Federal Judge None Too Impressed With Government's Defense Of Its 'No Fly' List

from the we-have-several-reasons;-here-are-none-of-them dept

The top secret "No-Fly" list has been problematic since day one. The DHS and FBI apparently believe over 20,000 people are too dangerous to allow to board a plane but not dangerous enough to arrest.

This is the process the government follows to place would-be travelers on the no-fly list.

1. The government places a person on the no-fly list.

That's all there is to it. The list is too "sensitive" to publish and exposing its methodology would apparently result in airliners raining down around us.

If you're a lucky recipient of the "no-fly" designation, here's how you're informed of your new status.

1. Purchase a ticket and attempt to travel.
2. Be rebuffed by TSA personnel.

This process can sometimes be applied with more flexibility.

1. Purchase a roundtrip ticket and fly to a foreign destination.
2. Attempt to return home.
3. Be rebuffed by local customs/security officials.

You won't know you're on The List until the list is triggered, which could happen when you're a few thousand miles from home. And if you think you're boarding the next boat back to the US, think again. The list is also "no-sail," meaning passenger ships are out of the question.

Now, if you're on the list and wish to be removed or, at the very least, informed of why you've been banned from commercial airline travel, there's no reason to panic. The DHS has a resolution process that relies very heavily on "process" and skips the "resolution" completely.

Their only recourse is to file a request with the Department of Homeland Security's "Traveler Redress Inquiry Program," after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.

One wonders what a letter that answers no questions and explains nothing is supposed to "redress."

Dear Sir/Madam No Fly,

Thank you for expressing an interest in our Traveler Redress Inquiry Program. The Department of Homeland Security works in conjunction with all domestic airports, as well as those in 22 other nations worldwide, in order to provide you with a safe traveling experience. We hope that you will continue to make use of our products and services.

Thank you again for your support.

If you have additional comments or questions, please dial (202) 282-8495.

Sincerely,
The Department of Homeland Security

This decade-long lack of specifics or actual redress has led to the ACLU suing the federal government on the behalf of thirteen no-fly list members.

Thirteen people on the no-fly list have sued the U.S. government, arguing that their placement deprives them of due process and smears their reputation by branding them as terrorists. Several of the men who filed suit have been surrounded at airport security areas, detained and interrogated.

The suit seeks to either remove the plaintiffs from the no-fly list or tell them why they are on it.

Government attorney Scott Risner addressed these complaints by arguing that air travel is not a "right" but a "convenience."

Risner said placement on the list doesn't stop people from traveling, and stopping people from using one mode of travel doesn't deprive them of their liberty. That's a key question in determining whether the government must ensure due process and one that's at the heart of the constitutionality of being placed on the list.

"We're not suggesting that there's not a convenience in air travel," Risner said. "(But) there's no right to travel without impediments. That's what's happening here.

Risner went so far as to point out that those stranded by sudden inclusion on the no fly list had made it back to the US via alternate forms of travel, thus "proving" a lack of air travel isn't preventing traveling.

Unfortunately for Risner, Judge Anna J. Brown wasn't buying it.

"To call it 'convenience' is marginalizing their argument," Brown said. [She] said alternatives to flying are significantly more expensive. "It's hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries."

She also pointed out that sea and land travel options aren't suitable replacements for flying, especially when time is of the essence and that the government's argument "fails to take into account the realities of modern life."

The DHS and FBI would obviously like everything to proceed the way it has for years, which means convincing the judge that flying isn't a fundamental right. This removes the question of constitutionality, as least as far as flight restrictions go.

The ACLU has gone further, though, declaring the entire system to be screwed up.

"We're asking the court to finally put a check on the government's use of a blacklist that denies Americans the ability to fly without giving them the explanation or fair hearing that the Constitution requires. It's a question of basic fairness," said ACLU Staff Attorney Nusrat Choudhury, one of the ACLU attorneys who will argue the case Friday in Portland. "It does not make our country safer to ban people from flying without giving them an after-the-fact redress process that allows them to correct the errors that led to their mistaken inclusion on the list."

