One of the features of crimes committed over the Internet is that they may be committed from anywhere in the world where a defendant has access a computer. A current case in New York shows that extradition likewise can reach around the globe.
On April 19, 2012, Anton Ivanov was extradited from Estonia to face charges of conspiracy to commit wire fraud and computer intrusion, among other offenses, in the U.S. District Court for the Southern District of New York. Ivanov is one of a number of defendants accused of a technologically sophisticated scheme that used malware and other techniques to reroute Internet traffic to websites chosen by the defendants because they were paid for driving traffic to those websites. According to the government, more than four million computers located in over 100 countries were infected with the malware as part of the scheme, which allegedly netted millions of dollars for the defendants.
Victims’ computers allegedly became infected with the malware when they visited certain websites or downloaded certain software to view videos online. The malware enabled the defendants to digitally hijack internet searches by changing the DNS server settings on victims’ computers to reroute their searches to “rogue DNS servers” controlled and operated by the defendants. Victims were re-directed to unwanted websites either when they clicked on internet search links that they thought would take them to other websites (what the government refers to as “click hijacking”) or through advertisements that Ivanov and others allegedly substituted for advertisements that were supposed to appear on particular web pages (what the government calls “advertising replacement fraud”). Arrangements have been made to substitute legitimate servers for the rogue servers as a temporary remediation measure so that victims’ computers will not lose their ability to access websites.
Ivanov has not yet indicated what his defense will be to the charges. He faces a maximum sentence of 85 years in prison in the case, which is pending before U.S. District Judge Lewis A. Kaplan. His next court appearance is set for April 23, 2012. Ivanov’s co-defendants in the case include five other Estonian nationals also arrested in November 2011 who are in custody in Estonia, and one Russian national, who remains at large.
As the Internet continues to expand to include a greater portion of the global economy, the ability to reach enormous numbers of computers will create incentives for technologically savvy wrongdoers to manipulate Internet users for illegal purposes. This case shows that the scale on which Internet conduct operates will mean that affiliate marketers and others who direct traffic on the Internet will be the subject of scrutiny by federal authorities. Even companies that are engaged in legitimate Web-based businesses need to be aware of this possible scrutiny.
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A Washington Post article today points out that in many cases over the past several decades, federal prosecutors knew that the evidence against a defendant was flawed because the science upon which the conviction had relied was not reliable – yet the prosecutors failed to notify the defendants or their attorneys of the problems.
The article notes that the forensic evidence – including hair identification evidence, which is now regarded as generally unreliable — led to hundreds of convictions of defendants, nationwide, for crimes they may well not have committed. In these cases, the convicts are entitled at the very least to a DNA test, which would in most cases determine their guilt or innocence. In one case, a man was executed in Texas even after the Justice Department began its review of convictions based on evidence that was not supported on solid scientific grounds.
All told, the Post found that the Department disclosed the results of these reviews to the defendants or their attorneys in fewer than half of the more than 250 cases in which questions had arisen about the forensic evidence.
It is truly unfortunate that it took an investigative reporting effort by a newspaper to uncover these clear failures by prosecutors to do justice, which is the first obligation of any government lawyer.
Looking at this, the Ted Stevens case, and other recent prosecutorial problems, it’s hard to avoid the conclusion that the Justice Department isn’t going to admit its errors or revisit its acknowledged problems unless its feet are put to the fire.
Journalists, bloggers, defense lawyers, whistle-blowers, and others all need to be aware of the department’s tendencies to make only the most perfunctory self-evaluations and to insist that it is right and just, even when it is not.
On April 4, the $25 billion national mortgage servicing settlement, which was announced in February, was finalized by a judge in the U.S. District Court for the District of Columbia. The settlement with the nation’s five largest mortgage servicers — Bank of America Corporation, JPMorgan Chase & Co., Wells Fargo & Company, Citigroup Inc., and Ally Financial Inc. (formerly GMAC) — was negotiated by 49 state attorneys general and the federal government. The complaint alleged that the servicers’ misconduct “resulted in the issuance of improper mortgages, premature and unauthorized foreclosures, violation of service members’ and other homeowners’ rights and protections, the use of false and deceptive affidavits and other documents, and the waste and abuse of taxpayer funds.”
