"Regulatory Arbitrage" == "Forum Shopping". Cheers, RAH ------- --- begin forwarded text Delivered-To: rah@shipwright.com Delivered-To: clips@philodox.com Date: Mon, 12 Feb 2007 15:47:23 -0500 To: Philodox Clips List From: "R.A. Hettinga" Subject: [Clips] Internet's Ubiquity Multiplies Venues To Try Web Crimes Reply-To: clips-chat@philodox.com Sender: clips-bounces@philodox.com http://online.wsj.com/article_print/SB117124525768805398.html The Wall Street Journal Internet's Ubiquity Multiplies Venues To Try Web Crimes By LAURIE P. COHEN February 12, 2007; Page B1 Nathan Littlefield, a 32-year-old father of two in Methuen, Mass., had never set foot in Buffalo, N.Y., but that didn't stop prosecutors there from charging him with downloading child pornography. David Carruthers, a British citizen, ran a company based in Costa Rica, yet he was charged in an Internet-gambling case -- in St. Louis. And Rob Zicari and his wife, Janet Romano, owners of a California-based pornography company, were indicted for distribution of obscenity across state lines -- in Pittsburgh. Unlike many crimes with relatively limited geographic scope, Internet abuses cross every border, giving the government enormous leeway these days to pick jurisdictions where it brings cases. The Sixth Amendment of the U.S. Constitution holds that federal criminal cases should be tried in the state and district in which an offense was committed. And venues count: Pittsburgh and St. Louis, for example, are viewed by lawyers as much more legally conservative than, say, Boston and San Francisco. To some critics, the process smacks of "forum shopping," a once-common practice by plaintiffs' attorneys seeking the most hospitable venues to bring civil suits. "The big concern is that the government can pick a jurisdiction where the jury will be most sympathetic," says Orin Kerr, a computer-crime expert at George Washington University's law school. Because the Internet is everywhere, he says, "federal law allows the government to pick whatever jurisdiction it wants in an Internet crime case." The government denies it is seeking a home-court advantage. Prosecutors may pick venues based on the locale of the Federal Bureau of Investigation office that initiates a case, says bureau spokesman Paul Bresson. "In situations where a Buffalo agent is talking to a subject in Florida," he says, the case would likely be brought in Buffalo. In Internet child-pornography cases, he says the FBI often originates cases against far-flung defendants. "It is very easy to establish venue if a subject from New Mexico sends an image to" Maryland. "We would have venue" in Maryland, Mr. Bresson says. What is indisputable is that Internet-crime complaints are rising. In 2005, the most recent year for which numbers are available, there were 231,493 complaints about alleged Internet crimes, an 11.6% increase from 2004, according to the FBI, and a nearly fivefold increase over 2001. While not all of those complaints turn into criminal cases, "there's been a pretty exponential increase from year to year" in cybercrime cases, says Mr. Bresson, the FBI spokesman. Whatever the statistics, Ellen Podgor, a law professor at Stetson University in Florida, is against trying cases far from a defendant's home. "The government can get jurisdiction everywhere," she says. "All they have to show is that there was a person -- often an FBI agent -- who uploaded documents" far away from the defendant. Ms. Podgor maintains that jurisdiction ought to be based on the locale of alleged perpetrators, to make it more convenient for them to go to trial. But "inconvenience isn't a defense," says Miami lawyer Frank Rubino, who says he has represented about eight defendants in the past 18 months in Internet cases brought far from their homes. "People are being brought to areas where they've never been in their lives," he says. Last July's indictment of Mr. Carruthers of Costa Rica and other defendants in Internet-gambling company BetOnSports PLC was brought in St. Louis. New York attorney Robert Katzberg, representing one of the defendants, recently told a St. Louis federal court in a filing that the locale of the federal prosecution has "no real significance other than the fact that the undercover [FBI] agents decided to conduct their sting" there. Mr. Katzberg has asked that the case be moved to Miami, where most of the defendants reside. The court hasn't yet ruled on the request. A spokeswoman for the U.S. attorney's office in St. Louis says the BetOnSports indictment "was the result of illegal activity that occurred in our district." In the past, courts have often denied defendants' motions to transfer cases because of inconvenience. In what is believed to be the first case to make such a challenge, a federal appeals court ruled in 1996 that a California couple who ran an electronic bulletin board there could be charged in Tennessee because "venue lies in any district in which the offense was committed." In an Internet child-pornography case in New York, a federal appeals court similarly ruled in 2005 that the defendant, Larry Rowe, who lived in Pikeville, Ky., was properly tried in Manhattan. But last April, a federal judge in Alexandria, Va., said defendants in a criminal securities-fraud case involving American International Group Inc. could have their case tried in Connecticut, where most of them lived, to avoid inconvenience to them. The government had argued that the case should remain in Alexandria because that is home to the Securities and Exchange Commission's "Edgar" computer server, which the defendants allegedly used to commit their crime. In the case of Mr. Zicari and Ms. Romano, the Californians tried in Pittsburgh, Mary Beth Buchanan, U.S. attorney in that city, says the case was brought there because it was where the product -- pornography -- was sold. "The case could have been brought in any district in which the product was sold," said Ms. Buchanan. She acknowledged that her district "may be considered by some to be more conservative" than some others, but that the case was her idea. Of the several men indicted in Buffalo last September on charges of downloading child pornography, one resides in California, another in North Carolina, and another in Ohio. Mr. Littlefield, for his part, was indicted last July in Massachusetts of charges of "Destruction or removal of property to prevent seizure." Federal authorities allege that he fled his home with his computer, which he smashed, after an FBI agent left him alone to find a lightbulb. The Buffalo child-pornography case came later, and the government is seeking to dismiss the property-destruction case in his home state and to try him instead in Buffalo William Fick, the Boston public defender representing Mr. Littlefield there, recently told the court that "the only connection" between Mr. Littlefield's conduct and Buffalo is "that the agent happened to be sitting in Buffalo." The agent could "just as easily have been sitting in Alaska or Guam." The government has opposed his motion to keep the case in Massachusetts. -- ----------------- R. A. Hettinga The Internet Bearer Underwriting Corporation http://www.ibuc.com/ 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips@philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga The Internet Bearer Underwriting Corporation http://www.ibuc.com/ 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'