What's this all about? The index of prior chapters is here.

Greetings, scambusters. Back in Chapter Nine I pointed out that David Bell and his UST entities were still, months after being revealed, running the mail fraud scheme I first described in Chapter One.

Tipsters from across the western United States continue to send me examples. Here are invoices received in Arizona, Oregon, and Washington. I've redacted them to protect the intended victims from any con-man harassment or retaliation. There are a few important points to note:

1. David Bell and his UST companies are going aggressively multi-state. The is common with mail fraud schemes as they develop — it's harder for victims in other states to get law enforcement support.

2. Either my tipsters are disproportionately government workers, or Bell and his team are targeting government offices for the invoices. That is not uncommon among fraudsters — accounts payable procedure in federal, state, and local government offices can be lax, and bogus invoices can yield successes that private targets do not. Of course, targeting government offices also opens up a new array of criminal statutes . . . .

3. Bell and UST are morphing and rebranding the scheme. Previously their invoices used "UST Development, Inc." as the soliciting entity. Their next generations of invoices use a generic "UST" and use a reference to the "www.us-telecom.com" url rather than "www.ustdevelopment.com" (though both lead to the same site). Bell has almost certainly made this change because the Google profile for "UST Development" overwhelmingly emphasizes fraud, whereas the generic "UST" reveals little. Scammers commonly change the names and branding associated with their schemes in order to make it harder for potential victims to detect the fraud. Though there are a few stray internet references to a "UST, Inc.", research at the California Secretary of State's Business Search Portal shows that there is no current, active UST, Inc. authorized do to business in California.

4. Bell is also changing his mailing address. Note that the latest invoices change from the familiar Ontario street addresses to an Ontario Post Office box address. Once again, this helps Bell and UST stay one step ahead of Google — the street address search results are cluttered with references to fraud, while the new box is relatively "clean." The aim is to thwart the very casual searcher. Google shows me that the box number — at least at some point — was the mailing address of the Ontario branch of a national auto supply company. In a few Friday calls, low-level staff at the company professed ignorance of the box. It's possible that the company abandoned the box and Bell and his team bought it. It's also possible that a member of Bell's team is an insider at the company and is using their box as a "safe" mail drop. I'm following up with some calls higher up the chain, as well as correspondence to the company's national office. We'll see.

5. At this point, I'd characterize the evidence of fraudulent intent as overwhelming. Con artists typically plan to argue "we meant well, we didn't realize there was anything wrong or misleading about this solicitation." That defense has been thoroughly stomped by now. Leaving aside their communications with me and their monitoring of this series, David Bell's UST team has been busily responding to dozens of Better Business Bureau complaints, saying roughly the same thing every time:

I would like to start off by apologizing for any inconvenience or confusion this invoice may have caused. We here at UST sell, service, and maintain business phone systems and inside wiring. The invoice you received was not for services rendered but instead for preventative maintenance for the year to come. The preventative maintenance covers your inside wiring and preventative maintenance for a 12 month period, opposed to being billed for every service call, or at 15 min increment. This is an invoice that is sent out once a year for a full service maintenance agreement. This invoice is optional; it is not a mandatory service. Once again I apologize and I hope this clarifies the misunderstanding. We will not contact this company in the future.

Bell and his team probably see this as keeping their stories straight. In fact, all it shows is that they were aware that many consumers found their advertisement to be confusingly similar to an invoice. Yet they've continued to send that invoice, without major substantive changes, across the West — even after the Better Business Bureau (and I) pointed out that it violates very specific federal law prohibiting ads made to look like invoices, and even after the BBB turned up its fraud rhetoric against UST. In fact, they've continued it after local media has reported on the scam. This utterly quells the "it's not really misleading, we didn't mean to mislead" defense. If Bell and his team had been acting in anything remotely resembling good faith, they would have altered the invoice to comply with federal law — or at least to remove the elements that make it so misleading.

They've made very small gestures towards changes — for instance, by changing "amount due" to "amount," and removing the "past due" boxes — but the document overall is still clearly designed to look like an invoice, and the change really does little more than prove consciousness of guilt.

Moreover, I suspect that law enforcement investigation and/or civil discovery will demonstrate that the "we actually provide preventative maintenance" defense is fraudulent. The bankruptcy cases of UST Development, UST Dry Utilities, David Bell, and Branden Bell contradict the suggestion that they have the equipment and resources to provide preventative telecom maintenance across the West. Moreover, several tipsters indicate that they have called and asked "UST" to send them materials about the services offered, but have not received anything.

Many have expressed frustration that David Bell and his crew are able to conduct mail fraud so openly for so many months without result. I admit I have been frustrated as well. However, at the moment, for reasons I will not discuss, I am not frustrated. More on that in the next chapter, perhaps.

Anatomy Of A Scam Investigation, Chapter Ten © 2007-2012 by the authors of Popehat. This feed is for personal, non-commercial use only. Using this feed on any other site is a copyright violation. No scraping.

You remember Marc Stephens. I first wrote about his threats to critics of the Burzynski Clinic here. He wrote a very odd and threatening email, to which I responded here. I detailed a lengthy and tiresome correspondence with him here. Hitler reacted to is disaffiliation with the Burzynski Clinic here. And so on.

Yesterday, out of the blue, Marc sent me another email:

I see you are still obsessed…5 articles per month about me? Anyway, its been brought to my attention that you have multiple articles published on your website/blog stating false accusations about me. I am requesting that you immediately retract your false statements, or completely shutdown those articles.

In each article, mentioned below, you are stating that I am a liar, fraud, a twit, crazy, a con artist, impersonating/posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law. I also expect you to post a public apology.

The articles in question are as follow:

“Junk Science and Marketeers and Legal Threats, Oh My!”
“Tell Me About The Rabbit, Marc Stephens”
“Reason’s Superlative Prison Issue and a Note about Anonymity”
“Pro Bono Victory in a Junk-Science SLAPP Suit against a Science Blogger”
“My Marc Stephens Update, Or, Mr. Snarky Numbered Lists Visits Crazytown”
“Marc Stephens’ Downfall”
Vote for Popehat’s “Censorious Asshat of the Year”
“Andrew Wakefield Sues BMJ and Brian Deer: Time To Test Out the New Texas Anti-SLAPP Statute”
“Chris McGrath v. Vaughan Jones: An Unpleasant Peek into U.K. Libel Law”,
“Rhys Morgan's Experience Illustrates Importance of Protecting Student Speech”

Regards,
Marc

Note, in reading Marc's list, that he thinks that posts that merely mention him in passing are "about" him. Second, note the "it has been brought to my attention" language. This language is characteristic of people who either (1) like to use lawyer-letter-sounding language that has no actual meaning, and/or (2) people who like to imply that they have minions, or allies, or staff, or something. Marc's been reading for a long time, so clearly he brought it to his own attention. Also, note that Marc does not specify how any statement I made was false, and does not understand the legally significant difference between statements of opinion and provably true or false statements of fact.

I responded:

Dear Mr. Stephens:

I note that you still have not answered the question I have asked again and again: are you, in fact, an attorney? Was the Burzynski Clinic ever your client in your capacity as an attorney?

You have identified a series of characterizations. Many of them (twit, crazy, thug, bumptious, freakishly ignorant about fundamental issues of American law) are statements of pure opinion, and thus absolutely privileged under the First Amendment. Others might — might — be taken as statements of opinion based on facts (liar, fraud, con artist, impersonating/posing as an attorney, criminal, threatening teens, fake). Yet I have described, or linked to posts describing, the adequate (in fact, compelling) factual basis for each of those statements. For instance, your emails to Rhys Morgan — a teen — are inarguably threatening, even leaving aside the one where you included a Google picture. The emails where you imply that you are a lawyer are many and clear, and any reasonable person reading them would agree they suggest you are in fact an attorney. (If you would like to answer my question, and demonstrate that you ARE an attorney, I will be pleased to make that correction throughout).

If you would like to provide me with specific facts establishing that specific factual statements I have made were incorrect, I would be happy to review them carefully, and will make any appropriate corrections. But I will not be changing my commentary about you based upon vague and unsupported claims that complain about my protected opinions.

Please feel free to supplement your request.

Thank you,

Ken

This did not satisfy Marc.

Kenneth,

I am fully aware of your many insulting statements of opinion. It is your way of retaliating, and a clear attempt to damage my reputation, which you’ve already admitted. If you are so sure of your so-called “compelling facts”, then why are you asking me if I’m an attorney or not? Do you doubt your so-called facts..? I, and any reasonable person, would say that is kind of reckless. It is very clear your statements are based on fabrication, not facts. Also, assumptions are not facts. Because of your hatred and ill will towards me, which you have admitted, within two months you have written ten articles about me which contain multiple false statements.

Please keep in mind that you are a Blogger, not a journalist. In addition, you do not represent any party of the matter. So I have no obligation to communicate, or disclose my contractual relationships with an anonymous “Blogger” named Popehat.. and the photo image of your account profile is that of a 5 year old kid.

Please provide me with your compelling facts which prove that I am a liar, fraud, a twit, crazy, a con artist, impersonating/posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law. Again, I request for you to remove the articles, or retract your false statements.
Thanks,
Marc

Note that Marc is still refusing to answer the simple question of whether he is an attorney or not. That question is central to all of my posts about him, and I asked repeatedly during my correspondence with him, and he would never give a straight answer. Why not, do you suppose?

Here's my reply:

Marc:

That's not the way it works. You claim my posts have factual statements that are not correct. If you cite specific factual statements you believe to be untrue, and provide specific facts supporting your claim, I will review them carefully and, if warranted, make a correction. But I will not make changes based on insinuations or bluster.

Your continued evasive behavior speaks for itself.

This just made him angrier. But for the first time, he seemed to imply — without saying — that he's not a lawyer, suggesting that he didn't NEED to be to do the things he was doing:

Kenneth,

I clearly specified each false statement you have made in your multiple articles. All of the statements about me in your articles consist of false and libelous statements. It is completely irrelevant whether or not someone is a licensed attorney/lawyer because anyone can forward a cease and desist letter on behalf of a client. Based on this fact, it would not make someone a liar, a fraud, a twit, crazy, a con artist, impersonating a lawyer, posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law.

Your theories and personal interpretations are not facts. Your false statements in each article are written as assertions of facts, not opinions. Please retract your false and defamatory statements to project your “Opinion”. You of all people should know that defamatory statements, a tort, are not protected by the First Amendment.

Thanks,
Marc

Note the continued level of evasiveness, coyness, and refusal to offer specific facts rebutting facts that I have offered. This is my final response to him to date:

Marc:

With each communication, you merely supply more evidence in support of everything I have been saying about you.

First of all, by just picking out a few words and phrases, you are not citing facts establishing why specific factual assertions are incorrect. Just as an example: on what factual basis do you deny that you threatened a teen? Are you saying that you did not send the widely publicized emails to Rhys Morgan? Or are you claiming those emails are not threats? Similarly, with respect to posing as an attorney: are you claiming that you ARE in fact an attorney, or that you did not pretend to be one? This most recent email suggests — rather coyly — the latter interpretation, but since you've refused to address the issue for so long, it's not particularly clear.

If you provided specific facts explaining why you think that specific factual statements I made were wrong, I could engage them. For instance, let's take this latest email. You seem to imply — without coming out and saying — that you are not an attorney, but never posed as one, because just sending cease and desist letters on behalf of a client does not make someone an attorney. To that I would respond that I have read many communications apparently from you that either state explicitly that you are an attorney ("I am an attorney if that helps you sleep at night" [http://whitecoatunderground.com/2011/12/01/when-did-the-burzynski-clinic-start-harassing-bloggers/]) to ones where you imply that you are an attorney ("So, when I present to the juror that my client and his cancer treatment has went up against 5 Grand Juries which involved the Food and Drug Administration (FDA), the National Cancer Institute (NCI), Aetna Life Insurance, Emprise, Inc., Texas State Medical Board, and the United States Government, and was found not guilty in all 5 cases, you will wish you never wrote your article." [ http://scienceblogs.com/insolence/2011/11/a_pr_flack_from_the_burzynski_clinic_thr.php ]) ("Once I obtain a subpoena for your personal information, I will not settle this case with you." [ http://www.quackometer.net/blog/2011/11/the-burzynski-clinic-threatens-my-family.html ]) ("I suggest you remove ALL references about my client on the internet in its entirety, and any other defamatory statement about my client immediately, or I will file suit against you" [http://rhysmorgan.co/2011/11/threats-from-the-burzynski-clinic/]). Marc, since you claim that you are not, in fact, "freakishly ignorant about fundamental issues of American Law [sic]", you know that a non-lawyer might represent himself in court, but cannot represent an entity, and generally cannot represent another person. Therefore, the only way you could be making a presentation to a juror about the Burzynski clinic, or obtaining a subpoena for the Burzynski clinic, or filing suit on behalf of the Burzynski clinic, would be if you were a lawyer. This leads to the ineluctable conclusion that (1) you are an attorney, and just won't confirm it one way or the other no matter how many times you are asked, (2) you are not an attorney, but deliberately posed as one, or (3) you are not an attorney, but are so ignorant of fundamental concepts of American law that you did not realize that you were saying things implying to any reasonable audience that you are an attorney. (Note that this last interpretation is difficult to reconcile with your statement "I am an attorney if that helps you sleep at night." Maybe you were . . . confused?)

Moreover, your selection of words to attack suggests that you do not understand the difference between constitutionally protected statements of opinion and statements of fact. As one California court summarized:

"To state a libel claim which is not defeated by the freedom of speech protections of the First Amendment, Ferlauto must allege a statement that is provably false. (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 20, 110 S.Ct. 2695.) Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted as stating actual facts' about an individual.” (Ibid., citing Hustler Magazine v. Falwell (1988) 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41.) Thus, “rhetorical hyperbole,” “vigorous epithet [s],” “lusty and imaginative expression[s] of [ ] contempt,” and language used “in a loose, figurative sense” have all been accorded constitutional protection. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6; Letter Carriers v. Austin (1974) 418 U.S. 264, 284, 286, 94 S.Ct. 2770, 41 L.Ed.2d 745.)"

Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401, 88 Cal.Rptr.2d 843, 849

Words like "twit" and "bumptious" and "thug" clearly fall within the category of statements that do not imply a provably false factual assertion, but constitute figurative language. Someone not freakishly ignorant of fundamental concepts of American law might or might not know that already. As to the rest, based in part on the citations above to your statements claiming to be a lawyer and directly implying you are a lawyer, and based on the correspondence by you to me and to others, I believe that any of my statements which imply fact are, in fact, firmly grounded in the adequate evidence of your own words. If you believe I am incorrect, I remain willing to review, carefully, any evidence or factual explanation you wish to provide that shows that any of my facts are false. If I determine that any of my facts are incorrect, I will make an appropriate correction. If, for instance, you would like to state that you are not an attorney and that your statement "I am an attorney if that helps you sleep at night" was not intended to be taken at face value and that you did not realize that you were implying that you were an attorney by saying you would file suit and argue to jurors and obtain subpoenas, then I would be happy to make that correction to all of my relevant posts, and let readers draw their own conclusions.

Finally, if you are (as your latest email suggests) contemplating a defamation action, I suggest that you research personal jurisdiction, anti-SLAPP statutes, and debtor exams.

If you do decide to provide more information, please cite where in the specific posts you find the allegedly false statements, as I believe you are misconstruing language in several cases.

Thank you,

Ken

We'll see what happens from there.

I am always willing to review evidence suggesting I have made a claim that is factually incorrect, and make a correction if warranted. However, I believe these emails to be part of a campaign of feckless intimidation.

Edit: Is that last email chopping off on the right for people? I've had one complaint.

UPDATE: He responded:

Those cases are irrelevant…you are relying on hearsay, and your actions are negligent. Enjoy your weekend.

I don't think Marc Stephens understands what "hearsay" or "negligent" means. Note that he does not say "I didn't send those emails; they are fake!" He does not say "they altered what I said!" No, he says (as I understand it) that is is "irrelevant," in discussing whether I have a factual basis to say he has been posing as an attorney, to cite emails to other people in which he has posed as an attorney. Note, also, the learned-it-from-watching-law-and-order-reruns use of "hearsay." Hearsay is an out-of-court statement offered to prove the truth of the matter asserted — in court. It has nothing to do with whether, in the course of exercising my constitutional right to free expression, I have sufficient facts to support a belief that a proposition is true. Only someone freakishly ignorant of fundamental principles of American law would say otherwise.

Edited again on February 6, 2011 And he wrote back yet again:

I am trying to resolve this matter with you professionally. Yet, you continue with the insults and name calling in your articles. As I mentioned, the information below, as well as the cases, are irrelevant. Now you want me to say, “I didn’t write it”? Hilarious, read your first emails back in November. You are relying on another blogger’s info for your so-called facts. It will amount to hearsay unless that person testifies in court. Some of your statements are Rhetorical Hyperbole, others are mentioned as fact, “compelling facts” per popehat. But as you know its all based on context.

Jurisdiction..?
I am very well aware of Jurisdiction Ken. [lengthy discussion of my contact information and ties to Los Angeles redacted.] Do I reside in the beautiful state of California, County of Los Angeles..? We will see.

Anti-Slapp..?
You have to state your case. Then I will present the real facts. You will not be granted a slapp even if you were a California pimp.

Ken, Is Marc Stephens a licensed attorney, or lawyer? Yes or No?

So far your investigation is based on hearsay, misinformation, lack of knowledge, lies, and people inside your network. So please stop telling the public that I am a criminal, etc. You are being extremely negligent. Hey, I will check back in a few weeks for the retraction or deletion. Hopefully by then you will stop using your son’s pic as your profile image. Come get some sun light and stop hiding. I also noticed a few weeks ago you guys shut down meetings, articles, websites, abandoned your first amendment rights and ran like hell when the Muslims came after you Skeptics. Hilarious.

Thanks,
Marc

To which I replied:

Marc:

I take all of that as a statement you will be suing me in California. See you in court, then.

I note that you still refuse to provide facts or evidence explaining what I supposedly got wrong.

If you provide facts and evidence — instead of threats and bluster — I am still very happy to evaluate them and, if appropriate, make any warranted correction.

Thank you,

Ken

California has a very robust anti-SLAPP statute which I have used successfully before. I look forward to using it against Marc if he sues here.

Marc's grasp of law continues to be comical — assuming that he's not straight-up trolling. He seems to think that "hearsay" is a rule that means that, in writing about something, I can't rely upon what other people have written, unless I call them as witnesses first or something. He also seems to think that in order to prevail on an anti-SLAPP motion I would have to call as witnesses the array of bloggers I linked and quoted and relied upon. This, of course, is ridiculous. All I would have to do to prevail on an anti-SLAPP motion is to submit a declaration attaching the blog posts I read and linked and relied upon, and then attack the history of correspondence with Marc, which corroborates everything I have written.

Note that Marc still refuses to explain exactly how or why I am wrong about anything. That's characteristic of bogus legal threats. I was quite sincere in my message to him, which I have sent over and over and over: if he specifies a fact that he thinks I got wrong, and explains why he thinks it is wrong, I will review his facts and evidence carefully and, if warranted, make a correction. But I think his trolling, bullying approach requires him to be coy and mysterious.

Marc also seems obsessed with the notion that I have called him "a criminal." I've reviewed my posts, and I don't believe I ever used that term. I did say — accurately — that practicing law without a license is a crime in some jurisdictions, including California. I believe it is revealing that Marc refuses, no matter how many times he is asked, to say whether or not he is a licensed attorney in any jurisdiction. Marc seems to think that because I cannot prove that he is not a licensed attorney in some jurisdiction somewhere (though he is clearly not, at least under the name he is using, in California), then I must be committing defamation in making my observations about him. Such bizarre semantic games are typical of the deranged, but will find no traction in court. If some law school DID permit him to graduate, that school ought to face an angry mob with torches and pitchforks.

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Perhaps I am a terrible son, husband, father, partner, boss, friend. Perhaps I leave misery at worst and dissatisfaction at best wherever I go. Perhaps I am a contumacious, snarky ass. Perhaps my stumbling, heavy footprints in the sands of time will be quickly covered.

But if "snort my taint" — a phrase I coined — becomes a commonly accepted response to bumptious lawsuit threats, then I can die someday thinking that I have lived well enough.

Also, a free protip: if you want to set yourself up as a sympathetic plaintiff in a potential defamation suit against a critical blogger, you may want to eschew leading with "you just want special treatment because you are a Jew."

Now I Belong To The Ages © 2007-2012 by the authors of Popehat. This feed is for personal, non-commercial use only. Using this feed on any other site is a copyright violation. No scraping.

It's time for the Road to Popehat, the feature in which we throw open Woopra's search logs, see what inquiries brought you here, and suddenly grasp why those "stranded Nigerian prince" emails are economically viable.

Today we'll be answering your questions. It's just a little service, from us to you.

can you be liable for downloading porn from Megaupload: There is one seriously nervous 14-year-old.

Why is it alright for Australians to insult Americans: Well, while it is true that convicted felons surrender many constitutional rights, they still retain certain rudimentary privileges.

is a police allow to record you on the phone: little known fact: due to overuse of allergy medication, that is verbatim how Justice Stewart defined the issue presented in Katz v. United States.

what breed of dog for shooting: Your local police department will tell you that any breed whatsover is suitable.

