TalkLeft

PA AG Seeks Exclusion of Centre County Jurors for Sandusky

Jeralyn — 2012-02-01T12:50:12-05:00

The Pennsylvania Attorney General has asked the court to empanel jurors from outside Centre County for the Jerry Sandusky trial. It says, in addition to pre-trial publicity, the Penn State Community and Centre County are "philosophically and economically” intertwined."

Sandusky's lawyer says he will fight the motion.

“Jerry’s case has drawn national attention, as a result of which we feel there’s no better place than Centre County from which to select fair-minded individuals to sit as jurors in Jerry’s case,” Amendola said. “We will vehemently oppose the commonwealth’s motion for a change of venire.”

In other words, the state wants to keep the trial in Centre County, but import jurors from other counties to decide the case. The judge will decide on Feb. 8.

Wednesday Morning Open Thread

Big Tent Democrat — 2012-02-01T11:01:48-05:00

I'm swamped. Nothing from me today.

Open Thread.

Democrats Release "Fast and Furious" Report

Jeralyn — 2012-02-01T10:32:00-05:00

As Republicans prepare to grill Attorney General Eric Holder again over Operation Fast and Furious, the Democrats on the Committee on Oversight and Government Reform have released a report. The executive summary is here. The full report is here.

Shorter version: There is no evidence higher-ups at DOJ were aware of the gunwalking operations, which were initiated during the Bush Administraton. [More...]

The report finds that gunwalking operations originated as early as 2006 as agents in the Phoenix Field Division of ATF devised a strategy to forgo arrests against low-level straw purchasers while they attempted to build bigger cases against higher-level trafficking organizers and financiers. Rather than halting operations after flaws became evident, they launched several similarly reckless operations over the course of several years, also with tragic results.

The documents obtained and interviews conducted by the Committee reflect that Operation Fast and Furious was the latest in a series of fatally flawed operations run by ATF agents in Phoenix and the Arizona U.S. Attorney’s Office. Far from a strategy that was directed and planned by "the highest levels" of the Department of Justice, as some have alleged, the Committee has obtained no evidence that Operation Fast and Furious was conceived or directed by high-level political appointees at Department of Justice headquarters.

...The Committee has obtained no evidence indicating that the Attorney General authorized gunwalking or that he was aware of such allegations before they became public. None of the 22 witnesses interviewed by the Committee claims to have spoken with the Attorney General about the specific tactics employed in Operation Fast and Furious prior to the public controversy.

Operation Fast and Furious was the fourth gunwalking operation since 2006. Who does the report blame? In a letter accompanying the report, Rep. Elijah Cummings lists: The ATF, under both the current and former Administrations; lax oversight by the Arizona U.S. Attorneys office in failing to agressively prosecute firearms cases; and the federal courts in Arizona for sentencing leniency towards "trafficking networks that fuel armed violence in Mexico."

The report also finds that Bush Attorney General Michael Mukasey knew about failed gunwalking operations. More from Cummings' letter:

The Committee obtained documents indicating that in 2007 he was personally informed about the failure of previous law enforcement operations involving the illegal smuggling of weapons into Mexico, and that he received a proposal to expand these operations. Since the Committee failed to speak with Mr. Mukasey, we do not have the benefit of his input about why these operations were allowed to continue after he was given this information.

As to support for Attorney General Eric Holder:

[T]he evidence received by the Committee supports the Attorney General’s assertion that the gunwalking tactics in Operation Fast and Furious were developed in the field. The leaders of the two components with management responsibility for Operation Fast and Furious—ATF and the U.S. Attorney’s Office—informed the Committee that they themselves were not aware of the controversial tactics used in Operation Fast and Furious and did not brief anyone at Justice Department headquarters about them.

Similarly, the Attorney General’s key subordinates—the Deputy Attorney General and the Assistant Attorney General for the Criminal Division—informed the Committee that they were never briefed on the tactics by ATF or the U.S. Attorney’s Office and never raised concerns about the operation to the Attorney General.

