October is a Busy Month

Not only is it Breast Cancer Awareness Month (which has prompted the Bengals Chad Ochocinco/Johnson to break out some impressive pink shoes), it’s also Domestic Violence Awareness Month (see the DOJ’s release on it, as well as the White House’s release).  And also, apparently, National Cybersecurity Awareness Month.

So sayeth the Department of Homeland Security, which is celebrating by adding up to 1,000 cybersecurity professionals to the Department over the next three years. (Source)

This makes me wonder, though: what other things do we get to celebrate this month (besides Columbus Day and Halloween)?  Well, quite a lot, it turns out (according to Wikipedia, which has gotten much better over the years, but still, you know, grain of salt):

Just to name a few.  So, with so many things to celebrate, you better get out there and have a good time!

Sen. Franken and the Fourth Amendment

The Washington Independent is reporting that Senator Al Franken read the text of the Fourth Amendment to Assistant Attorney General (National Security Division) David Kris.   Apparently, at some point of the proceedings, Mr. Kris muttered that the line of questioning was “surreal.”

Read more “Sen. Franken and the Fourth Amendment”

Antitrust Workshops

The last time the DOJ and the FTC devised guidelines governing horizontal mergers, it was 1992.  Seventeen years later, the agencies are coming back to the guidelines, hosting a series of workshops across the country.  (Source:  DOJ Presser.)

The topics that will be considered include:

  • the overall method of analysis used by the agencies;
  • the use of more direct forms of evidence of competitive effects;
  • market definition;
  • market shares and market concentration;
  • unilateral effects, especially in markets with differentiated products;
  • price discrimination;
  • geographic market definition;
  • the relevance of large buyers;
  • the distinction between uncommitted and committed entry;
  • the distinction between efficiencies involving fixed and marginal cost savings;
  • the non-price effects of mergers, especially the effects of mergers on innovation;
  • and remedies.

Later today, the DOJ will post a series of discussion-starting questions, which can be found here, when the page goes live.

Google Books and Antitrust Problems

The Antitrust Division of the DOJ has weighed in on the Google Books settlement, and rejection of the settlement is urged.  (See news articles on it here.)  According to the DOJ press release, “the Department proposed that the parties consider a number of changes to the agreement that may help address the United States’ concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement’s ultimate scope, providing some mechanism by which Google’s competitors can gain comparable access.”  (Source.)

But what’s actually in the Statement of Interest, which can be found here?  First, it assumes that the parties have been acting in good faith, that is “it should not be a surprise that the parties did not anticipate all of the difficult legal issues such an ambitious undertaking might raise.”  Authors Guild v. Google, No. 05-Civ-8136 (S.D.N.Y. 2009), Statement of Interest of the United States of America Regarding Proposed Class Settlement at 1.  Furthermore, it says that the basic idea is good: it would “breathe new life” into out-of-print books, which benefits the public.  Id.

Read more “Google Books and Antitrust Problems”

Child Pornography and Life Imprisonment

According to a press release from the DOJ, a Philadelphia man has been sentenced to life in prison after having been convicted in May for “advertising, transporting, receiving and possessing child pornography.”

There are a couple of things to be gleaned from this.  First, in the federal system, life means life.  Parole was abolished in the 1980s.  And while credit for good time is available for sentences which are for a term of years, such is not the case for life sentences.

Second, the individual in question was eligible for life imprisonment because he had two prior state convictions for the same behavior.  That, at least, is what the DOJ press release says.   Getting there is actually a little more complicated.

Under 18 U.S.C. § 2252A, there are a wide range of activities that lead to federal criminal liability, including, but not limited to, knowingly transporting child pornography; knowingly receiving or distributing child pornography; knowingly reproducing child pornography for distribution; knowingly advertising or soliciting child pornography; and a few other activities.

The penalties for being convicted under this statute are pretty severe ranging from 5 to 20 years, or up to 10 years (depending on the act), for a first time offense.  If a person has a prior conviction under certain federal statutes, or under relevant State statutes, then the punishments increase to a minimum of 15 years up to 40 years, or a minimum of 10 years up to 20 years (again, depending on the act).

You’ll notice that life imprisonment is not an option solely on the basis of having a prior conviction.  Life imprisonment, however, is an option if the individual is convicted for operating a “child exploitation enterprise.”  The range of punishment for being convicted of a child exploitation enterprise is no less than 20 years imprisonment and up to life.

And what is a child exploitation enterprise?  “A person engages in a child exploitation enterprise for the purposes of this section if the person violates [certain statutes] as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and commits those offenses in concert with three or more other persons.”  18 U.S.C. 2252A(g).

I’m not sure, without having the indictment on this case before me, whether subsection (g) was indeed what was implemented in this case.

It also bears mentioning that section 2252A is not the only federal statute covering child pornography, as there are a whole slew of overlapping statutes that cover sex crimes.

More on the Google Books Settlement

The Google Books settlement is generating a lot of ink over the past few days, with Microsoft wading into the waters.  According to PC Magazine, Microsoft filed objections with the Southern District of New York, arguing that Google had no right to “restructure copyright,” and that any changes should be handled by Congress.  (Microsoft posted a copy of its brief on its “Microsoft on the Issues” blog.)

Microsoft joins a fairly heavy-hitting group which objects to the settlement, including the American Law Institute (which is responsible for the various Restatements), Amazon, DC Comics, and the American Society of Media Photographers, just to name a few.

