In a recent opinion, the US Court of Appeals for the 6th Circuit addressed whether it was constitutionally reasonable for police to use a doctor – in this case, a doctor “who is known to conduct unconsented intrusive procedures when suspects are presented by the police” – to forcibly recover drugs from a man’s rectum. Judge Julia Smith Gibbons’ dissent notwithstanding, the 6th Circuit found that it was not reasonable, opining that the doctor’s behavior “shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process.”
The case, United States v. Felix Booker, came to the appeals court from the Eastern District of Tennessee. It began just before noon on August 12, 2010, when K-9 officer Daniel Steakley pulled Booker over for expired plates. The stop quickly escalated into a drug search. Steakley had arrested Booker earlier the previous year. Although Steakley’s drug-sniffing dog and a physical patdown yielded less than a gram of marijuana, Steakley called for backup and immediately arrested Booker for felony possession of marijuana. Tennessee law designates anything less than 14.175 grams a misdemeanor, worthy of only a citation.
Apparently the arrest was based on the officer’s suspicion that Booker was hiding contraband on his person. According to the officers, Booker fidgeted with the back of his pants during the traffic stop and at the police station following his arrest. They subjected Booker to an even more intrusive patdown in the interrogation room and to a strip search at the detention facility. No contraband was retrieved from either, but the officers weren’t done with Booker. They transported him – naked, shackled, and covered only in a blanket – to a local emergency room. There they presented him Dr. Michael LaPaglia, the attending physician.
LaPaglia told Booker that he needed to examine his rectum and extract any items found there. Booker refused. LaPaglia informed Booker that he had little choice in the matter, injected Booker with muscle relaxants and probed his rectum, manually. When that search failed to produce any contraband, LaPaglia ordered general anesthesia and had Booker intubated for nearly an hour. LaPaglia then paralyzed Booker and successfully extracted what previous probes had failed to retrieve, five ounces of crack cocaine.
This was the third time in three years that officers from the sheriff’s department had sought LaPaglia’s assistance in extracting evidence from a suspect. This time, however, Booker appealed his conviction and the 6th Circuit reversed — on the grounds that LaPaglia in conjunction with the Oak Ridge Sheriff’s department had violated Fourth Amendment protections against illegal search and seizure.
After addressing why the doctor’s conduct was attributable to the police, the Court examined the reasonableness of the search by weighing the following three factors: (1) the extent to which the procedure may threaten the safety or health of the individual, (2) the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity, and (3) the community’s interest in fairly and accurately determining guilt or innocence. In its analysis, the court highlighted the doctor’s failure to employ the less intrusive means used by U.S. Customs and Border Protection: an x-ray to confirm the presence of contraband, monitored bowel, and only engaging in an involuntary body cavity search after obtaining a court order.
The line between zealous police work and the violation of civil liberties can be fine. In Booker’s case, however, that line was egregiously and recklessly crossed with the help of a doctor, all too willing to set aside his oath: “First, do no harm.”
Privacy and national security interests are notoriously tricky to balance. Lean too far one way, and you lose an important tool in preventing and detecting crime; lean too far the other way, and you are depriving Americans of their liberty through persistent government intrusion and observation. This balancing act has been an especially hot topic given recent revelations about the National Security Agency’s surveillance and data-gathering networks. While attention has been focused on the NSA and the mass surveillance disclosures that took place earlier this summer, a particularly startling revelation about the FBI’s actions has flown largely under the radar.
A recent New York Times article revealed that the FBI has been gathering information from suspects by remotely hacking into their electronic devices and covertly tapping into the information that can be found on and through the devices. The FBI accomplishes this in much the same way that criminal, civilian hackers do: by delivering spyware to the devices through web or email links. When the user clicks on the link, either on a computer or a smartphone, the government can use the spyware either to collect existing files or to activate the device’s recording devices for continuing surveillance. According to the article, one former U.S. official confirmed that the FBI can remotely activate the microphones in phones running the Android operating system to record conversations.
