Federal criminal law, as distinct from state criminal law, encompasses the body of statutes passed by the U.S. Congress that dictate what constitutes criminal behavior and the sanctions or penalties imposed for such behavior. These laws are enforced by federal agencies, prosecuted by the U.S. Attorney’s Office, and adjudicated in the federal court system. This article provides a brief overview of the federal criminal system, its significant components, and its jurisdiction.
Origins and Constitutional Basis
The power of the federal government to enact and enforce criminal laws comes from the U.S. Constitution. The Commerce Clause, for instance, allows Congress to regulate criminal activities that cross state lines. Additionally, according to a federal criminal defense attorney, a certain crimes are inherently federal by nature, such as counterfeiting U.S. currency or committing treason against the U.S.
Key Components of Federal Criminal Law
Federal Criminal Code: The primary source of federal criminal laws is Title 18 of the United States Code. It defines offenses ranging from mail and wire fraud to terrorism and espionage.
Federal Agencies: Multiple federal agencies, like the FBI, DEA, ATF, and the Secret Service, investigate federal offenses. Each agency has a particular focus, like drug enforcement or financial crimes, and they often collaborate on large-scale or complex cases.
U.S. Attorney’s Office: Federal crimes are prosecuted by Assistant U.S. Attorneys, who work under the direction of a U.S. Attorney in one of the 94 federal judicial districts. Their role is analogous to state prosecutors or district attorneys.
Federal Courts: Federal criminal cases are tried before federal district courts. Convictions can be appealed to the U.S. Courts of Appeals and, in rare instances, to the U.S. Supreme Court.
Distinctive Features of Federal Criminal Law
Jurisdiction: For a crime to be prosecuted at the federal level, it typically must fall under federal jurisdiction. This could be because the crime occurred on federal property, involved crossing state lines, or impacted interstate commerce.
Sentencing: The federal system has adopted the Federal Sentencing Guidelines, which offer a range of suggested sentences for each type of federal offense and factor in both the nature of the crime and the defendant’s criminal history.
Prosecutorial Discretion: Federal prosecutors have significant discretion in deciding which cases to prosecute, often focusing on larger, more complex, or high-profile cases.
Overlap with State Law: Many acts, such as drug trafficking or firearm offenses, can violate both state and federal law. In such instances, state and federal prosecutors often coordinate to determine the most appropriate venue for prosecution.
Controversies and Challenges
Federal criminal law is not without its critics. Some argue that the federal criminal system has become overly expansive, prosecuting behaviors that might better be handled at the state level. The mandatory minimum sentences associated with certain federal crimes, particularly drug offenses, have been criticized for being overly harsh and contributing to the problem of mass incarceration. Individuals who were arrested for criminal charges may need to hire criminal solicitors to build their defense strategy. In addition, a bail bonds agent could help facilitate their release.
In recent years, there has been bipartisan support for criminal justice reform at the federal level, which aims to address some of these concerns. Proposals have included reducing or eliminating mandatory minimums for violent crimes cases and non-violent offenses, promoting rehabilitation and reentry programs, and providing judges with greater discretion in sentencing.
On 14th September, the German data protection authorities (“DPAs”), gathering in the so called “circle of Düsseldorf”, issued a non-binding opinion (pdf, German) on the question of the lawfulness of consents under the looming General Data Protection Regulation (“GDPR”), which were obtained under the conditions of the current legal framework. Continue reading →
Today the European Court of Justice (ECJ) decided in the case C-191/15 (Verein für Konsumenteninformation vs Amazon EU Sàrl). The ruling sheds light on some interesting questions with regard to consumer protection law and also assesses the European data protection rules on applicable law.
The EU Member States have given their support to the EU-U.S. Privacy Shield, a renewed framework for transatlantic data flows which is meant to replace the old “Safe Harbor”. The decision of the Member States was mandatory in order to formally adopt the Privacy Shield in the EU.
In opposite to Safe Harbor, the Privacy Shield imposes clear and strong obligations on companies handling the date and makes sure that these rules are followed and enforced in practice. It is the first time that the United States has committed to written assurance that the access of public authorities for law enforcement and national security will be subject to clear limitations, safeguards and oversight mechanisms and has ruled out indiscriminate mass surveillance of European citizen’s personal data.
Not long after the “Safe Harbor” decision and in the same context (data transfer to the US by Facebook) the Irish Data Protection Commissioner has decided to bring the EU-US data flows before the European Court of Justice (CJEU) (again).
A German court has recently ordered WhatsApp to use German language terms and conditions towards users in Germany (see also here, for example). Or, to be more precise, called upon by a German consumer protection agency the Kammergericht, the appellate court for the district of Berlin, has, amongst other things, decided that using English language terms and conditions for user agreements to be concluded between WhatsApp and users in Germany is in violation of a certain provision of the German Civil Code that demands there to be transparency when using pre-worded terms and conditions towards consumers. So, if you allow the pun, what’s up with that? Continue reading →
On 24 May 2016, the Data Protection Regulation has entered into force. From 25 May 2018 it will be directly applicable in all European Member States. Not only companies or authorities therefore now have two years to adapt their data processing activities to future requirements. The national legislature must consider the applicable data protection regulations in its Member State for compliance with the future regulations.
