Appeals Court: Just Because Someone Used An Email Account To Send Threats Doesn't Make It An 'Interstate' Crime

If you want to turn a local crime federal, all you need is the internet. This has been the federal government's M.O. for years: bring federal charges as often as you can because everyone uses the internet to communicate. A plethora of content servers located around the United States makes this easy for prosecutors to use and abuse. Almost every communication -- IM, email, or comment -- passes through a number of servers located miles away from the person now accused of violating federal law.

Taking a local crime federal means enhanced charges and longer sentences, often prompting accused citizens to sign plea deals that will keep them from paying a trial tax that now includes federal sentences for local actions.

A successful challenge to "well, now it's federal" assumptions about internet use has been raised by Michael Golightley -- a man accused of violating federal law for allegedly hacking and threatening his local broadband provider. Golightley, a Lenora, Kansas resident, decided to fight back when his internet service provider (Nex-Tech) removed his online sales listing for supposedly violating the intellectual property rights of unnamed third parties.

Golightley got mad. And got even. Incoherent threats were made. From the Tenth Circuit Appeals Court decision [PDF]:

take my ad down again when my description doesnt violate copy right, i will violate this site by bringing it offline, fix the ad. if u make me upset, i will retaliate, your choice, and im not making a threat im very capable of bringing down this website.

Seems harmless enough, especially considering Nex-Tech still held almost all the power in this relationship. His follow-up "threat" was no more comprehensible.

ip address 24.225.8.90 will be submitted at exostress.in for 24 hours if my demands are not met with in 12 hours, your choice, and remember, you have been warned..

Nex-Tech deactivated the accounts linked to these mostly incoherent threats. However, following a help desk call from yet another account Nex-Tech believed was linked to the earlier threats, Nex-Tech's classified ad service was taken down by a DDoS attack. This went on for the next few days, with DDoS attacks interrupting various Nex-Tech services.

Law enforcement traced the accounts back to Golightley. He was charged with a handful of computer crimes, but the feds made it their business by making claims about "interstate commerce." These charges were brought even though Golightley, a Kansas resident, allegedly targeted a Kansas internet service provider.

The court says the federal prosecutor's assumptions are wrong. There's nothing in this case that indicates any "interstate" communications took place.

Threatening to damage a protected computer in violation of § 1030(a)(7)(A) requires the government to prove, among other elements, that Golightley transmitted at least one of his two threats “in interstate or foreign commerce.” § 1030(a)(7). But Golightley argues that the government failed to present evidence that would allow the jury to reasonably infer that he transmitted any threat in interstate commerce. Instead, he argues, the government merely showed that he transmitted his threats over the internet, which is insufficient to prove the interstate-commerce element.

The government conceded that using the internet is not enough -- by itself -- to support allegations of interstate commerce violations. But that didn't stop the government from arguing the evidence it had actually supported these claims. The court sets it straight, benchslapping it for unjustified assumptions about evidence it didn't actually possess.

The government contends that Golightley sent these messages from his personal email address, ntcsucks@mail.com. Exhibit 5 shows automated correspondence from mail.com to Golightley that Golightley received after creating his ntcsucks@mail.com email address. At the bottom of the email from mail.com is the following trademark notice: Supp. R. 62.

[If you can't see the embed, a copyright notice at the bottom of the mail.com footer says Mail & Media is located in Pennsylvania and the "mail.com" trademark belongs to it.]

The government f