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Does “Transmission in Interstate Commerce” Require Interstate Transmission?

Today the Third Circuit offered the fullest treatment yet of a very interesting jurisdictional issue that often arises in federal computer crime cases: Does the requirement of “transmission in interstate commerce” require interstate transmission, or merely intrastate transmission over a channel of interstate commerce?  In other words, does “transmission in interstate commerce” mean interstate transmission, or transmisson via an interstate network? 

In today’s decision, United States v. MacEwan, the Third Circuit concluded that “transmission in interstate commerce” means only transmission using a means of interstate commerce.  MacEwan had downloaded images of child porn0graphy to his home computer in West Chester, Pennsylvania using a Comcast cable modem.  Comcast has servers located in Pennsylvania, so it wasn’t clear whether the images that MacEwan downloaded had crossed state lines. MacEwan was charged with violating 18 U.S.C. § 2252A(a)(2)(B), which  punishes “[a]ny person who . . . knowingly receives or distributes . . . any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.”  MacEwan argued that the jurisdictional hook had not been satisifed because there was no evidence that the images had crossed state lines.  

 In an opinion by Judge Aldisert, the Third Circuit rejected the challenge:

MacEwan is conflating “interstate commerce” with “interstate transmission” and confusing the nature of the jurisdictional basis for his charged offense.  Nowhere in the statute does it state that the child porn0graphy images must have crossed state lines; rather, it states solely that they must have been “transported in interstate . . . commerce by any means, including by computer.” * * *

“The Internet is an international network of interconnected computers . . . [and is comparable] to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.” Reno v. ACLU, 521 U.S. 844, 850-853 (1997). Moreover, as is evident from the trial testimony of the government’s expert, unless monitored by specific equipment, it is almost impossible to know the exact route taken by an Internet user’s website connection request, such as MacEwan’s requests to connect with various child porn0graphy websites. Because of fluctuations in the volume of Internet traffic and determinations by the systems as to what line constitutes the “Shortest Path First,” a website connection request can travel entirely intrastate or partially interstate.

Regardless of the route taken, however, we conclude that because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to user, the data has traveled in interstate commerce. Here, once the images of child porn0graphy left the website server and entered the complex global data transmission system that is the Internet, the images were being transmitted in interstate commerce.  To quote the Court of Appeals for the First Circuit in United State v. Carroll, the “transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce.” 105 F.3d 740, 742; see United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002) (same).

I find this reasoning problematic for two reasons.  First, the notion of “transmission in interstate commerce” is fairly common in criminal law, and my sense is that the phrase has generally been interpreted to require interstate transmission.  For example, the Wire Fraud statute, 18 U.S.C. § 1343, requires “transmi[ssion] by means of wire, radio, or television communication in interstate or foreign commerce,” and the interstate threat statute, 18 U.S.C. § 875, requires that the defendant “transmit[ the threat] in interstate or foreign commerce.”  But courts have routinely stated that the communications themselves must be interstate, not that they must occur over an interstate network.  

Second, it’s not exactly clear what the Court means by “the Internet.”  If any communication transmitted over “the complex global data transmission system that is the Internet” is automatically transmitted in interstate commerce, then we need to figure out when a communication was downloaded from that “complex global data transmission system” versus from a local network.  But the distinction isn’t exactly clear, I think.  For example, imagine a law student e-mails a death threat from his university e-mail account to another student at his university account.  Assuming that both students access their e-mail using the law school’s wireless network, is that threat transmitted over “the Internet”?  Or is it only transmitted within a server that happens to be connected to the Internet?  Similarly, imagine I hook up two computers in a network in my house that is connected via a DSL line to the net, and I transmit a message from the first computer to the second.  Is that communication transmitted over ”the Internet,” or only on my local network?  In other words, where exactly does ”the Internet” start?    

Finally, note that the Court quotes the First Circuit’s rule in Carroll for a very different proposition than the Carroll court adopted.  Carroll stated that “transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce.”  (emphasis added).  The thinking (whether rightly or wrongly) was that any image downloaded from the ‘Net probably had moved across state lines at some point.   But the MacEwan rule is very different: it is that the photographs don’t actually have to cross state lines, so long as they travelled on a network that crossed state lines.