It also points out that issuance of notice and due process are required for much less far-reaching actions.

The ACLU argues that this system violates the Fifth Amendment's command that the government cannot deprive a person of liberty "without due process of law." Courts have ruled that the Constitution requires some kind of notice and hearing for far less severe actions, such as losing state assistance for utility bills or being suspended from school for 10 days.

Judge Brown hasn't said when she'll issue a ruling, but so far she seems less than impressed with the government's arguments. In the meantime, 20,000 people, including the 13 US citizens represented here (four of which are military veterans), are still stuck in War on Terror limbo -- unofficially "detained" in the US by secretive travel restrictions.

Filed Under: dhs, due process, homeland security, legality, no fly list, tsa

Joel Tenenbaum Loses Again; Bad Cases With Lying Defendants Make For Bad Law

from the unfortunate dept

From very early on, we pointed out that Joel Tenenbaum's defense to being sued by the record labels was a complete and total train wreck. There were some legitimate legal issues to be raised, but on the whole, Tenenbaum's legal team either failed to raise them, or raised them so ridiculously that they were dismissed out of hand. At points, it appeared that they bet the whole game on the idea that downloading music would be seen by the court as "fair use," when that was almost certainly never going to fly (and when the court rejected it, it seemed like Tenenbaum's lawyers had no backup plan). This was all made much, much, much worse by the fact that Joel Tenenbaum was a terrible defendant. He never should have gone to trial and should have taken the first settlement offered to him for a very simple reason: he was guilty of massive amounts of file sharing, and there was no way he was going to get around that point in a trial. Even worse (much worse) he then lied, repeatedly, about this. It's stunning that he didn't just settle and move on. This was a clear cut case where he had no case, and fighting it has only served to set bad to awful precedents, each time clouded in large part by his behavior outside of just the file sharing.

So it's no surprise that, on yet another appeal, Tenenbaum has lost again, as the appeals court has sided with the second district court ruling, which said that a $675,000 award for sharing 30 songs was perfectly reasonable. There is a legitimate issue of whether or not $22,500 per song for songs that were uploaded non-commercially is constitutional. But, partly because of Tenenbaum's own bad behavior, the court has no problem at all with an award that high.

On appeal, Tenenbaum invites us to assume that he is "the most heinous of noncommercial copyright infringers." We need not go so far as to accept his offer. The evidence of Tenenbaum's copyright infringement easily justifies the conclusion that his conduct was egregious. Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behavior was exactly what Congress was trying to deter when it amended the Copyright Act. Therefore, we do not hesitate to conclude that an award of $22,500 per song, an amount representing 15% of the maximum award for willful violations and less than the maximum award for non-willful violations, comports with due process.

Basically, an award this high is okay because Tenenbaum was a brat. The court argues that because he was such a brat an award this high makes sense because it fits in with the "deterrent effect" intended by statutory damages awards. Of course, if you think about that logically, it makes little sense, because by Tenenbaum's own actions, it appears that nothing was going to deter him from file sharing, just as other giant awards and greater levels of punishment have done little to nothing to deter others from file sharing. But, all of that is blurred by the fact that he lied, which mucked up the entire case, combined with a really piss poor strategy in court that never seemed to reach a point that was even half-baked.

There are legitimate questions about the constitutionality of copyright's statutory damages awards, which are nowhere near proportionate with the "wrongs" they are supposedly "righting." But, you don't get good rulings on difficult cases when you have a defendant who acted badly and lied during discovery. Instead, you get a bad precedent like this one.

Filed Under: constitutional, copyright, due process, joel tenenbaum, statutory damages

Italian Court Overturns Seizure Of Cyberlocker Rapidgator

from the big-news dept

In April we wrote about how Italian law enforcement had blocked over two dozen websites after the industry claimed they were responsible for copyright infringement. There was no trial, no adversarial hearing where the sites were able to defend themselves. Just: entertainment industry complains, law enforcement buys the complaints, tells a judge and boom, site gone. One of the cyberlockers blocked in this effort, Rapidgator, challenged this blockade, and it has quickly won a reversal. Rapidgator's lawyer, Fulvio Sarzana, was kind enough to send us the details, and it appears the court understood why the initial blockade was hugely problematic.