The report contains a "Recommendations Section", available here. Among them: Enact a new federal crime to cover firearms trafficking; Provide more funding to ATF; Repeal the prohibition against reporting crime gun trace data.

Of course, this report won't stop Rep. Darryl Issa's transparent and politically motivated plan to topple Holder. He's accusing Holder of engaging in a cover-up, demanding more documents and threatening to hold Holder in contempt. Here's the letter he sent yesterday to Holder, telling him he was obstructing the investigation and deceiving the public, and giving him until Feb. 9 to supply the requested documents or a detailed privileged log.

Sensenbrenner Calls For More Mandatory Sentencing Laws

Jeralyn — 2012-02-01T09:55:00-05:00

Rep. James Sensenbrenner (R-WI), current Chair of the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security, has always struck me as a public menace. He's now advocating more mandatory minimum sentencing laws. Other Republicans are joining him.

If you don't remember Sensenbrenner from 2004- 2005, when he was Chair of the House Judiciary Committee, here are some of his dooziest proposals:[More...]

Five Years for Passing a Joint to someone who's recently been in rehab or who is under 21 (10 years for passing a joint to someone under 18 -- a 21 year old first time offender who gives some pot to his 17 year old brother would get 10 years.) Five years for giving pot to someone in an urban area (100 feet of library, park, video arcade, public or private daycare, drug treatment center.) The bill was the "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act" (H.R. 1528) in 2004, re-introduced as H.R. 4547 in 2005.
Sensenbrenner wanted mandatory five-year terms for the sale or distribution (which includes delivery without remuneration) of every illegal drug, no matter how small the amount or the penalty under state law. It also included the infamous Snitch or Go to Jail provisions:
The bill provides for a two year jail sentence if you observe or come across information about drug distribution near colleges and do not report it to authorities within 24 hours and provide full assistance investigating, apprehending, and prosecuting those involved.
The bill created mandatory five and ten year prison terms for using drugs in front of children. (Dad watches Mom smoke marijuana in their living room, they both head to prison, and Junior goes to foster care.)

Sensenbrenner's Border Protection Bill, which Bernie Sanders aptly described at the time saying:
'This Bill is so ridiculous that, according to the Republicans, Santa Claus himself would be a criminal for trekking from the North Pole to deliver holiday gifts without a visa.
The bill included an expanded definition of an aggravated felony, required mandatory detention for all immigrants detained at ports of entry or along international borders, limited legal rights and due process for those charged with immigration violations, and made undocumented immigration status a crime.

Sen. Barbara Boxer said of the border bill: "It's anti-faith based. It's inhumane. Sensenbrenner is inhumane."

Sensenbrenner was also the driving force behind the Real ID Act. He wanted to criminalize making indecent comments on TV, punishable with jail time.

Sensenbrenner was just as bad in 2003, when he and Sen. Hatch pushed a horrid sentencing bill to restrict judicial discretion in sentencing. Then, like now, Sensenbrenner wanted to take sentencing discretion from judges and eliminate almost every departure except for cooperation.

On other issues: Sensenbrenner was one of the few Congresspersons who voted against relief for victims of Hurricane Katrina. And remember when he cut off the mikes of Democrats during a hearing on the Patriot Act because they brought up detainee treatment at Guantanamo? He has also been ethically-impaired. When he didn't get his way legislatively, he attempted to interfere in judicial decisions, prompting a state investigation into his conduct.

Sensenbrenner's antics have even made the news in Australia, prompting one writer to opine that his 2004 sentencing bill was "pious extremism" which "represents the point where the war on drugs has lost its mind."

Sensenbrenner is the poster child for term limits on Congresspersons. Isn't it time for him to retire? I've said it before and will say it again: Just Say No to Sensenbrenner. And keep your fingers crossed that the Republicans don't get a majority in Congress in November.

