Crime, the Commerce Clause, and the Internet

Congress can enact federal criminal statutes pursuant only to an enumerated constitutional power. One such power is Congress’s authority to regulate interstate and foreign commerce under Article I, Section 8, Clause 3 of the Constitution, known as the Commerce Clause. Federal courts have construed the Commerce Clause to grant Congress considerable authority over crimes involving the internet, which is itself a channel and instrumentality of interstate commerce. Given the ubiquity of computers and the omnipresence of the internet, the Commerce Power gives Congress a potential jurisdictional hook to federalize a variety of criminal activities. In considering the extent to which a commerce-grounded law includes the internet, courts have focused less on the abstract reach of the Commerce Clause and more on discerning congressional intent as manifested in particular statutory language. Much of the federal caselaw examining Congress’s use of the commerce power to criminalize internet-based conduct looks to the exact jurisdictional language employed in a particular statute. See, e.g., United States v. Haas, 37 F.4th 1256, 1264 (7th Cir. 2022) (“[The defendant] begins with a truism: the particular wording of the interstate-commerce element of a statute establishes what the government must prove.”). For example, some statutes used to prosecute crimes involving the internet, like the wire fraud statute (18 U.S.C. § 1343), require proof that the offending communication is transmitted “in interstate or foreign commerce.” Others, like 18 U.S.C. § 2252A(a)(1), which criminalizes conduct involving Child Sexual Abuse Material (CSAM)—require proof that the offending content is “transport[ed] or ship[ped] using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer.” Federal courts diverged on whether mere internet use is satisfactory proof of transmission in interstate or foreign commerce, or whether such criminal statutes require proof of transmission across a state border. See, e.g., Haas, 37 F.4th at 1264–65 (collecting caselaw and describing circuit split). By amending the jurisdictional language in federal CSAM laws to have a broader scope, Congress superseded that particular disagreement, but the divergence remains with respect to other laws used to prosecute crimes, such as wire fraud and interstate threats. That divergence is relevant when Congress seeks to criminalize the transmission of images, messages, or other content through its commerce power. It has a choice over the precise jurisdictional language used, which in turn may affect the legal scope of the statute. If Congress uses jurisdictional language like that employed in the current CSAM statutes, courts would likely interpret it to include mere internet use. See, e.g., United States v. Clark, 24 F.4th 565, 573, 574–75 (6th Cir. 2022) (collecting cases where federal courts concluded that a 2008 Amendment expanded the jurisdictional sweep of the CSAM provisions to include conduct involving the internet). In contrast, at least some federal courts would likely interpret jurisdictional language like that used in the wire fraud statute as requiring proof that the transmission actually crossed a state line. See, e.g., United States v. Kieffer, 681 F.3d 1143, 1155 (10th Cir. 2012) (“[O]ne individual’s use of the internet, standing alone,’ does not establish an interstate transmission”). On a practical level, however, the inherently cross-border nature of the internet might limit the number of cases in which the distinction between mere internet use and cross-border transmissions actually makes a difference. C.f. United States v. Kammersell, 196 F.3d 1137, 1139 (10th Cir. 1999) (describing the argument that a broad reading of jurisdictional language in a statute covering interstate transmissions would “cover almost any communication made by telephone or modem” because “so many . . . locally-sent Internet messages are routed out of state”). That is because even courts that require an interstate transmission under some statutes would generally accept an instance where the offending message is sent and received in a single state, as long as it has been briefly routed through a second state. See, e.g., United States v. Nissen, 432 F. Supp. 3d 1298, 1321 (D.N.M. 2020) (“Section 875(c)’s interstate commerce element is satisfied when a communication actually crosses state lines, however briefly.”). The Computer Fraud and Abuse Act, with its focus on crimes targeting internet-connected computers, provides a slightly different jurisdictional approach that might be a relevant model should Congress choose to prohibit other conduct targeting such devices.