The court overturned the ruling that came out of the investigation, and made a few key points, according to Sarzana. He said that court ruled that cyberlockers are legitimate if they have a notice and takedown system, and that the owner of the site is not liable for infringements done by users (basic secondary liability protections). It also said that the seizure of an entire site goes "against the principles of reasonableness, proportionality and adequacy."

Unfortunately, the ruling only applies to Rapidgator, since it was the only one who hired a lawyer in Italy and appealed. In response to the ruling Sarzana issued the following statement:

The copyright holders contend that the only way in which they can obtain effective relief to prevent, or at least reduce infringements of their copyrights is by means of an order against ISPs. But this is stupid since the concerns about over-blocking, and ease of circumvention are widely recognized. Blocking through the ISPs is not a silver bullet to stop web copyright infringement. It is, in fact, a way to balkanize the web.

Having strong secondary liability protections, as well as basic due process before blocking access to sites would be a huge step in the right direction, so it's good to see an Italian court recognize these basic principles.

Filed Under: copyright, cyberlockers, due process, italy, secondary liability, seizures
Companies: rapidgator

UK Recording Industry Looks To Censor More Sites With No Trial Or Conviction

from the hello-slippery-slope dept

Once the UK recording industry realized that UK courts would order ISPs to block websites it didn't like, it appears that the industry, led by BPI and PPL began putting together a list of over two dozen sites that they're asking to have blocked by all UK ISPs, even though many of the sites on the list have never been tried in a court of law or convicted of copyright infringement. Included on the list, for example, is Grooveshark, who has been sued, but has not yet been found to violate copyright laws. It may very well be true that there is infringement on many, if not all of those sites. But, generally speaking, there's this thing called due process that allows a site to defend itself before being censored from an entire country. Just because a site has some infringing content does not mean that the entire site should be blocked -- or you'd have absolutely no user generated content sites online, because the liability would be too high. The UK courts started down this slippery slope by allowing sites to be blocked, and now the record labels are just going to keep piling the list higher and higher.

Filed Under: blocks, censorship, copyright, due process, filter, isp blocks, uk
Companies: bpi, grooveshark, ppl

NYPD Sergeant Says 'Guilty Until Proven Innocent' Is Just The Price We Pay For A 'Free Society'

from the nothing's-more-'secure'-than-a-jail-cell dept

We've been dealing with the New York police department lately, thanks to the mayor and the police chief using the recent Boston bombing as an excuse to increase surveillance efforts and enact other policies to further encroach on New Yorkers' civil liberties. Whenever something terrorist-related occurs, it seems as though the NYPD's reps can't keep their opinions to themselves, even as the department itself drifts further and further away from being a sterling example of How Things Should Be Done.

In a recent Christian Science Monitor article dealing with "teenagers, terrorism and social media" (focusing on the recent Cameron D'Ambrosio arrest for making "terrorist threats" via some improvised rap lyrics posted to Facebook), Sgt. Ed Mullins of the NYPD shows up to make some very disturbing statements about your rights and responsibilities as a (mere) citizen. It starts with the worst kind of "policy" and goes downhill fast.

Using a zero tolerance approach to track domestic terrorists online is the only reasonable way to analyze online threats these days, especially after the Boston Marathon bombing and news that the suspects had subsequently planned to target Times Square in Manhattan, Mullins says. The way law enforcement agencies approach online activity that appears sinister is this: “If you’re not a terrorist, if you’re not a threat, prove it,” he says.

"Zero tolerance" is never "reasonable." It never has been and it never will be. In fact, it's the polar opposite. Zero tolerance policies simply absolve the enforcers of any responsibility for the outcome and grant them the privilege of ignoring mitigating factors. It allows them to bypass applying any sort of critical thinking skills (the "reason" part of "reasonable") and view every infractions as nothing more than a binary IF THEN equation.