Tuesday Night Open Thread

Jeralyn — 2012-01-31T22:02:48-05:00

Rough day at the dentist today. When I left with a prescription for pain medication, it came with a separate notice from the dentist, addressed to me, at my home address, advising me that when I fill the prescription, it will be entered in a state database accessible to law enforcement and doctors. 37 states are now enrolled in the prescription monitoring program. They are even working on an interstate version, having states share the information about your prescriptions with other states.

There's something wrong with this picture. Why should the private, personal medical information of millions of people be subjected to state surveillance and made accessible to law enforcement and thousands of pharmacists and health care providers, just so the Government can stop a few lawbreakers?

What if the database is breached or hacked, as happened in Virginia, exposing the medical information of 5 million people? The hackers demanded a $10 million ransom to return the information.

This is an open thread, all topics welcome.

EFF Teams With Carpathia Over MegaUpload Data

Jeralyn — 2012-01-31T21:34:02-05:00

Carpathia Hosting has set up a website, MegaRetrieval.com, where those who stored data at MegaUpload can get in touch with EFF (Electronic Frontier Foundation). EFF is offering free legal services in hopes of assisting users who legitimately stored data on MegaUpload.

When the United States Government shut down access to Megaupload, a multitude of innocent users who stored legitimate, non-infringing files on the cloud-storage service were left with no means to access their data.

If you are one of these, are based in the United States, and are looking for legal help to retrieve your data, please email the Electronic Frontier Foundation at megauploadmissing-at-eff.org.

Here is their joint press release. [More...]

This is not a promise of any sorts by Carpathia. It is merely a plan "to assess the scope of the issue facing Megaupload users who are at risk of losing their data" by connecting them with EFF.

Carpathia again says it is unable to access the data stored on the MegaUpload servers.

Although Carpathia does not have, and has never had, access to the content on Megaupload’s servers, the hosting provider wants to assist lawful users of the Megaupload service by promoting EFF and its non-profit legal services.
Carpathia hopes the creation of www.MegaRetrieval.com will help drive awareness that Megaupload customers can seek legal assistance to retrieve their data.

In other words, Carpathia is merely temporarily preserving the servers (rather than reprovisioning them) and hosting a website for people to contact EFF.

Carpathia Hosting has created the website www.MegaRetrieval.com to help lawful users in the United States work with EFF to investigate their options for retrieving their legitimate, non-infringing files from Megaupload.

Mitt Romney Wins Florida Republican Primary

Jeralyn — 2012-01-31T20:34:45-05:00

The Florida Republican primary has been called by the news outlets for Mitt Romney.

Mitt's speaking now. He says they will win in November. He says it's time for President Obama to get out of the way. He's ready to lead the party and the nation. He will begin a new era of prosperity. He will save the soul of America. He will balance the budget without raising taxes. He will repeal Obamacare. He will strengthen religious rights.

"I will insist on a military so powerful no one would ever think of challenging it."

Florida Primary Predictions

Jeralyn — 2012-01-31T13:47:41-05:00

What's your prediction for the outcome of today's Florida Republican primary?

Time Magazine says Newt Gingrich is bracing for a loss and in the process of reinventing himself as a grass-roots insurgent. It says Newt is floundering because he was outstumped and outspent.

Gingrich is unlikely to get the chance to implement this vision. But he is shaking things up within his schizophrenic campaign. After skipping from message to message in recent days, he has apparently decided his best shot at knocking off Mitt Romney is to embrace Tea Party populism. And so he has reinvented himself as a grassroots gadfly, ready to dog the GOP “all the way to the convention.”

CNN says the latest polling which includes the 600,000 voters who voted early has Mitt Romney ahead. [More...]

[A]ccording to an American Research Group survey released Tuesday morning, 36% of people questioned said they already voted, and among those, Romney led former House Speaker Newt Gingrich 51% to 29%, with former Sen. Rick Santorum of Pennsylvania at 12% and Rep. Ron Paul of Texas at 10%.