This sort of government intrusion goes well beyond the NSA’s acknowledged collection of telephone and email metadata. This spyware is programmed to collect full conversations, real-time photos and videos, and stored files of all types, from devices that people have near them 24 hours a day. This type of intrusive government intrusion into a device in which an individual has a reasonable expectation of privacy is the type that the Constitution’s Fourth Amendment is meant to address. And, in theory, it does. The FBI and other law enforcement agencies are required to obtain a warrant each time that they implement this technology to gather content such as computer files, and must meet a stricter standard for wiretaps when conducting surveillance using the webcam or microphone.
As technology advances, it becomes easier for the government to watch our every move. Whereas once the government could listen to conversations only on wiretapped telephones or bugged areas, it is now able to keep an open microphone on a device that people keep on them no matter where they are. We hope that law enforcement and the courts will seek and allow the use of this incredibly invasive and effective technique only rarely where no other surveillance is sufficient and not as a matter of course in standard investigations.
A split among the U.S. courts of appeals is taking shape over the threshold requirements for the government’s ability to obtain historical cell phone location data, in the wake of a July 30, 2013, ruling by the U.S. Court of Appeals for the Fifth Circuit.
That court held that a U.S. district court must order a cell phone service provider to produce a subscriber’s cell site data when the government presents specific and articulable facts showing reasonable grounds to believe that the records are relevant and material to an ongoing criminal investigation.
The case began in 2010, when federal authorities in the Southern District of Texas filed applications for cell phone data in connection with three criminal investigations. The applications, submitted under § 2703(d) of the Stored Communications Act, requested 60 days of subscriber information and cell site data for specific cell phone numbers.
Section 2703 states that the government may require third-party service providers to turn over their subscribers’ cell phone data as long as the requisite burden is met. Generally speaking, authorities may obtain substantive communications, i.e., “content” records, without notice to the subscriber, but only based on probable cause as required by the Fourth Amendment. “Non-content” records, on the other hand, may be obtained on a lesser showing.
Thus, service providers may be compelled to turn over details of a subscriber’s call history, including numbers called, session times, and the duration of calls. To obtain non-content data, the government must offer “specific and articulable facts showing that there are reasonable grounds to believe that the . . . information sought [ is] relevant and material to an ongoing criminal investigation.” The statute provides that an order may be issued by any court of competent jurisdiction and shall be issued only if the government makes the required showing.
The magistrate reviewing the applications granted the government’s requests for subscriber information but denied the requests for cell site data. Although the government had met its burden under the statute, the magistrate held that compelled production of location data would constitute a warrantless search in violation of the Fourth Amendment. The district judge affirmed.
On appeal, the Fifth Circuit considered two issues. First, the court considered whether the Act requires the issuance of an order for non-content records when the government meets the “specific and articulable facts” standard or, alternatively, whether district courts may impose a higher burden. Second, the court considered whether the compelled production of cell site data constitutes a “search” under the Fourth Amendment.
On the first issue, the court held that an order must issue when the government meets the “specific and articulable facts” standard: the test is both a necessary and sufficient condition for an order under § 2703. The court resolved the tension between the statute’s permissive and mandatory terms by explaining that any court of competent jurisdiction may order the production of historical location data; but, if the government meets its burden under the statute, the court must issue an order compelling production of non-content data. Under such circumstances, district courts may not deny the government’s request or impose a warrant requirement.
The Fifth Circuit answered the second question by holding that compelled production of cell site data is not a “search” under the Fourth Amendment. The court’s decision rested on its conclusion that location data are simply the service provider’s business records, not data from a tracking device. As the court explained, the service provider stores and collects cell site data voluntarily for its own business purposes, not on behalf of the government. Additionally, the records concern commercial transactions to which the service provider is a party. Unlike content data, the subscriber’s location information is intended solely for the provider, who needs it to complete the subscriber’s calls.
The court explained further that subscribers do not have a reasonable expectation of privacy in cell site data. Subscribers know full well that phone service depends on transmission of the caller’s location data. And even if that were not common knowledge, subscribers would still have no reasonable expectation of privacy in location data because the provider’s terms of service and privacy policies explain how the data are used, collected and stored. Armed with that knowledge, subscribers make informed choices about whether and how they use their cell phones.
