Archives for October 2017

Sessions Declares MS-13 a ‘Priority Target’ and Links Gang to Opioid Crisis

October 27, 2017 by Madeline Henshaw-Greene 1 Comment

Attorney General Jeff Sessions delivered remarks to the International Association of Chiefs of Police on Monday, October 23, in which he announced that the Mara Salvatrucha, or MS-13, gang would be elevated to priority status for the Department of Justice’s Organized Crime Drug Enforcement Task Forces (OCDETF). According to the DOJ, this move is the next step in “fulfilling President Trump’s goal of stamping out the brutal transnational crime organization”. During his remarks, Sessions repeatedly emphasized the significance of the threat that MS-13 poses to U.S. national security by equating the street gang with international drug cartels, who both he and the current administration have blamed for the current opioid epidemic.

By making MS-13 a priority target for the branch of law enforcement that deals with organized crime, Sessions is granting the OCDETF more power to use the law against drug crimes. This decision will provide the task forces with the ability to utilize the Racketeer Influenced and Corrupt Organizations Act (RICO), which in turn will widen the federal government’s scope for prosecution of the gang. It will also allow for further collaboration between several other agencies involved in fighting organized and drug-related crime, in particular the DEA and the FBI.

However, Sessions has drawn criticism for exaggerating the level of threat that MS-13 poses, particularly in the case of drug trafficking. In the DEA’s annual report on National Drug Threat Assessment, MS-13 represented only a small portion of illegal drug traffickers nationwide. Furthermore, while there has been an increase in violent crimes committed by members of MS-13 in certain cities, none of these incidents had anything to do with international drug trafficking, as Attorney General Sessions seemed to imply. Even in cases when drug trafficking has been attributed to MS-13, the charges typically amount to selling heroin at the street level, and are in no way similar to the type of crime that is usually attributed to an international drug cartel.

Furthermore, Sessions’ connection between MS-13 and the opioid epidemic seemed to raise eyebrows. Once again, the MS-13 plays little, if any, role in the sale of opioids, and even in cases of microtrafficking, the most common drugs involved are marijuana and cocaine. Some critics are concerned that this is an attempt to deflect blame from the federal government and pharmaceutical companies, who most agree are to blame for the current crisis. These new regulations may aid prosecutors in charging members of MS-13 in homicide cases, but it is difficult to see how a crackdown on a street gang will have a significant effect on resolving the opioid crisis.

Burundi Becomes First Nation to Withdraw From the International Criminal Court

October 27, 2017 by Zarine Kharazian 5 Comments

Burundi President Pierre Nkurunziza |Source: CNN

On Friday, Burundi officially withdrew from the International Criminal Court (ICC), an ICC spokesperson has confirmed. Last October, Burundian President Pierre Nkurunziza signed a decree to withdraw the country from the Rome Statute, the treaty that established the International Criminal Court’s (ICC) structure and jurisdiction. That withdrawal takes effect today. The small east African nation is the first country to ever withdraw from the court, which was established in 1998 to try high-level war crimes and other crimes against humanity, such as genocide.

2015 Political Violence Triggers ICC Investigation into Nkurunziza’s Administration

President Nkurunziza’s decision comes amidst increased scrutiny of his administration from the court following a period of political violence in Burundi. The violence began in April 2015, after Nkurunziza announced his decision to run for a third presidential term. His announcement triggered a failed military coup, widespread protests, and a fierce and violent crackdown on the opposition that has left more than 430 people dead. According to the U.N. Refugee Agency, more than 300,000 Burundians have fled the country since the protests began. Most have sought refuge in neighboring Tanzania and Rwanda.

In April 2016, the ICC’s chief prosecutor, Fatou Bensouda, announced that she was launching a preliminary investigation into the situation in Burundi. “My Office has reviewed a number of communications and reports detailing acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances,” Bensouda stated. “All these acts appear to fall within the jurisdiction of the ICC.”