Overall, 43% of likely Florida Republican primary voters said they were backing Romney...with Gingrich at 31%, Santorum at 13% and Paul...at 9%. The ARG poll is the fifth survey released over the past 48 hour hours to indicate Romney holding a double digit lead over the rest of the field.

More from CNN here. Will a win in Florida cement Romney's nomination? According to CNN:

[E]ven after Florida's 50 convention delegates are claimed in the winner-take-all primary, neither candidate will have more than 10% of the 1,144 delegates needed to win the nomination at the August convention.

I think Newt's candidacy is history after today.

Facial Recognition May Replace Online Passwords

Jeralyn — 2012-01-31T09:09:00-05:00

New technology is all abuzz with news of programs that would replace those pesky 10 digit "letter-number -character" passwords we are getting accustomed to, with using our faces as our passwords to log into our protected information instead.

On the one hand, it sounds Orwellian. It takes very little for a copy to get a copy of your photo from these merchandisers, media and social media sites. On the other hand, for those of us with passwords at home, passwords at work and more passwords for online shopping and paying bills, it could be a relief. Except it's not a done deal yet. Why? Because someone cold hold up a picture of you at the computer or whatever, and the computer may not be able to tell the difference.

Yet, this may be the next wave. Why does it have to be the face we show, which is a dead giveaway to law enforcement if they get hold of it? Why can't it be a scar somewhere on your body, or a tatoo that's never visible in your photos? Flash the tat or scar and presto, you're in to your site. And nobody gets to see your face.

How do you feel about having so many images of your face all over the internet?

Obama and Google Ignore Top Voted Question at Online Forum

Jeralyn — 2012-01-31T08:28:00-05:00

President Obama held an online forum last night organized by You Tube and Google+. Readers submitted questions via You Tube and text. They also voted on the questions submitted by others. Obama took questions from five people via You Tube.

Those were five lucky people: According to the White House' YouTube channel, almost 230,000 people submitted 133,183 questions, and 1.6 million people gave those questions an up or down vote.

Here's how it worked: [More...}

Last week, the White House launched the next in its long line of social media engagement initiatives, this one entitled “Your Interview With the President.” The concept was simple, anyone could upload their question to the President on YouTube, others would vote on them, and the highest rated ones would be posed to the Commander in Chief in a Google+ Hangout on January 30th.

NORML posed the question:

With over 850,000 Americans arrested in 2010, on marijuana charges alone, and tens of billions of tax dollars being spent locking up marijuana users, isn’t it time to regulate and tax marijuana?”

Even though the question got 4,000 votes within hours, it was removed as "inappropriate." NORML then encouraged people to submit their own questions about marijuana. And they did, in huge numbers. At first these questions were also flagged as "inappropriate" but then either Google or the White House, whoever was doing the flagging, gave up on the censorship attempt. When the submissions closed on Saturday:

Of the top 160 questions asked, marijuana reform questions accounted for 105 of them. Reposts of our question brought in an estimated 17,524 up-votes in addition to the 4,028 the original received before being removed. Combined, that is over 21,000 votes for one question, which is 5 times as many votes as any other question on the page. The 105 marijuana reform questions in the top 160 brought in over 74,000 votes, dwarfing any other topic. (my emphasis.)

So what happened during the forum? Obama didn't come near the subject. Afterwards, the White House said Google didn't submit the questions to him. Lame. Like no staffers checked the site? Like they didn't collaborate beforehand?

The Number One voted video question (which ranked second among all questions submitted) was from a former Los Angeles police officer. You can view it here. Or read it below:

"Mr. President, my name is Stephen Downing, and I'm a retired deputy chief of police from the Los Angeles Police Department. From my 20 years of experience I have come to see our country’s drug policies as a failure and a complete waste of criminal justice resources. According to the Gallup Poll, the number of Americans who support legalizing and regulating marijuana now outnumbers those who support continuing prohibition. What do you say to this growing voter constituency that wants more changes to drug policy than you have delivered in your first term?"

