This is new story art for my article examining when the proprietors of technology with criminal uses aid and abet their users’ crimes. The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. The article explains the legal doctrines underlying this type of liability and provides examples of at-risk technologies, including spam software, file-sharing services, and anonymity networks like Tor.
The term “network investigative technique,” or NIT, has been around for awhile as a catch-all term for the FBI’s digital investigation of non-public information from suspect’s computers. An FBI affiliate worryingly admitted to Forbes that the government uses a “human wall” to screen collected data to try to protect privacy rights.
This technique is making a big splash recently through “Operation Pacifier.” Through that operation, the FBI took control of a child porn site operating on Tor and allowed it to run for 13 days. The FBI modified the website’s code so that malware would download to users’ computers and sent their IP addresses, MAC addresses, and active username to the FBI.
A single magistrate judge in Virginia authorized the warrant, yet the operation was global in scope and uncovered approximately 1300 IP addresses. See Joseph Cox, The FBI’s ‘Unprecedented’ Hacking Campaign Targeted Over a Thousand Computers, Motherboard, Jan. 5, 2016.
Most of the warrant has been made public. See United States v. Lorente, No. 15-274, ECF Doc. No. 48-1 (W.D. Wash. Mar. 7, 2016). Defendants have filed motions to dismiss and to suppress, but so far, courts in Wisconsin and Washington have rejected those motions.
This morning, Kim Dotcom, accused by the Department of Justice of criminal copyright infringement, is in a New Zealand court to see if he will be extradited to the United States.
One of the things in Dotcom’s corner is testimony from Lawrence Lessig, a preeminent U.S. copyright scholar, and current presidential candidate. He argued to the court that the DOJ doesn’t have a legitimate case against Dotcom. Of course Lessig isn’t exactly a neutral party. As he acknowledged to the court, on top of being retained by Dotcom’s defense, he’s also advocated for copyright reform, co-founding Creative Commons.
But how’s his argument stack up? His first argument strikes at the heart of the DOJ’s theory, contending that the DOJ is improperly seeking to import the concept of secondary liability, recognized in MGM Studios Inc. v. Grokster, Ltd., to criminal law. This is “improper,” he contends, “because, in the United States, crimes must be clearly defined by the legislature and prosecutions are confined within express criminal statutes.” There is a fair argument to be made that this importing of principles from civil law violates the rule of lenity.
Lessig then takes aim at one specific allegation against Megaupload: that it failed to comply with DMCA take-down requests. Lessig explains that, if multiple users uploaded the same file, Megaupload would retain only one copy of the file, but would generate multiple URLs for each user who uploaded it. When Megaupload received take-down requests for one URL, Lessig argues, it should not have needed to take down all URLs linked to the same file, and even if it did, it should not face criminal liability for that action.
Lessig also takes on an even more controversial issue: whether U.S. copyright law extends to parties acting in other countries. Megaupload in fact had leased servers in the United States. But Lessig asserts that the Superseding Indictment doesn’t discuss this fact. Nor, he claims, does it allege that a directly infringing act occurred in this country.
Lessig then turns to what I believe is the core of Megaupload’s defense if it ultimately goes to trial in the United States: whether any of the defendants willfully violated copyright law. He notes that the willfulness standard “requires a stronger showing in a criminal copyright claim than in a civil claim.” (That is why claims of compliance with DMCA rules is a red herring in the Megaupload prosecution.) Lessig suggests that U.S. prosecutors are merely “[a]ttacking an ISP for generally bad or negligent policies or alleging how the ISP could be better, faster, or more precise in its takedown or repeat infringer policies is not enough.” And that, he contends, is not proper fodder for a criminal case.
Not all U.S. copyright scholar agree. James Grimmelman has observed that “If proven at trial, there’s easily enough in the indictment to prove criminal copyright infringement many times over.”
In a 2013 article, a co-author and I also suggested that, “if the facts alleged in the indictment are proved, the willfulness requirement will likely be met,” for the following reasons:
According to the indictment, the operators of Megaupload were just as intentional in their copyright infringement as The Pirate Bay, collecting advertising revenues generated by infringing content and exchanging incriminating emails showing that they knew about the infringement on their service. One operator joked to another that they “have a funny business . . . modern days pirates :),” to which his co-conspirator responded, “we’re not pirates, we’re just providing shipping services to pirates :).” Megaupload similarly sold premium access to unlimited streaming of uploaded content and financially rewarded users—even those previously caught uploading infringing material—for uploading popular content and for posting links to that same content on other websites. This practice not only increased traffic but also allowed Megaupload to avoid listing infringing videos directly on the site, concealing the scope of the infringing content on its servers. To rebut claims of infringement, Megaupload had instituted an “Abuse Tool,” allowing copyright holders to report, and purportedly remove, infringing content. But the indictment alleges that the company received millions of requests to remove infringing content and, “at best, only deleted the particular URL of which the copyright holder complained, and purposefully left the actual infringing copy of the copyrighted work on the Mega Conspiracy-controlled server and allowed access to the infringing work to continue.”