The Fifth Circuit opinion is fascinating, especially because of the tension it creates with a Third Circuit case decided just weeks before the government filed its applications in Texas. Like the Fifth Circuit, the Third Circuit considered whether a court may deny an order for historical non-content records when the government makes the requisite showing under § 2703(d).
First, that court held that orders based on “specific and articulable facts” are not per se unconstitutional. But unlike the Fifth Circuit, the Third Circuit held that § 2703(d) establishes the conditions necessary, but not the conditions sufficient, for an order. In other words, courts can still require probable cause in limited circumstances. The court’s holding followed logically from its conclusion that, at least in some cases, cell phones are like tracking devices. And when historical cell site data is used to track a suspect’s physical movement in places where the suspect has a reasonable expectation of privacy – the home, for example – the Fourth Amendment may require a showing of probable cause. The Third Circuit held that, in such cases, district courts may require a warrant.
Disputes over government access to historical cell site data are far from over. If these cases are any indication, these rulings will hinge on whether courts deem cell phone location data to be more like third-party business records or more like data from a tracking device. Since a clear split among the circuit courts seems to be developing, it appears fairly likely that the U.S. Supreme Court will take up the issue soon.
In a decision issued today that could potentially change the way police operate in the Big Apple, U.S. District Judge Shira A. Scheindlin (S.D.N.Y.) ruled that, for years, New York City police officers have been systematically stopping innocent people in the street without any objective reason to suspect that they were engaged in any kind of wrongdoing. The 195-page decision, issued after a lengthy trial, accuses the NYPD of a widespread disregard for the Fourth Amendment – particularly as the “stop-and-frisk” episodes soared in number over the last decade. To address the issue, Judge Scheindlin said she planned to designate an independent private attorney as a monitor for the police department’s compliance with the Constitution.
Judge Scheindlin’s ruling is a brave rebuke to the department’s increasingly aggressive policing policies.During the two-month trial, the court heard testimony regarding some 4.3 million stops between 2004 and mid-2012. The U.S. Supreme Court has long sanctioned stopping and frisking an individual based upon reasonable suspicion that he or she is engaged in wrongdoing. But experts testified in the trial that in about 88 percent of the stops, police found no contraband or other evidence of illegal behavior – an incidence so high that it suggests that there was no credible basis on which to stop many of those individuals in the first place.
Given that the individuals in question were usually young minority men, a policing policy that essentially permitted police to treat as suspicious behavior that was perfectly innocent had the effect of watering down the Constitution’s protection against illegal searches and seizures. In her ruling, Judge Scheindlin rejected the testimony of numerous police officers and commanders who typically defended the legality of stops and said that they were made only when officers reasonably suspected criminal behavior.
Judge Scheindlin’s ruling in the case comes on the heels of what some have characterized as an effort by the administration of NYC Mayor Michael Bloomberg to influence the judge or to create some kind of extrajudicial bias against her ruling in the Second Circuit Court of Appeals (which will doubtless be hearing an appeal of this decision). In June, the mayor’s office offered to a number a press outlets a “study” it had conducted that purported to show that Judge Scheindlin grants motions to suppress evidence for constitutional violations in a much higher percentage of criminal cases than do her colleagues in the Southern District of New York. Today’s decision certainly makes clear that Judge Scheindlin was not influenced by those communications in favor of the city, and it is left to be seen whether press reports on that study will have the unlikely consequence of influencing the appellate court.
Judge Scheindlin’s decision is important because it seeks to address constitutional violations on an institutional level and also because it addresses those violations that befall individuals who are not charged with any crime. In a case in which a person faces criminal charges, he or she usually can challenge the admission of physical evidence or his or her own statements based on a claimed violation of constitutional rights, and a favorable ruling will result in the exclusion of that evidence from any trial on those charges. But for a person whose civil rights are violated by an illegal search that results in no criminal charges, the recourse is less obvious.
While there are circumstances in which an individual could sue individual police officers based on an illegal search, the burdens of litigation and the proof required usually are high enough that few if any people pursue such cases. Indeed, a police department policy that encouraged officers to engage in searches of questionable legality appears to rely on those disincentives to protect the officers and the department from liability and scrutiny. By finding an institution-wide set of violations, and by imposing a requirement that an independent monitor ensure compliance, Judge Scheindlin’s ruling (if upheld on appeal) has the potential to provide a more reliable guarantee of constitutional rights to New Yorkers.