Downing is a board member of Law Enforcement Against Prohibition. LEAP has issued a press release, that states in part:

Today YouTube ignored a question advocating marijuana legalization from a retired LAPD deputy chief of police that won twice as many votes as any other video question in the White House's "Your Interview with the President" competition on the Google-owned site. They did, however, find the time to get the president on record about late night snacking, singing and dancing, celebrating wedding anniversaries and playing tennis.

Downing's response to Google and the White House ignoring his question:

A majority of Americans now support legalizing marijuana to de-fund cartels and gangs, lower incarceration and arrest rates and save scarce public resources, all while generating new much-needed tax revenue. The time to discuss this issue is now. We're tired of this serious public policy crisis being pushed aside or laughed off."

In case you're wondering, the overall number one vote-getting question (counting video and text submissions) was submitted by text and pertained to the extradition of British student Richard O'Dwyer to the U.S. to face charges of copyright infringement. (His conduct was not illegal in the UK.) Google did submit that to the President:

That question asked Obama why he is "personally supporting" the extradition of a British citizen in Sheffield named Richard O'Dwyer. The U.S. Justice Department has identified O'Dwyer as someone running the TVShack.net, which was streaming free television online. Justice seized the domain in the summer of 2010 and wants O'Dwyer to to extradited to the United States to face the charges in U.S. court.

Obama responded that he wasn't "personally supporting" anything, but that intellectual property has to be respected.

The White House billed the forum as:

You asked the questions, and President Obama answered in the first-ever completely virtual interview from the White House, presented by YouTube and Google+.

The event was moderated by Steve Grove, YouTube's head of community partnerships, from Mountain View, What's his excuse for not submitting the top voted video question and #2 top question overall to Obama? How can Google+ expect viewer and reader participation when it ignores them?

Monday Night Open Thread

Jeralyn — 2012-01-30T21:31:24-05:00

I've updated my post on the Megaload hosting companies and potential data destruction.

I think it's time for Chuck Schumer to retire. Here's his latest: $140 million for research on how to test drivers for drug use.

The Obama DOJ has cited the NDAA in a brief opposing habeas for a Guantanamo detainee. Here's the Government's brief and the detainee's cert petition.

I'd rather watch The Bachelor than talk more about Newt Gingrich, Mitt Romney and Florida, but if you have more to say, here's an open thread, have at it.

All other topics are also welcome.

Florida GOP Primary: Pick Your Poll

Big Tent Democrat — 2012-01-30T10:20:50-05:00

Q Poll - Romney 43, Gingrich 29.

PPP - Romney 39, Gingrich 32.

SUSA - Romney 41, Gingrich 26.

NBC/Marist poll - Romney 42, Gingrich 27.

I like the Insider Advantage/NewsMax poll, that says Newt is surging to within 5 points and has the momentum.

Go Newt! I don't believe it, but I like it. Now, if only Trump decides to run, this would be perfect.

David Broder Wrong Again

Big Tent Democrat — 2012-01-30T10:04:13-05:00

The late David Broder was wrong so consistently that pointing out he was wrong yet again may seem like a pointless exercise, but I think Paul Krugman's column today on Broder being wrong about British Prime Minister David Cameron's "expansionary austerity" (talk about an oxymoron) is important:

[I]n October 2010 David Broder, who virtually embodied conventional wisdom, praised Mr. Cameron for his boldness, and in particular for “brushing aside the warnings of economists that the sudden, severe medicine could cut short Britain’s economic recovery and throw the nation back into recession.” He then called on President Obama to “do a Cameron” and pursue “a radical rollback of the welfare state now.”

Strange to say, however, those warnings from economists proved all too accurate. And we’re quite fortunate that Mr. Obama did not, in fact, do a Cameron.