Mullins goes even further than this, though, asserting that the burden of proof lies with the person charged, not the person bringing the charges. This flips our judicial system on its head (along with the judicial systems in many other countries) and, if applied the way Mullins views it, puts accused citizens in the impossible position of trying to prove a negative. This is just completely wrong, and it's a dangerously stupid thing for someone in his position to believe, much less state out loud. (Mullins also heads the Sergeants Benevolent Association, the second-largest police union in New York City.)

Believe it or not, Mullins is not done talking. What he says next doubles up on the "dangerous" and "stupid."

“This is the price you pay to live in free society right now. It’s just the way it is,” Mullins adds.

No. It isn't.

This is the price Mullins is charging to live in the NYPD's severely stunted version of a "free" society. The NYPD has been harassing young minorities at the rate of 500,000 impromptu stop-and-frisks per year for the better part of the last decade. For the past 10 years, the NYPD has been regularly trampling citizens' civil liberties simply because they attend a mosque. The NYPD and Mayor Bloomberg have worked ceaselessly to make New York the most-surveilled city in the U.S.

That's the price New Yorkers are paying. It has nothing to do with living in a free society. The NYPD takes liberties away and high-ranking cops like Mullins have the gall to suggest there's some sort of equitable exchange occurring. Mullins doesn't seem to understand (or just doesn't care) that if you take away freedom you no longer have a free society.

It has been said that eternal vigilance is the price of liberty, but "eternal vigilance" isn't shorthand for oppressive surveillance and zero tolerance policies that make freedom less "free." "Eternal vigilance" isn't treating the Constitution like a relic too worn and tattered to serve any purpose in these "dangerous" times. And being an officer of the law isn't an excuse to shut your intellect off and allow your brain stem and broad policies to "work" in concert in order to treat loudmouth teens on Facebook like a guy with a trailer home full of explosives.

This "vigilance" is supposed to be put to use by citizens in order to prevent authorities like Mullins from encroaching on our liberties. It's not solely limited to a united military effort against foreign powers. There are plenty of people apparently willing to attack our freedom from the comfort of the home front.

Filed Under: civil liberties, due process, freedom, guilty until proven innocent, nypd

Senator Wyden Takes A Stand Against Overbroad Tax On Internet Transactions

from the the-shop-canada-and-shop-mexico-bill dept

Last month, we noted that the Senate was coming closer to forcing a sales tax on all internet purchases -- something the big brick-and-mortar retailers have wanted for years to burden online competitors. State governments also love the idea because they're all dying for tax revenue. However, it's unclear why this makes any sense, in particular because it puts a huge burden on anyone selling goods online. And yet, the Senate is pushing forward with S. 743, or what it has euphemistically called the Marketplace Fairness Act. It sounds like Senator Harry Reid is pushing for a vote on it as early as Monday.

Senator Ron Wyden has now stepped up to argue vehemently against the bill, noting that the burden on innovation is way too high, for little clear benefit. Two of his big concerns: that it takes a government function (taxation) and forces it on small businesses and internet retailers, and secondly that this will drive more people to buying from foreign online retailers, mainly in Canada and Mexico. Even the Congressional Research Service has noted that the bill has a massive loophole for foreign retailers selling in the US and that it is "complicated legally."

Others have pointed out that this bill would also have a massive impact on privacy because it requires retailers to turn over the addresses of buyers to state authorities to figure out where to allocate the tax revenue.

Let’s say a seller of naughty toys were audited by the tax authority in another state. To prove that it has remitted all the taxes due in that state, it woud have to turn over, at the least, data reflecting the amount of its sales by geographical location. There are something like 30,000 state and local jurisdictions with authority to impose sales and use taxes, more than 7,500 of which have already adopted this kind of tax. If not ZIP+4, then the actual address of recipients would have to be turned over. Could they turn over non-identifying summaries? The point of an audit is to check the honesty and accuracy of summary filings, so the answer is no.

So state tax authorities would get troves of data about online purchases delivered into their state. The standard misuses apply. It might be transferred to other organs of government, legally or not, for investigation and examination. Curious state bureaucrats might look up the purchasing habits of ex-spouses, famous names, and political figures. The list goes on and on

The more you dig into this bill, the worse it gets. Just the fact that it's suggesting that internet firms should enforce taxation laws that are outside of their own jurisdiction (i.e, "taxation without representation") raises significant due process questions at a time when lots of countries are looking to try to regulate internet companies outside of their own borders. Passing this law will give fodder to other countries to claim jurisdiction over American companies, and provide them with direct evidence that even in the US we don't take jurisdiction and due process seriously.

On top of that, the bill will apply to not just physical goods, but services as well. While those are often not taxed by states, this could also provide more incentive for them to be taxed, which doesn't seem good for anyone.

Honestly, the biggest question in all of this is why it's even necessary in the first place -- other than the fact states who misused existing revenue are now hungry for more. Perhaps they should focus on getting their own houses in order before just demanding more cash from internet companies (and, more directly, their users).

A bunch of anti-tax groups have also put together a petition against the bill. Whether or not you support their general anti-tax position, it does seem ridiculous to put all the burden on anyone selling goods online to have to collect and distribute taxes in states where they have no presence at all. As a site that has its own small store, the idea of having to figure out how to deliver cash to 50 separate states is terrifying.

Filed Under: due process, internet taxes, marketplace fairness act, privacy, retailers, senator wyden, state taxes

Why Is The UK Blocking Access To Sites Without Any Hearings?

from the extremely-questionable dept

We already wrote about the UK court letting the BPI decide what sites the court would order all UK ISPs to block access to, but as more details come out about the process, the scarier it is. As Duke noted in our comments, the whole process lacked any sort of due process:

For those interested the full judgment is here: EMI Records Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 379 (Ch)

The law is a bit worrying (I haven't read it in that much detail but I think it goes slightly further than previous ones) - the main concern is that, again, there was no hearing, no defence, no cross-examination of evidence etc.. Without seeing the witness statements I can't be sure, but I think the judge just accepted everything the BPI had to say at face value.

That's not justice - not in an adversarial court system.

The Open Rights Group (ORG) in the UK has quite reasonably expressed its concern about how such blockades are likely to stifle speech, especially when there is no one allowed to argue against the blocking.

We are concerned that these orders are not protecting speech, are overblocking forums and discussion, and are prone to error as the actual block lists are private.

Furthermore, users and the public interest have not been represented in the processes

It amazes me that anyone thinks it's reasonable to shut down a site without any sort of due process in the form of an adversarial hearing, in which multiple sides can be presented. The opportunity for widespread abuse and the stifling of free expression is massive.

Filed Under: blocking, censorship, due process, file sharing, hearings, uk

Jammie Thomas Asks Supreme Court: How Much Is Too Much For Copyright Infringement?

from the here-we-go dept

Back in September, we wrote about the latest in the Jammie Thomas-Rasset saga, in which an appeals court had ruled that the original (of three) district court rulings in her case, in which she was told to pay $9,250 per song was perfectly reasonable. As we noted, this was more or less a procedural thing, in an effort to get to the main event: a challenge on the Constitutionality of ridiculously high statutory damages for copyright. And... that's where we are now. Thomas-Rasset has petitioned the Supreme Court to hear her appeal on exactly that question:

Is there any constitutional limit to the statutory damages that can be imposed for downloading music online?

The argument, as when it has been brought up earlier, is that such huge fines represent a 5th Amendment due process problem, as the awards simply are so far out of line with any reason. The filing runs through a brief history of the recording industry's fight against file sharing (amusingly quoting from the movie The Social Network to make the point that the recording industry has seen better days).

Thomas-Rasset makes the case that the three different verdicts, with three different crazy amounts from three different juries highlights the problems with today's statutory damages, and how disconnected they are from reality:

Statutory damages imposed in this way are unpredictable, unconstrained, and equally as punitive as punitive damages; the jury’s role in imposing them is even more divorced from finding facts, from deciding what happened, than it is in imposing punitive damages. The order-of-magnitude difference between the verdicts in this case, $222,000 in the first trial, $1,920,000 in the second trial, and $1,500,000 in the third trial, demonstrates this. The verdicts are unpredictable and, in a deeper sense, arbitrary; they are not tied to any fact or rationale that justifies them, that explains why the law imposes this particular penalty on this particular defendant.

