Contributor, The Volokh Conspiracy

Former New York police officer Gilberto Valle, dubbed by local media as the “Cannibal Cop,” and his mother, Elizabeth Valle, leave the U.S. District Court for the Southern District of New York last year. (Carlo Allegri/Reuters)

From today’s United States v. Valle decision:

This is a case about the line between fantasy and criminal intent. Although it is increasingly challenging to identify that line in the Internet age, it still exists and it must be rationally discernible in order to ensure that “a person’s inclinations and fantasies are his own and beyond the reach of the government.” Jacobson v. United States, 503 U.S. 540, 551–52 (1992). We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.

This does not mean that fantasies are harmless. To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law. Because “[t]he link between fantasy and intent is too tenuous for fantasy [alone] to be probative,” United States v. Curtin, 489 F.3d 935, 961 (9th Cir. 2007) (en banc) (Kleinfeld, J., concurring), and because the remaining evidence is insufficient to prove the existence of an illegal agreement or Valle’s specific intent to kidnap anyone, we affirm the district court’s judgment of acquittal on the single count of conspiracy to kidnap….

At trial, the prosecution built its case around Valle’s chats and emails with his alleged co‐conspirators. On appeal, it argues that these communications, “taken at face value, were fully sufficient to establish his intent to join a kidnapping conspiracy.” We disagree.

As previously explained, Valle’s chats and emails with the three alleged co‐conspirators were part of a much larger set of chats and emails with 24 individuals on [the Dark Fetish Network site]. According to the prosecution, the former were unique because they evinced “real” criminal intent while the rest did not. After reviewing the chats and emails introduced at trial, the district court concluded that the “real” and “fantasy” chats were indistinguishable.

Our review of the record yields the same conclusion. In both groups of chats, Valle transmits Facebook images of women and offers to kidnap and sell them on a “cash upon delivery” basis, and in both groups he expresses a desire to kidnap, rape, torture, and eat women whom he knows. In both groups Valle also claims to conduct surveillance of potential victims and discusses his intentions to kidnap them using chloroform and ropes. And in both groups he describes the various devices he “owns” that will assist in the process. Many of the “fantasy” chats also do not explicitly state that the participants are engaged in fantasy and are as graphic and detailed as the “real” chats. For example, the “real” chats and the “fantasy” chats both include haggling over the kidnapping fees that Valle “wanted to charge,” although the prosecution argues that this haggling is unique to the “real” conspiracy …. The “real” chats thus contain the same core elements as the chats the Government concedes are “fantasy.”

Moreover, the “real” chats take place in the same time period as the admittedly “fantasy” chats…. [And e]ven when “taken at face value,” the “real” chats contain numerous other indicia of fantasy….

On this record, no reasonable juror could conclude beyond a reasonable doubt that Valle possessed the specific intent to kidnap anyone or that he and his alleged co‐conspirators ever formed an agreement to actually carry out any of the purported kidnappings. The mere indulgence of fantasy, even of the repugnant and unsettling kind here, is not, without more, criminal.

If you’re interested, read the whole opinion, and Judge Straub’s dissent; both discuss the facts in much more detail (much of which is quite unpleasant).

Besides affirming the trial court’s judgment of acquittal (a judgment in which the trial court set aside the jury verdict of conviction), the court also overturned Valle’s Computer Fraud and Abuse Act conviction. The Act makes it a crime for a person to “exceed[] authorized access" to a computer, and Valle used his police department computer access to run a search for improper purposes. The question is whether “exceed[] authorized access” (1) encompasses such situations — where you’re authorized to use a computer for certain purposes (e.g., work), and you use it for other purposes (e.g., play) — or (2) is limited to situations where you access a computer using, say, a logon ID that you know you aren’t allowed to use. The court concluded that the law was ambiguous, and thus under the so-called “rule of lenity,” the narrower interpretation (number 2) should be used:

As the Ninth Circuit aptly put it in Nosal [an earlier decision about the same legal issue], “[b]ecause ‘protected computer’ is defined as a computer affected by or involved in interstate commerce — effectively all computers with Internet access — the government’s interpretation of ‘exceeds authorized access’ makes every violation of a private computer use policy a federal crime.”

Whatever the apparent merits of imposing criminal liability may seem to be in this case, we must construe the statute knowing that our interpretation of “exceeds authorized access” will govern many other situations. It is precisely for this reason that the rule of lenity requires that Congress, not the courts or the prosecutors, must decide whether conduct is criminal. We, on the other hand, are obligated to “construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals.” While the Government might promise that it would not prosecute an individual for checking Facebook at work, we are not at liberty to take prosecutors at their word in such matters. A court should not uphold a highly problematic interpretation of a statute merely because the Government promises to use it responsibly.

Our own Orin Kerr is the nation’s leading expert on the Computer Fraud and Abuse Act and has blogged about that issue in the context of this very case, when the case was orally argued; he may well blog more about the issue shortly.

I filed an amicus brief in this case on behalf of the Electronic Frontier Foundation, the Center for Democracy and Technology, the Marion B. Brechner First Amendment Project, the National Coalition Against Censorship, the Pennsylvania Center for the First Amendment, and Profs. Clay Calvert, Nadine Strossen and Jeffrey Vagle. The brief argued that the First Amendment calls for courts to scrutinize the evidence closely in conspiracy cases, and apply independent review of any conviction, to the extent that the cases rest on speech. The Second Circuit didn’t rely on that theory, but concluded that the evidence was still insufficient to prove guilt beyond a reasonable doubt (even under normal, non-First-Amendment criminal law principles).