Christopher Shea, "No Safe Harbor From Judge Posner’s Linguistic Googling", Wall Street Journal 3/1/2012:
From March 2006 to October 2006, an Illinois woman named Deanna Costello let her boyfriend live with her — a man she knew was in the country illegally.
The boyfriend was eventually convicted on drug charges, and Costello was convicted of “harboring” an illegal immigrant.
In a decision that overturned the conviction [...] Judge Posner argued that prosecutors and the district court had stretched the meaning of the world “harbored” past the breaking point. And the esteemed judge and legal scholar turned to Google for some supporting evidence for his linguistic intuition.
Specifically, Judge Posner wrote (United States v. Costello):
The government argues that “to harbor” just means to house a person, a meaning that it claims to derive from dictionaries that were in print in 1952 or today; surprisingly the government omits dictionaries that were current in 1917, when concealing and harboring aliens were added to the prohibition of smuggling aliens into this country. [...]
The actual definition of “to harbor” that the government has found in these dictionaries and urges us to adopt is “to shelter,” which is not synonymous with “to provide a place to stay.” “To shelter” has an aura of protectiveness, as in taking “shelter” from a storm. To shelter is to provide a refuge. “Sheltering” doesn’t seem the right word for letting your boyfriend live with you. We have not scoured dictionaries current in 1917 or 1952, but note for what it’s worth that the 1910 edition of Black’s Law Dictionary defines “to harbor” as: “To receive clandestinely and without lawful authority a person for the purpose of so concealing him that another having a right to the lawful custody of such person shall be deprived of the same. [...]
So the government’s reliance on the dictionary definition of “harboring” is mistaken, though a point of greater general importance is that dictionaries must be used as sources of statutory meaning only with great caution.
Judge Posner cites a number of authorities and examples in support of this view, noting that
Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings.
In search of harboring's contextual background, he turns to web search:
A Google search (conducted on December 13, 2011, rather than in 1952 or 1917, but the government implies by its reliance on current dictionaries that the word means the same today as on the date of the statute’s enactment, an implication consistent with Black’s Law Dictionary) of several terms in which the word “harboring” appears—a search based on the supposition that the number of hits per term is a rough index of the frequency of its use—reveals the following:
“harboring fugitives”: 50,800 hits
“harboring enemies”: 4,730 hits
“harboring refugees”: 4,820 hits
“harboring victims”: 114 hits
“harboring flood victims”: 0 hits
“harboring victims of disasters”: 0 hits
“harboring victims of persecution”: 0 hits
“harboring guests”: 184 hits
“harboring friends”: 256 hits (but some involve harboring Quakers—“Friends,” viewed in colonial New England as dangerous heretics)
“harboring Quakers”: 3,870 hits
“harboring Jews”: 19,100 hits
It is apparent from these results that “harboring,” as the word is actually used, has a connotation—which “sheltering,” and a fortiori “giving a person a place to stay”—does not, of deliberately safeguarding members of a specified group from the authorities, whether through concealment, movement to a safe location, or physical protection.
Judge Posner notes the anti-harboring statute's historical origins in a 1917 attempt to plug a loophole in the laws against smuggling of illegal immigrants, and then turns to the stipulated facts of the case under consideration:
The defendant in the present case was not trying to encourage or protect or secrete illegal aliens. [...] She had a boyfriend who happened to be (as she knew) an illegal alien, and he lived with her for a time. Had she been aware of section 1324 and fearful of prosecution and hence had told him to move out of her house, he could have found some other place to live in Cahokia, or elsewhere. It’s not as if he was made safer from the feds by living with her. On the contrary, the stipulation of facts—which remember is the only source of the facts upon which she was convicted—states that the boyfriend “had lived with the defendant at 816 LaSalle St. in Cahokia, Illinois, for approximately a year before his arrest in July of 2003 on a federal drug charge. [He] disclosed his cohabitation with the defendant at this address to federal authorities during a proffer on October 31, 2003. [...]". The stipulation goes on to state that on several occasions while he was living with the defendant after his return to the United States he moved out and stayed with his uncle or his brother, who lived elsewhere in Illinois and whose addresses, as far as we know, were unknown to the authorities. So, had he been living with one of them rather than with her because she refused to take him back when he returned to the United States, he might well have been safer.
He then explains at greater length why careless use of dictionary definitions may pervert the law:
To call this harboring would carry section 1324 far beyond smuggling, and a considerable distance as well from concealing and from shielding from detection. That considerable distance identifies a further problem with the use of dictionaries to determine statutory meaning. Legislative prohibitions are often stated in strings of closely related and overlapping terms, to plug loopholes. They do not have identical dictionary definitions (if they did, the use of multiple terms would have no point), but the overlap means that in many applications they will be redundant, so that to pick out of the dictionary, for each statutory term, a definition remote from that of the other terms may be to misunderstand why the legislature included multiple overlapping terms. We have warned that “the fact that a clause is broadly worded to stop up loopholes doesn’t justify a literal interpretation that carries far beyond any purpose that can reasonably be imputed to the drafter. ‘When a statute is broadly worded in order to prevent loopholes from being drilled in it by ingenious lawyers, there is a danger of its being applied to situations absurdly remote from the concerns of the statute’s framers.’ ” Abbott Laboratories v. Takeda Pharmaceutical Co., 476 F.3d 421, 426 (7th Cir. 2007), quoting Fitzgerald v. Chrysler Corp., 116 F.3d 225, 226 (7th Cir. 1997).
He goes into detail about the potential consequences of this particular perversion, which would turn millions of Americans into criminals. These would include many if not most of the ten million undocumented aliens currently in residence, since on the government's position
… although generally it is not a crime to be an illegal alien [...], an illegal alien becomes a criminal by having a wife, also an illegal alien, living with him in the United States; if they have children, born abroad and hence illegal aliens also, living with them, then each parent has several counts of criminal harboring, on the government’s interpretation of the statute. The effect would be a profound change in the legal status of aliens in the United States.
And a large number of others would also be affected:
[I]s it likely that Congress intended that parents whose child invites an immigrant classmate who, as they know, is illegally in the country to a sleepover might be branded as criminals even if he didn’t accept the invitation, since the statute criminalizes attempts?
He suggests that over-reaching of this kind potentially places almost everyone at risk of a felony conviction, at the discretion of the justice department:
The government tells us not to worry: we judges can rely on prosecutors to avoid bringing cases at the outer margin of the government’s sweeping definition of “harboring.” But this case is at the outer margin. No doubt it was brought because the Justice Department suspects that the defendant was involved in her boyfriend’s drug dealings, but cannot prove it, so the Department reaches into its deep arsenal (the 4000-plus federal crimes) and finds a crime that she doubtless never heard of that it can pin on her. She was sentenced only to probation and to pay a fine but now has a felony record that will dog her for the rest of her life if she loses this appeal.
We may observe (though Judge Posner did not) that the construal of harboring as "sheltering" might even be stretched to indict Mitt Romney. Gov. Romney seems to have known that some of the yard workers tending his lawns and gardens were illegal immigrants, and perhaps it could be shown that they habitually took their breaks while sheltered under a tree in his back yard.
Matt Kaiser ("Judge Posner On Harboring, the Dictionary, and Trusting the Government", Federal Criminal Appeals Blog 2/28/2012) calls this "an opinion as critical of the government as any I've read in a very long time".
[Hat tip to Stephen Mouritsen.]