My review of Harvey Silverglate's Three Felonies A Day: How the Feds Target the Innocent

Below is my review of Three Felonies A Day that appeared in the Sturbridge Times April 2016 issue.

Big Brother Is Watching and Ready to Pounce

Book Review by Richard Morchoe

When you get up this morning, you're in trouble. You don’t realize It, but you are a criminal. Yes my fellow average American, it may be true. By the time sleep comes over us, thrice we will have transgressed Federal Law.

That is the contention of Three Felonies A Day: How the Feds Target the Innocent by Attorney Harvey Silverglate. Is it more than hyperbole?

Attorney Silverglate is not without qualifications. With a Harvard Law degree, he has been an advocate for civil liberties for over four decades. More recently, he has been concerned with free speech issues on campus. Along with Professor Alan Kors he authored The Shadow University: The Betrayal of Liberty on America's Campuses. Both men are in no sense conservatives so their critique of the tyranny of political correctness, as it holds sway in college, carries some weight.

The two men co-founded the Foundation for Individual Rights in Education (FIRE). Attorney Silverglate is Chairman of the Board of Directors.

The book's argument is maybe best illustrated by two cases, that of Theodore Anzalone and that of Bradford Councilman. Though almost two decades apart, they bookend the descent of the American legal system in its willingness to ruin lives for little purpose.

In the early eighties, Theodore Anzalone was a fundraiser for Boston mayor Kevin White. The then U.S. Attorney for Massachusetts, William Weld, wanted to take down White and the way to do it would be to get someone to testify against him. Getting something on Anzalone and making a deal for his testimony was the plan.

The Feds got a conviction on Anzalone for splitting up deposits and making them for under $10,000 so that the bank would not have to report them. Legal at the time, the judge decided on his own that it was still a crime and the jury agreed.

The appeals court saw through Weld's gimmicky prosecution and the judge's bad instructions and reversed the verdict. They did the right thing, but would they always?

Almost two decades later, the same court, but with a different makeup, did not. Bradford Councilman was Vice President of a company that provided an online listing service for rare and out of print books. His company also supplied email addresses and served in that capacity as an ISP or internet service provider.

Councilman was accused of backing up client messages in order to get an unfair advantage in pricing and violating the federal wiretap statute. The accused claimed he never read the messages, Was storing them a crime?

The appeals court went back and forth and finally under intense pressure reversed the district court judge's dismissal. We have come from the Anzalone case where the tribunal refused to see a crime where one wasn't to what is now the opposite. The judiciary increasingly is all too willing to cooperate almost as part of the prosecution.

Silverglate notes the result of this is many ruined lives and shattered civil relationships when things that should not be crimes are so interpreted. This is not to say there are not real criminals in the world doing evil, but the prosecutors need not seek to find everything a crime.

Can anything be done?

Alan Dershowitz, in his foreword, suggested that the attorney general should not be the appointee of the president and thus not political. The author does not think that would do much and it is hard to disagree.

Attorney Silverglate seems to suggest everybody behave better and who would not want that? Defenders should see themselves in this climate as civil liberties lawyers and the press should be far more skeptical. Good ideas but hardly enough.

The author notes that there are many vague laws that can be stretched to catch the citizen for crimes he was unaware of. Maybe we need to reduce the number of statutes and their size. As Cicero noted, “A corrupt state has many laws.” One should expect a long wait for that.

Silverglate has laid out a compelling case concerning prosecutorial overreach. Do we, out here in the exurbs, have to worry about three indictments du jour? Probably not for most of us if only because we are too low for the radar. That hardly means it is not a problem. It could happen even if it doesn't.

You might say, at least no one gets killed. Well, not exactly.

Last year Harvey Silverglate would be a featured speaker at a rally in memory of Aaron Swartz. Swartz had been involved in what could be called a case of electronic trespass and theft. The state had seemed to come to the conclusion that it had been much ado about not too much and were ending their involvement. At this point, Carmen Ortiz, US Attorney for Massachusetts grabbed it. According to Silverglate, "Tragedy intervened when Ortiz’s office took over the case to 'send a message'."

The squeeze on Swartz did send a message and Swartz, an internet freedom activist, would commit suicide.

That message was not just for Aaron.