First Circuit Adds to Split On Whether Use of the Internet Is ‘Interstate Commerce’

We tend to look past the distinction between the mail and wire fraud statutes, but a recent First Circuit decision reminds us that the distinction can be very important. The mail fraud statute (18 U.S.C. §1341), successor to a law enacted in 1872, derives from congress’s authority to “establish post offices” (U.S. Const., Art. I, Section 8, cl. 7).
The wire fraud statute (18 U.S.C. §1343), enacted in 1952, derives from congress’s power to “regulate commerce with foreign nations, and among the several states” (U.S. Const., Art. I, Section 8, cl. 3). To prove wire fraud the government must ordinarily show that communications crossed state or national lines in furtherance of a scheme, whereas to prove mail fraud the government needs to prove only use of the mail, even between two people in the same state, in furtherance of a scheme.
The internet is generally viewed as inherently interstate in nature, but courts have reached different conclusions as to whether use of the internet by itself satisfies the “interstate commerce” requirement in criminal statutes, or something more is needed.
In cases involving child pornography, the First, Third and Fifth Circuits have held that use of the internet by itself sufficient evidence of transmission in interstate commerce. In contrast, the Ninth Circuit requires proof that a communication concerning the transmission of child pornography moved from a server in one state to a server in another state.
In this article, after discussing the circuit split, we turn to the First Circuit’s January 2025 decision in United States v. O’Donovan, 126 F.4th 17 (1st Cir. 2025), which held that use of the Internet is sufficient to prove transmission in interstate commerce in a wire fraud case, but nonetheless set aside a conviction due to the government’s failure of proof.
This legal holding conflicts with a Tenth Circuit decision which held that use of the internet by itself was not enough. We conclude with a discussion of the law in the Second Circuit, which has not yet addressed the issue in the context of wire fraud.