Friday, January 30, 2009

High Court To Consider Communications Case

Cyber crime expert Susan Brenner penned a blog entry last week on an upcoming Supreme Court case concerning whether an individual setting up drug purchases by cellphone, the Internet, or even land-line telephone can be charged with a felony. The case, Abuelhawa v. United States, hinges on judicial interpretation of the decades-old Comprehensive Drug Abuse Prevention and Control Act. The 1970 statute outlaws the use of a "communication facility" to carry out "any act or acts constituting a felony." Law enforcement agencies have usually applied this law to drug dealers and not personal-use buyers, who are commonly charged with a misdemeanor or no crime at all.

In the new case, Salman Khade Abuelhawa used his cellphone to purchase a small amount of cocaine for personal use and was arrested by the FBI, which had tapped the dealer's phone. The federal government saddled Abuelhawa with a felony and the U.S. Court of Appeals for the 4th Circuit upheld the charge. For more on the case, click here to read a National Journal magazine story and here here for an audio slideshow.

Brenner points out that while Abuelhawa's case has nothing to do with computers, as such, the 1970 statue "does apply if someone uses a computer to facilitate the commission of a federal drug crime. In U.S. v. Long, 2006 WL 689125 (U.S. District Court for the District of Wisconsin 2006), for example, the § 843(b) charge was based on the defendant's using email to facilitate federal drug crimes." Brenner discusses the use of technology "as a factor either to aggravate the severity of the offense someone is charged with or using it to aggravate the sentence someone receives after being convicted of what is essentially a generic crime."

"If they uphold Abuelhawa's conviction, the decision will presumably validate the premise that aggravating a sentence or an offense level based on the use of technology legitimately applies regardless of what your role in the commission of the crime was," writes Brenner. "If the Court upholds Abuelhawa's conviction, the principle that establishes could be used to incorporate the use of technology as an aggravating factor into a variety of criminal statutes, which might or might not be a good idea, depending on how it was done."
-- Winter Casey