Lessig does a good job of showing the other side of these facts. But whether it is enough to defeat extradition is yet to be seen.
Also lurking in the background is the idea floated in the 2013 piece: just because prosecutors can, doesn’t mean they should.
Megaupload has not been convicted, and may never be, yet its business has been shut down, its assets frozen, its customers left unable to retrieve even lawfully stored data. Some of this smacks of the treatment of the King’s Messenger: punishment first, with trial after. … [W]hen the alleged conduct is egregious, and civil lawsuits are ineffective, then a criminal prosecution, with all its attendant hardships for the accused, may be warranted. But [those guidelines] are intended as limitations, not as a call to pursue more prosecutions. Because the powers of federal prosecutors are great, a reluctance to use those powers is a virtue that preserves liberty.
If the case survives today, then the court might consider employing the “substantial unoffending uses” test suggested here for evaluating the secondary criminal liability of providers of technology that has both criminal and non-criminal uses.
John Oliver has been on a roll this summer addressing criminal justice issues on his HBO show Last Week Tonight. Below, check out his recent segments on the bail system, mandatory minimums, and under-funding of public defenders. Also, he had excellent pieces last season on mass incarceration and the death penalty. See them all after the jump. Continue reading “Last Week Tonight on Criminal Justice”
“Training for Bargaining,” a new draft article by Jenny Roberts and Ronald Wright, of American University, persuasively argues that “[a]lthough public defenders may be dealt a weak hand in many cases, training focused on negotiation skills could help them get the best results from those cards.” I took away five tips from the article:
1. Stay positive. As Roberts and Wright note, research shows that “fostering a positive mood in a negotiation through tone can make the parties more creative and more likely to use negotiation strategies that seek to meet both parties’ interests.”
2. Prepare with peers and supervisors. Roberts and Wright hammer the point that many defense attorneys put much more effort into preparing for trial than for plea negotiations, even though pleas are the more common outcome. They suggest running negotiation strategy by peers or bosses, or even “mooting” negotiations.
3. Research the best alternative to a negotiated agreement, or BATNA. On this point, Roberts and Wright emphasize the three-step approach described in the popular book, Getting to YES: Negotiating Agreement Without Giving In: “brainstorming a list of actions to be taken if there is no agreement; converting the most promising into tangible alternative; and selecting the best alternative.” In particular, Roberts and Wright argue that defenders should spend more time at step two by doing more factual research about the case before negotiating. They quote an earlier, empirical study of plea negotiations by Marty Lieberman as finding that “[d]efense attorneys who interviewed prosecution witnesses and conducted extensive fact investigations would, . . . in a great majority of cases, improve the bargaining position of their clients involved in plea negotiations.” This is, perhaps, the most resource intensive recommendation.
4. Remember anchoring and make the first offer when possible. “Anchoring or focalism is a cognitive bias that describes the common human tendency to rely too heavily on the first piece of information offered (the ‘anchor’) when making decisions. ” See Anchoring, Wikipedia. Thus, the best negotiators try to set the tone in their favor by being the first to set a value, and making that valuation as favorable as possible. Roberts and Wright concede that defenders are often not in a good position to make the first move, since the prosecutor has charging discretion. Nonetheless, it’s worth keeping this concept in mind.
5. Keep data on past plea negotiations. Roberts and Wright point out that it is hard to evaluate the “going rate” for a situation if—as is common—there is little data maintained regarding plea bargaining. They suggest that offices “might collect data about offers on particular offenses from particular prosecutors to defendants with similar criminal histories.”
h/t Doug Berman @ Sentencing Law and Policy
This week, the Department of Justice issued an important “enhanced policy for use of cell-site simulators” (also known as stingrays, triggerfish, or IMSI catchers). The document essentially admits what many have criticized about the devices—that they “force every cell phone in a region to connect to them; so if a government stingray drives past your office, it will collect the signal of your phone as well as the government’s target.” In the DOJ’s words: “When used to locate a known cellular device, a cell-site simulator initially receives the unique identifying number from multiple devices in the vicinity of the simulator. Once the cell-site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling information relating only to that particular phone. When used to identify an unknown device, the cell-site simulator obtains signaling information from non-target devices in the target’s vicinity for the limited purpose of distinguishing the target device” (emphasis added).
Before the new policy, police routinely disguised use of stingrays by using them under the auspices of a “pen register” order. But scholars argue that these devices are capable of much more than pen registers, which are devices that merely record “numbers called from a particular telephone line.”
Under the enhanced guidelines, agents are instructed to obtain a search warrant before using a stingray. On top of that, the search-warrant applications are to disclose certain information about the technology. This includes notifying the judge that the devices can sweep up “unique identifiers” from non-targeted phones and disrupt service to those phones.