Sadly, High Broderism, with its combination of ignorance, lack of intelligence and misplaced confidence, lives on. We are ruled by idiots.

Speaking for me only

MegaUpload Data to Remain For At least Two Weeks

Jeralyn — 2012-01-30T09:46:00-05:00

Update: Megaupload's U.S. attorney, Ira Rothken, has tweeted that the two hosting companies, Carpathia and Cogent Communications, have agreed not to destroy the data on the Megaupload servers for at least two weeks while Megaupload works on a solution with the Government.

It sounds like they are working to get funds unfrozen to pay the hosting companies. Which would make Carpathia's statement that it doesn't have the ability to allow users to access the data a little suspect. Either they have the ability to provide access or they don't. Before the takedown, Megaupload users could log on to upload and download, so why can't they now if the Government doesn't object? If some special password is needed, wouldn't Megaupload's lawyers obtain it from their jailed clients and provide it to Carpathia?

[More...]

The Megaupload defendant in charge of IP and website issues is Mathias Ortmann, who is still in custody in New Zealand, with his bond hearing continued until Friday. The Indictment says he is the Chief Technical Officer of Megaupload and resides in Germany and Hong Kong:

From the onset of the Conspiracy through to the present, ORTMANN has overseen software programmers that developed the Mega Conspiracy’s websites, and has handled technical issues with the ISPs. His particular areas of responsibility include setting up new servers, sending and responding to equipment service requests, and problem solving connectivity problems with the Mega Conspiracy websites.

Surely he was able to provide Carpathia the information it needed to provide user access to the servers prior to his arrest without coming to Virginia. Why can't he provide the access information through his lawyer now?

And if the U.S. agrees to unfreeze funds so Carpathia gets paid, and voila, users can access their accounts to retrieve their data, how does that jive with Carpathia's statement today that it doesn't have the ability to make it available?

What's in it at this point for Megaupload to make the data available to users? They want the data to use in their defense, but their company is history now, win or lose. They will never regain what the Government has taken from them.

According to the Government, Megaupload is under no obligation to its customers to retain data. See the footnote on page 5 of the Indictment:

[A]ll users are warned in Megaupload.com’s “Frequently Asked Questions” and Terms of Service that they should not keep the sole copy of any file on Megaupload.com and that users bear all risk of data loss. The Mega Conspiracy’s duty to retain any data for even a premium user explicitly ends when either the premium subscription runs out or Megaupload.com decides, at its sole discretion and without any required notice, to stop operating.

The Indictment also says that a search warrant for Megaupload was issued in June, 2010 and infringing files were found on the Carpathia servers. Megaupload customers were able to access the servers after that search warrant was executed, so why not now?

On or about June 24, 2010, members of the Mega Conspiracy were informed, pursuant to a criminal search warrant from the U.S. District Court for the Eastern District of Virginia, that thirty-nine infringing copies of copyrighted motion pictures were present on their leased servers at Carpathia Hosting, a hosting company headquartered in the Eastern District of Virginia.

Also, Carpathia's website, under the section "Ethical Advocate", describes the services it provides to other clients. For several, it provides disaster recovery so data won't be lost and daily back up services. On one page of their website, they say, "Your data can be protected and made available through managed backup and restore & storage solutions. " Megaupload paid them hundreds of thousands of dollars a month, were these services not included?

One last thing: Why is Carpathia blaming the Government for giving out the wrong information in its letter to the Court? The Government is the hand that feeds them. According to this paper on their website, Carpathia also manages servers for the Department of Defense, Homeland Security, Intelligence agencies, the Departments of Commerce, Health and Human Services, Veterans' Affairs and the GSA.

I won't pretend I understand the technical details of servers or "The Cloud." But every hosting company I've ever used during the past ten years has allowed me to login and access my files, and has backed up my data whenever significant changes are made to the server.

