Rosemond v. United States & technology providers

Yesterday, the Supreme Court issued its decision in Rosemond v. United States, which addresses the culpability of a man who was charged with aiding and abetting another person’s use of a gun in relation to a drug offense.  The court decided that he is liable if he knew ahead of time that one of the people he drove to a drug deal with had brought a gun.

In reaching that result, Justice Kagan, writing for the majority, re-addressed some fundamental principles of aiding and abetting law (Rory Little at SCOTUSblog calls the decision “a primer on aiding and abetting law”). Since I recently co-authored an article on the aiding and abetting liability of technology providers, this decision was of particular interest.

The article addresses the lingering confusion over whether the mens rea for aiding and abetting is “shared purpose” or “knowing assistance.” Justice Kagan serves up a sort of blending of the two ideas, which is common among appellate courts. Justice Alito, in dissent, writes that he wishes the court would have addressed the two differing standards, but instead “refers interchange­ably to both of these tests and thus leaves our case law in the same, somewhat conflicted state that previously existed.”  Justice Alito also says, however, that he thinks the difference between the tests is “slight.”

The point in our article is that this slight distinction can have important implications for technology providers who may be at risk of being considered accomplices of their users’ crimes. Rosemond certainly adds to the conversation about that topic, but doesn’t do much to answer the question. In fact, the Court, in footnote 8, expressly takes no view on “defendants who incidentally facilitate a criminal venture rather than actively participate in it,” as with “the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used.” This hypothetical strikes at the heart of the concerns faced by technology providers.

Interestingly, Justice Scalia joined the majority opinion except for footnotes 7 and 8. The Volokh Conspiracy has an interesting discussion about how, and why, that happened, as does DailyKos.)

In other news, our article, and its title, are featured on BookForum’s Omnivore blog today.

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