Will Other States Follow Suit?

Burundi is accusing the ICC of being biased against African states. This allegation is not novel; in February 2017, the African Union made headlines by passing a non-binding resolution calling for the withdrawal of its member states from the ICC. The resolution cited the “systemic disadvantage” that African nations face before the court as grounds for the withdrawal. To date, four out of ten of the court’s preliminary examinations and nine out of ten of the cases that advanced to the full investigation stage have involved African states. In addition, all of the individuals brought to trial before the ICC have been African. Bensouda has previously pointed out, however, that in six of the nine Africa-based cases under full investigation, the court intervened at the request of the country involved.

The African Union’s resolution, however, proved unsuccessful. Of the 55 member states, only Burundi, South Africa, and Gambia announced an intention to withdraw from the ICC, and Sudan and Gambia later retracted their pledges.

It remains to be seen whether Burundi’s withdrawal will inspire other African states under international scrutiny to do the same. The African continent’s attitude towards the ICC is by no means monolithic – several African countries, among them Nigeria, Senegal, and Botswana, either rejected the African Union’s “collective withdrawal” resolution outright or later expressed regret at their fellow member states’ decisions to withdraw.

Nonetheless, the perception held by many that the ICC disproportionately targets Africans and undermines African states’ sovereignty undercuts the court’s legitimacy. As an international body, the court lacks an enforcement mechanism; instead, it relies on its member states to execute warrants of arrest. If African states perceive bias against them in the court’s investigations, they will be less likely to fulfill their “duty to cooperate” per the Rome Statute. In short, the ICC has an image problem – and that problem in turn impairs the international court’s ability to dispense justice.

U.S. Lifts Visa Ban on Magnitsky Activist Bill Browder

October 25, 2017 by Zarine Kharazian Leave a Comment

Bill Browder, a billionaire hedge fund manager known for his full-throated criticism of the Kremlin’s human rights abuses, has had his U.S. visa restored after an initial ban triggered as a result of an INTERPOL red notice issued against him.

Browder, who traded his American citizenship for British citizenship to avoid paying US taxes on foreign investments, rose to prominence in 2008 when his Russian tax attorney and friend, Sergei Magnitsky, died under mysterious circumstances in a Russian prison just days after his scheduled release. In 2008, Magnitsky had uncovered and publicized a $230 million tax fraud scheme implicating the Russian government, and had been investigated and imprisoned by Russian authorities as a result. Following Magnitsky’s death, Browder initiated a campaign calling for the international community to punish Russian government officials linked to Magnitsky’s death.

Browder’s campaign proved largely successful. In 2012, Congress passed the Magnitsky Act, which imposed sanctions and asset freezes on at least 18 individuals implicated in Sergei Magnitsky’s death, as well as other human rights abuses. Russia responded to the legislation by banning U.S. adoptions of Russian children.

Interest in the Magnitisky Act resurfaced in recent weeks following revelations in July 2017 that Donald Trump Jr. met with a Russian attorney, Natalia Veselnitskaya, during the elder Trump’s campaign. Trump Jr. has claimed that the meeting primarily concerned discussion of the Magnitsky Act, which Veselnitskaya had lobbied against in 2012.

In an interview with Newsweek, Browder said that he learned of the ban when the U.S. Department of Homeland security denied his application for an Electronic System Travel Authorization. According to statistics released by DHS, over 99% of all ESTA applications are approved within 5 seconds. Browser took to Twitter to voice his frustration on Saturday:

Not only did Putin add me to the Interpol list, but the US simultaneously revoked my visa. @jaynordlinger explains https://t.co/d8KskJ5CTK

— Bill Browder (@Billbrowder) October 22, 2017

Browder believes that the ban was triggered by an INTERPOL Red Notice issued against him at Russia’s request. INTERPOL’s infamous red notice “is the closest instrument to an international arrest warrant in use today,” according to the Department of Justice’s U.S. Attorneys’ Manual. The Kremlin has attempted to use the international police agency’s red notice system to punish Browder four times before, but all prior attempts had been rejected by INTERPOL’s internal oversight body on the grounds that they were politically motivated.

The International Enforcement Law Reporter has covered the abuse of INTERPOL’s notice system in recent issues. For more analysis of the phenomenon, see “INTERPOL Red Notice Abuse: Which Member Countries are the Primary Offenders?” and “Mass Prosecutions and INTERPOL Red Notice Abuse,” both by Yuriy Nemets, in the International Enforcement Law Reporter.

Two Judges Temporarily Suspend Third Iteration of Trump’s Travel Ban

October 18, 2017 by Madeline Henshaw-Greene Leave a Comment

President Trump’s latest version of the travel ban his administration has been trying to implement since the first days of his taking office has come to yet another halt mere hours before it was set to take effect. This third iteration called for the complete suspension of travel into the United States for individuals from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea, and Venezuela in the interests of national security amidst the ongoing threat of international terrorism. The order was set in go into effect on Wednesday, October 18, but was temporarily blocked on Tuesday by Judge Derrick K. Watson of Hawaii, the same judge responsible for freezing the second version of the ban in March. U.S. District Judge Theodore D. Chuang of Maryland followed up with another, albeit less complete, halt early Wednesday morning.

According to Judge Watson, the latest travel restrictions suffer “from precisely the same maladies as its predecessor”, namely that it “plainly discriminates based on nationality” in direct contradiction to the principles set forth by the Founding Fathers. He also argued that the Trump administration had not given direct evidence to support that this ban was in America’s best national security interests, in particular because they failed to show a connection between a person’s nationality and the threat they presented. Judge Chuang responded with a partial block of the directive by ruling that the administration could not enforce its restrictions on any individual with a “bona fide” relationship with the United States, meaning anyone with family members or a professional or legitimate engagement within the country. He reasoned that the president’s language both on the campaign trail and on Twitter had convinced him that this was yet another attempt at a Muslim ban and was therefore unconstitutional.

Ian Prior, the spokesperson from the Department of Justice, commented that the rulings represented a violation of the separation of powers between the executive and judicial branches, and that the Trump administration intended to appeal. This marks the third time that the government will have to go to court against the state of Hawaii in order to defend its directive. It is important to note that both of these rulings are only temporary and are intended to maintain order during the legal battle until the appeals court can make its decision. While Judge Watson’s previous ruling was upheld by the appeals courts, the government then appealed to the Supreme Court, which allowed the ban to go into partial effect.

Sources:

New York Times – Judge Temporarily Halts New Version of Trump’s Travel Ban

Washington Post – Second judge rules against latest travel ban, saying Trump’s own words show it was aimed at Muslims

Justice Department and Microsoft Set to Square Off Before Supreme Court In Landmark Data Privacy Case

October 18, 2017 by Zarine Kharazian 2 Comments

Yesterday, the Supreme Court granted the Department of Justice’s petition for a writ of certiorari in its dispute with Microsoft over access to private emails stored at Microsoft’s Dublin, Ireland data center. At issue is whether the warrant provisions of the Stored Communications Act (SCA) apply extraterritorially, such that they compel Microsoft, an electronic service provider to produce private electronic communications stored on servers in Ireland for the United States government.

Background

In December 2013, the Justice Department served a warrant to Microsoft, compelling the company to disclose information pertaining to a user’s email account. The government asserted that it had probable cause to believe that the account was being used to facilitate criminal drug activity.

The Stored Communications Act (SCA) – which is part of the broader Electronic Communications Privacy Act (ECPA) of 1986 – allows the government to require that an electronic communications provider disclose information about a particular communication upon being served a probable-cause-based warrant. A federal magistrate judge issued such a warrant in this case.

