Ed Snowden Helps A Reporter Having A Seizure While Interviewing Him Remotely

from the wait,-what? dept

Here's a bizarre story. A German reporter, Julia Prosinger, spent a week in the NYC offices of the ACLU with Ben Wizner, one of the key lawyers working with Ed Snowden. There, she reports about the Robot Snowden that is set up in the ACLU offices, allowing Snowden to "hang out" with ACLU folks any time he wants (assuming people are around). You may have seen the robot Snowden on stage at TED, but apparently Snowden is still using a version of that thing that's just kept at the ACLU's offices, allowing him to zoom around and talk to folks. They're even talking about having more Snowdenbots around the globe so he can pop in virtually wherever he wants.

But, that's not the craziest part of the story.

It's that during the interview with Prosinger, she happens to have a seizure, and Snowden apparently both talks Wizner through what to do and calms Prosinger as she comes to.

Suddenly, during the attempt to explain German, I faint. I wake up, my head lies bedded on a sand bag, my body is in the recovery position. A calm voice is coming from the screen. “The first fits are always the worst,” Snowden says. I am lucky: Snowden is not only a patriot or traitor, he is also an epileptic. He instantly recognised what was happening to me. He tells me that he was only diagnosed when he was 23 years old. When he fled the US a little more than a year ago, he told his employer that he had to go away for a few weeks for treatment for his epilepsy. Then Snowden apologises for making me look at the flickering screen, it had triggered the fit, he says.

Ben Wizner brings a glass of juice. He is moved. He has been travelling for a year, because Snowden is stuck in Russia. He speaks where Snowden doesn’t have a voice. For a year now he has literally been Snowden’s right-hand man.

He just followed Snowden’s advice via Skype and stopped me from falling against the metal filing cabinets in his office. “That’s Ed how I know him. The empathy, the clear voice, the care,” says Wizner.

Of course, now we wonder how Mike Rogers will spin this into more evidence of Snowden being a Russian spy...

Filed Under: ben wizner, ed snowden, julia prosinger, reporters, robot snowden, robots, seizure, telepresence
Companies: aclu

Sheriff's Deputy With History Of Misconduct Attempts To Extort $50,000 From Pulled Over Motorist

from the sold-out-by-his-own-dash-cam dept

Even when law enforcement officers know a camera is watching, some still choose to abuse their power. This isn't good news, especially as more law enforcement agencies are choosing to outfit their officers with cameras and mics (and allowing those officers to tamper, disable or break the equipment without consequence). The technology does have the potential to nudge both cops and citizens into more mutually respectful interactions, but this is being circumvented by officers who like cameras aimed at the public, but not so much at themselves.

In this case, lawyers were able to get ahold of dashcam footage revealing misconduct by a Humboldt County Sheriff's Deputy. This misconduct involved the abuse of asset forfeiture laws -- laws many law enforcement agencies seem to feel gives them permission to seize anything for any reason.

One deputy in particular is being singled out for his practice of pressuring travelers to abandon their money or face losing their cars as well. The I-Team has obtained exclusive dash-cam video from one of these drug interdiction stops. While no drugs were found, that didn't stop the deputy from grabbing the cash.

"How much money you got?" Humboldt County Deputy Lee Dove can be heard asking on the video.

The dash-cam video gives insight into what some say is a pattern of questionable drug interdiction stops by Deputy Dove along I-80 near Winnemucca in northern Nevada.

The out-of-state motorist was stopped for doing 78 mph in an 75 mph zone. Deputy Dove finds $50,000 cash and $10,000 in cashiers checks during a search of the car.

The driver, Tan Nguyen, maintained that he won the money in Las Vegas. Whether or not he did was something the deputy could have made an effort to ascertain, but instead he chose to go down the extortion route.

Deputy Dove: "Well, I'm gonna search that vehicle first, ok?"

Nguyen: "Hey, what's the reason you're searching my car?"