The settlement of this major mortgage fraud case requires that servicers provide a minimum of $20 billion in benefits directly to borrowers through a series of national homeowner relief effort options, and pay $5 billion to the states and federal government ($4.25 billion to the states and $750 million to the federal government). Eligible borrowers who lost their homes to foreclosure from January 1, 2008 through December 31, 2011, and suffered servicing abuse may each qualify for an estimated $1,500 cash payment, and eligible homeowners whose homes are currently underwater may qualify for principal reduction.
While these payments will assist homeowners who have already fallen victim to servicers’ mortgage fraud, perhaps the most important development to emerge from this settlement is the creation of new servicing standards that will take effect over the next two to six months.
The standards seek to improve consumer access to help and information by requiring servicers to provide a single point of contact for borrowers seeking information about their loans and adequate staff to handle calls. These servicing standards set procedures and timelines for reviewing loan modification applications and give homeowners the right to appeal denials. Finally, they will stop many past foreclosure abuses by requiring servicers to evaluate homeowners for other loan mitigation options before resorting to foreclosure, forbidding banks from foreclosing while the homeowner is being considered for a loan modification, requiring strict oversight of foreclosure processing, and prohibiting abuses such as robo-signing and improper mortgage documentation.
To ensure that the servicers comply with the terms of the settlement and prevent future mortgage fraud, a monitor has been appointed to work with non-compliant institutions to establish corrective plans, or to recommend penalties or to seek injunctive relief to enforce the settlement. The U.S. Department of Justice and state attorneys general can enforce through the court process compliance with the servicing standards and the banks’ financial obligations. The settlement does not prohibit further relief for individuals, and borrowers and mortgage investors can pursue individual, institutional or class action cases without restriction.
We hope that this $25 billion settlement is enough to get the attention of servicers engaged in unscrupulous practices and to ensure that they change their operations moving forward. We also hope that now that this cloud over the industry is dissipating, it can proceed to provide and service mortgages in a way that is legal and ethical and that will aid in facilitating a housing recovery that is still only on the horizon.
What had been touted as a great victory for Google in particular and for “Internet freedom” in general was just dealt a major blow when the U.S. Court of Appeals for the Second Circuit Court of Appeals overturned a lower court decision in Viacom’s lawsuit against Google and Google-owned YouTube.
Viacom, along with the English Premier League and various film studios and television networks, sued YouTube in 2007 alleging copyright infringement based on YouTube’s broadcast of some 79,000 copyrighted videos. The lower court had thrown out the case, granting summary judgment to YouTube and holding that YouTube was not responsible for the infringing activities at issue. The plaintiffs appealed. The Second Circuit brought new life back to the suit — and new life to the complaints some have made against online piracy, which recently hit the headlines with the introduction of the SOPA and PIPA bills in Congress.
At the heart of the lawsuit is the application of a 1998 federal law, the Digital Millennium Copyright Act, and one of its “safe harbor” provisions. The DMCA was enacted to carry out an international copyright treaty and to protect intellectual property online through anti-circumvention rules. Essential to Internet innovation (and to the growth and success of YouTube) are the DMCA’s safe harbor provisions, which limit liability of Internet service providers (ISPs) for copyright infringement by their users.
It’s been generally understood that, provided the ISP has a notice-and-takedown system in place for receiving complaints of infringing behavior and promptly responds to those complaints by removing the infringing material, the ISP would be good to go. That general understanding gave online services a major boost. A Wired article celebrating the 10-year anniversary of the DMCA attributed the success of blogs, search engines, e-commerce sites and social networking portals to the safe harbor provisions. And the lower court’s earlier decision in the Viacom-YouTube suit appeared to be an affirmation for “Internet freedom.”
