any means, or broadcast;

      (2) the term “broadcast” means to electronically transmit a visual image with the intent that it be viewed by a person or persons;

      (3) the term “a private area of the individual” means the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual;

      (4) the term “female breast” means any portion of the female breast below the top of the areola; and

      (5) the term “under circumstances in which that individual has a reasonable expectation of privacy” means--

      (A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or

      (B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place .

      (c) This section does not prohibit any lawful law enforcement, correctional, or intelligence activity.”

    3. Cases

      Research is ongoing.

    4. Practice Pointer

      The esoteric jurisdictional element makes this statute difficult to use in most circumstances, but notably, it does include federal parks and buildings. The “special maritime and territorial jurisdiction of the United States” does not mean any part of the United States. Instead, it is a limited jurisdiction that includes: (1) the high seas, waters within the maritime jurisdiction of the U.S., and vessels on the high seas or Great Lakes; (2) land acquired and used by the United States, or land purchased from a State by the United States for a fort, dockyard, or “other needful building;” (3) islands or rocks (at the discretion of the President); (4) aircraft in flight over the high seas or waters within the admiralty jurisdiction of the U.S., or any spacecraft; (5) any jurisdiction-less place or vessel scheduled to travel to the U.S. where an offense against a U.S. national takes place; or (6) U.S. military, diplomatic, or consular bases in foreign nations, or residences in foreign nations used by U.S. personnel on U.S. missions.1

    1. See 18 U.S.C. § 7. National parks and federal buildings are examples of such locations. See United States  v. Johnson, 719 F. Supp. 2d 1059, 1069 (W.D. Mo. 2010). 

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