Of Millionaire “Fugitives” and the Rule of Law

Megaupload.com was once the 13th most popular website on the internet, with more than 82 million unique visitors and a billion total page views during its seven-year operation. The site allowed people to store files on the cloud for later use—and some users inevitably stored copyrighted TV shows, films, songs, and software. In 2012, the U.S. government charged the site’s owner, Kim Dotcom, and its operators with conspiracy to commit copyright infringement. The defendants are currently resisting extradition to the United States (Dotcom lives in New Zealand), as is their right under extradition treaties.

In 2014, the seemingly frustrated government moved to seize the defendants’ considerable assets in a civil-forfeiture action, claiming that the assets are probably connected to the alleged criminal activity. The government had a major problem, however, as the assets that they were seeking to seize were not located in the United States, but in Hong Kong and New Zealand. Under traditional rules of in rem jurisdiction—a legal theory that allows courts to gain jurisdiction over property—the court must have “control” over the property to entertain the claims, which the district court did not have in this case.

The district court, however, ignored fundamental principles of statutory construction, and agreed with the government’s argument that a federal statute—conferring only venue to the district courts in cases where property was located outside of the United States—also expanded the court’s jurisdiction and fundamentally altered the traditional requirement that courts have control over the property to assert jurisdiction over it.

This misreading of the statute also created a serious constitutional issue under Article III. It is a fundamental constitutional rule that federal courts can’t issue mere “advisory” opinions. When a court lacks control over property located in a foreign country, it necessarily relies on another sovereign to enforce that order, making it advisory as to how the other sovereign should enforce the judgement.

To make matters worse, the court here also “disentitled” the defendants from presenting evidence that their property was not subject to seizure. Under civil-forfeiture laws, the government can take property without an underlying criminal conviction based only on the allegation of a crime. Those whose property has been seized can get it back by proving that their property is “innocent.” The government, however, is preventing the defendants from even making that argument. Using the “fugitive disentitlement” doctrine, the government is blocking the defendants from challenging the forfeiture.

You Have a Constitutional Right to Record Public Officials in Public

Millions have watched cellphone videos of police violating Americans’ rights. United States Customs and Border Protection (“CBP”) is trying to make sure the same doesn’t happen to them by banning video and photography—not in secure spaces or regarding special operations, but out in the open in the ordinary court of business.

In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.

Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.

Be Smart and Lawyer-up!

Last week we hosted a book forum for Professor James Duane’s new title, You Have the Right to Remain Innocent.  In addition to teaching you something about constitutional and criminal law, this lecture offers valuable practical advice that can help you and your friends to avoid prosecution and imprisonment and save thousands of dollars in legal fees.  As Duane notes, the key thing to remember is that there is a fundamental discrepancy between what the police say to us and what they say to their own children regarding police investigations.

Here’s an excerpt from his book:

There are many ignorant sentimentalists who believe that our government is deserving of our loyal cooperation and support, and that every good patriot with an innocent conscience should be glad to answer any questions from government agents.  That is hogwash….You cannot write tens of thousands of criminal statutes, including many touching upon conduct that is neither immoral or dangerous, write those laws as broadly as you can imagine, scatter them throughout the thousands of pages of United States Code–and then expect decent, law-abiding, unsuspecting citizens to cooperate with an investigation into whether they may have violated some law they have never even heard about.  The next time some police officer or government agent asks you whether you would be willing to answer a few questions about where you have been and what you have been doing, you must respectfully but very firmly decline.

The slim book is just 120 pages.  Read the whole thing so you’ll have the confidence to assert your rights under pressure.

Here is the lecture:

Don’t keep this valuable information to yourself.  Blast it out to friends and family members on social media.

Related Cato work here and here.  The full book forum, with comments from Georgetown Law Professor Randy Barnett, here.


How Not to Think About Drone Policy

Today, The Oklahoman published an editorial that serves as a good example of how not to think about drone policy. According to The Oklahoman editorial board, a proposed drone weaponization ban was a solution in search of a problem, and concerns regarding privacy are based on unjustifiable fears. This attitude ignores the state of drone technology and disregards the fact that drones should prompt us to re-think privacy protections.

