Interstate Commerce: Scope of Federal Criminal Jurisdiction

The Internet and the Interstate Commerce Clause

What Makes Something a Federal Crime?

Federal courts have 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 criminal laws based on the Commerce Clause – which allows the federal government to regulate commerce or the the exchange of goods across state lines. For instance, in the 1930s Congress began targeting organized crime by making offenses such as extortion, theft, bank robbery, and 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 the travel of goods across state or national lines with the breaching of physical boundaries by physical objects, it is not necessary that people or 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.

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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. That’s why, for example, the government can establish jurisdiction in almost every federal child pornography case 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. Likewise, almost anything that can be connected to the internet is going to be considered interstate commerce and, as a result more, more activity becomes subject to federal prosecution.

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese