Archives for February 2017

On February 21, 2017, the U.S. Supreme Court heard oral arguments in Hernández v. Mesa. In this case, a U.S. border patrol agent (Mesa) fired a bullet from the U.S. side of the U.S.-Mexican border, striking and killing an unarmed and nonthreatening 15-year old Mexican national, Sergio Hernández, while Hernández was in Mexico. At issue in this case: whether the protections against the unjustified use of deadly force by law enforcement under the Fourth Amendment can be extended extraterritorially to a cross-border killing of a non-U.S. citizen. Within the oral arguments of the petitioners (delivered by notable Texas plaintiff’s lawyer Robert C. Hilliard), the petitioners attempted to narrow the scope of the decision. As the court tried to examine the broad extraterritorial application of the Fourth Amendment, Mr. Hilliard tried to focus that application on the narrow set of circumstances of the case, discussing how the extraterritoriality should be mitigated by the shooting’s proximity to the border and the fact that the border agent’s actions all occurred in the United States, and how concerns raised about the legality of drone strikes could be sidestepped in this instance because this was an action taken by civilian border patrol agents and not by the military.

This narrow approach suggests that the court can and should apply or not apply individual parts of Fourth Amendment doctrine to non-citizens abroad depending on whether doing so would be “impracticable or anomalous,” as the petitioner’s brief states — essentially, leaving the courts to decide the applicability of the Fourth Amendment to non-citizens on a case-by-case basis. This approach has drawn criticism from those who wish to see a more formalist interpretation of the Fourth Amendment’s application to non-citizens. In 1990, the Supreme Court decided in United States v. Verdugo-Urquidez that the Fourth Amendment did not apply to searches of non-citizens; Fourth Amendment rights, in the view of the court, are created as part of a social contract between a citizen and the government. The petitioners’ approach would erase that bright line test, and institute a piecemeal approach rather than a new bright line test which would expand Fourth Amendment protections to non-citizens more broadly.

A full transcript of the oral arguments can be found here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-118_3e04.pdf.

The following is a flyer for the book Challenges in the Field of Economic and Financial Crime in Europe and the US, edited by Katalin Ligeti and Vanessa Franssen. Bruce Zagaris has submitted a chapter entitled Prosecutors and Judges as Corporate Monitors? The US Experience.  To purchase the book, go to http://www.bloomsburyprofessional.com/uk/challenges-in-the-field-of-economic-and-financial-crime-in-europe-and-the-us-9781509908035/.

On February 20, 2017, the High Court of New Zealand, in Ortmann & Ors v United States of America, ruled that four high-ranking former employees of the Internet file hosting site Megaupload, including founder Kim Dotcom, could be extradited to the United States to stand trial for copyright infringement. Megaupload, a file sharing site headquartered in Hong Kong but utilized worldwide, was often used to store and disseminate copyrighted works such as television shows and music. In January 2012, the U.S. Department of Justice seized Megaupload’s web domain, and New Zealand, acting on request of a U.S. federal prosecutor, arrested Dotcom and three associates, who were living in a compound in New Zealand at the time. The United States Government has been seeking the appellants’ extradition to face trial on 13 counts including allegations of conspiracy to commit racketeering; copyright infringement; money laundering and wire fraud since 2012.

Interestingly, even in making a ruling against Dotcom, the High Court granted key concessions to his defense. The High Court reversed a District Court ruling and decided that copyright infringement by digital online communication of copyright protected works to members of the public is not a criminal offense in New Zealand under the Copyright Act. However, the High Court ruled that “a conspiracy to commit copyright infringement amounts to a conspiracy to defraud and is therefore an extradition offence listed in the US- NZ Treaty. Further, other extradition pathways are available for all counts because of their correlation to a number of serious crimes in the Crimes Act.” Thus, under section 24 of the Extradition Act of 1999, the appellants are eligible for extradition.

Dotcom has vowed to appeal the High Court’s decision, which can be found in its entirety here: http://img.scoop.co.nz/media/pdfs/1702/Ortmann__Ors_v_United_States_of_America.pdf. The High Court’s press release can be found here: http://www.scoop.co.nz/stories/PO1702/S00227/dotcom-case-judgment-ortmann-ors-v-usa.htm.