I doubt we'll ever know the real story behind this conundrum, which is beginning to seem manufactured to me. I can't tell who's responsible, whether this is just about money, or if there is some legitimate technical explanation. But the bottom line for those of you who store information on other people's servers, is keep a back-up on your own computer. Whether it's Quicken, iTunes, GMail or a photo-storing site, they can all be subject to data breaches, takedowns, hacks, and malware -- or just go out of business.

Original Post

DOJ Okays Destruction of MegaUpload Data Starting Thursday

Update: Carpathhia Hosting has issued a statement saying DOJ is wrong, it does not have access to material stored on MegaUpload servers, and users should not contact them. It recommends contacting Megaupload:

Dulles, Va. – January 30, 2012 – In reference to the letter filed by the U.S. Department of Justice with the Eastern District of Virginia on Jan. 27, 2012, Carpathia Hosting does not have, and has never had, access to the content on MegaUpload servers and has no mechanism for returning any content residing on such servers to MegaUpload’s customers. The reference to the Feb. 2, 2012 date in the Department of Justice letter for the deletion of content is not based on any information provided by Carpathia to the U.S. Government. We would recommend that anyone who believes that they have content on MegaUpload servers contact MegaUpload. Please do not contact Carpathia Hosting.

The Department of Justice has advised the Court that Carpathia Hosting and Cogent Communications are free to delete data on the MegaUpload servers beginning this Thursday. The reason: It obtained access to the servers via a search warrant on January 19. It didn't take physical custody of the servers, just copied the data (and not all of it.) Now that it has finished copying the data it it wanted, the execution of the search warrants is complete, and it no longer has any right to access the servers. Thus, the hosting companies can decide to delete it or not, as they wish.

Shorter version: Government to Megaupload customers: Don't blame us if your data is destroyed, blame Carpathia and Cogent.

From the U.S. Attorney's Letter (Available on Pacer):

The execution of those search warrants has now been completed. The United States copied selected Mega Servers and copied selected data from some of the other Mega Servers, but did not remove any of the Mega Servers from the premises.

Now that the United States has completed execution of its search warrants, the United States has no continuing right to access the Mega Servers. The Mega Servers are not in the actual or constructive custody or control of the United States, but remain at the premises controlled by, and currently under the control of, Carpathia and Cogent. Should the defendants wish to obtain independent access to the Mega Servers, or coordinate third-party access to data housed on Mega Servers, that issue must be resolved directly with Cogent or Carpathia. It is our understanding that the hosting companies may begin deleting the contents of the servers, beginning as early as February 2, 2012.

This raises a host of potential issues. Will Carpathia and Cogent agree to keep the servers intact long enough time for Megaupload customers to retrieve their uploaded and stored files? If not, will the users sue these hosting companies instead of the Government?

Do the hosting companies have any liability to Megaupload customers if the customers contracted with Megaupload, but not directly with the hosting companies? Or, is the users' remedy solely against Megaupload?

If the users' remedy is now only against Megaupload (the party they contracted with,) since Megaupload's funds have been seized for forfeiture, what recourse do users have? Can they intervene as third party claimants in the criminal forfeiture part of the Indictment, asserting they were innocent owners or good faith purchasers? Without a secured claim, would their claims get trumped by the Government's claim to Megaupload's seized funds?

Unlike civil forfeiture cases, in a criminal forfeiture case, forfeiture can only be granted once the Government gets a conviction on the underlying criminal charge. If the Megaupload defendants are acquitted at trial, there is no forfeiture. That's going to take a year or more. When can users begin filing the claims? Do the users have to wait until the criminal charges are resolved before they seek to intervene as claimants in the forfeiture portion of the case?

These are complicated issues, and while I could spend the next day analyzing them, like I did the New Zealand laws last week, I've got my own cases to attend to. I'm going to wait until the legal scholars following the case weigh in, and then either agree or disagree.

