Retired federal judge Nancy Gertner, who has appeared in stories here for years (she was the original judge in the Tenenbaum trial, and also spoke out about how US attorney Carmen Ortiz handled the Aaron Swartz case), has now highlighted a very important point about all of the NSA surveillance stories: at the heart of much of it is the secretive FISA court, and that court should not be trusted.
As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.
Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said....
It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.
The "judges" on the FISA Court are appointed by the Chief Justice of the Supreme Court. And that's it. As we were just discussing, they hear only one side of a case, and their rulings are kept secret. When you have a party that only hears one side of things and never, ever has to be subject to public review or criticism of decisions, take a wild guess what happens? You get a court that is judicially captured, and sides very much with the intelligence infrastructure that it spends most of its time dealing with.
On top of that, there's a very big question: why are these rulings secret? Something like an interpretation of the law should never, ever be considered secret. Yes, it makes sense to keep something secret if it exposes direct information on a specific case that is being worked on, but basic rulings about what the law actually says should never be. But they are, because the FISA court can do that sort of thing. And that's a huge problem. Late last year, we had a post linking to a story by another former judge, Andrew Napolitano, explaining why the entire FISA court was almost certainly unconstitutional:
The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power.... Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court.
With everything that's been going on, most of the attention has been on the administration -- including both the NSA and the DOJ -- as well as some companies participating in the various surveillance programs. But, increasingly, it seems that perhaps a lot more attention should be paid to the entire concept and structure of the FISA court.
While US Attorney Carmen Ortiz continues to stand by her actions in regards to the Aaron Swartz case (and other cases where she's being accused of being over-aggressive in prosecuting people), more and more criticism is coming to light, including from some influential voices who understand first hand the sorts of things that Ortiz has been engaged in. Former federal judge Nancy Gertner, who some may remember from being the judge in the Joel Tenenbaum trial, has spoken out about Ortiz's actions, suggesting that Ortiz took things too far.
“Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.
“At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”
She goes on to criticize Ortiz's continued public claims about how Swartz could get 35 years in jail based on the charges she presented. Gertner notes that, thanks to mandatory sentencing guidelines, judges have less power to push back against overzealous prosecutors like Ortiz, and, as a result, it gives those prosecutors much more power to bully people into agreements.
“And in the world of punishment, the prosecutor has enormous power and he has the enormous power to make you plead guilty and give up your rights,” Gertner said.
As she notes, since the prosecutor can choose what charges to file against you, and then just pile them all up until you agree to plead to something, the prosecutor often has way too much power:
“So the prosecutor determines the charges and the punishment,” Gertner explained. “Again, once they start the process, once the indictment is brought, the potential for enormous punishment is there and although a judge has some discretion in sentencing, often what the prosecutor wants is what the person gets.
“When that happens the prosecutor has enormous power and has to exercise that with some degree of fairness and judgment at that end,” she added.
On top of that, she points out that there were clearly alternative ways that Ortiz could have handled the Swartz case, either offering a deal that didn't involve prison time or even a diversion program with a suspended sentence (such that charges would be dropped if Swartz stayed out of trouble for a certain set period of time). Instead, she notes that Ortiz chose the hardline path that was designed to "wreck your life" even though it seems clear that merely drawing attention to the belief that his actions were criminal would have likely stopped further such actions.
Finally, Gertner points out that part of the problem is that US Prosecutors like Ortiz get rewarded for "high profile" takedowns, and thus all of the incentives she had were to turn the Swartz case into something a lot bigger than it really was:
“If the U.S. attorney is going to take credit for every successful prosecution, not matter what the issues were, the U.S. attorney then winds up as ‘Bostonian of the Year’ for these prosecutions, then you know high-profile prosecutions are valued in the office,” Gertner said. “Mr. Swartz was a high-profile prosecution. Whether they are right is another question.”
None of this, of course, is unique to the Swartz prosecution. We've pointed to similar things in the past, and it's unfortunately common today that US Attorneys use their position not to seek justice in the world, but as a political stepping stone to higher office. As such, "high profile" cases where they "put someone away" get them additional attention and acclaim. Being judicious and recognizing when prosecution doesn't make much sense... does not. The incentives are totally screwed up, and that can create calamitous results.
If you don't recall, there are statutory rates for copyright infringement, which are ridiculously high, and it seems reasonable to question if those awards, which seem totally disproportionate to any "damages," could be seen as excessive under the Constitution.
