Three Cases
Double Jeopardy When the Feds and States Act-in-Concert

Federal Powers and Cell Phones

A computer whiz and U. Wisc. MBA student found a way to send out a signal that would block all police communication over radio.  On one night, his signal blocked a control channel that a computer used to re-direct radio traffic to prevent signal bleeding.  Because of this, police were unable to communicate over police radios.

The student was convicted under 18 U.S.C. 1030(a)(5), which makes it a felony to interfere with computer-related systems used in interstate commerce.  The student brought a federal-powers based challenge to his conviction.  He argued that since his signal did not affect communications in other states, Congress lacked the power to criminalize his conduct.  Judge Easterbrook, writing for a unanimous three-judge panel, disagreed.

Mitra observes that his interference did not affect any radio system on the other side of a state line, yet this is true of many cell-phone calls, all of which are part of interstate commerce because the electromagnetic spectrum is securely within the federal regulatory domain. See, e.g., Radovich v. National Football League, 352 U.S. 445, 453 (1957); Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266, 279 (1933). Congress may regulate all channels of interstate commerce; the spectrum is one of them. See United States v. Lopez, 514 U.S. 549, 558 (1995); United States v. Morrison, 529 U.S. 598, 608-09 (2000).... Once the computer is used in interstate commerce, Congress has the power to protect it from a local hammer blow, or from a local data packet that sends it haywire.... Section 1030 is within the national power as applied to computer-based channel-switching communications systems.

United States v. Mitra, No. 04-2328, at *7 (7th Cir. Apr. 18, 2005).  The holding is sensible, and unsurprising.  The only troubling aspect of the decision is his writing that "all [cell phone calls] are part of interstate commerce [ ]."  This turns every conversation made via cell phone into a potential federal offense.

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