If some will decry the decision as threatening the ability of police to control crime, they have forgotten the historical lessons about the importance of safeguarding the rights of minorities in our country, and the important role that the Constitution plays in protecting the rights of the innocent.
The U.S. Supreme Court’s decision in the landmark 1966 case of Miranda v. Arizona underlined the importance of the Fifth and Sixth Amendments and drew a line that law enforcement must not cross – all in the interest of protecting individuals’ constitutional rights. Unfortunately, however, the high court was not as clear regarding the level of protection required under the Fourth Amendment in its 2012 decision in United States v. Jones.
In Jones, the Court held that a Fourth Amendment “search” occurs, and a warrant is required, when a GPS tracking device is attached by law enforcement to a person’s vehicle and then used to track its movements. Remaining unclear from the opinion, however, was whether and when such searches could be ever be exempt from the warrant requirement. Further unclear was whether the ruling would apply to other technologies, such as smartphones and OnStar systems.
Because of these ambiguities, and magnified by developments in location technologies, Fourth Amendment and privacy rights are giving way to aggressive law enforcement – and courts are divided on the propriety of these tactics. The Obama Administration recently argued before the U.S. Court of Appeals for the 3rd Circuit that the Supreme Court has given the government broad exemptions to search warrant requirements (such as the “reasonable suspicion” and the “probable cause” exceptions) and that device tracking can fall under these exemptions.
Far more troubling, however, is a recent opinion by a federal magistrate in New York in which U.S. Magistrate Judge Gary Brown effectively eviscerated Fourth Amendment protections for device tracking. Brown ruled that a search warrant is not necessary for authorities to obtain real-time location information for a suspect’s cell phone. Brown held that “phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.” The magistrate’s opinion would mean that we are all effectively giving our consent to search by virtue of using a ubiquitous (and near-essential) technology.
Brown’s opinion contrasts starkly with Justice Sonia Sotomayor’s concurring opinion in Jones, in which she noted:
People disclose the phone numbers that they dial or text to their cellular providers, the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
The contrasting statements among the courts have reinforced the need for Congress to step in and circumscribe law enforcement tracking tactics. Currently before the House are both H.R. 983, the Online Communications and Geolocation Protection Act and H.R. 1312, the Geolocation Privacy and Surveillance Act. Both bills are aimed at providing a legal framework for when and how location tracking devices can be used, and when and how data location records may be obtained. Both bills were introduced during the last Congress and reintroduced during this term. With bipartisan support, hopefully they will get traction. In the meantime, you may want to keep your cell phone powered off.
The U.S. Court of Appeals for the 3rd Circuit is set to become the first federal appellate court to answer the question left open by the Supreme Court in United States v. Jones. Last year, the Court held in Jones that a Fourth Amendment “search” occurs, and a warrant is required, when a GPS tracking device is attached by law enforcement to a person’s vehicle and then used to track its movements. The Court did not consider when, if ever, that type of search would be exempt from the Constitution’s warrant requirement.
Last month, the 3rd Circuit heard oral arguments on that question. It is expected to issue its decision later this year.The appeal relates to the prosecution of Harry, Michael, and Mark Katzin — three brothers charged with the burglary of a Rite Aid pharmacy in Pennsylvania. In 2009, authorities began investigating a rash of pharmacy burglaries in the Northeast. Most of the crimes targeted Rite Aid stores and appeared related because each occurred after someone had cut the wires to the pharmacy’s alarm system. Eventually, authorities identified Harry Katzin as a person of interest. He had been implicated in suspicious activities involving other Rite Aid pharmacies and was known to keep electrician’s tools, gloves and ski masks in his van.
Initially, agents physically tracked Katzin’s movements. Then they decided more comprehensive surveillance was needed, so they attached a GPS tracking device to Katzin’s bumper and waited. Two or three days later, the tracking device showed that the van had stopped at a Rite Aid store in Hamburg, Pa. After the van left, one agent drove to the store to confirm it had been burglarized while state troopers followed the van onto the highway. When the burglary was confirmed, troopers stopped the van and arrested the Katzins. Only then did authorities obtain a search warrant, which led to their discovery of merchandise from the Rite Aid store, parts of the pharmacy’s alarm system, and Schedule II drugs.