Deputy Dove: "Because I'm talking to you ... well, no, I don't have to explain that to you. I'm not going to explain that to you, but I am gonna put my drug dog on that (pointing to money). If my dog alerts, I'm seizing the money. You can try to get it back but you're not."

Nguyen: (inaudible) got it in Vegas."

Deputy Dove: "Good luck proving it. Good luck proving it. You'll burn it up in attorney fees before we give it back to you."

But Deputy Dove never put his drug dog to work (itself a very iffy practice that often relies on an officer claiming the dog "alerted" when it was, in fact, reacting to stimulus from the officer). Instead, he offered a very shady "deal." Nguyen was free to go if he turned over the cash. If not, Dove was going to seize the car and everything in it.

Dove has refused to speak about the incident, a decision at least partially guided by an ongoing investigation. The sheriff's department has admitted that proper procedures were not followed in a number of seizures, but that admission came after the fact. At the time of the seizure, the sheriff's office posted a photo of Dove with the cash, promoting the fact that the money would be used to help the sheriff's office fight crime. (This being crime located outside of the Sheriff's Department, apparently...)

But this statement seems to be little more than soothing words. Forfeitures are being filed at record rates in Humboldt County.

Twenty forfeiture cases — more than the previous four years combined — have been filed by the Humboldt County District Attorney's Office since March 14, the day the county announced settling two lawsuits over cash seizures that drew media scrutiny.

Of the 20 forfeiture cases filed since last month in Humboldt County District Court, more than four exceeded $10,000 and the majority were filed as a result of Humboldt County Sheriff's Office traffic stops, the county clerk said.

This has prompted one lawyer to consider filing a class action lawsuit. More news of Deputy Dove's pay-to-play "policy" has also surfaced as a result of Nguyen's case.

The class-action lawsuit, yet to be filed as of Wednesday, says Trevor Paine of Wisconsin was stopped for allegedly speeding 84 mph in a 75 mph zone in November.

According to the complaint, Humboldt County Sheriff Sgt. Lee Dove "forcibly searched" the vehicle with a police K-9 because the dog acted as if there were drugs in the car. Dove failed to find drugs, but took $11,000 in cash from a lockbox, the complaint says.

So, there's a clear pattern of abuse, and it looks as though the Sheriff is finally being forced to confront the issue. The bill for deputy misconduct was footed by the citizens, of course, which isn't much of a deterrent for misbehaving officers and those who employ them. And if the number of seizures being filed is any indication, there's a good chance the public will be footing the bill again in the near future.

Filed Under: cash, dash cam, extortion, humboldt county, lee dove, police, seizure

Silk Road Vendor Who Says He Never Sold Anything Illegal Wants His Bitcoins Back

from the this-could-get-interesting dept

A former Silk Road vendor by the name of Peter Ward is apparently preparing a lawsuit to demand the return of his Bitcoins, which are now owned by the US government after the seizure of Silk Road last year. According to Andy Greenberg at Forbes:

On Thursday, Ward began the process of retaining a lawyer to file a claim for what he says were 100 bitcoins–worth around $95,000 at current exchange rates–seized by the FBI in the takedown of the Silk Road online black market for drugs last October. Unlike most of Silk Road’s sellers, Ward says he earned his bitcoins through entirely legal means, offering the same merchandise that he advertises on the public Internet from his head shop Planet Pluto in Devon, England.

“I’m probably in a unique position in that I can prove my coins came from selling legal items,” says Ward, who argues his wares included only drug accessories and UK-legal substances like salvia and the morphine-like kratom. “I sold on Silk Road because it had a large user base that matched my target customers. Where better to sell king-size rolling papers?”

It turns out that soon after the Silk Road takedown, he too was arrested in the UK, having all of his electronics seized. It likely complicates matters that he also had some cocaine and marijuana at his home when he was arrested. However, he insists that nothing he sold online was illegal, and he has been released on bail and not charged with any crimes.