But the recent Second Circuit reversal could mean a major change in philosophy and practice. The court effectively held that a notice-and-takedown regime is not enough to shield an ISP from copyright liability for users’ infringing activities. If it appears that an ISP had knowledge or awareness of specific infringements, it may need to take action before a copyright owner provides notice of the infringing behavior. The Second Circuit asked the lower court to determine whether any specific infringements of which YouTube had knowledge or awareness (as evidenced by internal emails at YouTube) correspond to the clips at issue in these actions. It further asked the lower court to determine whether YouTube made a “deliberate effort to avoid guilty knowledge.”
This latter question of whether an ISP could be held liable for “willful blindness” has not been fleshed out before in the context of the DMCA safe harbor provisions. If the lower court ends up determining that YouTube is on the hook for willful blindness, ISPs’ current M.O. of relying on notice-and-takedown procedures will need to change. Some might argue such a move could stifle innovation and curb “Internet freedom.” But adoption of a willful blindness doctrine may end up benefitting service providers and hosting companies: It could strengthen the argument that new legislation à la SOPA or PIPA is unnecessary as the DMCA already provides sufficient protection against copyright infringement, otherwise known as online piracy.
In recent weeks, Sen. Charles Grassley (R-Iowa) has criticized the Department of Justice’s handling of executives that some argue are responsible for the financial crisis.
Sen. Grassley, the ranking minority member of the Senate Committee on the Judiciary, held a hearing in February that looked at mortgage fraud, foreclosure abuse and lending discrimination practices. During his opening statement at that hearing, Sen. Grassley stated, “The department’s message is that crime does pay. They also invite crimes of this sort against similar future victims. How are the department’s enormous resources being used?”
In his statement at the hearing, Sen. Grassley expressed anger that no criminal charges were brought by the DOJ Criminal Division against former Countrywide Financial CEO Angelo Mozilo. Sen. Grassley stated, “The Justice Department has brought no criminal cases against any of the major Wall Street banks or executives who are responsible for the financial crisis.” He concluded his statement by saying, “All that matters is results – prosecutions and conviction. The American people are still waiting.”
Grassley was also disappointed with the terms of the Bank of America/Countrywide Financial settlement with DOJ of $335 million, which was the largest settlement of its kind in DOJ history. According to Sen. Grassley, the settlement will provide only $1,700 per victim, which he said will do very little, if anything, to prevent these homeowners from defaulting on their mortgages. Sen. Grassley noted in his statement to the Judiciary Committee that one third of all Countrywide mortgages ended in default and said that this settlement was a “mere cost of doing business.”
A spokesman for DOJ responded to the statement from Sen. Grassley by stating, “The Department of Justice, through our U.S. Attorney’s Office and litigating divisions, has brought thousands of mortgage fraud cases over the past three years, and secured numerous convictions against CEOs, CFOs, board members, presidents and other executives of Wall Street firms and banks for financial crimes.”
In response, Sen. Grassley wrote the letter to DOJ asking for details on the “thousands of mortgage fraud cases” that the Department of Justice has brought. The full text of the letter is available here. Sen. Grassley asked DOJ to respond to his request by March 31. A DOJ spokesman has said the agency is reviewing the letter. The reply has not yet been received.
Sen. Grassley has taken a very strong stance that may not be justified. The Department of Justice has created task forces and has devoted a wealth of resources to investigating crimes associated with the financial crisis, such as mortgage fraud, and in many cases has elected not to prosecute. Assistant Attorney General Lanny Breuer told CBS that he believes that the Department of Justice was “bringing every case that we believe can be made.”
Some argue that the lack of prosecutions is evidence that criminal behavior may not have taken place or that there is insufficient evidence to prove it. There was surely some poor business decision making, but simply because there was a loss does not mean that there criminal intent or that a crime has occurred.
Sen. Grassley’s letter is also ignoring the fact that there have been dozens of civil cases brought by the government against firms and individuals involved in mortgage fraud and other abuses associated with the financial crisis. Over $2 billion in penalties have been ordered in connection with the SEC’s investigations alone.