The district court judge, Michael Davis, clearly felt so. Ditto Judge Nancy Gertner in the Joel Tenenbaum case. However, the government apparently is going to argue that the statutory rate is the statutory rate and we must respect that. The argument is basically the same behind the implementation for statutory rates in the first place. To paraphrase: "man, it's freaking hard to have to show actual damages (since there might not be any) and thus we shouldn't have to do that -- but should just be able to use these crazy high numbers." This argument seems silly frankly. It's basically saying that even if you could look at damages, you should never have to. That's a big part of the problem. It leads to cases like this where people are heavily pressured to settle just to avoid the risk of crazy high statutory damages.
But where the government's argument goes off the rails, is the idea that when it comes to statutory damages, there's never a due process question over whether the rates are excessive. That makes no sense, but it's the argument being made:
Contrary to defendant’s contentions, the Due Process Clause does not
require that the statutory damage award be proportional to the actual harm
defendant has caused the plaintiff. Defendant attempts to derive this rule from
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). But as the district
court held, Williams, not Gore, establishes the applicable framework for
determining whether an award of statutory damages under the Copyright Act
comports with due process.
Gore is inapposite. It imposes limitations on a jury’s authority to award
punitive damages in circumstances where the legislature has not constrained the
jury’s discretion. It thus requires that the jury award not be grossly
disproportionate to the plaintiff’s injury or defendant’s misconduct. Absent such
limitations, the Gore Court reasoned, defendants could not have fair,
constitutionally sufficient notice of the magnitude of potential sanctions.
The Gore framework, however, does not apply to a statutory regime in
which Congress has specified in advance the range of appropriate damages. In
that circumstance, the statute itself supplies the constitutionally required notice
deemed missing in Gore. Moreover, unlike jury awards of punitive damages, an
award of statutory damages is based on legislative judgments that must be
accorded deference by the reviewing court. Williams, not Gore, sets forth the
appropriate standards for conducting such review.
To summarize this argument, it's that Congress can do whatever the hell it wants in setting statutory rates, and no one can ever question if those rates are "excessive." Effectively, it's saying that Congress doesn't have to obey the Constitution. That makes no sense. And yes, it relies on this Supreme Court ruling from 1919, which is a pretty narrow ruling, concerning conditions under which you could measure such regulatory fines against the due process clause. However, this argument really tries to make that case do a hell of a lot more than it was designed to do -- while also trying to pretend that a whole series of other cases involving excessive fines as they relate to due process don't matter.
Either way, the end result is that the administration is effectively saying that a $1.5 million award for sharing 24 songs isn't just perfectly legal and reasonable, but that it's what Congress intended. All it really does is reiterate just how out of touch the White House is to reality.
Last Friday, we quickly covered the news that Judge Nancy Gertner had declared the original jury award of $675,000 against Joel Tenenbaum for downloading and sharing some songs unconstitutionally excessive. Over the weekend, however, I had some more time to read the full ruling (posted by Eric Goldman) and get a sense of what Gertner's full argument meant. You can read the ruling here, and I highly recommend taking the time to read the whole thing:
In it, she clearly explains why the Constitutional analysis was necessary (she could have just reduced the award using the remittitur process, but noted that the RIAA made it clear they would challenge such a ruling, and thus it would eventually come around to the Constitutional questions no matter what.
So with that in mind, she clearly gave a lot of thought to the Constitutional questions, and goes back to the key point, that if the punishment is seriously out of line with any sort of "harm" caused, then it's unconstitutional. She notes that she must give deference to Congress' intent with the statutory rates it set for copyright infringement, as well as to the jury's verdict. But, even so, she suggests that the jury's award was way out of line with reasonable awards in other copyright lawsuits... and (more importantly) way out of line with Congress' intent of using statutory rates to deter infringement:
This award is far greater than necessary to serve the government's
legitimate interests in compensating copyright owners and deterring infringement. In fact, it
bears no meaningful relationship to these objectives.
In attacking the Constitutional questions, Judge Gertner spent a lot of time highlighting the case law on the Due Process Clause, noting many, many cases where the Supreme Court has made it clear that there are limits to what should be considered Constitutional when it comes to jury awards -- even in the case of statutory awards (even if the courts often seem to rule that in the cases they're looking at, the line has not been crossed).
Defenders of both the original Jammie Thomas award and the Joel Tenenbaum award have frequently claimed that the case law (mainly the BMW v. Gore case) doesn't apply since that was not for statutory damages, where the rates are clear and already set. That's going to be a key point made in the inevitable challenge to this ruling. But Gertner aptly explains why it's reasonable to explore whether or not the award is unconstitutionally excessive, even when it's within the statutory rates, and even suggests that both the government and the RIAA are misreading other precedents -- with the key one being the Williams case, which found a damages award acceptable because it fell within statutory rates. Gertner points out that the RIAA and the government are taking that ruling out of context, and only looking at the result, rather than the actual reasoning.