In April 2011, the brothers were charged with pharmacy burglary and possession of Schedule II drugs with intent to distribute. They filed a pretrial motion to suppress the evidence found in the van. At that time, neither the 3rd Circuit nor the Supreme Court had decided whether the attachment and use of an external GPS tracking device constitutes a Fourth Amendment search. In early 2012, the Jones Court made clear that it does. Applying Jones, the trial judge granted the Katzins’ motion, and the government appealed.
On appeal, the government argues that the search in question, i.e., the attachment and use of the GPS device, falls within one of two exceptions to the warrant requirement. Under the “reasonable suspicion” exception, a warrantless search may be conducted under limited circumstances if the minimal intrusion on the individual’s privacy is outweighed by a legitimate government interest. In this case, the government contends, the “trespass” to Katzin’s van was minimal because it involved the placement of a magnetic GPS device on the bumper. Subsequent monitoring of the device was minimally intrusive because it revealed only the location of the van — information that could be obtained by physical surveillance. In the government’s view, these minimal intrusions were outweighed by the government’s interests in investigating crime.
The government also argues that the search falls within the “probable cause” exception. Under that exception, officers may conduct a warrantless search of an automobile if there is probable cause to believe it contains contraband or if exigent circumstances make a warrant application impractical. The government claims that no warrant was required in this case because officers had probable cause to believe that Katzin would use his van to burglarize another Rite Aid pharmacy.
The Katzin brothers counter that neither exception applies. First, the “reasonable suspicion” exception does not apply because the officers installed the device without a reasonable, articulable suspicion that criminal activity was afoot at the time of installation. Instead, the officers proceeded on a hunch that turned out to be right. The Constitution requires more than that.
The “probable cause” exception does not apply because, when the officers installed the device, they had no reason to believe there was contraband in the van or that the van was readily mobile, which might have made a warrant application impractical. As the Katzins point out, the officers attached the device in the dead of night on a deserted street. If the officers had evidence to support probable cause under those circumstances, they should have applied for a warrant.
Our sense is that the trial court will be upheld. The Fourth Amendment’s baseline requirement is that searches be conducted pursuant to a valid warrant supported by probable cause. These facts do not appear to support an exception. As the trial judge noted, the government argues for application of the “reasonable suspicion” exception based on its general interest in efficient law enforcement. The government did not prove that the special needs of this case required the warrantless intrusion visited on the defendants.
Likewise, the government argues for application of the “probable cause” argument based on the officers’ general suspicion that Katzin would use his van to commit a crime in the coming days, weeks, or months. The government did not prove that the officers had probable cause to believe that a crime was in progress when the device was attached. If courts do not hold the line on these exceptions, the Fourth Amendment will be eviscerated.
The vast increase in the use of wireless data networks has led to new legal issues regarding network users’ right to privacy. A recent opinion issued by the U.S. District Court for the District of Oregon indicates that, under some circumstances, individuals on an unsecured wireless network have a reasonable expectation of privacy entitling them to Fourth Amendment protection. As a result, police officers must obtain a warrant prior to accessing files on that network.
In United States v. Ahrndt, defendant John Henry Ahrndt moved to suppress evidence that a police officer obtained by accessing Ahrndt’s wireless home network and opening files without a search warrant.
In February 2007, one of Ahrndt’s neighbors connected to Ahrndt’s unsecured wireless internet network. When she opened her iTunes program, she was able to see “shared” files from Ahrndt’s iTunes and LimeWire accounts, and saw a number of titles indicative of child pornography.
The neighbor did not open any of the files, but called the police to report what she saw. A deputy came to her house and she showed him the file names as she had seen them. The deputy asked her to open one of the files. When she did, it opened an image of child pornography.
The deputy questioned the neighbor about whom the unsecured wireless network might belong to. She indicated that the network had been available since she moved into the building, and at the time Ahrndt’s home was the only other one that was occupied. The police ran the license plate of a car parked outside of the home and identified it as belonging to Ahrndt, a convicted sex offender.