And it's that arbitrary nature that becomes a Constitutional problem under the 5th Amendment:

Thomas–Rasset contends that the award of statutory damages against her violates the Due Process Clause because it is tied not to the actual injury that she caused or other features of her conduct, but to the injury caused by file sharing in general. Like punitive damages, statutory damages are imposed not only to compensate the plaintiff, but also to deter the defendant and others from engaging in similar conduct in the future. While this general approach, punishing one offender to deter others, is constitutional within limits, even gross limits of fair retribution for an individual’s conduct, due process limits the extent of the punishment. This Court recognized as much in reviewing awards of statutory damages as early as a century ago.

In Williams, decided in 1919, a railroad challenged statutory damages of “not less than fifty dollars nor more than three hundred dollars” imposed for overcharging two passengers by 66 cents in violation of Arkansas’s regulation of railroad rates. 251 U.S. at 63–64. The railroad argued that such statutory damages “contravene due process of law” because “the penalty is arbitrary and unreasonable, and not proportionate to the actual damages sustained.” ... This Court held that the Due Process Clause “places a limitation upon the power of the states to describe penalties for violations of their laws” and that due process is denied “where the penalty prescribed is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”

And, of course, they claim that this case clearly shows that statutory damages are completely disproportionate:

Under Williams and the other early cases, the award of statutory damages in this case is unconstitutional because it is “grossly excessive” and “wholly disproportioned to the offense.”.... $222,000 for 24 songs that would have cost $24 on iTunes is absurd. Nor can $222,000 be justified by the kinds of other features of the offense identified in Williams.

There's a lot more in the full filing, but it also takes on things, like the claims that the record labels should be able to get more from Thomas-Rasset, because they have to cover for other files sharers. That doesn't fly:

a defendant may be punished for his own similar acts only, Campbell, 538 U.S. at 422–23 (“A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.”), and only for the injury that he inflicted on the particular plaintiff in the case, not for any injuries that he inflicted on nonparties, Phillip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (“the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation”). These cases preserve the civil nature of a case notwithstanding the imposition of a punishment: the case remains between two parties, and the civil punishment must be justified with reference to the acts between those parties, not acts in the world in general.

There are a number of legal arguments... and one appeal to emotion, which comes off as a bit weak, though you never know how well some of those might play out:

But lawyers should care about these cases for an entirely different reason: This is not just. It is unfair, it is not due process, for an industry to sue 12,500 people and threaten to sue 5,000 more, wielding a statute for which they lobbied, under which they can threaten hundreds of thousands or millions of dollars in statutory damages, where the only way to resist is through modern, complex, expensive federal process, so that the only reasonable choice is to pay the settlement and be done. That’s extortion, not law. We cannot govern that way.

I am skeptical that this will result in a ruling in favor of Thomas-Rasset (even if the Supreme Court grants cert -- which I'd say is possible, but unlikely). However, perhaps I'll be pleasantly surprised. This is an absolute long shot, especially given a Supreme Court that, while skeptical of patent expansion, has shown a bizarre willingness to let Congress continue to stretch and change and expand copyright law at every turn.

Filed Under: copyright, due process, jammie thomas rasset, statutory damages, supreme court

Megaupload Renews Request For Criminal Charges To Be Temporarily Dismissed; Reminds Judge Of Earlier Request

from the er,-we-did-ask-for-that dept

When we wrote about the US judge in the Megaupload case siding with the US government in saying that, even without being able to technically serve the company (since it has no presence in the US), the criminal case could continue, we assumed that Megaupload would appeal. But even before appealing, the company is asking the judge to reconsider, based on an earlier request and the judge's own comments. The issue is that the judge's ruling only focused on whether or not the charges against Megaupload (but not the individuals charged in connection with the company) should be permanently dropped over the lack of service (in legal terms, it would be about having the charges dismissed "with prejudice"). However, the judge did note that perhaps it would make sense for the charges to be dropped without prejudice -- meaning that they would be dropped temporarily -- until such time as Kim Dotcom was extradited to the US, and could then be served as an "alter ego" for the company itself. The judge did not rule on that, however, since (he claimed) Megaupload had not asked for such a temporary dismissal.

