How well do you know your computer? The level of scienter in 18 U.S.C. s. 1462.

• Author: Zappen, Matthew James

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)

1. 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. (16) The discussion of section 1462's legislative history in Part III shows that the statute arguably was not intended to subject the persons and situations described in the Part II examples and hypotheticals to criminal liability. Part III culminates with a discussion of the problems with interpreting and defining section 1462's scienter requirement. (17) Given the problems posed by section 1462 and the widespread occurrence of such problems in many federal statutes, Part IV provides support for this comment's interpretation of section 1462. (18) Part IV.A discusses some of the key federal cases, including United States v. Thomas, (19) that have interpreted section 1462. Part IV.A's analysis shows that support in case law for this Comment's approach to interpreting the level of scienter in section 1462 has not been specifically addressed as of yet, and, as a result, one must look to cases examining and interpreting 18 U.S.C. [section] 2252 for persuasive and guiding force. (20) Part IV.C discusses the Model Penal Code's approach to resolving such problems concerning scienter in a criminal statute. (21) Finally, using the history, arguments, approaches, and authorities discussed in Parts III and IV, (22) the key arguments (23) for interpreting section 1462 are discussed and applied in Part V to the hypothetical examples given in Part II. (24)

2. CRIMINAL BEHAVIOR OR TECHNOLOGICALLY INADVERTENT BUT INNOCENT BEHAVIOR?

   The following examples demonstrate the vast scope of section 1462, and depict examples of computer activity through which the computer user could be prosecuted under section 1462. These examples provide a factual context for later discussion of section 1462. (25) Part V explains how criminal liability would be avoided in these examples should the statute be read in accordance with the teachings of X-Citement Video and the Model Penal Code. (26) In other words, if the level of scienter traveled down the statute so that it modified all of the material verbs and nouns, then the computer user in most of the following hypotheticals would escape criminal liability within the scope of section 1462.

   1. The Errant-Click Problem

      In the first example, the computer user is browsing the Internet, and the user comes across a web page with pop-up banners, (27) which frequently display advertisements or links to web pages with obscene material on them. A pop-up banner or window is often just another web-browser window that appears on one's computer screen. (28) In this scenario, the user knows that he or she is online and knows that the server containing the web-page information is in another state or jurisdiction. The user is knowingly online and knowingly uses an interactive computer service to receive or bring data from other jurisdictions into his or her own jurisdiction. (29) While attempting to close the pop-up banners, or while attempting to perform any other mouse-clicking function geared at or towards the pop-up window, the computer user knowingly clicks the left-mouse button on the pop-up window, (30) but he or she does not realize that clicking on the particular spot on the window takes the user to that site--or the user simply does not know what pop-up windows are or what they do, much like an uninformed child touching a hot stove or something intriguing for the first time--and the uninformed computer user clicks on the pop-up window. When the computer user clicks on one of the pop-up banners, which contains a link to an obscene web page, the user's main Internet browser or window visits that web page. (31) It is also possible that one of the pop-up windows depicts a web page that does not contain obscene materials, but when the user clicks on the banner, knowingly or not, the visited site does in fact contain obscene material. (32) In essence, the pop-up window tricks the user into visiting its site. The moment the user clicks on the pop-up window, obscene images, in the form of bytes of data, are sent to the user's computer and are decoded by the Internet browser that the user is working with so that the user may view the material on his or her computer--in his or her own state. Thus, by knowingly clicking the left-mouse button, which produced the subsequent unintended visit, the user knowingly brings materials into his or her state, despite the fact that the user did not want these materials sent to his or her computer.

   2. The Redirection Problem

      The facts in this example are similar to those of the Errant-Click Problem. (33) With the Redirection Problem, the computer user is subjected to an unintended obscene web site visitation either through a window that redirects the user automatically, or through a pop-up window that redirects the user to another page, which turns out to contain obscene material. Redirection commonly occurs when a company or other organization wishes to send a computer user, who is visiting the company's old web page, to their new web page. (34) Often the user is instructed on the web page that he or she originally visited that he or she will soon be redirected, but the location or means of redirection might not be readily apparent. (35) In this example, the user knowingly uses an interactive computer service and knowingly engages in the interstate transmission of data, which turns out to be obscene, but the user did not want--and did not intend to acquire--the materials that he or she received and possessed.

   3. The Inadvertent-Storage Problem

      In this example, the computer user comes across the depiction of obscene images and material through no fault of his or her own or comes across obscene material through the trickery of a particular web page that he or she has visited. Regardless of how the user comes across the depiction of obscene material through a knowing interstate transmission of obscene material while knowingly...