There is no evidence to support the outrage that Sen. Grassley expressed in his letter. This type of grandstanding relates to an area of the law that is already garnering sufficient attention from law enforcement. Those individuals who have been charged and convicted are receiving more than adequate sentences for their actions, and those who have not been charged, in all probability, did not deserve to face criminal sanctions.
In two companion cases decided on March 21, 2012, the U.S. Supreme Court held, in 5-4 rulings, that the right to effective counsel in criminal cases includes the right to an attorney who competently permits a defendant to evaluate a plea-bargain offer from the prosecution.
In Missouri v. Frye and Lafler v. Cooper, the Court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” In the Frye case, the Court held, “When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”
In Frye, the defense counsel did not tell his client about a plea offer that would have resulted in a 90-day sentence for driving without a license. The defendant went to trial and was sentenced to three years. In Lafler, the lawyer, based on his misunderstanding of the criminal law, turned down a plea to attempted murder that would have led to a sentence of 51 to 85 months. The trial resulted in a conviction and a mandatory minimum sentence of 185 to 360 months.
In both cases, the plea bargain would have left the defendant much better off. In the past, the Supreme Court has found inadequate assistance of counsel in cases in which a defense lawyer, because of an error that amounted to incompetence, advised a defendant to accept a plea rather than go to trial – and the consequences of that decision were highly unfavorable to the defendant. These cases reflected the flip side of those precedents, and a sharply divided Court, in an opinion written by Justice Anthony Kennedy, decided to extend the rule to cases where a defendant did not have the chance to receive the benefit of a plea bargain.
This new rule on inadequate assistance of counsel will help ensure that the entire criminal justice system is fair – including the plea-bargaining process, which leads to the disposition of 95 percent of criminal cases nationwide. It will also bring into full effect the Sixth Amendment’s guarantee of the right to counsel.
There may be some initial difficulties in deciding how to remedy cases like these, in which counsel was inadequate at the plea-bargaining stage. Prosecutors and judges will probably need to offer plea deals in writing or in open court in order to preserve a record of what was offered and when, and to guard against fictitious claims of inadequate counsel. But the system will doubtless be able to cope with the impact of these two decisions and to provide a higher degree of fairness to defendants.
Judge Jed Rakoff’s November 2011 ruling rejecting Citigroup’s settlement with the Securities and Exchange Commission sent tremors through the securities compliance world by challenging the seemingly well-accepted practice of permitting corporations to settle civil claims with the agency without admitting wrongdoing. But in its order granting a stay of the Citigroup proceedings pending appeal, the U.S. Court of Appeals for the Second Circuit has raised significant questions about Judge Rakoff’s previous ruling.
As we reported earlier, in November 2011, Judge Rakoff rejected the SEC’s proposed $285 million settlement with Citigroup on the ground that it was not fair, adequate, reasonable or in the public interest – primarily because it followed the common practice of permitting Citigroup to settle the case without admitting the allegations against it. The SEC appealed the ruling and sought a writ of mandamus, seeking to set aside the order altogether. Citigroup joined in the SEC’s motion.
On March 15, 2012, the Second Circuit granted the stay. In doing so, the court focused on three factors. First, the court faulted Judge Rakoff for failing to give sufficient weight to the SEC, as an executive administrative agency, to make discretionary decisions of governmental policy in the public interest. Second, in addressing Judge Rakoff’s stated concern that the settlement was not fair to Citigroup (because it imposed substantial relief without any proof of the underlying allegations), the court noted that it was unnecessary for the courts to protect a private, sophisticated, well-counseled litigant like Citibank from entering into a voluntary settlement in which it gives up things of value without admitting liability. Finally, the court noted that a rule that would not permit settlements without proof (or admission) of liability would be tantamount to a rule barring parties from compromising, and observed that there was no precedent to support the existence of such a rule.
The appellate court noted that both parties were united in seeking the stay and in opposing the district court’s order, with the result that the panel did not have the benefit of adversarial briefing. For that reason, the Court stated that it would appoint counsel to argue in support of the district court’s position.