What the fuck is citizens united: The internet: alive with the spirit of inquiry.

could matt damon sue the makers of team america: No. No, because frankly though God loves me he doesn't love me THAT much.

what does the average small businessman look like: Tired. Very, very tired.

is it safe to go to St. Thomas law school: Sure. I mean, if there's a hostage situation, and they are besieged by a toddler with a sharp stick, they'll sacrifice you in a heartbeat, but otherwise, sure.

can cops legally tell u to shut up: No. But once you make "threatening moves" and "obstruct police offices" and appear to be holding a "dangerous weapon" they can generally get away with tasing or shooting you. So. Just so you know.

why fat people being offended? I'm just a little sensitive, ok? Is that so wrong? Wow. People on the internet have no fucking manners.

The Road to Popehat: The Oracle At Popehat Edition © 2007-2012 by the authors of Popehat. This feed is for personal, non-commercial use only. Using this feed on any other site is a copyright violation. No scraping.

… of how we do the Popehat Signal:

http://skeptics.stackexchange.com/questions/7639/is-a-spotlight-like-the-bat-signal-possible

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Step right up, ladies and gentlemen! Three for the price of one! Tales of censorious douchebags that will thrill and amaze you!

First up, we have Dr. Randeep Dhillon! Dr. Dhillon is suing Jay Leno. Is he suing Jay Leno for being a trite, phone-it-in placeholder? NO! There's no California cause of action for that! SAG would never allow it! No, Randeep Dhillon is suing Jay Leno for a lame joke about Mitt Romney suggesting that his vacation home was the Golden Temple of Amritsar, a holy site for Sikhs! Dr. Dhillon says that by making this joke, Leno "exposes plaintiff, other sikhs and their religion to hatred, contempt, ridicule and obloquy because it falsely portrays the holiest place in the Sikh religion as a vacation resort owned by a non-Sikh." He's backed up by an Indian foreign affairs minister who says "freedom does not mean hurting the sentiments of others."

Congrats, Dr. Dhillon! You win a date with California's robust anti-SLAPP statute! You're going to pay Jay Leno's attorney fees in this case, which I will estimate to be $50,000! And because some people will generalize about Sikhs based on the act of one asshole — you — you've just done more to expose Sikhs to hatred, contempt, ridicule, and obloquy than that threadbare hack Leno ever could! Way to go!

Next, ladies and gentlemen, we travel North, to Canada, and the Fredericton, New Brunswick Police Department! The Fredericton Police just staged a eight-officer raid of the apartment of Charles LeBlanc! Is Charles LeBlanc breaking bad with a meth lab? Does he have children in cages? Is he a gun-runner? No! He's a blogger, and he's being raided for criminal libel for criticizing the Fredericton Police! That's right! The Fredericton Police Department not only thinks it is appropriate to serve search warrants on bloggers who say mean things to them, they think that they should execute the search warrants themselves, even though they are the alleged victims of the criminal libel! That's the New Professionalism in action, ladies and gents! Stand and be amazed!

And finally, across the pond, to England! Sally Morgan, purported psychic, is suing the Daily Mail for saying her psychic abilities are bunk! Her suit faults the Daily Mail for running columns exposing the ways that purported psychics con their audiences! Hey Sally — surely you don't need to conduct discovery in this case — you know all the answers to your questions already!

It's not faked, ladies and gentlemen! Freakish, yes! Difficult to believe, yes! Astounding, yes! But all of it real! Step right up and see!

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When you come right down to it, State Senator Ralph Shortey of Oklahoma is articulating the core value of politicians everywhere: this is America, dammit, and a complete lack of evidence or logic should be no barrier to passing legislation banning or regulating something.

In Senator Shortey's case, the thing in question is the grim prospect of corporations serving us human fetuses to eat as food, or in novelty items like ring-pops. Concluding that this is a real threat that Americans face, Shortey has introduced Oklahoma Senate Bill 1418:

No person or entity shall manufacture or knowingly sell food or any other product intended for human consumption which contains aborted human fetuses in the ingredients or which used aborted human fetuses in the research or development of any of the ingredients.
SECTION 2. This act shall become effective November 1, 2012.

Shortey delayed the bill's effective date until November because, though serving fetuses to unsuspecting consumers is a real and palpable threat, banning it isn't something you want to just rush into.

What caused Shortey to conclude that there was a need for a don't-serve-us-fetuses-you-big-bad-corporations law? He read it someplace. I'll give you one guess as to where.

Freshman Sen. Ralph Shortey said his own Internet research led him to believe such a ban is necessary and prompted him to offer the bill aimed at raising "public awareness" and giving an "ultimatum to companies" that might consider such a policy.

Shortey said he discovered suggestions online that some companies use embryonic stem cells to develop artificial flavors, but added that he is unaware of any Oklahoma companies doing such research.

America needs leaders like Shortey — leaders willing to scour the internet for any hints of threats from fetus-peddling corporations or possibly Lizard People. Who else is going to protect us? Our so-called regulators?

In an e-mail to The Associated Press, U.S. Food and Drug Administration spokeswoman Pat El-Hinnawy said: "FDA is not aware of this particular concern."

Of course the FDA is not aware of this concern. The FDA hasn't read nearly enough Geocities pages.

Some might see Senator Shortey's actions as bizarre, unbalanced, or indicative of poorly chosen priorities. I prefer to see them as noble. Why? Well, if Ralph Shortey is legislating against things that don't exist, he's not micromanaging real-world industries or regulating to help rent-seeking donors or passing stupid anti-bullying laws or otherwise interfering with the affairs of real humans that others can see and hear. Let's encourage more state legislators to be like Ralph Shortey. Let's tell them to spend more of their time legislating against the horrors of jenkem and bonsai kittens and the like. It keeps them busy.

Via Consumerist, courtesy of Amy Alkon.

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"Liberty," said Learned Hand, "lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it."

Learned Hand was quite right — if people don't support basic legal norms like freedom of expression and due process of law, no legal systems will be sufficient to enforce those norms. They will wither. But how is the appetite for liberty born in our hearts? Some choose to believe that it is an inherent aspiration of humanity. I don't think that history, ancient or recent, supports that. Rather, I think that liberty is a cultural value, carefully cultivated by example and education. Good American citizenship is characterized by fidelity to shared taught values, and a willingness to support them and teach them to others.

Like any value, liberty can also be suppressed. People — especially young people — can be taught to scorn it.

Right now, the Shawano School District is Wisconsin is teaching students to scorn free expression. The Shawano School District, through its leaders, is teaching bad American citizenship.

Shawano High School has a student paper called the Hawk's Post. The Hawk's Post decided to run opinion columns, pro and con, on the subject of adoption by gays. Shawano High student Brandon Wegner wrote the column in opposition. The column — which you can see at Jack Marshal's post at Ethics Alarms — is nothing to be proud of. It's execrably written, it misquotes Jesus Christ, and it meanders like a drunkard. It also opens with a reference to Leviticus 20:13, suggesting that the Biblical penalty for homosexuality is death. It's a detestable column, from a journalistic perspective, from the perspective of this adoptive parent, and from the perspective of people like me who are very pleased that generational replacement is inexorably making people with such views rarer and rarer. The column is, in fact, so awful that I have a sneaking suspicion that it is a troll job. It is also, however, an archetypical example of a student opinion piece on a controversial topic.