Yeah, it’s ironic that Microsoft is complaining about competition given its track record, but don’t discount its sway.  (And also don’t discount it’s probably ticked that Google is stirring things up in Europe.  Speaking of Europe, Europe isn’t so thrilled with the settlement, either…)  As Wired magazine pointed out a few months ago, Microsoft has the DOJ’s ear to a certain degree.  And given that the DOJ is investigating the settlement for competitive harm, I’m not so certain that the settlement is completely safe.

(As for whether Congress should be the ones deciding this topic, perhaps Microsoft and the others are right, but it’s not like I trust Congress to keep consumer interests in mind.  The DMCA should be proof enough of that….)

Ted Stevens’ Case to be Dismissed?

According to the NY Times (and others) there is a hearing scheduled today on the government’s motion to have the charges against Ted Stevens thrown out.  When Eric Holder announced last week (link) that the USDOJ would move to dismiss the charges based on prosecutorial misconduct, I was stunned.  It signals a departure from the old ways of doing business, and it signals a reaffirmation that the government has the burden of proving guilt beyond a reasonable doubt.  And that burden cannot be sidestepped whenever the case is going poorly.

It was a good decision, even if, as I’m sure many people think, Ted Stevens probably did the things he was accused of.  But “probably” isn’t the standard in a criminal case.  “Probably” is the standard for issuing an indictment.  And it’s similar to the standard present in a civil case.  But “probably” doesn’t cut it when a person’s liberty is at stake.  And so, if the prosecution cannot prove its case beyond a reasonable doubt, a conviction should not be imposed on a person.  Throwing a person in jail should be the hardest thing for the government to do, and yet, America has the highest prison population in the world, both in terms of per capita representation (Link:  King’s College, London) and sheer numbers (Link:  King’s College, London).  (Yes, I understand that China’s prison population may be vastly understated.  Link:  Straight Dope, via Wikipedia.)  So one less person in prison is a step in the right direction.

More troubling to me, however, is the district judge’s behavior during the trial.  District Judge Sullivan cited the AUSAs handling the case with contempt of court and harshly criticized them throughout the trial. (Link: LA Times)  But he didn’t stop the proceedings, nor did he grant a mistrial, or anything like that.  Far too often, judges, whether they are appointed or elected, tend to side with the prosecution.  And that can make for a very bitter brand of justice.

I therefore hope that Attorney General Holder’s actions might lead to a reconsideration of what justice means, and that it signals a new direction for this country.  And I hope that, amid all the hoopla, someone takes a look at how judges behave during trial.

IEEPA, Ireland, and Iran

The United States Department of Justice has announced that an Irish firm has been charged in a 25-count indictment for providing “sensitive technology” to Iran.  (Link.)  The charges are broken down like this:  there are two counts of conspiracy, nineteen counts of violating the International Emergency Economic Powers (IEEPA) Act, four counts of false statements, and forfeiture allegations.

The defendants in the case are: Mac Aviation Group; Thomas McGuinn; Sean McGuinn; and Sean Byrne.  All entities and people are located in Ireland, it appears. How then, does the United States find its extraterritorial jurisdiction, which expanded greatly under the Bush Administration?

According to the DOJ presser, it is alleged that helicopter engines and other aircraft components were purchased from U.S. firms and then transshipped to Iran using companies in Malaysia and the United Arab Emirates.  The engines were manufactured by Rolls Royce in Indiana, and the “other aircraft components” include 50 “‘5th stage vanes'” and 32 bolts.  Yeah, bolts.

IEEPA is a tough little statute.  1977 Congress passed the legislation and, while it sought to clarify the President’s powers, it nonetheless gives the President an enormous amount of power.  One of these powers is to issue regulations relating to trade, including foreign entities which transship American products, and if a person violates those regulations, he can be punished with up to 20 years in prison.  See 50 U.S.C. § 1705(b).

One other thing: an AP story, which I think has been expanded in the Irishtimes.com, states that the United States is seeking the arrest and deportation of the individuals.  It would be awfully surprising if Ireland “deported” its own citizens to the United States for trial.  What is likely meant is “extradition,” which is a vastly different process.  And it’s worth noting, too, that Ireland has a reputation as a troublesome extradition partner of late, though that may be changing.

Medical Marijuana Legalized. Sorta.

Earlier this week, Attorney General Eric Holder announced at a press conference that the United States Department of Justice would no longer prosecute individuals for providing medical marijuana.  (Lots o’ links here.  The text of the press conference, however, is not online as of this posting, but C-Span has video of the conference here.  According to the Huffington Post, the exchange occures at about the 25:00 point.)

According to most reports, the policy is to stop raiding growers of legitimate medical marijuana in the states that have legalized medical marijuana.  However, if the grow operation is just a front, then all bets are off–such growers may still get prosecuted.  And, according NPR’s Weekend Edition, enforcement is still a confused situation, even in the states where it has been legalized, such as Maine.

Marijuana is a tricky drug.  According to the United States Congress, tetrahydrocannibols (THC is how this is shortened, and it’s the active chemical in marijuana) are Schedule I drugs, which “has no currently accepted medical use in treatment in the United States, and that there is a lack of accepted safety for use of the drug or other substance under medical supervision.”  21 U.S.C. § 812.  However, one has to possess with the intent to distribute an awful lot of marijuana (1000 kilograms or 1000 plants) to be subject to the same punishment as possessing with the intent to distribute, say, 50 grams of crack.  So clearly, the perceived “danger” of marijuana is far less than the perceived “danger” of other controlled substances.  Furthermore, with certain states approving medical marijuana for certain circumstances, what does that have to say about “no currently accepted medical use”?

Anyway, this isn’t about whether marijuana is good or not, or whether it should be illegal or not.  It’s just information about an apparent policy shift that I happen to think is a positive step in the right direction.