Given the enormous resources that would be expended if the SEC’s case against Citigroup were to go forward without the settlement, and given that Judge Rakoff’s ruling would invalidate a common practice in securities regulatory litigation, it is not surprising that the Second Circuit was willing to stay the trial court proceedings until it has a full opportunity to consider this case. The unsettled status of the issues presented in the Citigroup appeal will obviously pose significant challenges to parties seeking to settle SEC litigation in the near term. How the Second Circuit resolves the matter could have a significant effect on the SEC’s enforcement practice during a period in which it claims to be ramping up its efforts in this arena
One of the hardest decisions on which a lawyer may be called upon to advise a client in civil litigation is the decision whether to assert the Fifth Amendment privilege. On the one hand, the overlap between pending civil and criminal matters may make it dangerous for the client to make statements that could incriminate him or her in the criminal case. On the other hand, while the assertion of a Fifth Amendment right in a criminal case may not be used against a defendant, the assertion of that right in civil litigation may permissibly lead to an adverse inference against the client in that lawsuit. There are a variety of strategies for dealing with this tension, including seeking a stay of the civil proceeding or a more limited protective order in the civil litigation.
While there are many approaches to dealing with these issues, a recent case in Nevada reinforced the lesson that blanket assertion of the Fifth Amendment may actually harm the client’s interest more than helping it. In Francis v. Wynn Las Vegas, LLC, 262 P.3d 705 (Nev. 2011), the Nevada Supreme Court upheld the lower court’s grant of summary judgment against a defendant on all claims and counterclaims based on the defendant’s overbroad assertion of the Fifth Amendment during his deposition.
In that case, the defendant owed a debt to the plaintiff, a Las Vegas casino, based on his marker. At the time of his deposition, the defendant was a party in the civil litigation and was also being prosecuted by local law enforcement. During the deposition, defendant asserted his Fifth Amendment privilege in response to nearly every question, including whether he was married, whether he lived alone, whether his father was still living and the names of his father and mother. 262 P.3d at 709. After Wynn Las Vegas filed a summary judgment motion, Francis sought to reopen discovery and “gave vague indications that Francis would like to withdraw his privilege. 262 P.3d at 710. The district court denied the request and castigated Francis for his blanket assertion of the privilege:
[Y]ou can’t use the 5th Amendment as a sword and a shield. You can’t sit in a deposition and – what’s your father’s name? Right to remain silent. Do you have a cell phone? Right to remain silent. That’s the most ridiculous exercise of the 5th Amendment I think I’ve ever seen.
Id. The court also refused to permit Francis to withdraw his assertion of the privilege.
On appeal, the state supreme court upheld the district court’s rulings and rejected Francis’ assertions that the court had penalized his exercise of the privilege by not permitting him to withdraw his assertion of the privilege and that the court should have accommodated his privilege by granting his request to reopen discovery. While the Court recognized the importance of protecting the valid assertion of a Fifth Amendment privilege, the Court found that Francis’ overbroad assertion of the privilege was unjustifiable and noted that Francis had not sought any other relief from the district court to protect his privilege (such as requesting that his deposition be sealed). After balancing the prejudice to the plaintiff, the Court found that the district court did not abuse its discretion in the way in which it had balanced the competing interests of the parties.
In Francis, the defendant’s inability to explain why he had conducted no discovery during the discovery period may have doomed him on summary judgment, regardless of his abusive exercise of the privilege against self-incrimination. But the lesson of this case is still one that sounds obvious when you say it out loud: A party in a civil proceeding should only assert the Fifth Amendment privilege when there is a basis to do so, and only as to those questions or other requests which genuinely pose a risk of self-incrimination (as understood in Fifth Amendment jurisprudence).
And while there may be strategic reasons to seek broad protection under the Fifth Amendment, counsel should be prepared to seek alternative means to protect a client’s interest before discovery is completed and before dispositive motions are filed so that the balance of interests will not weigh against the client’s interests in the litigation. Those who instead use a broad-brush approach to the assertion of the privilege will find themselves doing their clients a significant disservice.
