On October 2, the Federal Bureau of Investigation filed a criminal complaint in Los Angeles federal court against Michael Barrett, accusing him of engaging “in a course of conduct that caused substantial emotional distress” to a woman identified only as “E.A.” That woman is Erin Andrews, a reporter for ESPN. While staying at a Marriott hotel in Nashville in September 2008 – and previously at a Ramada in Milwaukee in July 2008 – Ms. Andrews was secretly videotaped in her hotel room through a modified peephole. The videos were posted to the internet in February 2009, and Ms. Andrews learned about them in July. Mr. Barrett is accused of taking and posting the videos.

As with any sensational case, the media has already declared Mr. Barrett guilty, although the criminal complaint here is nothing more than a secondhand account prepared by a single FBI agent. That said, the complaint offers a highly detailed and credible-sounding account of the taping and subsequent publication of the videos. My purpose here, however, is not to debate Mr. Barrett's guilt or innocence, but to challenge the legal basis of the FBI's complaint.

The complaint cites 28 U.S.C. § 2216A, a federal statute banning the use of “the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in any course of conduct that causes substantial emotional distress” to a person. 2216A is predicated on a defendant placing a victim “under surveillance with intent to . . . harass, or Intimidate, or cause substantial emotional distress.”

There's no doubt Ms. Andrews suffered emotional distress when knowledge of the videos – which show her nude body – became widespread. The complaint says Ms. Andrews “felt ashamed, embarrassed, and that everyone was staring at her and undressing her with their eyes.” Furthermore, some media outlets speculated, falsely, that Ms. Andrews had somehow consented or voluntarily participated in the taping of the videos.

But Ms. Andrews' embarrassment, terrible as it is, does not warrant a federal criminal prosecution, at least from a libertarian standpoint. Now, that doesn't mean Ms. Andrews' rights were not violated – they were – or that she's not entitled to restitution – she is. The FBI and the federal courts simply aren't the appropriate instruments for obtaining that restitution.

As the late Harry Browne used to say, “The Constitution recognizes only three federal crimes — treason, piracy, and counterfeiting. The federal government has no Constitutional authority to deal with any other crimes.” Here, Congress has attempted to criminalize – via the Commerce Clause – virtually any act of “surveillance” that “causes substantial emotional distress” to a person. Ms. Andrews' case demonstrates why this standard is hypocritical and illogical. It's hypocritical because the law doesn't apply to the FBI itself – which is responsible for far more surveillance with the intent to “harass or intimidate” then an individual taking peep videos of a television reporter. Especially in the aftermath of September 11, where the FBI has obtained gobs of new wiretap powers over such “terrorism” related matters as antitrust law, it's laughable to think the federal government is a necessary protector of an individual's right to privacy.

It's also illogical. The illicit taping of Ms. Andrews proved to be the first domino in a lengthy chain. The videos themselves laid unheralded on the internet for several months before Ms. Andrews was positively identified as the mysterious nude subject. Thereafter, the FBI complaint notes, the videos were “widely disseminated, and widely downloaded.” All this dissemination and downloading no doubt contributed to Ms. Andrews' “substantial emotional distress,” yet none of the outlets that published accounts or portions of the videos were subject to criminal prosecution. Not that they should be, mind you, but if you're going to establish “emotional distress” as a standard for criminal liability, it should apply to all persons who voluntarily contributed to said distress.

Also remember that 2216A is dependent on Congress' jurisdiction to regulate interstate commerce. Mr. Barrett is accused of attempting to sell his illicit videos to a media outlet – which declined – but ultimately, the FBI said he posted them to the internet so that they were publicly available without charge. But there was no actual act of commerce alleged as part of the scheme. In contrast, the various media outlets that later disseminated the video had a plain commercial motive – increased ratings – and, in some cases, broadcast over what the government considers “public” airwaves. Again, this isn't to suggest the government should prosecute any media outlet; it's merely a reminder that the constitutional and legal foundation for Mr. Barrett's prosecution is riddled with contradictions.

Unfortunately, even the victim herself seems enamored with an expansive role for the federal government. Following Mr. Barrett's arrest in Chicago, Ms. Andrews said in a statement, “I will make every effort to strengthen the laws on a state and federal level to better protect victims of criminal stalking.” It's understandable that Ms. Andrews is grateful to the FBI for its efforts, but it does not follow from her case that we need to “strengthen” any laws. First of all, if “stalking” is already illegal, how does one make it more illegal? Second, as explained above, this isn't about stalking, but rather a federal statute that attempts to address infliction of “emotional distress” via covert surveillance. The only way you could “strengthen” such laws would be to go after people who disseminate such surveillance – i.e., media outlets – and that raises a host of First Amendment problems. It would guarantee a lot of future litigation, but little in the way of actual protection for future victims.

But most importantly, this case demonstrates the value of private and tort law over criminal enforcement. The question left unaddressed here is how the accused peeper managed to obtain footage of Ms. Andrews in her hotel room. The answer, according to the FBI, is fairly stunning:

BARRETT reserved a room at the Nashville Marriott on September 3, 2009 [sic]. When he made the reservation, BARRETT specifically asked for a room next to [Ms. Andrews]. In computer records of the reservation for BARRETT's stay at the Nashville Marriott provided by the Area General Manager, a line read “INFO – GST RQST RM NXT TO [Ms. Andrews]”.

The hotel's employees screwed up. They not only told a complete stranger that Ms. Andrews was staying at their hotel; they gave him her room number and access to the adjacent room. On top of that, the hotel was apparently completely oblivious to the alterations made to the peephole on Ms. Andrews' room that allowed her to be covertly videotaped. (The FBI says the Marriott did not discover the altered peephole until an FBI agent inspected the room almost a year later.)

The hotel clearly committed a tort against Ms. Andrews, and assuming Mr. Barrett is the “author” of the videotapes, he's obviously committed trespass – against the hotel and Ms. Andrews – and invasion of privacy. But these are torts that are best left to civil lawsuits. If criminal proceedings are necessary, it can be dealt with in the Tennessee state courts. The federal prosecution adds nothing beneficial to the equation.

Remember, it will cost the federal government hundreds of thousands of dollars to try, convict, and ultimately incarcerate Mr. Barrett.* That's taxpayer money, and while it's admittedly not the biggest waste of such funds, there's still no good reason to throw good money away on what is ultimately a civil matter between Ms. Andrews and those who have committed torts against her.

*As an aside, the FBI filed its complaint in Los Angeles, rather than Nashville, Milwaukee, or even Chicago, where Mr. Barrett resides. This puts the criminal case before the Central District of California, where the chief judge recently proclaimed a “crisis” due to an overcrowded docket and lack of judicial manpower. Does it really make sense to add a high profile out-of-state criminal case to this court's docket?