Benjamin Nigrin | Is Evidence of Transmission Over the Internet Sufficient to Prove Transmission in Interstate Commerce?

BACKGROUND

In  2019, Theory Wellness, an operator of marijuana dispensaries, contracted with Sean O’Donovan, a local Massachusetts attorney, to provide government-relations assistance in support of their endeavor to receive approval from the city of Medford, MA, to sell marijuana. O’Donovan attempted to influence  Medford’s chief of police through his brother to procure the approval by promising him some of the business's future proceeds but was eventually caught. He was found guilty of two counts of honest-services wire fraud and one count of federal program bribery. 

In United States v. O’Donovan, No. 24-01200 (1st Cir. Jan. 15, 2025), O’Donovan argues (in pertinent part) on appeal that there is an absence of record evidence that the iMessages upon which the honest-services wire fraud charges are predicated crossed state lines. O’Donovan and the chief’s brother were both in Massachusetts when O’Donovan sent the iMessages, and there was no direct evidence provided at trial that the iMessages had actually crossed state lines. At trial, an FBI digital forensics examiner testified that iMessages are transmitted over the internet. 

Notably, a local Apple employee “testified that Apple’s servers, with which all iMessages interact, are located outside of Massachusetts,” but the district court struck it down for lack of personal knowledge. United States v. O’Donovan, No. 24-01200. Further records provided at trial from Apple evidenced that Apple’s servers were not in Massachusetts but were also excluded.

Starting with United States v. Carroll, 105 F.3d 740 (1st Cir. 1997), and later reaffirmed in United States v. Lewis, 554 F.3d 208 (1st Cir. 2009), the First Circuit has repeatedly held that that evidence of transmission over the internet is per se sufficient to prove transmission in interstate commerce. Here, the court reaffirmed the FBI digital forensic examiner’s testimony that iMessages traveling over the internet are sufficient to establish that messages traveled across state lines.

ISSUE

Is the use of the internet alone sufficient to establish that messages traveled across state lines?

THE SPLIT

Since the First Circuit’s ruling in Carroll, multiple circuits have encountered similar cases that required analysis of whether something being sent over the internet necessarily implies interstate transmission. The First Circuit has since been joined by the Third and Fifth Circuits in finding that the use of the internet alone is sufficient to establish that messages traveled across state lines. On the other hand, the Ninth and Tenth Circuits have ruled that the use of the internet is not enough to establish that a message traveled interstate.

The First, Third, and Fifth Circuits

The First, Third, and Fifth Circuits assert that the use of the internet alone is sufficient to establish that messages traveled across state lines. 

As noted above, the First Circuit established this position initially in 1997 with Carroll and later reaffirmed in Lewis and O’Donovan.

In United States v. Runyan, the Fifth Circuit joined the First Circuit in holding that transmission of content via the internet is tantamount to transmitting across state lines and thus constitutes transportation in interstate commerce. 290 F.3d 223, 239 (5th Cir. 2002). That case involved the transportation of child pornography across state lines.

Further, in United States v. MacEwan, the Third Circuit found that “unless monitored by specific equipment, it is almost impossible to know the exact route taken by an internet user's website connection request” which means that “because of the very interstate nature of the internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to user, the data has traveled in interstate commerce.” 445 F.3d 237, 244 (3d Cir. 2006). This case was also concerning the transmission of child pornography and cited directly to Carroll and Runyan.

The Ninth and Tenth Circuits

The Ninth and Tenth Circuits agree that the use of the internet alone is not sufficient to establish that messages traveled across state lines. 

In United States v. Kieffer, the Tenth Circuit cited what it described as a “war-torn decision” in United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007) holding that “one individual's use of the internet, ‘standing alone,’ is insufficient to establish that a web transmission traveled across state lines in interstate commerce. 681 F.3d 1143, 1153 (10th Cir. 2012) (internal quotations omitted).

Finally, in United States v. Wright, the Ninth Circuit provides a lengthy interpretive analysis of legislative intent to provide reasoning for finding that “criminal statutes punishing the transmission of the relevant material in interstate or foreign commerce require the material itself to cross state lines.” 625 F.3d 583, 594 (9th Cir. 2010) (internal citations omitted).

LOOKING FORWARD

This split has steadily developed through the 21st century, with most of the activity on the matter occurring from the late 1990s to the early 2010s. O’Donovan is merely an example of the First Circuit reaffirming its position on the use of the internet in interstate commerce, but with a text message being the specific focus of inquiry instead of a photo message. If the Supreme Court felt that this was a pivotal issue, there likely would have already been a ruling on the matter when circuits were actively grappling with the question. 

However, maintaining different standards of what constitutes digital information being shared “interstate” in different circuits can lead to confusion and inconsistent application of the law. Thankfully, the specific issue of whether or not a message has traveled interstate by use of the internet alone can easily be disposed of at trial by merely offering other specific evidence that the content in question was indeed actually sent across state lines. For example, the district court in O’Donovan dismissed the evidence offered by the prosecution to that effect, which is the only reason the issue arose.

It seems unlikely that SCOTUS will take up this issue as it turns its attention to other issues under the Trump administration, but it is also not out of the question that a case arises where this issue is pivotal in such a way that the Court feels compelled to settle this split.

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