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Megaupload.com was once the 13th most popular website on the internet, with more than 82 million unique visitors and a billion total page views during its seven-year operation. The site allowed people to store files on the cloud for later use—and some users inevitably stored copyrighted TV shows, films, songs, and software. In 2012, the U.S. government charged the site’s owner, Kim Dotcom, and its operators with conspiracy to commit copyright infringement. The defendants are currently resisting extradition to the United States (Dotcom lives in New Zealand), as is their right under extradition treaties.

In 2014, the seemingly frustrated government moved to seize the defendants’ considerable assets in a civil-forfeiture action, claiming that the assets are probably connected to the alleged criminal activity. The government had a major problem, however, as the assets that they were seeking to seize were not located in the United States, but in Hong Kong and New Zealand. Under traditional rules of in rem jurisdiction—a legal theory that allows courts to gain jurisdiction over property—the court must have “control” over the property to entertain the claims, which the district court did not have in this case.

The district court, however, ignored fundamental principles of statutory construction, and agreed with the government’s argument that a federal statute—conferring only venue to the district courts in cases where property was located outside of the United States—also expanded the court’s jurisdiction and fundamentally altered the traditional requirement that courts have control over the property to assert jurisdiction over it.

This misreading of the statute also created a serious constitutional issue under Article III. It is a fundamental constitutional rule that federal courts can’t issue mere “advisory” opinions. When a court lacks control over property located in a foreign country, it necessarily relies on another sovereign to enforce that order, making it advisory as to how the other sovereign should enforce the judgement.

To make matters worse, the court here also “disentitled” the defendants from presenting evidence that their property was not subject to seizure. Under civil-forfeiture laws, the government can take property without an underlying criminal conviction based only on the allegation of a crime. Those whose property has been seized can get it back by proving that their property is “innocent.” The government, however, is preventing the defendants from even making that argument. Using the “fugitive disentitlement” doctrine, the government is blocking the defendants from challenging the forfeiture.

Fugitive disentitlement has historically been applied only to criminals who escaped custody while appealing a conviction, the idea being that a court could decide to dismiss the appeal because any judgment would be unenforceable against an absent defendant. Here, the government has decided that, because the Megaupload defendants aren’t coming to the United States to defend their property, they are “fugitives” who have lost the ability to defend against that seizure—and the district court agreed. The U.S. Court of Appeals for the Fourth Circuit then wrongly upheld the district court’s holding, so Cato, along with the Institute for Justice, have filed an amicus brief asking the court to hear the case en banc (all the judges on the court).

We argue that the district court’s reading of the federal statute was not in line with fundamental statutory construction principles and that it’s unconstitutional for the government to use fugitive disentitlement in civil forfeiture proceedings against non-fugitives. The Fifth Amendment’s Due Process Clause requires an opportunity to be heard and an opportunity to defend against government-initiated actions against your property—even if you’re a dotcom millionaire living abroad.

The Fourth Circuit will decide whether to rehear United States v. Batato later this fall. If it declines to do so, the Supreme Court will have an opportunity to take the case – possibly before the end of the new term that just started today.

Millions have watched cellphone videos of police violating Americans’ rights. United States Customs and Border Protection (“CBP”) is trying to make sure the same doesn’t happen to them by banning video and photography—not in secure spaces or regarding special operations, but out in the open in the ordinary court of business.

In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.

Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.

In 1971, the government tried to stop the New York Times from publishing the Pentagon Papers—which the Times later described as evidence that the executive branch had “systematically lied, not only to the public but also to Congress” about the war in Vietnam. The Supreme Court refused to block the publication. Two justices would have never blocked speech on the basis of national security, but the middle ground position required at least a showing that the publication would “surely result in direct, immediate, and irreparable damage to our Nation or its people.” N.Y. Times v. United States (1971). Such a showing was not even attempted in this case—nor could it have been made given that the information is already known to everyone who crosses or is in eyesight of the border.

We also raised the issue of fair judicial process. A restriction on the First Amendment right on a public sidewalk must be narrowly tailored to a compelling government interest. The government doesn’t even claim that its policy was narrowly tailored, instead asserting that it “need not constitute the least restrictive alternative available.” Instead, the district court decided on its own that the policy was narrowly tailored. The Supreme Court has held that the Due Process Clause requires “notice and a meaningful opportunity to be heard before a claim is decided.” Lachance v. Erickson (1998). The photographers here should have been given the opportunity to rebut any argument of narrow tailoring—which isn’t credible in the first place.

The Ninth Circuit will hear Askins v. U.S. Dep’t of Homeland Security later this fall.

Last week we hosted a book forum for Professor James Duane’s new title, You Have the Right to Remain Innocent.  In addition to teaching you something about constitutional and criminal law, this lecture offers valuable practical advice that can help you and your friends to avoid prosecution and imprisonment and save thousands of dollars in legal fees.  As Duane notes, the key thing to remember is that there is a fundamental discrepancy between what the police say to us and what they say to their own children regarding police investigations.

Here’s an excerpt from his book:

There are many ignorant sentimentalists who believe that our government is deserving of our loyal cooperation and support, and that every good patriot with an innocent conscience should be glad to answer any questions from government agents.  That is hogwash….You cannot write tens of thousands of criminal statutes, including many touching upon conduct that is neither immoral or dangerous, write those laws as broadly as you can imagine, scatter them throughout the thousands of pages of United States Code–and then expect decent, law-abiding, unsuspecting citizens to cooperate with an investigation into whether they may have violated some law they have never even heard about.  The next time some police officer or government agent asks you whether you would be willing to answer a few questions about where you have been and what you have been doing, you must respectfully but very firmly decline.

