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115 Colum. L. Rev. 941 (2015)
Blurred Lines of Identity Crimes: Intersection of the First Amendment and Federal Identity Fraud

handle is hein.journals/clr115 and id is 989 raw text is: NOTES
Philip F. DiSanto*
Several recent high-profile criminal cases have highlighted the
dynamic nature of identity crimes in a modern digital era and the
boundaries prosecutors sometimes push to squeeze arguably wrongful
conduct into an outdated legal framework. In many cases, two federal
statutes-18 U. S.C § 1028 and § 1028A-provide prosecutors with
potent tools to aggressively pursue online identity thieves. But the
broadly defined terms of these provisions may also expose innocent par-
ties to criminal liability.
This Note argues that broadly defined federal identity-fraud stat-
utes facilitate unconstitutional restrictions on protected speech. Speci-
fically, this Note maintains that § 1028 and § 1028A are defined in
vague and overbroad statutory terms that criminalize expressive con-
duct and chill protected speech. Left unchecked, these statutes expose in-
stitutional journalists, online commentators, and ordinary citizens to
criminal liability for nothing more than sharing a hyperlink. This Note
then concludes by presenting three potential routes to eliminate these
unconstitutional restrictions and protect the Internet's role as a unique
communication medium.
On September 12, 2012, the Federal Bureau of Investigation (FBI)
took Barrett Brown into custody in Dallas, Texas.1 Law-enforcement
officers raided his apartment several hours after he posted a video threat-
ening to destroy the life of a federal agent and gather information
about that agent's family.2 The FBI had previously searched both his
apartment and his mother's apartment in the weeks leading up to his
* J.D. Candidate 2015, Columbia Law School.
1. See Gerry Smith, Barrett Brown Arrested: Former Anonymous Spokesman Taken
into Custody After Threatening FBI Agent, Huffington Post (Sept. 13, 2012, 7:23 PM),
(on file with the Columbia Law Review) (discussing factual circumstances surrounding
Brown's arrest).
2. Id.; Barrett Brown, Why I'm Going to Destroy FBI Agent [RS] Part Three,
YouTube (Sept. 12, 2012), http://youtu.be/TOW7GOrXNZI [hereinafter Brown YouTube
Video] (on file with the Columbia Law Review).


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