How Well Do You Know Your Computer? the Level of Scienter in 18 U.S.C. S. 1462
Matthew James Zappen · Albany law review · 2003
Many Americans have used or have browsed the Internet. (1) Undoubtedly, many of these computer users do not possess knowledge that includes the myriad of technical functions that occur, or could occur, while browsing and accessing the Internet. Entering into this technological frustration is Title 18 of the United States Code--specifically, 18 U.S.C. [section] 1462. (2) Section 1462, entitled Importation or transportation of obscene matters, states that [w]hoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any ... interactive computer service (3) ... for carriage in interstate or foreign commerce of any obscene material shall be found criminally liable. (4) Section 1462 continues to elaborate its dictates by stating that [w]hoever knowingly takes or receives, from such ... interactive computer service ... any matter or thing the carriage or importation of which is herein made unlawful--[s]hall be fined under this title or imprisoned not more than five years, or both. (5) One need only purposefully, or even accidentally, enter a few adjectives or adverbs as search terms into a search engine (6) to become surprised by the Internet's red-light district, which will almost certainly contain iniquitous web pages that one could reasonably perceive to be obscene to the average person. Or one may be conducting legitimate business, decide to enter into the Internet browser's URL box (7) an address that appears to be innocent and legitimate, and become surprised by the appearance of not-so-innocent and not-so-legitimate material. (8) I. INTRODUCTION This comment addresses the broad, sweeping language of section 1462 and demonstrates how the language of the statute may subject innocent behavior to the threat of criminal liability. Specifically, the level of scienter required by the statute in order to be found criminally liable is not clear with respect to the remaining elements of the statute that follow the level of scienter mentioned in the beginning of the statute--knowingly. Further, the precise meaning and application of knowingly is explored within the context of this statute. (9) This comment argues the following points that will help clarify what should be the meaning and scope of section 1462. First, the requisite scienter mandated by section 1462 should be applied to every material element throughout the entire statute to avoid criminalizing innocent and mistaken behavior. (10) Second, if the U.S. Supreme Court, or any other federal court, were to analyze the knowingly requirement of section 1462 with respect to each material element of the statute, the court should follow strong precedent that exists for criminal-statutory interpretation, notably, United States v. X-Citement Video, Inc., (11) which analyzed a statute's level of scienter and its application in a statute quite similar to section 1462. (12) Third, and finally, any interpretation that the Supreme Court, or any other court, proffers concerning the application of the requisite scienter to the material elements of the statute should follow and find support in the Model Penal Code's approach to interpreting a criminal statute with respect to defining the level of scienter in a penal statute. (13) Part II discusses several hypothetical and technologically based examples in which computer users might presume their activities to be lawful and innocent; (14) yet, through a subsequent examination of section 1462, (15) they would find themselves subject to criminal liability. These examples provide a hypothetical and factual background that illustrates both the difficulty of interpreting section 1462 and the pragmatic problems that section 1462 poses. Part III provides a brief discussion of the Internet and the social ills that section 1462 was designed to quell and provides a discussion on the legislative history produced with this statute, which does not contradict this author's proffered interpretation of section 1462 and potentially rescues the average computer user from the criminal stigma and cast of section 1462's language. …