Against this background, the conference of the independent German data protection authorities (“conference”), in a resolution of 25 May 2016 (German), calls on the German legislator to provide the data protection authorities with more staff and financial resources so they can effectively meet their assigned duties. Continue reading →
What was for a long time associated with high liability risks and warning letters from lawyers, will now be made easier by the German government: Free wifi-hotspots. The German government has decided to modify the so called “Stoererhaftung” – the liability of the operator of a wifi-hotspot for any infringements of law committed through the hotspot. However, even though rumor still has it a few days after the presentation of the draft for the new German Teleservices Act, this does not mean that operators of wifi-hotspots now will not be liable for whatever happens through their hotspot. To speak of a complete abolition of “Stoererhaftung” is a bit too much, at least at the moment.
Today, Attorney General Campos Sánchez-Bordona has delivered his Opinion in the Patrick Breyer v Federal Republic of Germany case before the ECJ (C-582/14; you can find the Opinion here in just about any language except English)).
We recall: The Bundesgerichshof (the highest court in Germany for all civil and criminal matters) submitted to the ECJ the following two questions:
“Must Article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data 1 — the Data Protection Directive — be interpreted as meaning that an Internet Protocol address (IP address) which a service provider stores when his website is accessed already constitutes personal data for the service provider if a third party (an access provider) has the additional knowledge required in order to identify the data subject?”
“Does Article 7(f) of the Data Protection Directive preclude a provision in national law under which a service provider may collect and use a user’s personal data without his consent only to the extent necessary in order to facilitate, and charge for, the specific use of the telemedium by the user concerned, and under which the purpose of ensuring the general operability of the telemedium cannot justify use of the data beyond the end of the particular use of the telemedium?”
If your add-on modules are dynamically loaded into GPL-licensed software at runtime, you’ll have to license the add-on modules under the GPL’s terms when distributing them along with the GPL-licensed software; it is a clear-cut case of a “derivative work” under the License. The case is less clear, however, if the add-on module is distributed separately from the GPL-licensed software, as may, for example, happen where the recipient has already installed the GPL-licensed software from a different source. Continue reading →
With its decision from 25. Februrary 2016, the German Federal Administrative Court referred several interesting data protection questions related to the operation of a Fanpage on Facebook to the European Court of Justice (ECJ) (the whole decision can be accessed here, in German). The case number at the ECJ is C-210/16. Since there does until now not exist an English version of the reference for a preliminary ruling, you will find beneath a rough translation of some of the questions referred. Continue reading →
It appears that we may be about to experience a new phase in the life of Article 5 (3) of the ePrivacy Directive as amended in 2009, as brief as it may possibly be as a result of the coming Regulation and the revisions that the ePrivacy Directive may be subject to in its wake.
Twitter privacy activist Alexander Hanff has been able to create considerable attention (such as here and here) for his position that client side scripts used by publishers in order to detect AdBlockers used by their (would-be) readers are in conflict with said Article, posting on Twitter a letter from the Günther Oettinger’s team in the EU Commission that, as per him, confirms his position.
Aside from the slightly amusing twist that the Commission, in making reference in the same letter to add-ons or plug-ins expressing a user’s preference regarding, for example, whether or not he or she does or does not accept the storage of information on his/her “terminal equipment”, appears to overlook that adblockers have to be detected first before they can be “respected” as conveying a preference, we shall have a brief look at how things would play out under German law, as it is in place at this time. Continue reading →
Online-shops that officially trade as B2B-shops must comply with European consumer protection regulations or make actually sure that only business customers can place orders in the shop. In order to ensure that consumers do not use the shop, it is not sufficient to provide the respective disclaimer on the website. That was recently ruled by the Regional Court in Dortmund.
Article 3 (1) of Directive 2001/29/EC on the “harmonisation of certain aspects of copyright and related rights in the information society” legally communicating copyrighted works to the public depends on the copyright holders authorization.
On 6th and 7th April 2016, the German Data Protection Authorities (“DPAs”) met to discuss several current privacy topics.
One point on the agenda has of course been the assessment of the proposed EU-US Privacy Shield (the successor of the Safe Harbor regime). Currently, the European Data Protection Authorities (the so called “Article 29 Working Party”) are finalizing their common position on the proposed adequacy decision by the European Commission (pdf).
The German Federal Cartel Office (Bundeskartellamt) has started preliminary proceedings against Facebook in early March, trying to find out if Facebook was misusing its market power to enforce abusive terms and conditions because of alleged data protection law violations. What sounds just like what antitrust authorities do, may in fact have a huge impact on Facebook and how it is behaving against its users.
On 9th March 2016, the Regional Court of Dusseldorf issued its ruling (pdf, German) in a proceeding between the consumer protection association of North Rhine-Westphalia and the company Fashion ID which concerned data protection issues surrounding the Facebook Like-Button.
So you set up an open source license compliance program in your company. You educate your employees and you make sure you know how they handle open source software. But what about the software, which is supplied to you? Do you know how your supplier handles open source software? Can you trust that they know what they are doing when it comes to open source license compliance? Continue reading →
On 24th February, a new law for the civil enforcement of violations of data protection rules, specifically protecting consumers entered into force. With this new law, certain provisions of the German Act on Injunctive Relief (Unterlassungsklagengesetz – UklaG) are amended and also extended.
Until now, consumer protection organizations (e.g. the Federation of German Consumer Organisations – vzbv) were only able to challenge privacy policies of companies under the German Act on Injunctive Relief if the competent court acknowledged that the respective policy could be considered as general terms and conditions (see for example one press release about a recent lawsuit against Facebook, pdf). In general, certain clauses of privacy policies were therefore the aim of legal actions if these clauses deviated from the statutory provision of data protection law. If personal data were in fact processed in an unlawful way was merely the question. Continue reading →