The Internet and the Interstate Commerce Clause

Internet and Interstate Commerce: Scope of Federal Criminal Jurisdiction

What Makes Something a Federal Crime?

Federal courts have subject matter jurisdiction over violations of the laws of the United States under 18 USC 3231. Some federal offenses are Constitutional – such as treason or counterfeiting. Other federal crimes are based on violations of federal statutes.

Over time, the breadth of acts that fell under federal statutes increased greatly as Congress began enacting statutes based on the Commerce Clause. For instance, in the 1930s Congress began targeting organized crime by making offenses such as extortion, theft, bank robbery, and the possession of firearms federal crimes if the offense involved crossing state lines or “affected interstate commerce.” Through the early 90s, federal prosecution continued to grow no matter how little the crimes affected interstate commerce. In the mid-90s, the Supreme Court began drawing limits on Congress’ authority to federalize crimes.

The Internet and Interstate Commerce

Today, the internet age is changing the landscape of federal jurisdiction. While most people associate travel of goods across state or national lines with the breaching of physical boundaries by physical objects, it is not necessary that persons or physical property involved in a federal case actually cross a state or national border to provide jurisdiction.

It is hard to imagine a day, or even an hour, goes by when a person does not access the internet. Even when communication is taking place online between two individuals in the same state, their internet traffic almost inevitably crosses state lines. As a result, the use of the internet has become a per se facility of interstate commerce.

Examples of Expanding Interstate Commerce

For example, offenses prosecuted under 18 USC 1343 (wire fraud) involve allegations of material misrepresentations online. Such communications, even though they may actually be to a computer user in Texas to another user in Texas, would still qualify as “wire” communications. Further, even if the communications did not result in merchandise or money being sent across state lines, the internet communication would still implicate interstate commerce. Similarly, in almost every federal child pornography case, the Government can establish jurisdiction by showing any image obtained online.

The following is a common jury instruction provided in federal trials involving child pornography offenses in the Fifth Circuit courts.

The government may meet its burden of proving that child pornography has been transported in or affecting interstate commerce by making a specific connection between the use of the Internet and the image in question. If the government proves beyond a reasonable doubt that an image was transmitted over, or downloaded from, the Internet, this is the same as proving that the image crossed state lines and was transported via interstate commerce. The government is not required to prove that the Internet transmission actually crossed state lines. This is because the mere transmission of images via the Internet is tantamount to moving the images across state lines and thus constitutes transport in interstate commerce.

The effect of the principle is straightforward but significant nonetheless. Now, because the internet is the primary provider of child pornography, nearly all such cases can be prosecuted federally.

Ultimately, understand that almost anything that can be connected to the internet is going to be considered interstate commerce and as a result more and more activity becomes subject to federal prosecution.

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About the Author
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Benson Varghese

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Benson Varghese is the Managing Partner of Varghese Summersett PLLC. He is a state and federal practitioner who has handled thousands criminal cases and taken over 100 cases to trial by jury. Benson is frequently called upon to handle cases that require a high degree of knowledge in technology, scientific evidence, forensic evidence, as well as serious intoxication cases. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.


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