If there was ever an open question as to whether forensic handwriting identification is admissible under D.C.’s common law of evidence, the D.C. Court of Appeals has finally put that question to rest. On February 9, 2012, the Court of Appeals held that handwriting comparison and identification, as practiced by FBI examiners, passes the Frye test for admissibility.
The issue arose after Robert Pettus’ jury trial in D.C. Superior Court. Pettus was convicted of sexual assault and first-degree felony murder in 2008 and sentenced to 60 years in prison. The conviction rested in part on multiple forms of forensic evidence, including DNA, fiber, fingerprint and handwriting identification evidence. With regard to the handwriting analysis, FBI document examiner Hector Maldonado testified that Pettus authored a handwritten note left at the crime scene. The note on the victim’s body read, “You s[h]ould[’]n[t] have cheated on me.” After comparing the note with 235 pages of writing taken from Pettus’ jail cell, Maldonado concluded that Pettus wrote the note. According to Maldonado, the writings exhibited “an overwhelming amount of handwriting combinations . . . in agreement with each other” and no significant differences.
Months after Pettus was sentenced, the National Academy of Sciences (NAS) issued a report that critiqued forensic science, including handwriting analysis, and made recommendations for ensuring greater quality and consistency in the field. The report seemed to give Pettus’ case new life.
On appeal, the defense argued that Maldonado’s opinion evidence was inadmissible under D.C. law because the scientific community does not accept conclusive identification based on handwriting analysis. The 2009 NAS report concluded, “With the exception of nuclear DNA analysis, . . . no forensic method [of ‘matching’] has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
The Court of Appeals was not persuaded. D.C. law requires only general acceptance of the method, not of the conclusions drawn from it, and general acceptance does not mean unanimous approval. Handwriting analysis has been generally accepted under D.C. law for nearly a century. As such, it is presumptively reliable and, thus, generally admissible. To prove that Maldonado’s handwriting analysis was inadmissible, the defense had to show that there was significant opposition to the technique within the scientific community. The defense failed to meet its burden on appeal, just as it had during the initial pretrial admissibility hearing below.
The Court of Appeals reviewed the evidence proffered at the pretrial hearing and concluded that the prosecution’s evidence for admissibility outweighed the defendant’s evidence for exclusion. The prosecution presented testimony and published studies by three forensic experts. The first witness, an FBI supervisory document analyst, testified that there are well-established regional and national professional organizations for forensic document examiners. She also testified about the methods, professional standards, publications, and university programs in the field.
The prosecution also proffered studies by two university professors that showed empirical evidence of reliability. Multiple studies published by Drexel University professor Moshe Kam showed significantly lower error rates among professional document examiners as compared to trainees and laypersons. SUNY professor Sargur N. Srihari published multiple studies showing that computers can match handwriting samples to their authors with 96 to 98 percent accuracy. Srihari testified further that he could validate handwriting individuality with 95 percent confidence.
By contrast, the defense proffered one non-expert, an evidence professor from Seton Hall University Law School. Professor Mark Denbeaux had co-authored a 1989 law review article urging courts to prohibit the use of handwriting analysis. But his article relied in part on disavowed test data. At the pretrial hearing, Denbeaux contended that Srihari’s 95 percent confidence level did not support a general acceptance of positive identification based on handwriting analysis. In fact, Denbeaux pointed out, Srihari testified to a 5 percent error rate that neither he nor his computer could explain.
The Court of Appeals held that, taken as a whole, the prosecution’s evidence proved that forensic handwriting identification is sufficiently established to have gained general acceptance under Frye. And while the 2009 NAS report was hardly an unqualified endorsement of handwriting analysis, it also did not provide evidence that the science community opposes it as a whole. If a particular examiner’s conclusions are shaky, the answer is not exclusion. Such evidence is best attacked through “vigorous cross-examination, presentation of contrary evidence, and careful instruction of the burden of proof,” the court said.