Orin Kerr has an interesting blog post, discussing how the government has been rejected in an attempt to turn a misdemeanor email hacking case into a felony, by finding two overlapping laws to charge the guy with
for the single action. Kerr nicely summarizes the issue as follows:
Federal criminal law has two overlapping misdemeanor criminal offenses that prohibit hacking into an e-mail account. The first, 18 U.S.C. 2701, specifically prohibits hacking into an e-mail account stored on an ISPís server. The second, 18 U.S.C. 1030(a)(2), generally prohibits hacking into any computer, which will always be implicated when a person hacks into an e-mail account. The present overlap is largely a historical accident. When the two sections were enacted, both in 1986, Section 1030ís scope was very narrow. There was little overlap. But Section 1030 has been expanded over time so that it now covers every computer. As a result, 2701 in its current form is redundant: It doesnít do any work that 1030 doesnít already do. However, that overlap matters because violations of 2701 and 1030(a)(2) are normally misdemeanors, but Section 1030 contains an enhancement: The crime becomes a felony if it is conducted in furtherance of another crime. The present overlap between 1030 and 2701 raises the prospect that prosecutors might try to use the felony enhancement to engage in a kind of double-counting. Hereís the question: Can DOJ charge hacking into an e-mail account as a felony by claiming that it is a 1030 violation in furtherance of a 2701 violation?
Apparently the Justice Department originally tried this with the guy arrested for hacking Sarah Palin's email, but later changed the charges. However, in this other case, United States v. Cioni, the 4th Circuit appeals court has rejected this line of reasoning by the government, and made it clear that it's attempting to double dip over a single action in order to turn a misdemeanor into a felony. The court points out that this pretty clearly violates US principles on double jeopardy:
Looking simply at the allegations of Count 2, it does appear that the government charged Cioni with unauthorized access or attempted access to information in [Victim 1]'s e-mail account and sought to elevate that charge to a felony by alleging that the access to [Victim 1]'s e-mail also constituted a violation of § 2701. Moreover, the facts that the government offered into evidence in support of Count 2 confirm this reading. . . . We thus conclude that a merger problem did arise, implicating double jeopardy principles, and that therefore the felony conviction on Count 2 must be vacated, and, as requested by Cioni, the count remanded for entry of a simple misdemeanor conviction, under § 1030(a)(2)(C).
. . . . Count 4, which claims two crimes, one in furtherance of the other, is actually based on Cioniís single unsuccessful attempt to access [Victim 2]'s AOL electronic e-mail account. Moreover, this is all that the government proved at trial. If the government had proven that Cioni accessed [Victim 2]ís e-mail inbox and then used the information from that inbox to access another personís electronic communications, no merger problem would have arisen. But the government charged and attempted to prove two crimes using the same conduct of attempting, but failing, to access only [Victim 2]ís e-mail account. This creates a merger problem, implicating double jeopardy principles.
Always good to see courts get things right.