The legal issues here will get complicated fast, made much more complicated by the mess that is the US's seizure and forfeiture laws, a set of laws that are both exceptionally complicated and regularly prone to abuse by law enforcement -- effectively allowing them to steal whatever they want at will, and then sell off to help their agency/police department profit in the process.

That said, in the mess of those laws, there are some very specific things that law enforcement needs to do in order to keep the property they seize and forfeit, and law enforcement isn't always known for following those specific rules. I imagine that the DOJ's response will be to try to quickly dismiss any such case, noting that anything remotely touching Silk Road is somehow tainted and associated with a criminal act, but that may be harder to back up in court if it ever gets that far.

Filed Under: bitcoins, forfeiture, peter ward, seizure, silk road, uk

Today Is July 4th; And It's Time To Restore The 4th Amendment

from the join-in dept

Today is July 4th, and as mentioned, people are gathering around the country -- both offline and online -- to tell the government that it's time to finally start obeying the 4th Amendment again. If you click the image above, it takes you to CallForFreedom.org, a new campaign from Fight for the Future. You should also check out RestoreTheFourth.net, for details on local protests all around the country from people who believe in the 4th Amendment of our Constitution, and are worried that the government has decided to ignore it with its widespread surveillance efforts, led by the NSA and the DOJ. Oh, and in case you want a somewhat more amusing look at the concept of restoring the 4th Amendment, we have everyone's favorite Taiwanese news animators, who always seem to have a way with making the news that much more entertaining: We're taking today and tomorrow off from regular posting for the holiday, though we'll have a some posts over the next few days.

Filed Under: 4th amendment, nsa surveillance, restore the 4th, search, seizure, surveillance, warrants

If You're Going To Illegally Seize Citizens' Cell Phones, At Least Make Sure You're Grabbing The Right Ones

from the all-officers-involved-are-ordered-to-attend-'Remedial-Rights-Infringement dept

When cops behave badly, many suddenly develop an acute case of unconstitutional stage fright, often resulting in the immediate confiscation of any cameras/cell phones in the vicinity. If it's going to come down to "our word against yours," it helps immensely to have any contradictory "words" spirited away by Narrative Control, a branch of law enforcement that handles all cop "publicity rights," as well as providing new interpretations and reimaginings of existing statutes.

Sometimes it works. The offending footage vanishes into the ether, resulting in a narrative standoff between the Upstanding (if Overenthusiastic) Officer of the Law and the Obviously Crazy and Dangerous Person Who Should Really Be Doing a Little Hard Time.

Other times, the smash-and-grab fails, and the citizens retain their footage, providing a more rounded narration that often reverses the roles. (Upstanding [if Overenthusiastic] Citizen v. Obviously Crazy and Dangerous Law Enforcement Officer Who Really Shouldn't be Allowed to Abuse Anything Other Than a Demeaning Desk Job.)

Sometimes, though, the (attempted) confiscation of offending footage results in a surprising amount of schadenfreude. These moments occur altogether too infrequently, but when they do, a good time is had by all not attempting to confiscate damning footage.

First off, via Photography is not a Crime, comes the brief but surprisingly satisfying story of bullying tactics backfiring.

New York City police officers arrested a woman who was video recording them from a public sidewalk as they conducted some type of “vehicle safety checkpoint.”

The officers apparently stole a memory card from a camera, which turned out to be the wrong one, allowing us to view the video.

In the Youtube description, under the headline, “You stole the wrong SD card,” Christina Gonzalez said her boyfriend was also arrested.

"We were arrested while filming an NYPD checkpoint on a bridge between a soon to be gentrified Bronx and a quickly gentrifying Harlem. We were charged with OGA, DisCon, and resisting arrest. I was holding a bag of yarn in one hand and a canvas in the other. My partner had food in his hands when he was tackled. Even though their violent actions were unjust, we did not resist. Simultaneous with our “arrests”, the checkpoint was closed down.

We were held for 25 hours."