All I'll say is this is very crafty of the Government, which clearly is aware that class action lawsuits by Megaupload users were headed its way. They can now say to users: Hey, don't blame us if your data is gone. We didn't destroy it. We were allotted 10 days to execute our warrants, we finished on time and the servers are now back in control of the hosting companies with all data intact. You want your data, ask the hosting companies for it.

This is a lot of material. Megaupload payed around a million dollars a month for its servers.

I doubt Carpathia and Cogent will be happy about having to expend employee time responding to MegaUpload user demands to return the data. They may think they have no legal obligation to MegaUpload customers, and they may be right. But they have to weigh the cost of keeping the servers open and available to users to retrieve the documents they uploaded, against the legal fees it will cost them to defend the users' lawsuits. Seems to me the best course is for Cogent and Carpathia to be magnanimous here and issue a press release stating that customers of Megaupload will have two weeks to log on to the servers and retrieve their data at no cost. It would also be a good public relations move.

But doesn't this defeat the Government's purpose to some extent? Cogent and Carpathia surely aren't going to make customers prove their uploaded data wasn't copyright-infringing. That's far beyond their pay grade. And too expensive given the 100 million MegaUpload customers. Seems to me their choice is open up the servers for all users to get their data, or destroy it all and risk a lawsuit. If they allow all users to retrieve their data, infringing material and all, what has the Government accomplished? Megaupload customers who uploaded and are allowed to retrieve inappropriately obtained copyrighted material, will now have it back and you can bet they'll find another site to upload it to.

This whole case is a losing proposition for the Entertainment and Movie Industry, whose goal was to stop people from uploading, downloading and sharing copyrighted works. All that's been accomplished is one company's owners and employees may go to jail, but the data, if returned, will be available to the MegaUpload users to upload elsewhere.

You can bet it won't be on servers hosted in the U.S, but on servers in countries that don't have extradition treaties with the U.S., countries without laws that criminalize piracy as felonies, or countries that haven't signed on to ACTA or similar agreements. It's now a shell game. Move the material from U.S. servers to a safer country. Even if these new countries cut off U.S. users (like the poker sites did when they got charged), there are millions of international users who will continue to upload and download the copyright material outside the U.S.. MegaUpload will be just a temporary blip on the radar screen, soon to be replaced by more sophisticated and less detectable sharing applications overseas, which will be harder for the U.S., handmaiden to the entertainment industry that it is, to take down.

Having made millions off of MegaUpload, shouldn't the hosting companies now be magnanimous and tell users it will return their data upon request? Maybe, since the hosting companies aren't accused of wrongdoing, their insurance companies will pick up the tab.

This is just my 20 minute assessment. Usually, I will spend days analyzing relevant topics before rendering an opinion. But, as I said, I'm too busy with my own cases. Also I know very little about copyright law. I do know about civil and criminal forfeiture statutes, and third party claims to the money or property the Government seeks to seize, but not the issues presented here.

I think Carpathia and Cogent will start getting a slew of calls and emails from MegaUpload users tomorrow, asking for their data back.

I'll end this with "Developing - stay-tuned."

Sunday Night TV and Open Thread

Jeralyn — 2012-01-29T20:17:39-05:00

Update: Shaun White makes the history books. On his third run, when he already had the Gold, he steps up his game and gets the first ever perfect score of 100 from the Judges. Really amazing runs, and considering two days ago he was hobbled by an ankle injury, truly a feat. He is just incredible.

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Shaun White hurt his ankle Thursday but still qualified in first place and will compete tonight in the Men's SuperPipe finals at the X Games in Aspen. He's great, no question, but I'm rooting for Louie Vito. Big changes for Louie this year, no drinking and he's signed with Red Bull. Here are the finalists. You can watch live at 9pm ET on ESPN, TV or online. [More..]

Other TV tonight: HBO is re-playing the pilot for its new series "Luck", with Dustin Hoffman. There are also new episodes of "Shameless" and "The Good Wife."

This is an open thread, all topics welcome.