An Overview of Federal Criminal Laws Implicated by the COVID-19 Pandemic

An Overview of Federal Criminal Laws Implicated by the COVID-19 Pandemic

Legal Sidebari

An Overview of Federal Criminal Laws
Implicated by the COVID-19 Pandemic
April 13, 2020
As numerous recent incidents indicate, the ongoing coronavirus (COVID-19) pandemic’s impact extends
to the world of crime. News stories abound of attempts to profit from the pandemic by stockpiling masks,
hand sanitizer, and other staples to sell at a significant markup. Reports have also circulated about scams
involving the sale of fake COVID-19 test kits and cures, counterfeit surgical masks, substandard hand
sanitizer, and unauthorized medicines. Other fraudulent activities have not involved sales at all. Some
have reportedly tried to use the pandemic to solicit donations to illegitimate charities. In addition, the
Federal Bureau of Investigation (FBI) has reported a spike in cyber-threats, including COVID-19-related
phishing emails—messages designed to trick recipients into divulging personal information so the sender
may access, for example, the recipient’s email or bank accounts. Still other COVID-19-related illicit
conduct is of a more violent nature, as evidenced by recent reports of individuals publicly attacking
Asians and Asian Americans, erroneously accusing them of causing or spreading COVID-19. The
Department of Justice (DOJ) warns of the possibility of another offense: the intentional infection of or
threat to infect others with COVID-19. These incidents and warnings suggest the possibility for COVID-
19-related crimes, even as there is some indication that crime rates have fallen in some cities during the
pandemic. Although state criminal laws likely govern much COVID-19-related conduct, given the
concern expressed by some Members over the pandemic’s effect on justice and law enforcement issues,
this Sidebar examines the primary federal criminal statutes that may be relevant to criminal activity
related to the ongoing pandemic. It discusses, in order: (1) the mail fraud and wire fraud statutes, (2) the
Computer Fraud and Abuse Act (CFAA), (3) the Defense Production Act (DPA), (4) terrorism statutes and
threat statutes, and (5) the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (HCPA).
Mail Fraud and Wire Fraud
Deceptive schemes to profit off of COVID-19, such as selling counterfeit medical supplies and sending
phishing emails, could violate federal statutes prohibiting mail and wire fraud. The mail fraud statute, 18
U.S.C. § 1341, prohibits (1) knowing or willing participation in a scheme to defraud, (2) and use of the
United States Postal Service or commercial interstate carriers (the mail) to further that scheme. Courts
have interpreted “scheme to defraud” to include the “common understanding” of depriving someone of
money or property by “dishonest methods” such as trickery and deceit. To violate § 1341, it need only be
reasonably foreseeable that the mail would be used in furtherance of the scheme to defraud, which
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requires only that the mail be “‘incident[al]’ to an essential part of the scheme . . . .” The elements of wire
fraud under 18 U.S.C. § 1343 are nearly identical to those of mail fraud under § 1341, except § 1343
“speaks of communications transmitted” by interstate wires, which may include, among other things,
emails, telephone calls, faxes, and statements on websites. Although § 1343 specifically requires use of
interstate wires, that requirement may be demonstrated with evidence of transmission across state lines or
that an individual accessed “information from [an] out-of-state computer.” Sections 1341 and 1343
criminalize a “broad swath of behavior,” and their application to a given situation rests largely on
prosecutorial discretion. Violations of Sections 1341 and 1343 ordinarily may be punished by a maximum
fine of $250,000 or up to 20 years imprisonment, or both, but offenses that relate to a “presidentially
declared major disaster or emergency” under the Stafford Act face stiffer penalties of up to $1,000,000
fine, imprisonment for up to 30 years, or both. Injunctions—judicial orders requiring a person or entity to
cease an activity—are also possible for violations of Sections 1341 and 1343.
A number of fraudulent activities reported in the context of COVID-19 might run afoul of Sections 1341
and 1343. Take, for example, the intentional sale of counterfeit surgical masks. The seller’s behavior—
tricking the buyer into purchasing a product he believes has certain qualities that it actually lacks—would
almost certainly be a scheme to defraud. If the seller used the mail in his scheme, such as to ship the
masks, § 1341 would apply. If he relied on the internet, for example by soliciting buyers on a website, he
most likely would have violated § 1343. Section 1343 may also prohibit, for example, COVID-19-themed
phishing emails, assuming that they involve schemes to defraud recipients of money or property, and were
transmitted interstate. The DOJ has successfully prosecuted phishing scammers under §1343 in the past.
Notably, not all applications of Sections 1341 and 1343 in the context of COVID-19 are hypothetical. The
DOJ has already invoked § 1343 against a website purporting to offer vaccine kits, which do not exist, in
exchange for shipping fees, and against a man who allegedly solicited donations to fake charities. Those
convicted of violating Sections 1341 and 1343 for actions related to COVID-19 may face enhanced
penalties because President Trump has declared a national emergency pursuant to the Stafford Act.
The Computer Fraud and Abuse Act
Some of the reported COVID-19-related schemes are uniquely computer based, including phishing
schemes or attempts to install malware (i.e., unwanted software including viruses and spyware) on the
computers of unsuspecting users. Such conduct could implicate the CFAA—an anti-hacking law covering
most computers, including laptops, desktops, websites, and computerized devices. Several provisions of
the CFAA focus specifically on “protected computers,” which courts have construed to include any
computer connected to the internet. For example, the statute makes it a crime to “knowingly cause[] the
transmission of a program, information, code, or command” and thereby “intentionally cause[] damage
without authorization, to a protected computer.” The CFAA defines damage to mean “impairment to the
integrity or availability of data, a program, a system, or information,” which occurs, for example, where a
hacker causes a computer to behave in a manner contrary to the intentions of its owner. The CFAA also
contains antifraud provisions, such as one subsection that makes it a crime to “knowingly and with intent
to defraud, access[] a protected computer without authorization, or exceed[] authorized access, and by
means of such conduct further[] the intended fraud and” obtain something of value. The maximum
penalties for CFAA violations vary based on the provision and gravity of the conduct.
Courts have applied the CFAA to malware, and the DOJ has prosecuted malware cases and phishing
scammers under the CFAA in the past. Some COVID-19-related malware schemes, such as one the FBI
recently described as involving malware-infected emails purporting to be from the Centers for Disease
Control and Prevention (CDC), may implicate the CFAA provision prohibiting damage to protected
computers without authorization. The intent elements of that provision—knowing transmission and intent
to damage—limit the statue’s reach, however. For example, it would not apply to someone who recklessly
or negligently forwards a malware-infected, fake CDC-email. With respect to the prosecution of COVID-