The slim book is just 120 pages.  Read the whole thing so you’ll have the confidence to assert your rights under pressure.

Here is the lecture:

“You Have the Right to Remain Innocent” (James Duane)

Don’t keep this valuable information to yourself.  Blast it out to friends and family members on social media.

Related Cato work here and here.  The full book forum, with comments from Georgetown Law Professor Randy Barnett, here.


Today, The Oklahoman published an editorial that serves as a good example of how not to think about drone policy. According to The Oklahoman editorial board, a proposed drone weaponization ban was a solution in search of a problem, and concerns regarding privacy are based on unjustifiable fears. This attitude ignores the state of drone technology and disregards the fact that drones should prompt us to re-think privacy protections.

Weaponized drones are often thought of as tools of foreign policy, but technological advances mean that Americans should be keeping an eye out for armed drones on the home front. Yet, in the pages of The Oklahoman readers will find the following:

we know of no instance where Oklahoma law enforcement officers have used drones to shoot someone without justification. To ban the police from using weaponized drones appears a solution in search of a problem.

I’m not aware of police in Oklahoma using drones to shoot someone with justification, but that’s beside my main point. Oklahoman lawmakers shouldn’t have to wait for a citizen to be shot by a weaponized drone before considering regulations. It would be premature for legislators to consider teleport regulations or artificial intelligence citizenship bills. But weaponized drones are no longer reserved to the imagination of science fiction writers. They’re here.

Some states have taken steps to address weaponized police drones. Virginia and Oregon both ban weaponized police drones. Florida law defines police drones as an aerial vehicle that “Can carry a lethal or nonlethal payload.” North Dakota law allows police drones to be outfitted with Tasers. Whatever members of the Oklahoman editorial board think about these laws, they should at least consider the fact that lawmakers in Virginia, Oregon, Florida, and North Dakota didn’t wait for a police drone to shoot someone before pondering legislation.

In fact, one can make a convincing argument that weaponized drone legislation is especially worth considering given what happened in Dallas earlier this year. In July, Dallas police used a robot to kill a mass shooting suspect. It was the first such killing in the history of American policing. The Dallas police use of a robot to lethal effect ought to prompt lawmakers to get out in front of the issues associated with police using remote-controlled tools to kill citizens.

Fortunately, there has not been a significant push for police to have weaponized drones. Speaking before the Senate’s Judiciary Committee in 2013, Benjamin Miller, the Unmanned Aircraft Program Manager with the Mesa County, Colorado Sheriff’s Office, rejected police using lethal and non-lethal weapons on drones. Miller said that it would “absolutely not” be appropriate for police drones to be armed with lethal weapons. When it came to non-lethal weapons Miller noted, “in our experience, considering the risks of unmanned aircraft and then also the risks of use of less-than-lethal munitions, you know, such that they are, a bean bag round out of a shotgun, combining those two risks together is probably not the most responsible thing to do.”

As technology improves weaponized drones will become cheaper and more attractive to police departments. Police drones are comparatively rare at the moment, but this is mostly because of fiscal and technological constraints. We shouldn’t be in any doubt that police drones will be ubiquitous as soon as they become affordable and useful to most police departments.

At a time when the widespread use of police drones is in the near future it’s surprising that the Oklahoman editorial board is so seemingly dismissive about the privacy concerns, writing:

Kiesel [executive director, ACLU of Oklahoma] also suggested state law should limit law enforcement agencies’ ability to use drones in situations where residents normally have an expectation of privacy, saying warrants should typically be required in those situations.

On the surface, that doesn’t sound objectionable. Yet it would again be better if advocates of regulation could cite specific examples of abuse. The police can’t fly a drone into someone’s house, and there’s no reasonable expectation of privacy when a person is in a public space. So where are the areas where police can realistically fly a drone that are also areas where people have a reasonable expectation of privacy?

Here I think the editorial board is suffering from a lack of imagination. It’s true that under current Fourth Amendment doctrine police drones won’t usually be filming citizens where they have a reasonable expectation of privacy. But amid the proliferation of drones, it’s worth lawmakers considering how adequate the “reasonable expectation of privacy” standard is.

After all, in California v. Ciraolo (1986) and Florida v. Riley (1989), the Supreme Court held that you don’t have a reasonable expectation of privacy in the contents of your backyard observed from the air. It might be the case that some people won’t mind if police drones hover above their street recording their pool party, barbecue, or yard sale without a warrant, but I suspect that many not would be so happy.

Some lawmakers have recognized the worrying privacy implications of police drones. A handful of states including Florida, Idaho, Wisconsin, Indiana, Iowa, and Virginia have passed police drone warrant requirements. Proposed legislation in New Hampshire and Florida law extends the expectation of privacy for drone surveillance to private property where an individual is not observable from public space at ground level, “regardless of whether he or she is observable from the air.”

Drone technology is understandably attractive to law enforcement. When it comes to inspecting dangerous situations or searching for a suspect, drones can be valuable tools. Yet we should be wary of the privacy and safety concerns associated with police regularly using armed drones. Lawmakers who recognize these concerns should be praised for their foresight.