Using a general description of what the neighbor and deputy recalled seeing in the list of file names, the police applied for and received a search warrant to access the wireless network again in order to get an IP address. The police then served a summons on the Internet provider. The provider disclosed that Ahrndt was the subscriber in question.
Using that information, the police obtained a search warrant for Ahrndt’s home. They ran a forensic search of his computer and identified images of child pornography in various folders. The forensic report did not mention either iTunes or LimeWire.
In considering the motion to suppress the evidence obtained through the initial warrantless search, the court concluded that it would have been appropriate for the deputy to view the titles of the files without a warrant, since a private party (the neighbor) had already viewed those files and told the police about them. However, the court concluded that it was a violation of Ahrndt’s Fourth Amendment rights for the police to instruct the neighbor to open the file, which she had not previously done. The opened image was no longer within the purview of private search, but a government search.
The court also found that Ahrndt’s privacy expectations were not eliminated by accessing an unsecured wireless network. There was no evidence that Ahrndt had intentionally enabled sharing for those files; rather, the default setting of the LimeWire program enabled sharing. It was Ahrndt’s reasonable belief that those files were contained only on his hard drive, and not shared on a public network. The court said that “[i]n short, the government does not dispute a person has a reasonable expectation of privacy in the files on his home personal computer.”
The court concluded that, lacking specific file names and a description of images, a magistrate would not have found probable cause to issue a search warrant. The only evidence that the police viewed lawfully was the file names, which the neighbor and deputy could not remember with specificity. Since the “partial recollections and characterizations” were too general to support a warrant, all related evidence from the unlawful search must be suppressed.
The court came to the right conclusion on this one. Our reliance on the Internet has become such that what is on our computers is as personal and private as the inside of our homes. The government is no more entitled to search our computer without probable cause than to search our homes. This case does not represent a free pass to intentionally share information on wireless networks and then assert Fourth Amendment rights when the government comes knocking. Rather, it is only that information to which an user has a reasonable expectation of privacy—such as files that he is not aware are accessible to others—that is protected against the government’s unlawful search and seizure.
It’s easy to see how this has implications for potential white-collar cases: the government might try to use financial information unintentionally made available to a neighbor through an unsecured network as a basis to initiate a financial fraud investigation. We hope that the courts will rely on this case and suppress any evidence obtained as a result of this type of unlawful search.
We have previously reported in this space about the use of domain name seizures by American law enforcement – for example, here and here. Recent media reports show that domain name seizure has become the go-to tactic for law enforcement for other countries as well.
Canadian police made a series of arrests during an invitation-only Super Bowl party attended by 2300 people as part of Project Amethyst. A Royal Canadian Mounted Police spokesperson says this was connected with the arrest of 21 individuals related to a separate online credit betting operation in November. The more recent arrests were connected with an online sports betting operation that used the website located at www.platinumsb.com. In addition to arresting six individuals, officers also seized $2.5 million in cash as a result of the execution of nine search warrants in and around Toronto.
Police also seized the domain name associated with a Costa Rica-based website, which is registered with Washington State-based Enom, Inc. Police obtained a Canadian court order for that purpose, and then submitted a request under the Mutual Legal Assistance Treaty (MLAT) between Canada and the United States. The domain name was then transferred to the control of Canadian law enforcement authorities who, in turn, redirected it to a new landing page. Visitors to the platinumsb.com website are now greeted by a notice stating that the web site has been “restrained by court order granted to the Attorney General of Ontario.”
Media reports indicate that the website was back online as www.platinumsb.tk within hours of the shutdown. The .tk top level domain belongs to Tokelau, a non-self-governing territory off the coast of New Zealand. The .tk version of the domain name was reportedly registered in 2004, suggesting that the group operating the sports book had set up contingency plans for a seizure of its .com website.
Whatever the merits of the Canadian prosecution against individuals affiliated with PlatinumSB, the seizure of the platinumsb.com domain name certainly shows that domain name seizure is by no means a tactic used only by U.S. law enforcement. As more and more businesses move largely or exclusively to the Internet, the global use of this law enforcement tactic is sure to grow.