The column apparently ran without incident until a local man named Nick Uttech — who is raising for kids with his partner — found out about it and complained to the school district. District officials listened to him respectfully, told him that the view in the column did not reflect the view of the district, and explained the district's stated values:

Shawano does have a policy on “Teaching about Controversial Issues,” which states, “differences in opinion are a continuing and important part of life in a democratic society.” The policy, according to the website, was approved in January 1999.

“It is, therefore, a responsibility of the school to help young people develop the skills of rational thought that are needed for an objective approach to a study of issues on which people differ,” according to the policy.

No, wait. Shawano School District didn't do that. Instead, the Shawano School District, through Superintendent Todd Carlson, went into full retreat from those principles:

The Shawano School District would like to apologize for a recent article printed in the Hawks Post newspaper. Proper judgment that reflects school district policies needs to be exercised with articles printed in our school newspaper. Offensive articles cultivating a negative environment of disrespect are not appropriate or condoned by the Shawano School District. We sincerely apologize to anyone we may have offended and are taking steps to prevent items of this nature from happening in the future.

According to one source, school officials asserted that the column constituted "bullying." Moreover, Liberty Counsel — which is now representing Brandon Wegner — claims (though the district apparently denies it) that Shawano officials made other troubling statements to Wegner in the course of confronting him about the column:

After Brandon wrote this article he was pulled into hours of meetings with school administrators and staff, without his parents’ knowledge. This caused him to miss exam preparation classes and at least one exam.

Brandon was hauled before the superintendent on charges that he had violated the school’s bullying policy. Superintendent Todd Carlson told him that the column “went against the bullying policy,” and asked him if he “regretted” writing it. When Mr. Wegner stated that he did not regret writing it, and that he stood behind his beliefs, Superintendent Carlson told him that he “had got to be one of the most ignorant kids to try to argue with him about this topic,” that “we have the power to suspend you if we want to” and that the column had “personally offended me, so I know you offended other people!”

Even leaving those alleged comments aside, the Shawano School District's approach to the controversy has taught terrible lessons of bad citizenship to its students. First, as Eugene Volokh points out, this is an unusually broad and unprincipled use of the term "bullying." If "bullying" means "expressing viewpoints that I find hurtful of offensive," then it becomes an utterly open-ended justification for censorship. Suicides of bullied young people are unspeakably tragic; they can only become more tragic if we cynically and crassly misappropriate them to justify suppressing speech we don't like in an orgy of ""think of the children!" self-justification.

Second, the district's actions seek to make students into moral cripples and bad citizens. The message is clear: citizens are entitled to look to the government to suppress messages that they don't like. Thus, rather than cultivating Learned Hand's appetite for liberty in the hearts of children, the district cultivates appetite for and tolerance of government control. What do you think Shawano School District's students will learn to respect — the words in Shawano's pro-speech policy, or the words in its ignominious retreat from that policy? Moreover, the district's actions teaches children that they have no responsibility in the marketplace of ideas other than reporting offensive speech to the government and shutting up. In fact, the foundation of our approach to free expression is the notion that the best response to ugly speech is more speech. Students who view gays as full and equal human beings — an increasingly large percentage, I'm happy to say — ought to engage in more speech in the student paper, telling Brandon Wegner that they find his views loathsome and reject them. Or they should say so in person — speech has social consequences, and ought to. If Brandon Wegner is widely shunned and scorned for his viewpoint, I suspect that the Liberty Counsel will see it as an injustice, but I won't — I'll see it as classic more speech response to detestable speech. We want students to feel free to respond to Brandon Wegner's speech in non-violent verbal and written ways, because we want them to grow up to respond to contrary viewpoints rather than run to the government and ask that they be suppressed. If we don't teach them that value, how supportive do you suppose they will be of free speech when they grow to adults?

I am sympathetic to the viewpoint that Brandon Wegner's column was vile and hurtful to anyone who is gay, or has gay loved ones or friends. But I am not sympathetic to the view that the interests of traditionally disparaged groups — like gays — are well-served by censorship. Exceptions to norms of freedom of expression, once forged, have always been imposed disproportionately against people with less power. Only a damned fool expects otherwise.

Hat tip to the Student Press Law Center.

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Last week I offered some thoughts on the Megaupload indictment from my perspective as a federal criminal practitioner. I have a couple more — one legal, one practical.

The Legal Issue: Is The DMCA Safe Harbor A Defense In A Criminal Case?

The Megaupload indictment brings federal criminal charges against the named indictments. Many people talking about the case seem to assume that the defendants can rely upon the safe harbor provisions of the Digital Millennium Copyright Act as a direct defense — that the defendants can say "Megaupload qualifies for the safe harbor under these provisions, and therefore we can't be guilty of a crime." I think this is incorrect — the defendants will be able to rely on the safe harbor provisions, but only as evidence of their intent, not as a full defense to the charges. Here's why.

I outlined the charges in my prior post. The charges rely either directly or (in the case of conspiracy, RICO, and money laundering) indirectly on two criminal copyright statutes — 17 U.S.C. § 506(a)(1)(A), which provides:

(a) Criminal Infringement. -
(1) In general. – Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18 . . . .

and the penalty provision, 18 U.S.C. § 2319(d)(2), which provides:

(a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.

So. Willfully infringing a copyright is a federal crime. What's willfully mean? If you asked the Ninth Circuit, for instance, they might say it means "voluntarily and intentionally," and perhaps even "in violation of a known legal duty."

The safe harbor provisions of the DMCA are found at 17 U.S.C. § 512. To generalize, they limit civil liability for several types of web sites found to host infringing material. For instance:

(c) Information Residing on Systems or Networks At Direction of
Users. -
(1) In general. – A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for
injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Emphasis added by me. The safe harbor provision limits civil liability — money and injunctive and other relief — not criminal liability. Note also that the safe harbor provision does not purport to redefine what infringement is — it only offers immunity for civil liability for infringement. In other words, the safe harbor provision of the DMCA does not provide a defense that "we did not infringe because we took steps a, b, and c"; it provides a defense "we are not civilly liable for infringement because we took steps a, b, and c." The definition of infringement is not altered.

The upshot of this is that I believe that you can be criminally liable for copyright infringement under federal law, but civilly immune under the safe harbor provisions of the DMCA. That's a descriptive conclusion, not a statement about what the law ought to be.

However, even if they are not a direct defense, the safe harbor provisions are probably relevant to the assessment of a criminal defendant's intent — to the evaluation of whether infringement was done "willfully," not to mention the intent requirement of derivative crimes of conspiracy, RICO, and money laundering. The Megaupload defendants will probably argue that they were attempting, in good faith, to comply with the safe harbor provisions, and that they believed that in doing so they were protecting the copyright holders' rights as required by law, and therefore did not willfully infringe. If the government can prove that some of the defendants actually sent some of the communications set forth in the indictment, that intent argument will be a difficult one.

The Practical Issue: Can Federal Prosecutors Make a Serious Dent In Piracy Through Criminal Prosecution?

My next issue is practical and contextual. Many people reacting to the Megaupload indictments are suggesting that, with lobbying from the MPAA and the RIAA, federal prosecutors will begin to bring many cases against accused piracy sites where copyright holders have failed. Legally speaking, this is possible; practically speaking, it is highly unlikely that we will see more than the occasional "make an example" case or the very rare large-scale case like Megaupload. Here's why.

