18 U.S. Code § 1038 - False Information and Hoaxes
There are many federal laws criminalizing the making of false statements, particularly when it leads to significant negative consequences. But when the spreading of false information could lead to mass panic and extensive waste of government resources, it's a particularly serious offense.
Under Title 18 U.S. Code 1038, also known as the false information and hoaxes law, it is illegal for any person to knowingly and willfully convey any false or misleading statement concerning a major crisis, particularly one involving an attempt or alleged attempt being made to kill, injure, or intimidate any individual or group of individuals.
The statute also prohibits any person from conveying false information, knowing that the information has a natural tendency to cause fear and panic in others.
18 U.S.C. 1038 says, “(a) (1) In general. Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of…. shall be fined or imprisoned….”
Depending on the damage caused by the hoax spreading, you could spend anywhere from 5 years to life in prison if you're convicted of this crime. Let's review this federal law further below.
What Does the Law Say?
Title 18 U.S. Code 1038 prohibits individuals from engaging "in any conduct with intent to convey false or misleading information," causing others to believe that an actual emergency or catastrophe is imminent.
The law aims to prevent panic and protect emergency services from unnecessary distractions. The law specifies a wide range of possible crises to which this crime applies, but examples of false statements criminalized by 18 U.S.C. 1038 include, but are not limited to, the following:
- Crimes committed against aircraft or motor vehicles, such as pointing a laser at aircraft, airport violence, and destruction of aircraft;
- Crimes or threats involving biological or chemical weapons;
- Crimes or threats involving firearms, bombs, or other explosives;
- Crimes against the shipping industry;
- Crimes affecting infrastructure;
- Allegations of sabotage of nuclear facilities or weapons.
18 U.S.C. 1038 (a) (2) also makes it a crime to make false statements regarding the "death, injury, capture, or disappearance of a member of the Armed Forces of the United States during a war or armed conflict..."
This provision is because such misinformation could lead to unnecessary movements or actions by the military in response to such claims.
It's important to note that this law encompasses "engaging in any conduct" with the intent to convey false or misleading information--not just the spreading of the information itself.
For example, if you allow someone to use your social media account to spread rumors of a crisis, you can be charged under 18 U.S.C. 1038 even if you didn't create the post yourself.
What Are Some Examples?
EXAMPLE 1: As a prank, George makes an "anonymous" call to local authorities, telling them bombs have been planted at numerous schools in the area. George can be charged under 18 U.S.C. 1038.
EXAMPLE 2: During a period of heightened tensions between the United States and North Korea, Samantha's Twitter account posts false information claiming that a nuclear weapon has been detonated in South Korea. Because it is likely to cause mass panic, Samantha can be charged under 18 U.S.C. 1038.
What Are the Related Federal Statutes?
18 U.S. Code Chapter 47 Fraud and False Statements has numerous federal laws that are related to 18 U.S.C. 1038 false information and hoaxes, such as the following:
- 18 U.S.C. 1001 – false statements;
- 18 U.S.C. 1002 – possession of false papers to defraud;
- 18 U.S.C. 1003 – demands against the United States;
- 18 U.S.C. 1004 – certification of checks;
- 18 U.S.C. 1005 – bank entries, reports, and transactions;
- 18 U.S.C. 1006 – federal credit institution entries and reports;
- 18 U.S.C. 1007 – federal deposit insurance corporation transactions;
- 18 U.S.C. 1010 – department of housing and urban development;
- 18 U.S.C. 1011 – federal land bank mortgage transactions;
- 18 U.S.C. 1012 – housing and urban development transactions;
- 18 U.S.C. 1013 – farm loan bonds and credit bank debentures;
- 18 U.S.C. 1014 – loan and credit applications generally;
- 18 U.S.C. 1015 – naturalization, citizenship or alien registry;
- 18 U.S.C. 1016 – acknowledgment of appearance or oath;
- 18 U.S.C. 1017 – government seals wrongfully used;
- 18 U.S.C. 1018 – official certificates or writings;
- 18 U.S.C. 1019 – certificates by consular officers;
- 18 U.S.C. 1020 – highway projects;
- 18 U.S.C. 1021 – title records;
- 18 U.S.C. 1022 – delivery of certificate;
- 18 U.S.C. 1023 – insufficient delivery of money or property;
- 18 U.S.C. 1024 – purchase or receipt of military property;
- 18 U.S.C. 1025 – false pretenses on high seas and other waters;
- 18 U.S.C. 1026 – compromise of farm indebtedness;
- 18 U.S.C. 1027 – false statements and concealment of facts
- 18 U.S.C. 1028 – identity theft;
- 18 U.S.C. 1029 – credit card fraud;
- 18 U.S.C. 1030 – computer hacking;
- 18 U.S.C. 1031 – major fraud against the United States;
- 18 U.S.C. 1032 – concealment of assets from conservator;
- 18 U.S.C. 1033 – crimes affecting insurance interstate commerce;
- 18 U.S.C. 1034 – civil penalties and injunctions for section 1033;
- 18 U.S.C. 1035 – false statements relating to health care matters;
- 18 U.S.C. 1036 – entry by false pretenses to any real property;
- 18 U.S.C. 1037 – fraud and related activity with electronic mail;
- 18 U.S.C. 1039 – fraud with obtaining confidential phone records;
- 18 U.S.C. 1040 – fraud with major disaster or emergency benefits.
What Are the Penalties for 18 U.S.C. 1038?
Conveying false information under 18 U.S.C. 1038 can result in serious damage, injury, or even death, so the penalties for a conviction can be equally severe. If you're convicted of this crime, you could face the following penalties:
- For the general spreading of misinformation: up to 5 years in prison;
- If someone suffers severe bodily injury as a result: up to 20 years in prison;
- If someone dies as a result: up to life in prison;
- You may also be subject to a court fine of up to $250,000 for any of the above;
- Civil action for reimbursement of expenses.
The statute says that “The court, in imposing a sentence on a defendant who has been convicted of an offense under subsection (a), shall order the defendant to reimburse any state or local government, or private organization that provides fire or rescue service incurring expenses incident to any emergency or investigative response to that conduct, for those expenses.”
Notably, any order for reimbursement, for the purposes of enforcement, be treated as a civil judgment.
Defenses for 18 U.S.C. 1038 Violations
If you're charged with a crime under this law, a skilled federal criminal defense attorney may employ several possible defenses to combat the charges, as discussed below.
Perhaps we can argue there was a lack of intent. For a successful prosecution under Title 18 U.S. Code 1038, the government must prove that the defendant willfully and knowingly engaged in the prohibited conduct with the intent to deceive others.
Your attorney may argue that you did not have the requisite intent--for example, perhaps you genuinely believed the information was accurate when you conveyed it and did not constitute a hoax--or that you had no idea your actions could produce panic.
Perhaps we can make a free speech argument. Your attorney may argue that the so-called false information or hoax constitutes protected speech and that the government cannot prosecute you for exercising your right to free expression.
However, courts have generally held that the First Amendment does not protect speech that poses a clear and present danger to public safety or causes substantial harm, so you must demonstrate that your words presented no clear threat.
Perhaps we can make a misinterpretation argument. Your attorney might also argue that your statements or actions were misinterpreted or taken out of context. In these cases, the defense would attempt to show that you did not intend to create a false impression or that your statements were not meant to be taken literally.
To review the details of your federal criminal offense, contact our law firm by phone or through the contact form. Eisner Gorin LLP is located in Los Angeles, California.