In response, however, Megaupload quickly filed a motion reminding the judge that they had, in fact, suggested dismissal without prejudice back in July, quoting the transcript during oral arguments, which also points out why due process suggests this is the only proper result for a company that has effectively been killed and has no recourse since it hasn't truly been charged yet:

THE COURT: Well, that—can I require them to serve the company on any particular date? There's no date in the rule—there appears to be no statutory limitation, and I understand your due process argument. So I—what if I, you know, would start with a premise that I don't control when the Government decides to serve the company. Where do we go from there?

MR. BURCK: Well, Your Honor, we would submit that if the Court were ruling—going in that direction as a reasoning matter, that the appropriate result would be to dismiss the indictment without prejudice.

Because the company, again, has already suffered all the consequences of a criminal prosecution, so the—even if there's a trial and the company is acquitted and the individuals are acquitted, of course the company is still done.

So, we think that the due process claims trump all the other issues, and we think that if the Court were so inclined, that the Government should take certain steps in order to effectuate service, then—or if the extradition proceedings would be the relevant time line for that, again, the company should have an opportunity during that period of time to try to rehabilitate itself, because there isn't currently a criminal case that is sufficient for purposes of service and they've suffered massive harm.

So, of course, that would not be our preference, and we do think that the Supreme Court has said you can't change the rules of service, et cetera, but the—that’s all in our brief—but we do think that the alternative would be dismissal without prejudice, allow the Government at the appropriate time to then supercede the indictment again, add the corporation into the indictment.

And at that point, a year down the road, two years, however long it takes and wherever the MLAT process or the extradition process takes, at that point we could have this argument as to specific individuals, corporations, entities. But, in the meantime, having the company subject to the burden of a—the incredible burden of a criminal prosecution with no ability to defend itself and no service is an extraordinary result and one that is unprecedented.

In other words, Megaupload is saying dismiss this case until Dotcom is extradited, at which point (if he's ever extradited) then the company can be charged. But in the meantime, it's only fair to not have the company held back -- and the company did make that suggestion many months ago, contrary to the judge's suggestion otherwise.

Filed Under: due process, kim dotcom
Companies: megaupload

Court To Twitter: No Time For Appeal, Hand Over Info Or You're In Contempt

from the ouch dept

We've been covering the legal fight concerning the government's desire to access Tweets and other information related to Malcolm Harris, an Occupy Wall Street protestor who was arrested. Twitter had jumped into the case to argue that users have standing to protect their own information, which the court denied. Twitter then said it would appeal, but it appears that NY State Supreme Court Judge Matthew A. Sciarrino Jr. doesn't care, claiming that its failure to hand over the info may put it in contempt of court:

The judge had asked Twitter to show why it wasn’t in contempt of court after refusing to produce information about Twitter posts by protester Malcolm Harris in response to a subpoena from Manhattan District Attorney Cyrus Vance Jr.

“I can’t put Twitter or the little blue bird in jail, so the only way to punish is monetarily,” Sciarrino said.

Twitter and Harris's lawyers point out that this seems to completely ignore Twitter's right to appeal the ruling. Sciarrino again doesn't seem to think this is an issue, insisting that his original ruling was "fair" and Twitter has had more than enough time to comply with the order. Harris' lawyer notes that this appears to be an attempt at railroading, preventing due process from happening:

“It’s pretty outrageous that the D.A.’s office wants to prohibit Twitter from exercising its right to appeal,” said Martin Stolar, a lawyer with the National Lawyers Guild who represents Harris, after the hearing.

Unfortunately, that seems to be how things work these days...

Filed Under: appeal, due process, info, malcolm harris, new york, privacy
Companies: twitter