The United States Attorneys' Offices across the country prosecute about 95% of the U.S. Department of Justice's criminal cases. elaborate statistical tracking reveals the priorities of those offices:

So. You've got vast number of cases devoted to the ruinously expensive and pointless War on Drugs, tons of cases about immigration (mostly deported aliens with criminal records returning to the United States, or alien smuggling), violent crime (often bank robberies — prosecuted federally if the bank is FDIC insured — and gun and drug cases), and "white collar crime," meaning securities fraud and so forth. If you look at the statistics for each year, you'll see very few — if any — criminal copyright cases being prosecuted. The Department of Justice itself — or "Main Justice," if you're an AUSA — also has a Computer Crime and Intellectual Property Section. That section does prosecute cases across the country itself and in cooperation with local U.S. Attorney's offices. But it's tasked to address the entire universe of computer-related crimes, not just internet piracy. It goes for the big showy cases like Megaupload. Together, the total number of cases brought by the CCIPS and the various U.S. Attorneys Offices is quite modest, as these 2008 issue-specific statistics (the latest I could find) suggest. The CCIPS has a handful of prosecutors. The largest U.S. Attorney's Offices (say, Los Angeles and Manhattan) probably have two or three lawyers devoted to such cases for a part of their caseload. Most other offices don't have anyone specifically devoted to such cases.

Moreover, to understand how federal prosecutorial resources are allocated, you have to know how federal prosecutors work and think. Federal prosecutors have a competitive advantage over local prosecutors: a Department of Justice that allows, and expects, slow and painstaking grand jury investigations. To over-generalize, District Attorneys throw cases together quickly and play catch-up after charges have been brought, and Assistant U.S. Attorneys slowly build cases until they are as strong as they are likely to get. That's because, to continue generalizing, U.S. Attorneys are more adverse to losing a marginal case than District Attorneys, and there tends to be more pressure on DAs to indict quickly in the types of cases they bring. Therefore, typical federal investigations — especially white collar and complex ones — can take years, and can involve slowly flipping one witness against the next, bringing witness after witness before the grand jury to lock them in, sending subpoena after subpoena to third parties, until the prosecutors build their case. (Note that I am not suggesting that the result is more reliable.) This approach takes lots of attorney and investigator time and lots of resources.

So what? So, it's highly unlikely you will see a big push for many online piracy cases. The Department of Justice and U.S. Attorneys' Offices won't divert the necessary resources from the War on Drugs and the War on Terror and so forth to handle more piracy cases. Federal prosecutors probably won't change their culture to approach piracy cases like a production line rather than using their competitive advantage to build cases based on years-long elaborate investigations. Federal prosecution of online intellectual property violations will continue as it has — very occasional giant prosecutions like Megaupload in extreme cases, and very occasional small-fry prosecutions of people who have been, in effect, struck by federal lightening.

This is not to say that federal prosecution can't have a chilling impact on how the internet works. It can. Some would say it ought to. But if you're expecting a statistically significant flurry of cases, you're likely to be disappointed.

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A couple of weeks ago I described events at University College of London, where the Atheist, Secularist and Humanist Society got in trouble with the Student Union because it posted a "Jesus and Mo" comic on its Facebook page.

That incident demonstrated that the "we have a protected right not to be offended" sentiment survives and even thrives.

It ain't over yet. The controversy has spread to the famous London School of Economics, where the local Atheist Secularist and Humanist Society posted the same "Jesus and Mo" comic on its Facebook page in solidarity with their UCL chapter, and received an even stronger response from the local Student's Union: a threat that they could be expelled from the Student Union unless they took it down. The LSE Student Union's statement on the matter is a master class in the mindset of censorious bureaucrats; indulge me and read it in full, with my emphasis:

On Monday 16th January it was brought to our attention via an official complaint by two students that the LSESU Atheist, Secularist and Humanist Society posted cartoons, published by the UCLU Atheist, Secularist and Humanist Society, depicting the Prophet Mohammed and Jesus "sitting in a pub having a pint" on their society Facebook page. Upon hearing this, the sabbaticals officers of the LSESU ensured all evidence was collected and an emergency meeting with a member of the Students' Union staff was called to discuss how to deal with the issue. During this time, we received over 40 separate official complaints from the student body, in addition to further information regarding more posts on the society Facebook page.

It was decided that the President and other committee members of the LSESU Atheist, Secularist and Humanist Society would be called for an informal meeting to explain the situation, the complaints that had been made, and how the action of posting these cartoons was in breach of Students' Union policy on inclusion and the society's constitution. This meeting took place on Friday 20th January at 10.30am. The society agreed to certain actions coming out of the meeting and these were discussed amongst the sabbatical team. In this discussion it was felt that though these actions were positive they would not fully address the concerns of those who had submitted complaints. Therefore the SU will now be telling the society that they cannot continue these activities under the brand of the SU.

The LSE Students’ Union would like to reiterate that we strongly condemn and stand against any form of racism and discrimination on campus. The offensive nature of the content on the Facebook page is not in accordance with our values of tolerance, diversity, and respect for all students regardless of race, ethnicity, gender, sexuality or religious affiliation. There is a special need in a Students' Union to balance freedom of speech and to ensure access to all aspects of the LSESU for all the ethnic and religious minority communities that make up the student body at the LSE.

All the tropes of the censorious bureaucrat are there: leaping into action to bring petty power to bear, inquisitorial demands about the reasons for speech, and a bold pronouncement that free expression must be "balanced" — the balancing to be done by petty bureaucrats — against open-ended, vague, and unprincipled anti-discrimination principles. All of this was a result of a cartoon, on an organization's own Facebook page.

There are two ways to approach this phenomenon in the university. One way is for student organizations to abandon student unions and their petty speech-policing martinets and go their own way at the cost of funding and facilities. Student union funding has often been used as a weapon to suppress disfavored speech and association, and American courts have sometimes supported that use — as when the Supreme Court recently ruled that public schools could use anti-discrimination principles to de-fund religious groups unless they allowed non-believers to take leadership positions. This is a hard path — that student union money and those student union facilities, meager though they may be, can be essential to getting an organization off of the ground.

The other approach is to speak out, forcefully, and call out the bureaucrats who use their petty power to suppress expression they don't like under the thin guise of anti-discrimination principles. The seeds of the student unions' destruction lies in their own hubris, their own words. Ask any student: do you really trust student union leaders to "balance" your right to speak against whatever they feel is important on any given day? Ask any student: what sort of puerile, sanitized campus will you have if the student union defunds any group that ever says anything that anyone could find objectionable? Ask any student: do you really think, for even a moment, that the student union will weigh speech in the balance even-handedly? The London School of Economics Student Union condemns and censors a satirical cartoon on a humanist site — but do you think that those same student union members will lift a censorious finger to condemn or discourage actual threats of violence by people who claim offense at such discourse?

The survival of core cultural values like robust freedom of expression depends upon you — and people like you — calling out and condemning the censors of the world. I'd like to see the specific LSE Student Union leaders who took this action named and shamed worldwide. What can you do to help?

Hat tip to Ophelia Benson.

Edit: Via the comments, two more posts about the incident: the LSE Student Union paper, and Legal Cheek.

