Working This Hard: Internet Use and Federal Nexus Requirement

This Comment examines whether internet use alone is sufficient to establish that messages traveled across state lines for the purposes of federal criminal statutes containing a federal nexus requirement—a showing of connection between the matter and the federal government to bring the matter under the federal jurisdiction. The Comment focuses on the First Circuit’s decision in United States v. O’Donovan holding that the use of the internet alone is sufficient to meet the jurisdictional element. In doing so, the First Circuit reaffirmed its adherence to the so-called Per se Rule, followed by the Second, Third, and Fifth Circuits, and opposed by the Ninth and Tenth Circuits. This Comment argues that the most optimal resolution of the jurisdictional split is to create a rebuttable presumption that a message has travelled across state lines when there is evidence of internet use, shifting the burden on the defendant to produce credible evidence to the contrary.