Criminalizing ‘Sneaky’ in New York

The ‘Dread Pirate Roberts’ – Ross Ulbricht, to you and me and the FBI – has been convicted of several crimes in connection with Silk Road, the ‘black market’ website described in the video above. We don’t intend to get too far into that case, but a statement by the defense, as quoted in the Daily Beast got our attention: “the government equates the desire for privacy… with criminal intent.”

New York’s Court of Appeals would seem to agree with the government, there. The court got a good deal of ink last year when, in People v. Golb, it struck down as unconstitutionally vague and overbroad a law that forbade communicating with someone “in a manner likely to cause annoyance or alarm.” Among journalists, the takeaway message seemed to be that a great blow had been struck for liberty and free speech.The New York Times, for instance, published a piece under the title ‘Top Court Champions Freedom to Annoy‘. And New York Magazine – with more feeling than accuracy – published an article about the case, entitled ‘Annoying Someone Is No Longer a Felony in New York‘. (Aggravated harassment in the second degree, as defined in subdivision 1 of Penal Law Section 240.30 was a misdemeanor, not a felony).

Where the court closes one door, however, it often opens another. In upholding the defendant’s convictions for criminal impersonation and forgery, the Court of Appeals in Golb made it clear to prosecutors just how easy it can be to charge someone with those crimes.

And it’s all too easy, as noted in Judge Lippmann’s thoughtful dissent from this part of the majority’s decision. It goes so far, in fact, that it’s arguably an unconstitutional attack on free speech.

The case of the People v. Raphael Golb was a fascinating one, as you’ll see if you take a look at an in-depth Times article we’ve linked to here. It involved the dead sea scrolls, scholarly controversy, and poison-pen letters. Mr. Golb’s father was a professor of Jewish history and civilization who had a theory about the origin of the Dead Sea scrolls. Other scholars disagreed with that theory – and Mr. Golb went to war against them. Among other things, he created email accounts that seemed to belong to those other scholars and, in at least one case, used such an email account to send a message confessing (in the name of the of the scholar in question) to plagiarism.

Mr. Golb was found guilty, as we’ve said, of multiple counts of Forgery in the Third Degree and Criminal Impersonation in the Second Degree (both misdemeanors).

Criminal Impersonation in the Second Degree is defined in Section 190.25 of the Penal Law. Golb was concerned with subdivision 1 of the statute, which forbids “impersonat[ing] another and do[ing] an act in such assumed character with intent to obtain a benefit or to injure or defraud another[.]”

Mr. Golb hadn’t stolen any money – or tried to steal any money – and it’s hard to see how he thought some of his actions could help him or his father. But he had sent his poison-pen letters from email accounts that had the names of other people. This made it look like the emails had actually been sent by those other people. And some of those emails made the supposed sender look bad. This might have (and certainly could have) hurt their reputations. Per the Court of Appeals in Golb, “a person who impersonates someone with the intent to harm the reputation of another may be found guilty of this crime.”

The court found that the actions of Mr. Golb were “more than a prank intended to cause temporary embarrassment or discomfiture, and that he acted with intent to do real harm.” This suggests that there is some sort of threshold you have to cross before your deception rises to the level of a crime. Presumably, a ‘prank intended to cause temporary embarrassment or discomfiture’ wouldn’t be criminal impersonation. But how do you know when you’ve crossed that line? And where in the statutory language, as the dissent more or less asks, is that line in the first place?

Forgery in the Third Degree is defined in Section 170.05 of the Penal Law. A person commits this crime when, “with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument.” The Court of Appeals found that, in this case “[t]here was sufficient evidence to show that defendant deceived people by sending emails from accounts in the names of [his enemies], and accordingly we affirm his convictions on those counts.”

We’ll be discussing this case in later entries, including its constitutional ramifications, but for now – just to be on the safe side – if you’re telling a ‘knock-knock’ joke, the answer to ‘who’s there?’ had better be your own name.