The Kids are Online: The Internet, the Commerce Clause and the Amended Federal Kidnapping Act

Abstract

Should kidnapping be a federal crime where use of the Internet or other telecommunications facilities is central to the crime’s execution, but the physical act itself takes place within the borders of a single state? Through the case study of the harrowing kidnapping and murder of 12-year old Brooke Bennett, this article examines a uniquely 21st century legal question about federalism, technology and criminal law.

In 2006, Congress amended the Federal Kidnapping Act, 18 U.S.C. §1201(a), expanding federal jurisdiction to reach kidnappings in which the channels or facilities of interstate commerce were used to commit the crime, even when the physical kidnapping occurred within the borders of a single state. The amendment was contained in a provision of the Adam Walsh Child Protection and Safety Act of 2006, and was expressly intended to permit federal jurisdiction over intrastate kidnappings that resulted from Internet child predation. The constitutionality of the amended §1201(a)(1) is now being challenged on Commerce Clause grounds in several federal district courts.

This article defends the statute, and, more broadly, attempts to rebut the aggressive doctrinal attack on federal prosecution of violent crime waged since United States v. Lopez, particularly as it relates to “jurisdictional-elements” statutes, i.e., those statutes that premise federal authority on use of the channels or facilities of interstate commerce. Jurisdictional-elements statutes are the next frontier in Commerce Clause jurisprudence. This article offers a new model of federal prosecution of intrastate violent crime in Lopez Second Category cases that relies on a meaningful application of the “nexus requirement” contained in Section 1201(a) and similar statutes, thus rebutting modern federalist critiques that argue the federal government is overreaching when it brings such cases.

Keywords: Commerce Clause, Federal Kidnapping Act, Adam Walsh Child Protection and Safety Act of 2006, federalism, kidnapping, jursidictional elements provisions, Internet, facilites of interstate commerce, child predation, internet sex crimes