If you'll notice, both principals were charged with OGA (Obstructing Governmental Administration), in addition to the usual cop standbys, disorderly conduct and (of course) resisting arrest. The thing is, they weren't obstructing anything, at least not according to the NYPD's own Patrol Guide.

a. A person remaining in the vicinity of a stop or arrest shall not be subject to arrest for Obstructing Governmental Administration (Penal Law, Section 195.05) unless the officer has probable cause to believe the person or persons are obstructing governmental administration.

b. None of the following constitutes probable cause for arrest or detention of an onlooker unless the safety of officers or other persons is directly endangered or the officer reasonably believes they are endangered or the law is otherwise violated:

(1) Speech alone, even though crude and vulgar
(2) Requesting and making notes of shield numbers or names of officers
(3) Taking photographs, videotapes or tape recordings
(4) Remaining in the vicinity of the stop or arrest

Even if they were doing all of the above, it still wouldn't add up to OGA. So, that's a BS charge, as is the "resisting arrest," but the latter seems to be tacked on to any arrest that occurs without any real crime being committed. It's an offshoot of "contempt of cop, " which basically means that not immediately shutting up and doing what you're told is the same as resisting arrest.

Among all the fake crimes, a real crime did take place -- an NYPD officer (allegedly) stole a memory card, most likely in hopes of "detaining" the offending footage permanently. But he grabbed the wrong one and now the actions of these officers is on public display and spreading around the web.

That's illegal seizure FAIL #1. The second story comes courtesy of a lawsuit filed against the Galveston (Texas) police department. It starts out ordinarily enough. (Sidebar: there's something horribly wrong with the system if I can state something is "ordinary" and have it contain the following events.)

Jarrett Anthony Neu sued Galveston in Federal Court.

Neu claims that Galveston police arrested him at 4:45 p.m. on March 11, without a warrant, at a Galveston apartment complex. He claims they lied about it in the police report. He claims they subjected him not only to threats, intimidation, insult and humiliation, but severe and cruel physical abuse and punishment by both physical beating and the repeated unnecessary and unwarranted deployment of a less-than-lethal Taser weapon on plaintiff. Plaintiff, who suffers from a pre-existing cardiac ailment, suffered permanent and debilitating injuries as well as permanent disfigurement and scarring at the hands of these police officers.

Someone should get rid of that "less-than-lethal" modifier attached to "Taser." It's been proven multiple times that it can be lethal, if deployed against a person with the "right" ailments or simply deployed repeatedly until the arrestee has sufficiently "stopped resisting." (In these cases, the word "resisting" is often interchangeable with the word "breathing.")

At some point during this "exchange of viewpoints" (or whatever the correct PD terminology is), the police noticed an impartial observer was recording the whole thing for posterity. So, they made the usual move to responsibly collect all evidence, especially the damning kind.

During this police administered beating, officers realized that a citizen was filming the beating via cell phone and the officers involved without a legal reason seized (the wrong) cell phone.

E for effort, guys. You almost had it. And without a warrant! Now, the Galveston PD has a cell phone, but the plaintiff's lawyer has the cell phone.

Counsel for plaintiff has the cell phone that recorded the beating.

It would be nice to think the Galveston PD is kicking themselves for blowing a simple, illegal seizure of someone's phone, but if the plaintiff's story is anything to go by, they're probably kicking someone else.

Filed Under: cell phones, police, seizure

Unsealed Megaupload Seizure Warrants Reveal Use Of Flawed Logic... And An 'Undercover Computer'

from the did-it-wear-a-mustache dept

Last month, we wrote about how the EFF, representing Kyle Goodwin, had asked the US district court handling the Megaupload case to unseal the warrants for the seizures of Megauploads domains and servers. The court has now ordered the documents unsealed. To be honest, there isn't too much surprising in them. There are some huge leaps to assume that hosting a cloud service somehow makes you criminally liable for what people do on that service. In fact, part of it ridiculously argues that the "proof" of criminality is the fact that the DOJ had alerted Megaupload to some infringing files, and those files had not been taken down. However, as Megaupload's lawyer points out, the "alert" was in the form of asking for cooperation, which Megaupload granted, and not to "interfere" in the investigation. Taking down the videos would be interfering. Megaupload's lawyer, Ira Rothken explained to CNET:

"MegaUpload was served with a criminal search warrant for alleged third-party user conduct and was advised not to interfere with that criminal investigation or with the files -- as such disclosure, would jeopardize the ongoing investigation. To ask MegaUpload to cooperate and then use that cooperation against them, to us seems to be both unfair and misleading."