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Wow.  This will merit some further analysis, so I'll try and tear my self away from The Old Republic long enough to write something more substantial.  But the short narrative:  MidClassMitt had every advantage but attacked the expansion with the wrong unit mix (especially since AggiesFanWWJD unexpectedly dropped.  He gave TheGrinch the sad remnants of his stuff, but who gives a shit).   TheGrinch, already in full on "eff you" mode, countered him perfectly.

It's all econ, and MidClassMitt is still hands down the guy to beat, especially now we're out of the Early Game and into the Mid.  You can't win on early rush cheese anymore.  Now you actually need to play.  And MidClassMitt has by far the most cohesive strategy.  TheGrinch (the closest challenger at this point) has clearly been slapping his shit together with spit and wishes.  We'll see if he can pull it together; you can't just select all your units and attack-move them to some random expansion anymore.  But this game has suddenly become very interesting.

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So, the feds — more specifically, the U.S. Attorney for the Eastern District of Virginia, assisted by attorneys from the Department of Justice — have secured an indictment of many individual and entity defendants associated with the site Megaupload. The indictment is all over the internet, including here.

A few comments from the perspective of someone who used to indict people for the feds for a living, and now defends people indicted by the feds for a living:

1. The notion that the feds scheduled this as a response to the SOPA/PIPA blackout day is highly unlikely. The grand jury returned the indictment weeks ago and the feds obtained an order sealing it until they arranged the arrests and searches. A multi-country takedown like this is a logistical nightmare involving hundreds of agents and dozens of court filings; it's not something that can be moved on a dime, and appearances aside, I'd rate it as very highly unlikely that it was timed as some sort of response to anti-SOPA protests.

2. Please, for God's sake, so the heads of federal criminal practitioners don't explode, remember that there is little relationship between the maximum sentence that the media (and the prosecutors) announce and the actual probable sentence. The two might coincide, but it's rare. Federal sentences are strongly influenced (but no longer strictly determined) by the arcane United States Sentencing Guidelines. To approximate the experience of calculating a recommended sentence under the Guidelines, attempt to complete a multinational corporation's tax return whilst guiding an overcaffinated min-maxing twelve-year-old through rolling up a Runequest character.

3. The charges are as follows:
a. Conspiracy to commit racketeering under 18 U.S.C. § 1962(d), commonly known as RICO.
b. Conspiracy under the generic federal conspiracy statute, 18 U.S.C. § 371, to commit criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(d)(2).
c. Conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).
d. Criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(d)(2) and aiding and abetting the same under 18 U.S.C. § 2. These are charged in two separate counts to address the feds' two separate theories of how the defendants violated the relevant statutes.

4. All of those statutes have well-established elements — that is, the building blocks that the feds must prove beyond a reasonable doubt to establish the defendants' guilt. If there is interest I will go into the elements in depth. For now let me focus on one — the plain-vanilla federal conspiracy statute, 18 U.S.C. § 371. Under the Ninth Circuit's model jury instruction (which I link because the Fourth Circuit, in its wisdom, has elected not to publish model jury instructions) describes the elements like this:

The defendant is charged in [Count _______ of] the indictment with conspiring to _______ in violation of Section _______ of Title ___ of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to commit at least one crime as charged in the indictment; [and]

Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it [and;]

Third, one of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed.

I shall discuss with you briefly the law relating to each of these elements.

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.

For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit.

One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.

An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.

So: as you can see, the federal conspiracy statute is very broad, requiring that the charged individual himself or herself do little more than join an unlawful agreement.

5. The "overt act" requirement is a favorite of the feds, and the cause of much mischief. Note that the Megaupload indictment is 72 pages long. Much of that is taken up by a recitation of "overt acts" in furtherance of the conspiracy. The feds traditionally use the overt act requirement as an excuse to frame their indictments as recitations of the evidence in support of their case, detailing what happened and what evidence they have in gratuitous detail. Note, for example, the multiple quotations of seemingly incriminating emails in this indictment, recited on the pretext that sending the email was an overt act. Why do this? Well, it makes for good press. It's an avenue for providing many factual details to reporters without running afoul of such modest limits on press communications as the courts and DoJ rules impose. Moreover, many courts will read the entire indictment to a jury at the start of the case — it's like a free extra opening statement. Some courts will even let jurors take the indictment into the jury room with them.

Some judges see through this and don't care for it. The late William Matthew Byrne once yelled at me for the better part of half an hour on this subject, upset that my office had listed overt acts in a drug conspiracy indictment. He was particularly annoyed because the drug conspiracy statute didn't even require an overt act showing at the time. He saw it as a transparent ploy to influence press and jurors, and believed that it violated Federal Rule of Criminal Procedure 7(c)(1), which calls for a "plain, concise, and definite written statement of the essential facts constituting the offense charged," not the prosecutor's LiveJournal page. I viewed the experience as (1) an occasion for development of my moral character, and (2) an occasion for learning to stand there while a federal judge, red-faced, shouts at you whilst you nod and take it and think about pending in limine motions and the Heiligenstadt Testament and reverse cowgirl and the merits of dual-classing (your dwell-upon subjects during judicial tirades may vary).

6. The New Zealand extradition treaty looks fun; it will be interesting to see how it pays out.

More to follow next week.

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…when joined by Wikipedia, reddit, Google, and countless other sites….

Courtesy of ProPublica.com

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You might have noticed that Popehat blacked out yesterday to join the protest against SOPA/PIPA. (The technical aspect of that effort was all David's work; if I had tried it . . . well, suffice it to say all these posts might have been lost, like tears in rain, etc.) The widespread protest seemed to succeed at its aim of raising awareness and led to defections from the ranks of SOPA/PIPA supporters.

All of that seemingly effective advocacy raises a question: did its participants have a First Amendment right to protest that way?

For folks like us at Popehat — mere individuals, not corporations or partnerships (we're more like an unincorporated mystical brotherhood) — the answer is rather clearly yes. Few would dispute it.

But for entities like Google, or Mozilla, or the Wikimedia Foundation, the answer is apparently unsettled in the minds of some of you.

Some of the criticism began with the Citizens United case, which held that the McCain–Feingold Act violated the First Amendment to the extent it purported to prohibit a non-profit corporation from producing and airing a film attacking Hillary Clinton. Elements of the Occupy Wall Street campaign took up the cry, asserting that corporations are not people and only people, not corporations, have constitutional rights.

These sentiments seemed largely absent yesterday when various business entities — from non-profits like Wikimedia Foundation to for-profits like Google — expressed themselves in opposition to SOPA/PIPA.

So, to critics of Citizens United, I have a question: should those business entities have had a right to engage in SOPA/PIPA protests like they did? If so, what is the source of that right, and by what mechanism is it vindicated?

After all, not everyone was happy with the corporate participation in the protest. As I discussed on Tuesday, the MPAA broadly hinted that such expression is permitted only at the sufferance of government and its favored lobbyists:

It is also an abuse of power given the freedoms these companies enjoy in the marketplace today. It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests.

Note how the MPAA cloaks itself in populist anti-corporate rhetoric, hoping you are too intractably stupid to grasp that the MPAA is the ultimate corporate lobbyist asking Congress to pass sweeping legislation favoring it over the rights of citizens and other corporations. Note also the MPAA's use of the core idea underlying opposition to Citizens United: incitement, the concept that corporate speech is illegitimate and dangerous because it leads citizens into false consciousness so that they vote and act in ways we don't like.

