Intellectual Property Law

Threats Sent via E-mail Constitute a Federal Crime

By IBLS Editor

Electronic communications, in particular e-mails, have become a valuable working and social tool in the XXI century.  Unfortunately, given its immediate delivery and disguised anonymity, some conflicted souls are increasingly using e-mails to transmit hateful messages.  Transmitting threatening messages via e-mail is a federal crime in the United States and carries a penalty of imprisonment of up to five years or a fine, or both.  Following, there is information on the federal statute that criminalizes threatening e-mails and a recent case of a man accused of sending racially hateful e-mails.

Last week a man pleaded guilty in federal court to writing racially hateful letters and e-mails.   David Tuason, a 46 year-old Pilipino, had been indicated with two counts of threatening interstate communications and six counts of mailing threatening letters.  Besides hateful letters sent via regular mail, Tuason sent hateful e-mails in which he expressed his hate against black or racially-mixed men.  Tuason sent threatening and hateful communications to celebrities, athletes, musicians, students, and even to US Supreme Court Justice Clarence Thomas.   The FBI tracked Tuason's e-mails sent from a public library in Ohio.

18 U.S.C. § 875(c) states: "Whoever transmits in interstate or foreign commerce any    communication containing any threat to kidnap any person or any  threat to injure the person of another, shall be fined under this  title or imprisoned not more than five years, or both."  From the wording of § 875(c) it is clear that the legislator did not require the element of 'intent.'  Thus, it is irrelevant if the accused claims he/she did not have the intent to produce any injury on the victim; the mere act of sending the e-mail with threatening messages typifies the criminal conduct.

The holding in United States v. DeAndino, 958 F.2d 146 (US Ct. App. 6th Cir. 1992) confirms this statement.  In DeAndino, the court held: "A criminal statute such as 18 U.S.C.S. § 875(c) does not contain a specific mens rea element. However, such a statute is not presumed to create a strict liability offense, because mere omission from the statute of any mention of intent will not be construed as eliminating that element from the crime denounced." In other words, 'federal stalking,' as this crime is also known, is not a strict liability crime but it does require prosecutors to prove that the accused committed the offense.  Thus, the 'wording' of the e-mails and the e-mails themselves are critical evidence in these cases.  Threats of injury must be found in the e-mails sent by the accused.  As the Court held in DeAndino, the words in the [e-mail] message must fully, directly, and expressly set the elements of the statutory offense.  For instance, in Tuason, the wording of one of his e-mails said: ?Mulatto kids are ugly freaks that should be destroyed. . . The blackie should be castrated. I want people in public malls, photo shoots, TV studios, radio, concerts, arenas, restaurants, NBC TV, Bravo TV, parties, sidewalks, etc. to stare and stab dead any blackie with a white girl like ?SS?. . . If not, I ?HK? WILL BOMB THE PLACE.?  These words are a clear example of threatening words of injury under the federal statute.

Many other US circuit courts have followed this interpretation in DeAndino.  For instance, the First, Second, Fourth, and Fifth circuit courts have followed this interpretation of 18 U.S.C. § 875(c) as not requiring specific mens rea (mental state of intent).

DeAndino held that this crime requires three specific elements: (i) there must be a transmission in interstate commerce; (ii) there must be a communication containing the threat; (iii) and the threat must be a threat to injure the person of another.   

Therefore, according to 18 U.S.C. § 875(c) sending e-mails with words threatening injury is a federal crime and can be easily proven by showing that it was sent to a person in other state, showing the e-mail, and the wording that the e-mail contains.  Thus, individuals prompt to explosive reactions should be cautions when wording their e-mail messages.  A simple 'mistake' in wording e-mails threatening its recipient with an injury, even if not intended, may typify a federal crime with a harsh imprisonment sentence.

Full post as published by IBLS Internet Law Blog on May 18, 2008 (boomark / email).