[Clips] Internet's Ubiquity Multiplies Venues To Try Web Crimes

R.A. Hettinga rah at shipwright.com
Mon Feb 12 12:49:47 PST 2007

"Regulatory Arbitrage" == "Forum Shopping".

--- begin forwarded text

  Delivered-To: rah at shipwright.com
  Delivered-To: clips at philodox.com
  Date: Mon, 12 Feb 2007 15:47:23 -0500
  To: Philodox Clips List <clips at philodox.com>
  From: "R.A. Hettinga" <rah at shipwright.com>
  Subject: [Clips] Internet's Ubiquity Multiplies Venues To Try Web Crimes
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  The Wall Street Journal

  Internet's Ubiquity
  Multiplies Venues
  To Try Web Crimes


  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

  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

  "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

  The government has opposed his motion to keep the case in Massachusetts.

  R. A. Hettinga <mailto: rah at ibuc.com>
  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 at philodox.com

--- end forwarded text

R. A. Hettinga <mailto: rah at ibuc.com>
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'

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