At their root, the standards articulated in Williams, BMW,
and State Farm all aim at providing defendants with some protection against arbitrary government
action in the form of damages awards that are grossly excessive in relation to the objectives that
the awards are designed to achieve. Indeed, early twentieth century cases such as Williams were
the seedlings from which the Supreme Court's recent punitive damages jurisprudence sprouted.
She also notes that even in the Congressional record in efforts to increase the statutory rates, Congressional members suggested that courts would make sure the actual awards were reasonable and not excessive:
In fact, Senator Orrin Hatch, a sponsor of the Digital
Theft Deterrence and Copyright Damages Improvement Act of 1999, which increased section
504(c)'s statutory damages ranges to their current levels, stated in remarks regarding a
predecessor of that bill, "In most cases, courts attempt to do justice by fixing the statutory
damages at a level that approximates actual damages and defendant's profits."
That line right there might be pretty damaging to the RIAA's typical claim that courts are just supposed to assume that Congress knows best in setting the rates, and shouldn't try to approximate actual damages with statutory rates.
From there, Judge Gertner applies the test found in the BMW case, and points out that (contrary to some of the silliest claims from copyright system defenders), Congress clearly did not expect lawsuits against individuals sharing files for personal use when it set such high rates:
Later statements by Senators Orrin Hatch and Patrick Leahy, two sponsors of
the Digital Theft Deterrence Act, strongly suggest that Tenenbaum is correct; they did not
anticipate that individuals such as Tenenbaum who engaged in noncommercial file-sharing
would be subjected to liability for statutory damages under section 504(c). Hatch and Leahy
presided over a Senate Judiciary Committee hearing titled "Music on the Internet: Is There an
Upside to Downloading?" on July 11, 2000.... During the
hearing, the committee members demonstrated how the peer-to-peer system Gnutella is used by
downloading and then playing a song by the band Creed. ... As the committee was
downloading the Creed song, Senator Leahy proudly proclaimed that he was doing some of his
own downloading on his laptop. ... When one of the developers of Gnutella pointed
out to the committee members that they might be engaging in copyright infringement, Senator
Hatch responded that their downloading and public performance of the Creed song qualified as
"fair use" since it was carried out for "educational and governmental purposes." ...
Nevertheless, the senators' willingness to download copyrighted sound recordings through a
peer-to-peer network during a committee hearing suggests, at the very least, that they did not
view such downloading as particularly reprehensible.
And this inference from the senators' conduct is largely confirmed by their words. Although Senator Hatch noted that peer-to-peer technology had the capacity, "if misused, to rob [artists] of their livelihood," ... he also praised the development of Gnutella as "quite an
accomplishment," ... And Senator Leahy added:
[W]hen I go on college campuses, as many of us do, to talk and
everybody is talking about what they have downloaded, how they
share, and so on, and when my kids pick up a "Black Muddy
River," which happens to be one of my favorites of the Dead, and
send it to me -- they have heard a new version -- and I log on in the
morning while I am having my breakfast and there it is, I mean this
is a whole different world, and I think we have to recognize that on
where we go.
Senator Hatch's tolerance of, if not admiration for, peer-to-peer networks was even more
on display at a special Judiciary Committee hearing held on October 9, 2000, at Brigham Young
University ("BYU"). ...
Shawn Fanning, the founder of Napster, was the star witness at this hearing, and Senator Hatch
repeatedly praised Fanning, expressing how "proud" he was of Fanning and even suggesting that
Fanning should become a professor at BYU or run for political office. ...
Obviously, Senator Hatch's comments should be taken with a large grain of salt... But his comments nevertheless suggest that he did
not anticipate that the statutory damages scheme over which his committee had jurisdiction
would be applied to users of Napster and other peer-to-peer networks.
I have to admit that I was unaware of these quotes from Senators Hatch and Leahy -- both of whom are normally seen as being very strongly in favor of strict copyright laws (Hatch, famously, once suggested coming up with a way to destroy the computers of file sharers).
On top of that, Judge Gertner compares the fines for Tenenbaum with restaurants and bars that have not paid their licenses, noting that those are clear cases of infringement for commercial reasons, yet the fines are a small multiple of the cost of a license. She points out that this seems like a much more egregious case, yet the awards are much lower:
The jury's award in this case also appears egregious in light of the damages typically
imposed on restaurants, bars, and other businesses that play copyrighted songs in their
establishments without first acquiring the appropriate licenses. These defendants are arguably
more culpable than Tenenbaum. Unlike Tenenbaum, who did not receive any direct pecuniary
gain from his file-sharing, defendants in these cases play copyrighted music to create a more
pleasurable atmosphere for their customers, thus generating more business and, consequently,
more revenue.... In addition, defendants accused of unlicensed public performances
often receive several notices that their conduct is unlawful before they are sued. Thus, like
Tenenbaum's file-sharing, their infringing conduct is generally willful. .... Nevertheless, the awards in such cases are generally no more than "two to six times the license fees defendants 'saved' by not obeying the Copyright Act"--a ratio of
statutory to actual damages far lower than the ratio present in this case.