Rep. Zoe Lofgren (D-Calif), a senior member of the House Judiciary Committee, has indicated that she is drafting legislation that would seek to increase judicial oversight over prosecutors’ efforts to act against Internet domain names accused of copyright infringement. While the value of such legislation will depend on the details of the bill, the notion of creating greater control over prosecutorial seizure of domain names is laudable.
Lofgren is one of a small number of legislators who voted against the PRO-IP Act of 2008, which authorized the government to shut down websites accused of online piracy or copyright violations by seizing their domain names. Under the enforcement operation that followed passage of that Act – dubbed “Operation In Our Sites” – the U.S. Immigration and Customs Enforcement (ICE) has seized 1,630 domain names, of which 684 have been forfeited to the government. The increasing use of domain name seizures in this area tracks similar use of this tool in other areas of law enforcement such as internet gaming and online pharmaceutical sales.
Specifics about the contemplated legislation have not been disclosed, though Lofgren has been quoted as noting that there are “reasonable arguments” that the way in which the government has seized domain names under the PRO-IP Act violates the Constitution. Lofgren’s bill will apparently propose that the government must provide notice and an opportunity to be heard before domain names are seized or redirected.
The addition of a procedural requirement for notice and hearing prior to domain name seizure would clearly be a favorable development. There have been cases in which the government has seized a domain name and later permitted it to resume operations, under agreed-upon restrictions, pursuant to an arrangement with the affected business. To the extent that businesses may negotiate such arrangements with the government, those arrangements could be reached without the potentially devastating interruption of a seizure. By giving counsel for the affected business the opportunity to be heard, such a requirement may also chill the overuse of domain name seizure by government as a means of gaining unfair leverage in cases involving Internet-based businesses.
The devil, of course, is in the details. Lofgren has reportedly sought input from the online social media community on this bill – particularly from Reddit. Hopefully, she will also seek input from those members of the legal community who have been involved in litigation over domain name seizures as well in order to ensure that the bill presented for consideration is as effective as possible in balancing the interests of all affected parties.
Yet another shoe has dropped in the long-running investigation and the series of prosecutions arising from allegations of insider trading in the stocks of Goldman Sachs and other companies. In May 2011, Raj Rajaratnam was convicted of insider trading and ultimately sentenced to 11 years in prison. On June 15, 2012, Rajat Gupta, a former director at Goldman Sachs, was convicted in the U.S. District Court for the Southern District of New York on four of six counts of an indictment that charged him with a conspiracy that included feeding inside tips to Rajaratnam in September and October 2008 about developments at Goldman Sachs.
As with the trial of Rajaratnam, the key pieces of evidence against Gupta appear to have been wiretapped conversations. The four charges on which Gupta was convicted all related to trades in support of which the government presented recorded conversations as evidence (though the government played only three recordings in the Gupta trial). The jury acquitted Gupta of two charges arising from other trades for which the government presented no such evidence. The jury clearly was influenced by hearing Rajaratnam on the recordings referring to his source on the Goldman Sachs board – powerful evidence that gave increased persuasive power to the government’s reliance on phone records showing substantial contacts between the two men.
Rajaratnam has appealed his conviction to the U.S. Court of Appeals for the Second Circuit, and one significant issue he has raised is whether the government improperly sought authority to wiretap the conversations that were the cornerstone of his conviction. That ruling will be very significant, both because a decision in Rajaratnam’s favor is likely to result in a reversal of Gupta’s conviction as well, and because the Second Circuit’s ruling may have a major impact on the future ability of prosecutors to continue to use wiretaps against white-collar targets.
While Gupta is likely to receive a prison sentence for his conviction, it seems likely that he will receive a lower sentence that Rajaratnam, who engaged in the trades in question and reaped the benefits of those trades – estimated at trial to have generated $16 million in gains or in avoided losses from Rajaratnam’s fund. While prosecutors may seek a higher sentence based on acquitted conduct, Gupta’s advisory range calculated under the U.S. Sentencing Guidelines may be as much as eight years in prison. There is also a significant question whether Judge Jed Rakoff, who has expressed frustration with what he calls “the guidelines’ fetish with abstract arithmetic,” will sentence Gupta to a shorter term than the one calculated under the Guidelines.