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19-related phishing attempts, the DOJ could rely on the CFAA’s antifraud provisions, assuming the
phishing involves intent to defraud and obtains something of value—as in instances where the scammer
uses personal information obtained through phishing to divert funds from the victim’s financial accounts.
The Defense Production Act
As noted, another crime related to the COVID-19 pandemic involves hoarding supplies to resell at a
profit. Although such behavior may violate state price-gouging laws, there is no specific federal price
gouging law (proposed legislation, discussed below, seeks to change that). However, a March 23, 2020
Executive Order (the Order) issued by President Trump prohibits some hoarding and price-gouging
pursuant to the DPA, which confers “upon the President a broad set of authorities to influence domestic
industry” in the case of “national emergencies.” Among those powers, the President can designate “scarce
materials,” including “any raw materials . . . commodities, articles, components . . . [and] products . . . .”
Under 50 U.S.C. § 4512—aimed at “prevent[ing] hoarding”—it is illegal to accumulate materials that the
President has designated as scarce “(1) in excess of the reasonable demands of business, personal, or
home consumption, or (2) for the purpose of resale at prices in excess of prevailing market prices . . . .”
Willful violations may be punished by up to $10,000 fine, one year of imprisonment, or both.
The Order invokes § 4512 and delegates to the Secretary of Health and Human Services (HHS) the
President’s authority to designate scarce materials to combat COVID-19. In a notice effective March 25,
2020, the HHS Secretary designated a number of scarce materials, including certain respirators,
ventilators, disinfecting products, surgical masks, and personal protective equipment. Attorney General
Barr has clarified that the Order’s purpose is to prosecute “bad actors who amass critical supplies” for
profiteering, not Americans buying necessities or “businesses acquiring materials needed for their own
use.” The DOJ and HHS recently confiscated medical supplies from hoarders pursuant to the DPA. In
addition, some Members have introduced legislation that would create a federal price-gouging law. For
example, one proposal would prohibit the sale of goods or services during the COVID-19 emergency at
“unconscionably excessive” prices and would task the Federal Trade Commission with enforcement.
These proposals have tended to focus on enhancing civil penalties—for example, one would impose
$10,000 in civil penalties for price gouging—but at least one may also impose criminal penalties.
Terrorism and Threat Statutes
As two recent incidents indicate, some individuals may intentionally spread COVID-19 or threaten to do
so. Although those incidents resulted in state prosecutions, such behavior may violate federal terrorism
and threat statutes. For example, 18 U.S.C. § 175 imposes penalties of up to life imprisonment for anyone
who “knowingly develops . . . transfers, acquires . . . or possesses any biological agent . . . for use as a
weapon,” or threatens to do so. Biological agents include viruses “capable of causing . . . death” or
disease in a human. Although § 175 only governs biological agents intended “for use as a weapon,” that
term excludes only biological agents used for “prophylactic, protective, bona fide research, or other
peaceful purposes.” Importantly, however, the Supreme Court has recognized that statutes like § 175 do
not govern local conduct subject to state law, such as routine assaults involving biological agents. In
determining whether conduct rises above the local level for the purpose of § 175, courts evaluate the
dangerousness of the weapon and the harm that the weapon could cause. Another statute, 18 U.S.C. §
2332a, prohibits the actual, attempted, or threatened use of weapons of mass destruction against “any
person or property within the United States,” when that action involves the mail, or interstate or foreign
commerce. Weapons of mass destruction include biological agents, defined identically as in § 175.
Violations of § 2332a may incur penalties of up to life in prison or capital punishment if death results
from the offense. Sections 175 and 2332a both prohibit terroristic threats, and threats may also be
punished under more general federal statutes, including 18 U.S.C. §§ 875 and 876. Both statutes impose a
maximum penalty of five years imprisonment for threatening to injure someone, or twenty years if that