Most of the argument in the warrants is just repeating the already questionable claims in the indictment -- which is what you'd expect. They're also not all that different from previous domain seizure requests -- with a few notable exceptions. First, you'll notice that the special agent who conducted the investigation has all personal information redacted. Apparently the Justice Department would prefer that its agent not receive the ridicule that the agent who made myriad mistakes in earlier domain seizures received.

But what was really amusing was the description of the investigation, which apparently involved an "undercover computer."

Using an undercover computer, [redacted] observed how a visitor may view content hosted on Megaupload.com. For example, on November 20, 2011, [redacted] observed the copyrighted picture "Zack and Miri Make a Porno," which was released in 2008 by The Weinstein Company, on the website Megavideo.com.

I'm still trying to figure out just what an "undercover computer" is -- and where I can buy one. Also, seems kind of random to choose Zack and Miri as the sample file to download -- especially given the director/writer of that particular movie, Kevin Smith, has talked extensively about how he believes "piracy" actually helps him gain more fans. Yes, the film's copyright is held by The Weinstein Company -- whose owners appear to have a slightly less enlightened view of infringement -- but it still seems like an odd choice.

In addition to those oddities, there are some other claims within the filings that don't make much sense. They make the argument that seizure is necessary with claims that are, simply speaking, not true:

Neither a restraining order nor an injunction is sufficient to guarantee the availability of the Subject Domain Names for forfeiture. By seizing the Subject Domain Names and redirecting them to another website, the United States will prevent supporters of the Mega Conspiracy or third parties from redirecting the Subject Domain Names to servers elsewhere in the world, and thus using them to commit additional crimes. Furthermore, seizure of the Subject Domain Names will prevent visitors from continuing to access the websites located at the Subject Domain Names.

To put it simply: that makes no sense. Either a restraining order or an injunction would, in fact, prevent those other things from happening. Yes, Megaupload could have ignored the two, but then it would face additional charges for ignoring the court. Given that Megaupload had repeatedly engaged in various lawsuits against it in the US before, there was simply no evidence that Megaupload would directly ignore the court and, as such, face additional charges.

Finally, the documents also show the DOJ's request for these documents to be sealed. You can understand why they wanted the warrants sealed prior to the takedowns and arrests happening. But those all took place within a week of the seizures being approved by the judge. There was no reason to keep them under seal. Yet the DOJ claims that it "has considered alternatives less drastic than sealing, including, for example, the possibility of redactions, and has determined that none would suffice to protect this investigation." That is, of course, empirically and definitively false because we've now seen the unsealed and redacted document and they do nothing to endanger the investigation (other than, perhaps, revealing the weaknesses of the DOJ's arguments).

Filed Under: copyright, criminal copyright, forefeiture, investigations, seizure
Companies: megaupload

EFF Files Motion To Have Court Release Seizure Warrant In Megaupload Case

from the should-be-public-info dept

In the ongoing case involving Kyle Goodwin trying to get back the content that he backed up via Megaupload and lost as a result of the US taking down the site, the EFF (representing Goodwin) has asked the court to unseal the initial seizure warrants that the US relied on to grab the Megaupload servers from hosting company Carpathia. They point out the number of concerns that New Zealand courts have raised with the legitimacy of the warrants, as well as some basic principles related to the limits on such warrants within the US.