Clearly, this case is nowhere close to over, but it is still interesting to read through the details of the ruling. Obviously, Gertner knows this is going to be appealed, and she put a lot of effort into making the case for why this ruling was excessive, in hopes of having her reasoning help carry the later appeals.
Dear Joel Tenenbaum: please find new legal representation. And do so quickly. Following Judge Gertner's trashing of Nesson, the Harvard law professor still doesn't seem to think he did anything wrong. Instead, he's blaming Judge Gertner. Seriously. In an interview with Computerworld, he said he's planning to ask for a retrial due to Gertner's errors in the case:
Nesson, however, brushed aside the judge's criticism and maintained that it was she who had gotten it wrong. "I was sorry she did not respond to our fair use defense. She had a considerable amount of trouble rejecting it," he said.
From the rest of the article, it sounds like he wants a do over. He says that he wants to have a new trial where he'll make a brand new argument: that Tenenbaum's use was fair use because when he did the file sharing, there was no legal way to purchase that music digitally. As far as I can tell, that's a misreading of what Gertner said might possibly work as a limited fair use claim, but there's no indication that this is actually true in Tenenbaum's case, and none of that addresses the basic procedural mistakes that Nesson made. It's a shame that Nesson still can't admit that he screwed this up entirely -- despite being told that by plenty of folks who are very sympathetic to his position. At some point, one hopes that Tenenbaum himself will realize this and drop Nesson and find someone who can actually represent his interests.
It's no secret that almost all of the observers of Charles Nesson's defense of Joel Tenenbaum -- no matter where you stood on issues related to file sharing and copyright -- felt that Nesson's plan was a complete and total disaster, doing himself, his client, and all copyright reformers a huge disservice. It was a complete disaster that made it that much harder for those with reasonable arguments to be heard. And, to date, he's done nothing but continue to suggest that he has no clue how badly he screwed up. It's a true shame.
Today, Judge Gertner finalized the ruling, which will almost certainly be appealed (though, hopefully with better legal representation). But, perhaps more interesting is that Judger Gertner also issued a separate memo where you can basically feel Gertner's frustration with Nesson's defense. In it, she even makes clear that she would have been open to a limited use of fair use to defend certain actions:
"As it made clear previously, the Court was prepared to consider a more expansive fair use argument than other courts have credited—perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense."
This wasn't a huge surprise -- given that Gertner had previously slammed RIAA tactics, and has also suggested that Congress really needs to change the punishment allowed for copyright infringement, as it appears to be totally unrelated to the actual lawbreaking. So, in her memo, she notes that she gave Tenenbaum every chance to make a reasonable defense, but instead Nesson and his team of law students provided "a truly chaotic defense."
Once again, we're left wondering what Nesson was possibly thinking, and what would have happened if a competent litigator was actually in charge of his case.
Ray Beckermann is, once again, highlighting some highly questionable activities by the RIAA, noting that after getting defendants to agree to a settlement amount, the RIAA sometimes immediately asks for double the agreed upon amount, and submits that proposal to the court. It's unclear how widely this is happening, but at least in one case, it's good to hear that a judge has prevented the RIAA from getting away with this practice by denying the agreement, noting the different sum than the one agreed to by the parties:
Judge Nancy Gertner: ELECTRONIC ORDER entered re Stipulation To Judgment and Permanent Injunction filed by All Plaintiffs as to defendant LaShaana Straw. "The parties' Stipulation to Judgment is DENIED. Plaintiffs request that the Court approve a Stipulation requiring the Defendant to pay $10,700, yet state in their Response that they have agreed to accept half that amount, $5,350, in full satisfaction of the monetary portion of the proposed judgment. The Plaintiffs do not provide any reason for this highly unusual arrangement, and the Court will not approve a stipulation which fails reflect the actual terms of the agreement. The Plaintiffs must present to the Court a proposed judgment which accurately states the amount the Defendant will be required to pay to settle the claims."
This would be the same judge, by the way, who slammed the RIAA for its questionable legal tactics just a few months ago. You would think that the RIAA would know better than to try to play legal games with Judge Gertner.