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threat involves extortion. To violate § 875, the threat must be transmitted in “interstate of foreign
commerce,” while to violate § 876, the threat must be sent through the mail.
In a March 24, 2020 memorandum, the Deputy Attorney General suggested that the intentional spread, or
threatened spread, of COVID-19, could be prosecuted under Sections 175, 875, 876, and 2232a. With
respect to Sections 175 and 2332a, the coronavirus appears to be a biological agent because it is a virus
that can cause disease or death. However, § 175 applies only to those who knowingly transfer a biological
agent—so the statute would seemingly not apply to those who negligently or recklessly infect others with
COVID-19. An additional limitation on the statute is whether the infection of others is wholly local
conduct outside the scope of § 175. To decide, courts would likely examine the dangerousness of COVID-
19 and the harm that could result from intentional infection. One question courts may face is whether the
contagiousness of COVID-19 makes infecting a single person extra-local conduct because of the risk of
subsequent spread. As for Sections 875, 876, and 2332a, they would only apply to the actual or threatened
spread of COVID-19 if it involved the mail, or interstate or foreign commerce. That said, in specific
circumstances, other statutes could also apply to the threatened infection of others, and the DOJ has filed
such charges under statutes governing biological weapons hoaxes and assault on federal officers.
The Hate Crimes Prevention Act
Some of the reported COVID-19-related attacks against Asians and Asian Americans might implicate the
HCPA. Under that statute, it is a crime to “willfully cause[] bodily injury to any person or, through the use
of . . . a dangerous weapon” attempt to “cause bodily injury to any person because of the actual or
perceived race, color, religion or national origin of any person.” Congress created that provision through
its authority under the Thirteenth Amendment to prohibit “badges and incidents of slavery,” which
includes “most forms of racial discrimination” and “protects all races.” Thus, courts have applied the
protections of the HCPA to crimes where the victims had various ethnic and racial backgrounds. The
HCPA’s requirement that conduct occur “because of” race, color, religion, or national origin limits the
statute’s otherwise broad scope. Courts have disagreed on the meaning of “because of.” At least one court
requires that the conduct at issue would not have occurred but for the victim’s race, color, religion, or
national origin. In contrast, other courts have interpreted “because of” more flexibly, requiring only that
race, color, religion, or national origin be a “substantial motivating factor” in an attack, not the only
motivating factor. HCPA prosecution is only possible if the Attorney General or a designee certifies that
(1) the state where the offense occurred lacks jurisdiction or requested federal prosecution; (2) state
prosecution did not vindicate “the Federal interest in eradicating bias-motivated violence;” or (3) federal
prosecution serves the public interest and is “necessary to secure substantial justice.”
As noted above, recent news reports have detailed COVID-19-related attacks on Asians and Asian
Americans, such as one widely-reported attack on a Korean student in Midtown Manhattan. The FBI has
affirmed that “investigating hate crimes remain[s] a high priority” during the COVID-19 pandemic and is
reportedly considering hate crimes charges against at least one suspect in this context. For the federal
government to invoke the HCPA in the context of COVID-19-related hate crimes, the government would
have to meet the HCPA’s certification requirements. The government would also have to establish that the
victim’s perceived or actual identity as Asian or Asian American motivated the attack. As discussed
above, the stringency of that requirement varies by jurisdiction. These offenses could be prosecuted under
state law, as states generally prosecute most hate crimes.

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Author Information

Peter G. Berris

Legislative Attorney

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