.... these materials will certainly assist him to learn what steps, if any, the government took to inform the court of the scope of its planned seizure and related execution of search warrants. They would also show any plan provided by the government or the court in the warrant materials for minimization to protect innocent users before the seizure or to segregate the data after seizure. Federal judges increasingly impose detailed conditions prior to execution of computer searches.... For example, Judge Kozinski in the Ninth Circuit has observed that if the government refuses to forswear the ability to retain or use data that should have been segregated initially, the judge “should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.” .... Unsealing will allow Mr. Goodwin, as well as the general public, to learn which, if any, such conditions were undertaken in this case.

Similarly, under the Fourth Amendment people have a right to be secure in their “papers” and “effects” against unreasonable searches and seizures. A person's “effects” may be the subject of Fourth Amendment protection even where there is no particular privacy or liberty interest.... A property seizure occurs when a governmental intrusion meaningfully interferes with an individual's possessory interest.... The Fourth Amendment analysis, in turn, requires the Court to determine whether the seizure was “reasonable.” Gaining access to the materials that served as a basis for the government’s seizure of his property can assist Mr. Goodwin and other innocent Megaupload users in determining whether the seizure was unreasonable.

Separately, they note that there is tremendous public interest in revealing these details, and criminal cases should be done as publicly as possible. And, considering how frequently the US government is now seizing websites, the issue is of tremendous importance:

The public also has a strong interest in understanding the government process in executing search warrants on cloud computing servers that contain innocent third-party property. Seizures of domain names, and resulting searches of related servers, are tools the government is using with increasing frequency in criminal copyright enforcement actions. For example, the federal government has reportedly seized more than 800 websites so far under its Operation in our Sites campaign. The government has issued press releases and otherwise sought to publicize its efforts, obviously giving its own perspective on its actions. Legislators, the media, and the public are vigorously debating the very issue of these domain name seizures and related searches, even as a large percentage of Americans continue to use cloud computing services. Access to judicial records would ensure a more accurate and informed public debate, rather than one informed merely by the government’s press releases

Finally, they note that the government has already said it has no more need for the servers in question, so why would it make sense to keep the seizure warrant sealed? It seems difficult to argue with any of these points... but I have a feeling that the US Attorneys are about to try to do exactly that...

Filed Under: kyle goodwin, seizure, warrant
Companies: eff, megaupload

Gibson Guitars CEO Calls Out The Government For 'Regulating Business Through Criminal Law' [Updated]

from the violating-obscure-statutes?-that's-a-paddlin' dept

Update: Of course, just about the time we posted this, the news came out that Gibson has decided to settle, though it still mainstains it did nothing wrong. It got off by having to pay $350,000 and by forfeiting the confiscated wood, which it notes is much less onerous than fighting this through. So this story is now done, but the original post below still highlights the ridiculous situations that Gibson was put in, and which many others could easily end up in.

It's been close to a year since the Justice Department raided Gibson Guitars for using "illegal wood" on the fingerboards. You'd think something like "illegal wood" wouldn't require the use of the term "raid," or the services of 30 agents with guns and bulletproof vests, but hey, welcome to America. The raid was authorized under the Lacey Act, an act whose original use was to curb poaching of illegal species, but soon spread (as these things do) to cover the importing other wildlife and plants.

The fun thing about the law is that staying in compliance requires knowing not only the particular details of over 200 other countries' laws, but also a bit of mind-reading in order to suss out how the federal government will interpret each one of these laws. Put it all together and you've got Gibson's situation, which is detailed in a post for the Wall Street Journal (gated) but also helpfully detailed at Cato's new National Police Misconduct Reporting Project. The first indication that this raid was a complete abortion of justice is the fact that the wood Gibson used had made it into the country without being seized:

The fingerboards of our guitars are made with wood that is imported from India. The wood seized during the Aug. 24 raid, however, was from a Forest Stewardship Council-certified supplier, meaning the wood complies with FSC's rules requiring that it be harvested legally and in compliance with traditional and civil rights, among other protections. Indian authorities have provided sworn statements approving the shipment, and U.S. Custom allowed the shipment to pass through America's border and to our factories.

