We’ve all heard the old saying that “ignorance of the law is no excuse”, but there has been such massive growth in the number and scope of laws in the last couple of generations that even the people who work in the legal field can’t possibly keep up. What chance do average citizens have to ensure they aren’t accidentally falling afoul of unknown (and for all practical purposes, unknowable) legal traps?
“Because I said so.” “Life isn’t fair.” “Ignorance of the law is no excuse.” These are some of the great cop-outs of all time, and the last one is particularly troubling in a country with so many laws that it is impossible to count — let alone read — them all. When was the last time you sat down with a complete set of the federal, state, and local codes setting forth the tens of thousands of criminal violations for which you could be sent to jail? If you answered “never,” you’re in good company. Nevertheless, America’s judges still cling to the proposition that it’s perfectly fine to lock people up for doing something they had no idea was illegal. But it’s not fine, and the justifications for that palpably unfair rule have only grown more threadbare with time.
Laws Are Not Even Countable, Much Less Knowable
Things have gotten so bad that even an act as innocent as sharing a Netflix password or a bank website password with a family member could potentially carry criminal penalties if the website disallows password sharing. The Computer Fraud and Abuse Act of 1986 bans intentionally accessing a computer “without authorization,” and the Supreme Court has recently declined to hear a case from the Ninth U.S. Circuit Court of Appeals, United States v. Nosal, that held that password sharing could be prohibited by the Act. Although the majority opinion did not explicitly mention innocent password sharing, the dissent noted that the lack of any limiting principle meant that the majority’s reasoning could easily be used to criminalize a host of innocent conduct.
One rationale for the maxim that ignorance of the law is no excuse was to give people an incentive to educate themselves about legal requirements. But as any law student will attest, one can study those requirements for years and barely scratch the surface. Another rationale was to prevent people from escaping criminal penalties by claiming ignorance, even when they actually knew they were breaking the law. That might have made sense in ancient times when there were only a few dozen crimes on the books and all of them involved morally blameworthy conduct like murder, arson, or rape.
But today the law has grown so complicated, and the relationship between law and morality so attenuated, that these supporting rationales no longer make sense. There have been multiple attempts to count the number of federal crimes, including by the Department of Justice, and no one has yet succeeded. Title 18 of the United States Code, which governs crimes and criminal procedure, has over 6,000 sections, and it is estimated that there are more than 4,500 federal crimes and over 300,000 agency regulations containing criminal penalties. And of course, this does not include the dizzying array of state and local criminal codes, ignorance of which is practically assured but still not excused.
In 2009, Harvey Silverglate wrote Three Felonies a Day: How the Feds Target the Innocent. That was long enough ago that three is almost certainly an under-estimate by now … there are so many more laws and regulations that have been added (or “enhanced”) since then.
