Second Circuit Sides with the "Cannibal Cop"

Today, the Second Circuit (2-1) issued its long-awaited opinion in United States v. Valle--the so-called "Cannibal Cop" case.  The court upholds the lower court's judgment of acquittal on Valle's kidnapping conspiracy charge and, joining the Fourth and Ninth Circuits, reverses his conviction under the Computer Fraud and Abuse Act.

A brief recap of the case:  Gilberto Valle was convicted of a conspiracy to kidnap, kill, and eat several women based largely upon a set of 40 conversations he had via the website DarkFetishNet.  He was convicted under the CFAA for accessing a police database to look up one of the women he had discussed with his alleged co-conspirators (obviously not for NYPD-related purposes).  A year after his conviction, Judge Gardephe granted a Rule 29 motion solely on the kidnapping charge on the basis that the government had not sufficiently shown that Valle's online conversations were anything more than fantasy--Valle had thousands of conversations with at least 24 different people on DarkFetishNet, and the government failed to provide any reasonable basis for plucking out 40 "real" conversations from the thousands it conceded were "fantasy."  All the conversations involved the same gruesome kidnapping and cannibalism scenarios, and if the prosecution's theory was true, he was planning on kidnapping three different women in three locations (in two different continents) on the same day.  Moreover, the alleged conspiracies were contingent upon a number of elements--e.g., a human-sized oven, a secluded cabin in the woods--that didn't exist, and Valle repeatedly lied about and avoided giving any actually identifying information about the victims.  

The Second Circuit largely adopts Judge Gardephe's reasoning and as well as the concerns (without citing) that Thea Johnson and I raise in a recent essay:  "We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime." 

 I see at least three important aspects of this case:

First, as pointed out by Judge Straub's dissent, both Judge Gardepehe and the majority rather boldly set aside the jury's conclusion that Valle's conversations were not merely fantasy.  Indeed, a number of other courts addressing Internet sex-related crimes have acknowledged that the defendant presented a potentially viable fantasy defense but nonetheless deferred to the jury’s assessment about the credibility of that defense.  See, e.g., United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007); United States v. Howard, 766 F.3d 414 (5th Cir. 2014).  The court does really seem to be reweighing the evidence, but this reweighing is demonstrably infused with an awareness of the need to separate out fantasy from real crime.  This is an issue that courts will increasingly be called upon to tease out in the Internet era, as people's intimate lives have become both more transparent and more easily admissible in court.  Jurors sitting in a single trial are less likely to be sensitive to this need and are more likely to be swayed, as the court recognizes, by a sense of disgust or revulsion.  As tempting as it may be to defer to jurors' common sense in these matters, the court recognizes the difficulty of soberly teasing apart fantasy from criminal intent.  Relatedly, in an HBO documentary about this case (Thought Crimes), I was struck by an interview with one of the jurors, who said the jury was convinced Valle "wanted to do it."  This, of course, is not the relevant inquiry.

Second, and relatedly, the court recognizes the limited probative value of Internet searches, namely that is inappropriate to conflate an interest or curiosity in a particular subject matter with an actual intent to move forward with that fantasy.  "Valle’s Internet searches show that he was interested in committing acts of sexualized violence against women. Interest may be relevant evidence of intent, but it does not by itself prove intent." (p 21).  Judge Straub counters that the jury could reasonably deduce that his inquiries showed criminal intent (p 57), but this again assumes that a reasonable person has a good grasp on how people use the Internet to explore sexual interests.  There’s a growing body of research showing that people search a wide range of “wicked” thoughts online, and as legal scholars like Neil Richards have argued, search history is often  an externalized recording of our inner thought processes.  It therefore shouldn’t be conflated with probative evidence of our intended actions.  As the majority in Valle acknowledges, “the link between fantasy and intent is too tenuous for fantasy alone to be probative.”  (p. 4)

Third, the Second Circuit adds to a growing circuit split on whether the CFAA applies broadly to where an individual "exceeds authorized access" by violating the terms and conditions of otherwise authorized use, or more narrowly to where an individual accesses information to which he or she doesn't otherwise have authorization (a more traditional "hacking" scenario).  According to the court, the CFAA is susceptible to two different interpretations, and rule of lenity requires giving criminal defendants the benefit of the narrower reading.  The Second Circuit doesn't appear to break much new ground compared with the (far more colorful) analysis of the Ninth Circuit.  The broader interpretation risks criminalizing a broad range of day-to-day activities (e.g. planning a vacation while on work computers, lying about your age on a dating website) based upon the vagaries of terms of use policies that people rarely read.  (see this video that's been making the rounds).

The "Cannibal Cop" case may seem like an anomalous case with a strange outcome driven by very strange facts.  However, as I am examining in a new paper, it raises important questions that have and will continue to plague courts:  what line should the law draw between the virtual and the real? what inferences can we draw from Internet and social media activity?  how can judge, juries, and prosecutors adapt free speech and due process to unfamiliar and uncomfortable subject matter made newly transparent?