Having made it through the safeguards that were set up to stop illegal imports, one would think that the material was cleared for use. But this sort of clear thinking fails to take into account that every law is somehow still open to multiple interpretations:

Nonetheless, the U.S. Fish and Wildlife Service decided to enforce its own interpretation of Indian law, arguing that because the fingerboards weren't finished in India, they were illegal exports. In effect, the agency is arguing that to be in compliance with the law, Gibson must outsource the jobs of finishing craftsmen in Tennessee.

Seizure laws are incredibly popular with everyone from large government agencies to small town police departments and having 4,000 federal criminal offenses on the books makes it very simple for law enforcers to find inadvertent or unwitting criminals and inflict damage on them through seizures and imprisonment. Any avenue that looks as if it may provide agencies like this with more power and control is generally explored to its fullest.

This is an overreach of government authority and indicative of the kinds of burdens the federal government routinely imposes on growing businesses. It also highlights a dangerous trend: an attempt to punish even paperwork errors with criminal charges and to regulate business activities through criminal law. Policy wonks call this “overcriminalization.” I call it a job killer.

Many business owners have inadvertently broken obscure and highly technical foreign laws, landing them in prison for things like importing lobster tails in plastic rather than cardboard packaging (the violation of that Honduran law earned one man an eight-year prison sentence). Cases like this make it clear that the justice system has strayed from its constitutional purpose like stopping the real bad guys from bringing harm.

That is exactly where the system is now. Criminal intent is no longer factored in to the equation. The old chestnut, "Ignorance of the law is no excuse," is actually a completely valid excuse. 4,000 federal criminal offenses on the books means that heavier sentences and fines are levied against criminals who in the past would have been subject to less harsh civil and/or local judgments. Add to that 40,000 new state laws introduced in 2012 alone, and you've got the perfect recipe for government overreach and thousands of chances to be hauled into court to attempt to prove a negative.

Cato's Tim Lynch pointed out the absurdity of the current situation during an address to the House Subcommittee on Crime, Terrorism and Homeland Security:

The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that "ignorance of the law is no excuse." That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. As Professor Henry M. Hart opined, "In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact."

It is absurd and unjust for the government to impose a legal duty on every citizen to "know" all of the mind-boggling rules and regulations that have been promulgated over the years. Policymakers can and should discard the "ignorance-is-no-excuse" maxim by enacting a law that would require prosecutors to prove that regulatory violations are "willful" or, in the alternative, that would permit a good-faith belief in the legality of one's conduct to be pleaded and proved as a defense. The former rule is already in place for our complicated tax laws — but it should also shield unwary Americans from all of the laws and regulations as well.

Gibson Guitars had every reason to presume the wood it was using was perfectly legal. The company had taken great care to stay within the confines of the laws as it understood them. Instead of being given the benefit of a doubt when the issue of legality arose (and after the wood had already cleared Customs), the company was raided as though it were cranking out black market explosives rather than ordinary, harmless guitars. Gibson always has the option to sue but the odds of getting this case to be heard, much less winning it, are low. Even with higher odds, the time and expense would far outweigh the losses sustained by Gibson at the hand of the federal government.

This leaves companies like Gibson in the unenviable position of putting even more time and money into compliance, rather than innovation, expansion or outside investments. In today's economy, the private sector really can't afford another "job killer," especially one they have to pay for out of their own pockets.

Filed Under: arbitrary, doj, forfeiture, guitars, seizure, wood
Companies: gibson

The DOJ's Truly Disgusting Argument For Denying A Megaupload User Access To His Legal Content

from the hey,-not-our-machines... dept

In the ongoing saga of what happens to all the data stored on the Megaupload servers, the Department of Justice has now filed a truly revolting argument in seeking to end the efforts by a Megaupload user, Kyle Goodwin (who uploaded and stored sports videos that he shot), to regain access to the content he uploaded.

