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Small-Scale Question Sunday for April 16, 2023

Do you have a dumb question that you're kind of embarrassed to ask in the main thread? Is there something you're just not sure about?

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Related to @FirmWeird's post here Do most people really commit Three Felonies a Day? I basically agree with the thesis that the Byzantine law system can manufacture criminality from very little and that innocent people can be prosecuted accordingly. Nonetheless, I am modestly confident that even maximally bad-faith scrutiny of my typical day would not result in three felonies, or even a single felony. Perhaps I live an unusually low-risk life, but I'm not really seeing the path to doing some entirely legal work, buying some groceries, going for a run, and watching some basketball on my legally licensed cable television including any felonies. I can easily believe that some point I have done something that could get me in trouble, even if I don't realize it, but this does not seem like a typical day to me.

I assume you're referencing this post?

It's been a while since I read the original book (and I wasn't particularly impressed at the time) but from memory it mostly used the headline-grabbing title as a metaphor and comparison rather than as a descriptive matter; almost all of the content was specific cases rather than specific laws, and many of them pretty specialized stuff (prosecutions of doctors as 'pill mills', of moderately corrupt politicians, of very high-level securities sellers, of lying to federal agents or obstruction of justice, so on). The author was less interested in the clear and unambiguous text of federal statutes, which he'd probably argue didn't cover a lot of normal people's behaviors, but the broader universe of things prosecutors could and did go after. Many of the specific examples Silvergate brings were even overturned (eg), well before the time of publishing, but still had wide and deep financial and reputational ramifications.

In that sense, Three Felonies a Day is a bit of its own strawman: I don't think there was a single example that a normal citizen might even have the opportunity to attempt, and most were extremely specialized: crime bosses (or their loan shark targets), prescription-writing doctors, lawyers or financial advisors, news (or at least tabloid) writers and international manufacturing components vendors, these aren't positions unheard of on the Motte, but the average poster isn't one. I'm not sure whether Silvergate picked the big names or the broad stories because he knew or could find more information about them than the countless plea bargains, because cases relevant for some 'normal' individuals would seem bizarre examples for other 'normies', or because he's just not that good a writer, or because he just loved the bigger scales and more impressive highlights. The most normal cases were a handful of Wacky Post-9/11 immigration-related matters that might strike a little closer to home (one involved a question of when and where providing website services counted as material support for terrorism), but still not very close.

Even where a 'normal person' could commit the underlying act, there's neither the political will nor the interest to slap average Joes over it. Yes, it's technically illegal to encourage someone to refuse to testify in some (complex, involving immunity orders) conditions, but if you're not also involved in a planned mafia hit it's not that likely to come up. It's technically illegal to lie to the FBI in way that could frustrate an investigation, but they're not going to ship you off to club fed if you tell them your dog ate your homework. Yes, it's technically illegal to show high-res thermal video or sell a device to non-US-citizens (ITAR) or certain high-resolution orthorectified aerial imagery, just as it's illegal to ship intercontinental-missile-making-components to India, even though in practice quite a lot of people do it pretty often by accident and the DoJ just overlooks it. Until they don't. Even if the feds get a bug up their ass and bring wire fraud charges for buying harmless bacteria samples from a university professor, sometimes the courts do drop it.

There's probably a steelman of the title somewhere. I've toyed with places where I think the plain text of a law could stretch to expanses few people would expect, but most of those were limited to areas where there would at least be the necessary political capital and benefits. Imagining the most perverse possible federal prosecutor is a whole different game. Baiting (felony misdemeanor, 1 year max sentence) or selling (felony, 2 year max sentence) the wrong migratory bird, expanded by regulation to include disrupting nests, is probably the trivial one, though it's also something that's not an all-seasons event, either. Aransentin has mentioned the Lacey Act and its various hilarities, made all the better that the position of the United States government holds that it doesn't matter if the location of origin claims that their law permits the 'unlawful' harvesting. Any tax evasion is a felony (five years): it's gotten easier to report all income and purchases, but it's still something a lot of people don't do because it's stupid -- that the feds generally only bring that charge when it's actually earned doesn't mean the statute requires it. Lie on a web form to get a trial version of an application without getting spammed to fuck-all? Wire fraud, 20 years. Share a prescription cough syrup? Controlled substances class V IV, felony, one five years. Wire fraud (felony, 20 years), honest service fraud (same), (state) wiretapping laws (various), there's some hilarious arguable interpretations that people pretty regularly can and do violate without even thinking about it. Write something wrong on a Form 4473 (even a 'wrong' meaningless one!) ten years.

It gets even goofier if you consider regulatory interpretation: gunnies can always reference the machine gun shoelace or any low-end DIY 'suppressor' (almost all NFA violations, including unlawful manufacturing of a machine gun, have a max sentence of ten years, thanks to 'constructive possession' just having the parts to build it 'counts'), but that's on the more plausible end, just like filling a small pond with sand (fine) might be. Consider the more expansive reads quickly goes to the point where it sounds more like a Monty Python joke.

But while this is interesting enough that Silvergate mentions games played by prosecutors trying to stretch the law to cover named celebrities, it's not that interesting : no one goes to court over the sort of things no one goes to court over. Some of these applications might not survive court review, at least in certain as-applied challenges -- either for due process reasons, or a court maybe not finding the statute as broad as the plain text for constitutional avoidance reasons -- but it's kinda irrelevant compared to the bit where it's just not going to happen. (Literally no one has ever faced trial over the Logan Act, still a felony, three years). This does matter: the expanse of ridiculous laws that are never enforced still control a lot of behavior among the risk-averse. And sometimes people do get Made Examples, and even if you get for screwing the mayor's wife or flipping the EPA the bird more than any specific statutory violation, the law's still the thing to catch the nature of a king.

While I think it would have been a more interesting book, it wasn't what Silvergate set out to write, and in turn that more interesting book on bad statutory or regulatory text would be a strawman for what Silvergate was going for. Three Felonies A Day was less interested in asking how hard it was to comply with the law, and more interested in asking whether the laws really mattered when police, prosecutors, and sometimes even judges were willing and happy to accept novel frameworks for the right target or high enough (or low enough) stakes.

but it's kinda irrelevant compared to the bit where it's just not going to happen

And sometimes people do get Made Examples

I find this incredibly relevant. Having a gigantic pile of insane laws that survive only because they're selectively enforced is a corrupt tyrant's wet dream. If everyone regularly commits felonies without realizing it, then everyone is at the mercy of the police and DA who can legally enforce these laws on whomever they dislike for any reason. It does matter, even if 99.9% never become the target of this selective enforcement, because the 0.1% who do will not be targeted because of their unique wrongdoing but because the powers that be chose to single them out, which can lead to a lot of bad stuff above and beyond jail time. Sure, you as a regular citizen won't be affected, as long as you keep your head down and never make someone in power dislike you. That incentive is itself the problem.