Jun 172013

Many posts here talk about laws that criminalize technology use and development. But what happens when there is no law criminalizing that use or development, but it is nonetheless prosecuted? We are seeing that happen in California with state Attorney General Kamala Harris proudly crowing about the arrest and indictment of three brothers for “conspiracy,” “receiving stolen property,” and “grand theft” as a result of running a website that allegedly allowed users to watch movies and TV shows. The only problem: there is no law in California empowering Harris to prosecute any of what she claims the brothers did. There is no law anywhere that does.

True, California has laws on the books regarding conspiracy, receiving stolen property, and grand theft, but they still don’t enable this prosecution, and a big reason for that is because nothing was actually stolen. It is always a mistake to use the word “theft” to describe what is at most copyright infringement. Theft is a word best left to the actual deprivation of tangible things, not non-rivalrous goods like digital works that, even when “stolen,” are never actually taken away from anyone.

But even if we were to describe the making infringing copies of digital works as “theft,” only federal law can speak to the consequences of having made (or enabled the making of) these infringing copies. This is because the federal law is not actually designating something as property — of the sort which could then be stolen — but instead is granting a series of exclusive rights recognized under federal law that could potentially be infringed, as also defined by that same federal law. With only a few narrow exceptions inapplicable here, the establishment, reach, and protection of these rights falls entirely within the purview of the federal government to both establish and enforce, and, moreover, that same federal law explicitly pre-empts any attempts by the states to do the same.

As attorney general, Harris is charged with enforcing California’s laws, but her enforcement powers are inherently limited to those laws. She has no power to make up laws not put on the books by the California legislature (either because it didn’t, or, as discussed above vis a vis pre-emption, because it constitutionally couldn’t) and then go out and enforce them. But that’s what she’s done here. She might as well have arrested these two men for breathing, which there’s no law in California prohibiting either. Despite there being no law for her to enforce, she nonetheless has had these people arrested, seized their actual, tangible property, destroyed their business in a way arguably no law, but especially not California law, would permit, and upended their lives and the lives of their families by throwing them into this Kafkaesque prosecutorial nightmare. What makes it so especially troubling was that even if these brothers had sought counsel from qualified attorneys before engaging in the acts for which they are now being prosecuted, no attorney would ever have been able to have advised them of such prosecution ever being a risk. The criminality Harris is pursuing is born entirely of her imagination, not through the legislative machinations of our representative democracy, thereby leading to a state of affairs that is incompatible with the notions of due process and fair play our system of justice is supposed to preserve.

Even more unseemly, her press release openly admits to her having pursued these men in conjunction with and at the behest of the Motion Picture Association of American (MPAA), thus making her wrongful exercise of prosecutorial power even more abusive. If what these men were doing were truly wrongful as recognized by copyright law, the MPAA was fully capable of seeking the civil remedy for this potential wrongfulness that copyright law allowed. It did not need to wield the enormous power of the state against these people, and it was chillingly inappropriate for them to have attempted it — and even more chillingly appropriate for the state to have allowed it. Yes, there are certain situations where we do allow private injuries to be pursued and punished by state organs (see, e.g., actual theft of actual property) but copyright infringement has never, for very good historical and policy reasons, been one of those alleged injuries where we left it to the government to seek redress, except in very narrow circumstances. And even in those circumstances, the power to prosecute was left to federal prosecutors, not every politically ambitious state attorney general more eager to score points with future campaign donors than adhere to her constitutional limits with a power-grabbing act ultimately more harmful to society than anything alleged to have happened here.

Jun 162013

While originally I intended this blog to focus only on issues where cyberlaw collided with criminal law, I’ve come to realize that this sort of analysis is advanced by discussion of the underlying issues separately, even when they don’t implicate either criminal law or even technology. For example, discussions about how copyright infringement is being criminally prosecuted is aided by discussion on copyright policy generally. Similarly, discussions about shield laws for bloggers are advanced by discussions of shield laws generally, so I’ve decided to import one I wrote recently on my personal blog for readers of this one:

Both Ken @ Popehat and “Gideon” at his blog have posts on the position reporter Jana Winter finds herself in. To briefly summarize, the contents of the diary of the alleged Aurora, CO, shooter ended up in her possession, ostensibly given to her by a law enforcement officer with access to it and in violation of judicial orders forbidding its disclosure. She then reported on those contents. She is not in trouble for having done the reporting; the problem is, the investigation into who broke the law by providing the information to her in the first place has reached an apparent dead end, and thus the judge in the case wants to compel her, under penalty of contempt that might include jailing, to disclose the source who provided it, despite her having promised to protect the source’s identity.

In his post Gideon make a compelling case for the due process issues at stake here. What’s especially notable about this situation is that the investigation isn’t just an investigation into some general wrongdoing; it’s wrongdoing by police that threatens to compromise the accused’s right to a fair trial. However you might feel about him and the crimes for which he’s charged, the very fact that you might have such strong feelings is exactly why the court was motivated to impose a gag order preventing the disclosure of such sensitive information: to attempt to preserve an unbiased jury who could judge him fairly, a right he is entitled to by the Constitution, irrespective of his ultimate innocence or guilt, which the police have no business trying to undermine.

Ken goes even further, noting the incredible danger to everyone when police and journalists become too chummy, as perhaps happened in the case here. Police power is power, and left unchecked it can often become tyrannically abusive. Journalists are supposed to help be that check, and when they are not, when they become little but the PR arm for the police, we are all less safe from the inherent danger that police power poses.

But that is why, as Ken and Gideon wrestle with the values of the First Amendment versus the values of the Fifth and Sixth the answer MUST resolve in favor of the First. There is no way to split the baby such that we can vindicate the latter interests here while not inadvertently jeopardizing these and other important interests further in the future. Continue reading »