The policy further instructs that “cell-site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. § 3127(3).”
Time will tell if this enhanced policy will move the needle on the secretive nature of these devices. As EFF notes, “[u]ntil recently, law enforcement’s use of Stingrays has been shrouded in an inexplicable and indefensible level of secrecy.”
Check out this interesting new feature produced by the Urban Institute to showcase the potential effect of different types of reforms for decreasing mass incarceration. The Urban Institute explains:
The tool currently uses data from 15 states, representing nearly 40 percent of the national prison population, to forecast population trends and project the impact of changes on rates of admission or lengths of stay in prison.
Using the tool, we can see that in some states, limiting prison admissions to only new crimes and diverting parole and probation revocations will substantially reduce the number of people behind bars. Other states can stem prison growth by tackling how they address drug and property offenses. Still others may discover that modest reductions in time served for violent offenses are necessary.
As promoting this feature in the New York Times, “When President Obama, the Koch Brothers, the American Civil Liberties Union and Newt Gingrich all agree on an issue, you know that something important may be happening.”
My former professor, Frank Alexander, has published the second edition of his excellent guidebook on land banking. According to the Center for Community Progress, the publication “combines research on land banks with practical guidance. It is targeted at practitioners who work with or are exploring the creation of land banks, as well as researchers seeking to understand the role of land banks within the broader fields of land use law, community development, urban policy, and urban planning.”
Additionally, the publication “includes a first-of-its-kind, at-a-glance comparison of existing state land bank statutes that examines the powers, priorities, and structures of land banks across states. The publication also includes a template for state land bank legislation. At the local level, it features in-depth guidance on creating, structuring, operating, and sustaining a land bank – including sample administrative policies and examples of land banks in Atlanta, Georgia, Genesee County, Michigan, and Cuyahoga County, Ohio.”
There is an excellent article about Cook County Jail in the Atlantic this week entitled “America’s Largest Mental Hospital Is a Jail.” The article hits on some of the same points I made in this post from 2012 on the propriety of incarceration versus electronic monitoring for pretrial detainees, especially when nonviolent.
A few fascinating facts from the article:
- Cook County Sheriff Tom Dart recently appointed a clinical psychologist as the executive director of the jail. She “is currently the only mental health professional in charge of a major jail in the United States.”
- “A study in 1990 found that 1 in 15 prisoners at Cook County Jail had some form of mental illness. Today, a conservative estimate is 1 in 3.”
- The article calls the jail’s processing system “unusual, and possibly unique”: “After the normal post-bail intake procedure is complete, inmates file through a series of concrete cubicles staffed by a battalion of employees from the Cook County Health and Hospitals System. About 600 of the county hospital system’s 6,000 employees work at Cook County Jail. If the inmate is eligible, county officials can sign up him or her for CountyCare, a health insurance program for low-income Cook County residents created through the Affordable Care Act’s expansion of Medicaid. The assembly-line layout allows the county to process about 200 applications a day. Over 10,000 inmates have signed up so far.”
Andrea Clark has posted an interesting article on SSRN entitled “Amidst the Walking Dead: Judicial and Nonjudicial Approaches for Eradicating Zombie Mortgages.” A version of the article will be published in an upcoming edition of the Emory Law Journal. Here is the current abstract:
The collapse of the residential housing market in 2007 brought with it a wave of foreclosures. Subprime borrowers, who were once elated by loans they secured from lenders, suddenly found themselves strangled by the predatory terms of their newfound loans and ultimately became unable to pay their outstanding loan balance. Amidst a growing number of residential foreclosures, lenders discovered the financial downside of foreclosing on residential properties – though this realization often surfaced after the foreclosure proceeding had commenced – and began to delay, or halt, foreclosure sales altogether. These purposeful maneuvers by lenders resulted in borrowers’ continued legal liability for a residential property, one which borrowers believed they had lost as a result of the lender’s foreclosure; in other words, a “zombie mortgage.”
This Comment analyzes the different circumstances under which lenders can foster the creation of “zombie mortgages.” Particularly, this Comment focuses on stalled and incomplete residential foreclosure sales and failures to execute the deed of sale, all which serve to maintain legal liability of the mortgaged property on a borrower. Notwithstanding a lender’s right to foreclose on residential property to satisfy the obligations that it is owed under a promissory note, this Comment argues that strategic delays in completing a foreclosure sale entitles courts and legislatures to either (1) force a lender to complete a sale or (2) divest a lender from its right to foreclose and security interest. Though some other solutions for “zombie mortgages” have been proposed, this Comment urges courts and legislatures to look outside criminal sanctions and nuisance abatement actions to develop strategies that target lenders’ security interests. Through judicial intervention to force the completion of the sale, coupled with the creation of maximum statutory time frames for the completion and execution of the sale, lenders would be forced to finish the foreclosure proceeding, or risk losing their security interests in the mortgaged property.