From: Black Unicorn <unicorn@access.digex.net> Subject: Re: On the crime bill and remailers

Anonymous must be a Baker & Botts associate. Now that's funny.

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1) The act does not make it a per se offense to have a remailer.

Below it is asked whether this is assertion or assumption. Neither. It is obvious. If the act wished to make running a remailer a per se offense it would simply say so. It doesn't say anything like that. [...much deleted. Time preses and this is unpaid...e$ anyone?...]

Instead you might ask how the statute will be read in the context of the differing language between the investigation threshold requirement and the definition of offense. Why would one mention intent so explicitly and the other ignore it? Did congress anticipate the difficulty of showing intent in this type of prosecution and structure the act accordingly? This would be my argument as a prosecuter.

This argument is not frivolous. But I doubt it would work, particularly since the counterweight is constitutional due process.

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3b) Query: why would it be a violation of due process to have a ban on unknowingly aiding terrorists in the manner Mr. Unicorn wishes to read the satute?

Ah, but the counter to this arguement (obviously structured well into the statute) is that there will never be any investigation into the offense without resonable facts to suggest intent. (This is the killjoy to the due process arguement.)

This won't work either. First, it is not "obviously structured well into the" badly drafted statute. Second, a limit on investigations does not in this world of police and prosecutorial discretion operate as a meaningful, or even mesurable, limit on prosecutions. Suppose the police get information in the course of a separeate investigation? Suppose they are following Carlos and see him go into your resturant? [...]

You rely on the construction tending to constitutionality here, but it is equally valid to construct the statute as meeting the due process requirement via the investagatory intent requirement. This was my entire

I disagree completely. See above.

point. Given the difference in the requirements between allowing investigation and definition of offense, there is a basic imbalance in the act. Why? Accident, poor drafting? Intent?

Neither. A guess, and only that: the investigation limit (which I would argue is uneforceable) is intended as a signal to cops/sop to civil libertarrians that the act should not start witch hunts.

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N.B. these problems could be cured, and due process observed, by finding a duty to make enquiry or imputing a negligence standard of some sort, but we do not see any hint of this in the statute.

Exactly. So why are they not? Why is this never mentioned. I can only

stupid drafters is the most likely explanation

believe that the structure of the statute is intended to provide this arguement as a loophole. I'm not paranoid enough to want to claim that this is to peg remailer operators specifically, (duh) but what are the implications for a very soft offense definition in a federal crime bill?

Standard operating procedure these days. Hmmm...maybe a literal-minded court is not so bad? [...]

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Ratzlaf v. United States, 114 S.Ct. 655 (1994) [summary quoted below], in which the Supreme Court imputed a scienter requirement into a money laundering statute which on its face required no such scienter at all.

I have not had time to look at 31 USC 5324(3) in detail with reference to this problem. Nor have I looked at the case. At first glance it looks promising, but I remain a skeptic. It is too tempting to use the language in the investigatory intent requirement to dismiss the arguements you make.

I disagree. Intent from investigation won't cure the due process problem. Intent -- at a minimum in the sense of knowingly committing the act of aiding a terrorist, not necessarily in the sense of knowing that it is illegal to do so -- must be read into the offence itself. Only a very, very clear statutory command to the contrary would suffice to avoid this reading -- and then we have pretty much created a per se offense of running an open remailer since it is impossible to know who you are dealing with. I might add that I believe it would be a violation of the First Amendment to make running a remailer a per se offense, but that's not required for the argument [...]

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//QUOTING-- SYLLABUS: > time it is called into play. Because currency structuring is not inevitably nefarious, this Court is unpersuaded by the United States' argument that structuring is so obviously "evil" or inherently "bad" that the "willfulness" requirement is satisfied irrespective of the defendant's knowledge of the illegality of structuring.

In any event, this is the real key here. What do you think a judge will find encrypted remailing rates on the "nefarious" scale? In context I think it will be quite harsh. Especially given the very nature of the

Given the importance of money laundering to drug deals, and the 1st Amendment aspect of remailing, I rate it at least a tie or better. [...] Since we are now being civil, I should note that the Ratzlaf case has been criticized by almost every commentator as wrongly -- even insanely -- decided, and I tend to agree with the critiques. Nevertheless, the decision is of a piece with other odd, hyper literal, statutory construction cases in the past two years and the odds are it will be followed. SOLONg