As we've noted, there's been a lot of finger pointing going on here, with a bunch of highly questionable actions on the part of the government, including its repeated suggestion that all of this data -- which, remember, they seemed to think was evidence of a crime -- should simply be deleted. But what's so sneaky and duplicitous about the DOJ's argument here? They're saying that because they never actually seized the servers in question, this has absolutely nothing to do with them -- and that Goodwin would be better off suing Megaupload or Carpathia (the hosting company) or simply paying Carpathia to access the servers. Basically, it says that no one's stopping him... other than the fact that all the servers are offline thanks to the feds' own actions (but, please, they'd prefer you not remember that part). They actually seem to feign surprise that their own actions of seizing Megaupload's domains and all of the company's (and its exec team's) money, and arresting the entire senior management team... might lead to the site being shut down entirely.

Basically, it's as if the government walked into a china shop, smashed up every last piece, and then walked out. When the owner then sought restitution from the government, the government suddenly insists that since it didn't take any of the broken pieces out of the shop, there's no cause for action against the government. And all the smashed up little pieces are still there, so why would anyone complain?

Oh, and just to add totally obnoxious insult to injury, the DOJ also says that even if the court decides that there's some merit in the arguments laid out by Goodwin, even that doesn't matter, because it'll just cop out and declare "sovereign immunity" and avoid having to pay out. The whole thing is a fairly disgusting display by the DOJ showing just how far it will go to lock someone up once it's determined to. They will cause all sorts of collateral damage, and when someone calls them on it, they'll just point the finger elsewhere... all while demanding even more power to censor with impunity.

Filed Under: doj, kyle goodwin, seizure
Companies: carpathia, megaupload

Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog

from the answers-were-not-satisfactory dept

Back in December, right after it came out that the Justice Department had seized and censored a hip hop blog for over a year and then gave it back, effectively admitting that there was no legal basis for the censorship, Rep. Zoe Lofgren asked Attorney General Eric Holder about what happened in the case. After making a joke that his daughters might know more about it than he did, he promised to get back to Lofgren with a more complete answer once he was more familiar with the situation.

Turns out he never responded to her questions.

Of course, since then the secret proceedings in the case (which Dajaz1 was not even allowed to know about, or even have their lawyer speak to the judge) have been unsealed. Those revealed that the ICE Agent in charge of the case, Andrew Reynolds, had basically sat around doing nothing for over a year, waiting for the RIAA to finally provide the evidence that Dajaz1 had broken the law. That evidence was obviously never produced, which is why Dajaz1 eventually got its domain back.

There was another oversight hearing yesterday, and Zoe Lofgren quizzed Holder again, noting that not only did he not respond to her questions, but also highlighting the unsealed documents, which show that the original affidavit was misleading.
Holder first responds that he "believes" the seizures were legal, because the court signed off on them. Lofgren immediately challenges that, noting the incorrect or misleading information in the affidavit, and asking if he believes it's okay to censor a site for over a year and not allow the site to even be heard by the court in all that time. At that point, he at least admits that if the affidavit was "misleading" that "that would not be an appropriate basis for action on behalf of the government." He also notes that seizure is a powerful tool that needs to be used "judiciously." And then notes that if what Lofgren descrbied was accurate "that would be of great concern."

Of course, none of that comments on what actually happened here -- and it's not like this is the first time he's heard of this. Remember, he was directly asked about it last year, and had promised to look into the details. Furthermore, after the hearing, Lofgren put out a statement saying that not only did she not hear back from him after her questions last year, but "prior to this hearing my staff told his staff to tell him the question I was going to be asking so he could be prepared to answer." Clearly, he was not prepared to answer.

As Lofgren notes, "I didn't think it was a very impressive answer, and to suppress free speech for a year with secret proceedings and no probable cause is a problem. It's not the way America is supposed to be."

Filed Under: censorship, doj, eric holder, seizure, zoe lofgren
Companies: dajaz1