In response to the warrant, Microsoft turned over the information pertaining to the account stored on its U.S. servers, such as the user’s address book. The company refused, however, to turn over the information stored in Dublin. Microsoft assigns accounts to particular data centers based on their proximity to users’ country of residence. The account in question had been assigned to Microsoft’s Dublin center, and thus all of the account’s email content – the subject lines as well as content of emails – was stored solely in Dublin, not in the United States.

Microsoft argued that the U.S. government could not invoke the Stored Communications Act to compel the production of data stored in a foreign country. Instead, the company stated that the U.S. government had to obtain the consent of the Irish government first, by utilizing an alternate channel established for obtaining such communications: the United States’ Mutual Legal Assistance Treaty (MLAT) with Ireland.

A district court, however, affirmed the magistrate judge’s ruling on de novo review, and held Microsoft in contempt for failing to comply with the warrant.

The case then came before the Second Circuit Court of Appeals. In a unanimous decision, the Second Circuit reversed the district court’s ruling, reasoning that the lower court “lacked authority to enforce the Warrant against Microsoft,” on the grounds that “[n]either explicitly nor explicitly does the statue envision the application of its warrant provisions overseas.”

Now, the case is set to go before the Supreme Court during its 2017-2018 term.
Modernizing Data Privacy Protections: The Role of Congress or the Courts?

In a blog post posted on October 16, 2017, Microsoft’s President and Chief Legal Officer, Brad Smith, argued data privacy laws in the United States should be modernized. “The current law, ECPA, was enacted in 1986 when the World Wide Web was still a few years away from being invented and no one conceived of conducting most work and personal business online,” Smith writes. “A world connected by cloud services simply didn’t exist. The ways in which we communicate have radically changed over the past three decades — but the laws governing those communications haven’t. Current laws don’t adequately support the needs of law enforcement anywhere in the world or protect our rights.”

Smith stresses, however, that it is Congress, not the courts, who should take the helm in this effort. “We believe that rather than arguing over an old law in court, it is time for Congress to act by passing new legislation, such as the International Communications Privacy Act (ICPA) of 2017.”

Smith’s argument here – that data privacy laws should be modernized by passing new legislation in Congress, rather than by challenging existing statutes in the courts – echoes the argument put forth in Microsoft’s opposition brief. “Congress alone has the authority and the institutional competence to craft a new legislative scheme for a world not anticipated in 1986,” Microsoft’s counsel writes. “And it has remedial options simply not available to this Court.” Microsoft argues that the courts, in interpreting the Stored Communications Act, have traditionally employed an “all-or-nothing” approach with regards to the question of extraterritoriality–either law enforcement may compel production of all communications stored abroad, or it may demand none of it. This approach thus risks disrupting “the ‘harmony’ between nations that is ‘particularly needed in today’s highly interdependent commercial world.’”

Interestingly, the digital privacy groups that submitted a joint amicus curiae brief in support of Microsoft’s petition before the Second Circuit veered away from Microsoft’s choice-of-forum argument. Rather than supporting Microsoft’s assertion that it is the job of Congress, not the Court, to modernize the SCA, the privacy groups – namely, the Brennan Center for Justice, the American Civil Liberties Union, the Constitution Project, and the Electronic Frontier Foundation – make a different argument altogether. They state in their brief:

Modern technology has dramatically expanded the reach of the doctrine far beyond records of bank transactions and telephone calls. The Supreme Court recognized this problem in Riley, reasoning that Fourth Amendment privacy protection must account for this new technological reality. There, in holding that cell phones may not be searched under the search-incident-to -arrest warrant exception, the court noted that modern cell phones—just like cloud-based email—are capable of storing a vast amount of personal information and thus deserve the highest privacy protections.

Here, the amici curiae apply a Fourth Amendment analysis – an amendment that Microsoft does not even mention in its brief — to the question of whether the SCA applies extraterritorially. It remains to be seen whether the Supreme Court will be sympathetic to Microsoft’s and the supporting amici curiae’s arguments. Whether or not the Justices side with Microsoft, the line of reasoning they choose to privilege in their opinions –either the choice-of-forum or the Fourth Amendment analysis – will have implications for how similar legal quandaries are framed in the future.