Weaponized drones are often thought of as tools of foreign policy, but technological advances mean that Americans should be keeping an eye out for armed drones on the home front. Yet, in the pages of The Oklahoman readers will find the following:

we know of no instance where Oklahoma law enforcement officers have used drones to shoot someone without justification. To ban the police from using weaponized drones appears a solution in search of a problem.

I’m not aware of police in Oklahoma using drones to shoot someone with justification, but that’s beside my main point. Oklahoman lawmakers shouldn’t have to wait for a citizen to be shot by a weaponized drone before considering regulations. It would be premature for legislators to consider teleport regulations or artificial intelligence citizenship bills. But weaponized drones are no longer reserved to the imagination of science fiction writers. They’re here.

The “Pardon Snowden” Case Just Got Stronger

Yesterday, the Department of Justice Inspector General (DoJ IG) issued a long overdue Congressionally-mandated report on FBI compliance with the PATRIOT Act’s Section 215 “business records” provision between 2012 and 2014. It is the first such report issued that covers the initial period of Edward Snowden’s revelations about widespread domestic mass surveillance by the federal government. Since his indictment for leaking the information to the press, Snowden’s lawyers have argued that he should not be prosecuted under the WW I-era Espionage Act because his revelations served the public interest. The DoJ IG report provides the clearest evidence yet that Snowden’s lawyers are correct (p. 6):

In June 2013, information about the NSA’s bulk telephony metadata program was publicly disclosed by Edward Snowden. These disclosures revealed, among other things, that the FISA Court had approved Section 215 orders authorizing the bulk collection of call detail records. The telephony metadata collected by the NSA included information from local and long-distance telephone calls, such as the originating and terminating telephone number and the date, time, and duration of each call. The disclosures prompted widespread public discussion about the bulk telephony metadata program and the proper scope of government surveillance, and ultimately led Congress to end bulk collection by the government in the USA Freedom Act.

Colombia’s Flawed Peace Plan

On Sunday, Colombians will vote in a referendum on a historic peace deal signed this week between the Colombian government and the FARC (Revolutionary Armed Forces of Colombia) rebels who have been at war for more than 50 years. The next paragraph gives a taste of what’s in the 297 pages of the peace agreement. I recommend you skip over it since you will almost certainly not understand it, and it will not be pleasant to read.

 “During the term of the Agreement on CFHBD and DA, the Police Forces and the FARC-EP must comply with the rules governing the CFHBD and DA, as well as other chapters and protocols that make up the Agreement on CFHBD and DA. The MM&V has unrestricted access to the ZVTN included in Annex X of this Agreement and to the units of the Police Forces, committed to the devices specified in Annex Y of this Agreement.”

Notwithstanding a New Rhetorical Strategy from Statists, Higher Taxes and Bigger Government Is Not a Recipe for Growth and Development

I must be perversely masochistic because I have the strange habit of reading reports issued by international bureaucracies such as the International Monetary Fund, World Bank, United Nations, and Organization for Economic Cooperation and Development.

But one tiny silver lining to this dark cloud is that it’s given me an opportunity to notice how these groups have settled on a common strategy of urging higher taxes for the ostensible purpose of promoting growth and development.

Seriously, this is their argument, though they always rely on euphemisms when asserting that politicians should get more money to spend.

  • The OECD, for instance, has written that “Increased domestic resource mobilisation is widely accepted as crucial for countries to successfully meet the challenges of development and achieve higher living standards for their people.”
  • The Paris-based bureaucrats of the OECD also asserted that “now is the time to consider reforms that generate long-term, stable resources for governments to finance development.”
  • The IMF is banging on this drum as well, with news reports quoting the organization’s top bureaucrat stating that “…economies need to strengthen their fiscal frameworks…by boosting…sources of revenues.” while also reporting that “The IMF chief said taxation allows governments to mobilize their revenues.”
  • And the UN, which has “…called for a tax on billionaires to help raise more than $400 billion a year” routinely categorizes such money grabs as “financing for development.”

As you can see, these bureaucracies are singing from the same hymnal, but it’s a new version.