But the MPAA is just an industry mouthpiece. Surely the media — which prizes freedom of expression above all else — will reject this narrative, right? Wrong — or, at least, wrong in some cases, as with the sad rag-peddlers at the Boston Herald:

Within hours of the online protest, political supporters of the bill — including the usually sensible Sen. Marco Rubio (R-Fla.) — began dropping like flies, thus proving how very powerful these cyber-bullies can be.

"Cyber-bullying" is, of course, one of those Humpty-Dumpty categorical terms that we use when we disagree with speech but can't articulate a principled basis for saying it lies outside the protection of the First Amendment.

So: many were happy with the SOPA/PIPA protests, but some weren't. Some of the unhappy people are powerful — like the MPAA and its gang of censorship apologists.

If you think that Citizens United was wrong — if you think that corporations shouldn't have First Amendment rights — then why, exactly, can't the government punish Wikimedia Foundation or Google or any other non-human entity for speech that offended its favored lobbyist and contributor, the MPAA?

(Note that I'm addressing people who say corporations have no First Amendment rights, not people who say campaign donation restrictions do not violate the First Amendment because money is not speech, which is an entirely different ranty post.)

So:

1. If corporations have no First Amendment rights, why can't federal or state or local governments single out, say, Wikimedia Foundation for its SOPA/PIPA blackout? Why can't they penalize or fine or even dissolve it? Why can't they single Wikimedia Foundation out for disproportionate enforcement of unrelated laws in retaliation for disfavored speech?

2. If your answer is "the political process — the voice of the people — will stop them from suppressing expression in this way," what is the historical basis in America for the assertion that the political process, standing alone, without judicial review based upon application of constitutional rights, is sufficient to stop governmental overreach? How's that working out for, say, the rights implicated by the War on Drugs, or the post-9/11 Security State? How well does the political process work to protect freedom of expression from government efforts to, say, ban mean pictures on the internet? The political process will protect corporations from governmental retaliation against disfavored expression? Are you shitting me?

3. If courts adopt your view — if the Supreme Court says "corporations have no First Amendment rights" — is it really your view that government restrictions on corporate speech will be imposed in a neutral and even-handed manner? Really? You think that corporate influence will be so driven from politics that, for instance, the MPAA and RIAA won't be able to induce the government to retaliate against the Wikimedia Foundations and Googles of the world? Again, on what historical precedent — on what logic — do you premise that belief?

4. You say that people, not corporations, have First Amendment rights. Fine. Tell me: as a person, how do you plan to exercise your freedom of speech if corporate venues for doing so may be restricted by the government? SOPA/PIPA is actually an excellent example of this. SOPA/PIPA did not merely attack accused pirates directly — it used ISPs as its minions. SOPA/PIPA threaten ISPs and major web sites — corporations — with dramatic consequences if they so much as link to sites that the government (or its preferred lobbyists) disfavor. So. If the government is allowed to use this method, what, exactly, protects us when the government decides to bully corporations into making us vanish from the internet? If the government says "you writers at Popehat have First Amendment rights; we can't punish you. But you, Google, you have no First Amendment rights; you have no right to list Popehat in search results. You, ISP, you have no First Amendment rights, you have no right to host sites like Popehat. You, Major Publisher, you have no First Amendment rights, you have no right to publish Popehat's exciting upcoming book, In Which Snark Substitutes For Grammar And Serious Analysis: The Taint-Snorting.

For that last, you might say, "they can't do that, because you have First Amendment rights, and those corporations are just the vehicles through which you are exercising those rights." To which I say: exactly. That's what entities are — vehicles through which people do things. Sometimes they are objectionable things, sometimes they are stupid things, soometimes they are things that, if accepted, would lead to deplorable results. But entities — corporations — are vehicles for human activity, including expression.

So. Advocates of the "corporations have no First Amendment rights" position: why can't the government punish the corporations that blacked out yesterday?

A Question for Critics of Citizens United: Did Corporations Have A Right To Join The SOPA/PIPA Blackout? © 2007-2012 by the authors of Popehat. This feed is for personal, non-commercial use only. Using this feed on any other site is a copyright violation. No scraping.

Popehat will be blacking out tomorrow, January 18, 2012, to protest SOPA and PIPA. Even though those measures appear to be on the ropes, vigorous resistance is essential.

If we had any doubt, the MPAA helped clear it up today with a press release that reveals it and its allies for what they are: rent-seeking thugs using their political influence to push through legislation beneficial to them and detrimental to everyone else.

In the MPAA's release, shill Chris Dodd comes out swinging:

Only days after the White House and chief sponsors of the legislation responded to the major concern expressed by opponents and then called for all parties to work cooperatively together, some technology business interests are resorting to stunts that punish their users or turn them into their corporate pawns, rather than coming to the table to find solutions to a problem that all now seem to agree is very real and damaging.

Only the MPAA and a used-up ex-Senator like Dodd could imbue "technology business interests" with a mock-populist sneer whilst lobbying for one of the titans of American business interests. Note also the sneer at internet users, who are mere "pawns" of sites participating in the blackout. Also note the ambiguity of the last phrase, "a problem that all now seem to agree is very real and damaging." What problem is that? SOPA and PIPA's creation of dangerous avenues of censorship and MPAA-driven government control? Piracy? The MPAA's and RIAA's long-standing hostility to technological change?

It is an irresponsible response and a disservice to people who rely on them for information and use their services.

As opposed to the actions of the MPAA and RIAAA, which propagandize to make fundamental changes to the way the internet works, increase government control of it, and rent-seek in order to protect their 1950s-era business model. That's perfectly responsible.

It is also an abuse of power given the freedoms these companies enjoy in the marketplace today. It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests.

Nice freedom you've got there, Reddit and BoingBoing and Wikipedia. Shame if something happened to it. Shame, shame if influential lobbyists from the MPAA and its allies had to start thinking more about how it might be restricted. [Note to people who decry Citizens United and despise the idea that corporations have free speech rights: I think Dodd and the MPAA agree with you in this instance.]

A so-called “blackout” is yet another gimmick, albeit a dangerous one, designed to punish elected and administration officials who are working diligently to protect American jobs from foreign criminals.

The "punishment," of course, comes in the form of lack of financial and electoral support, which the MPAA apparently views as inappropriate. It is "dangerous" to "punish" elected and appointed officials by organizing opposition to measures they support when you disagree with that message. That does not comport with the MPAA's view of what America is: a protected market. A feeding ground. The role of the citizenry is to pay for the MPAA's products through the venues the MPAA favors, and the role of the government is to protect the MPAA's market, using any means necessary.

It is our hope that the White House and the Congress will call on those who intend to stage this “blackout” to stop the hyperbole and PR stunts and engage in meaningful efforts to combat piracy.”

It is my hope that everyone involved will invite the MPAA to snort their taint. But that's probably too much to ask for.

The MPAA is crossing into Westboro Baptist Church territory: it has the Constitutional right to do what it's doing, but decent people everywhere should regard it with contempt and rise up against it.

The MPAA: "Nice Internet. Shame If Something Happened To It." © 2007-2012 by the authors of Popehat. This feed is for personal, non-commercial use only. Using this feed on any other site is a copyright violation. No scraping.