Take a look at the case filings here.

Leaked Video Implicates Venezuelan President in Odebrecht Bribery Scheme

October 16, 2017 by Zarine Kharazian 1 Comment

President Nicolàs Maduro of Venezuela has become the latest Latin American leader implicated in the Odebrecht bribery scheme, the New York Times reported last Thursday.

In a leaked video published on the blog of Luisa Ortega, Venezuela’s ousted attorney general, Euzenando Prazeres de Azevedo a manager of Odebrecht’s Venuzela arm, says that a representative of Maduro asked him for “a large sum” during Maduro’s 2013 presidential campaign. “He asked for 50, I accepted to pay him 35 million,” Azevedo admits in the video, which was filmed by Brazilian prosecutors last December.

Two days after releasing the initial video, Ortega posted a second video on her blog in which Azevedo claims that, from 2004 to 2013, Odebrecht contributed extensively to Venezuelan political campaigns at the federal, state, and municipal levels. “We were always looking to contribute to these campaigns, and we contributed to many of them, specifically in those states and the municipalities where we had projects,” Azevedo says in the video.

Ortega released the second video on the eve of Venezuela’s gubernatorial elections. Despite polls predicting an opposition victory, Maduro’s Socialist Party won 17 governorships, while the rival Democratic Unity coalition captured only five. Maduro’s alleged involvement in the Odebrecht bribery scheme has thus far gone unreported in the Venezuelan state media.

Ireland’s High Court Refers Schrems II to Europe’s Highest Court: Implications for E.U.-U.S. Relations

October 11, 2017 by Zarine Kharazian Leave a Comment

Austrian privacy activist Max Schrems | Photograph: Christian Bruna/AFP/Getty Images

Ireland’s High Court has asked the European Court of Justice to rule on the legality of Facebook and other U.S.-based technology companies’ transfer of EU citizens’ data to the United States. The case, called The Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems, has huge implications for data privacy and E.U.-U.S. relations.

Background

Schrems I – Safe Harbor

In June 2003, Austrian law student Max Schrems filed a formal complaint against “Facebook Ireland LTD,” Facebook’s Ireland subsidiary, before Ireland’s national data protection authority. Schrems, a Facebook user, alleged that Facebook Ireland LTD was violating the Irish Data Protect Act by outsourcing the processing of his data to “Facebook Inc.,” the social media giant’s U.S. headquarters. Section 11 of the Irish DPA states:

The transfer of personal data by a data controller to a country or territory outside the European Economic Area may not take place unless that country or territory ensures an adequate level of protection for the privacy and the fundamental rights and freedoms of data subjects in relation to the processing of personal data.

Schrems argued that, following the Snowden revelations that identified “Facebook Inc.” as a voluntary participant in the NSA’s PRISM mass surveillance program, the Ireland DPC could not guarantee that Schrems’s data was subject to “an adequate level of protection” upon transfer to the United States.

Initially, the DPC declined to take Schrems’s case, citing the 2000 Safe Harbor Decision, under which the European Commission determined that companies participating in the U.S.-E.U. Safe Harbor Framework provided “an adequate level of protection” with regards to data privacy. But an appeal from Schrems eventually brought the case before the High Court, which in 2014 agreed to refer several questions to the CJEU. In a landmark ruling, the CJEU invalidated the U.S.-E.U. Safe Harbor Agreement, finding that the framework did not adequately guard against “interference, founded on national security and public interest requirements or on domestic legislation of the United States, with the fundamental rights of the persons whose personal data is or could be transferred from the European Union to the United States.”

Schrems II—Standard Contractual Clauses

The case made its way back to the Irish High Court, which in turn remitted the complaint back to the DPC. The DPC started an investigation into the case, and invited Schrems to reformulate his complaint in light of the ECJ ruling on the Safe Harbor Agreement.

For his reformulated complaint, Schrems contacted Facebook, requesting that the company identify all of the legal bases upon which it relies to transfer user data to the United States. Facebook referred to a data transfer and processing agreement dated November 2015, which relied on the European Commission’s standard contractual clauses decision of 2010. Standard Contractual Clauses (SCCs, also called “Model Clauses” or “Model Contracts”) are sets of clauses issued by the Commission in order to provide adequate data privacy safeguards during the transfer of personal data from the E.U. to third countries who do not guarantee “adequate” protection per E.U. standards. Companies based in third countries, including the United States, can employ the clauses verbatim to ensure timely approval of their data transfer protocols.

In his reformulated complaint, Schrems attacks the legitimacy and binding status of the SCCs. In particular, he argues that the DPC is not bound to respect Facebook’s cited SCC because U.S. surveillance programs, namely PRISM, violate Article 7 and 47 of the Charter of Fundamental Rights of the European Union as well as the Irish Constitution, and, further, that all SCCs, including the cited SCC, provide an “emergency clause” that “takes account of a situation where national laws of a third country override these clauses and allows [data protection authorities] to suspend data flows in the situation.”

In May 2016, the Irish DPC’s office announced that, after conducting its investigation into the matter, it did not find that SCCs could adequately address the data protection deficiencies of U.S. law. Since the SCCs were established by the European Commission, however, the DPC acknowledged that it did not have the authority to unilaterally declare them invalid. It thus brought the case back before the Irish High Court, seeking a referral to the CJEU. Last Tuesday, the High Court agreed to refer the case to Europe’s highest court.

So What?

Implications for U.S.-EU Trade

The E.U.-U.S. trade relationship is the most robust trade relationship in the world, accounting for 30-40% of global trade in goods and services. The transatlantic flow of data underpins and sustains this relationship. Multinational companies in the U.S. and E.U. regularly send data to and receive data from their subsidiaries across the Atlantic for communications, human resources, and research and development purposes. Furthermore, many goods and services, such as online banking, telecommunications, and advertising are now primarily delivered over the Internet. According to a Brooking Institution report, these “digitally-deliverable services” constitute over 60 percent of exports for the U.S. and over 55 percent of exports for the European Union.

Cases such as Schrems I and Schrems II risk disrupting the free flow of data between the United States and the European Union. By creating legal and regulatory uncertainty about proper data transfer protocol, these cases raise the costs and risks to U.S. companies of doing business in Europe. These increased costs and risks in turn discourage U.S. companies from engaging with European businesses and consumers. Legal and regulatory barriers to transatlantic data flows prove particularly costly for small businesses, which often lack both the financial and human capital required to navigate cumbersome regulations.

Implications for Transatlantic Law Enforcement and Intelligence Cooperation

While the potential implications of the E.U.’s fervent data protectionism on trade and the global economy have been extensively discussed, the potential effects on another area of strong E.U.-U.S. cooperation – law enforcement and intelligence sharing – have thus far been largely neglected.

U.S. intelligence capabilities, especially with regards to signals intelligence (SIGINT), dwarf those of E.U. member states, and the E.U. has heavily relied on U.S. intelligence for decades. Washington and London have had a long-standing intelligence sharing pact called the UKUSA Agreement since 1946. Both are key members of the Anglo-American intelligence sharing group known as Five Eyes, alongside Canada, Australia, and New Zealand. Furthermore, documents leaked by Edward Snowden reveal several tiers of intelligence-sharing alliances that count both the United States and several European countries as members, among them Denmark, Germany, Italy, Sweden, Spain, and Switzerland. Following the November 13, 2015 terror attacks in France, Washington also agreed to boost its sharing of raw operational and military intelligence with Paris.

In short, if Brussels continues to erect barriers to data flows to and from Washington, many E.U. member states may have to forfeit some of their VIP access to American intelligence as well.