Last week, the U.S. State Department released its annual Trafficking in Persons report for 2018.  This year’s report stresses the importance of understanding human trafficking from a local perspective, and outlines community-based initiatives to combat the practice.

The report puts forward a cross-cutting framework for cooperation among multiple stakeholders. In particular, cooperation must take place vertically between, national, regional, and local governments, and horizontally between law enforcement officials, service providers, and other key stakeholders, such as NGOs. According to the report, the most comprehensive model for community-based action would also involve the following steps:

1. Conducting assessments of the nature and scope of the problem (How many potential victims are there? What demographic is most affected? What are the underlying socioeconomic factors fueling the human trafficking problem in the community?)
2. Raising awareness on victim identification among stakeholders;
3. Engaging professionals likely to come into contact with the affected population, such as health care professionals and educators;
4. Raising community awareness and fighting social stigma towards victims; and
5. Developing institutional processes and protocols to provide housing, legal assistance, etc. to victims.

In a post on the Department of State’s official blog, Kari Johnstone, the Acting Director of the agency’s Office to Monitor and Combat Trafficking in Persons, also highlighted that human trafficking is at its root a community issue, albeit a multifaceted and far-reaching one. “It is important to remember, however, that despite its pernicious global sweep, human trafficking happens in local communities — in a favorite nail salon or restaurant, in a neighbor’s home, on a farm, or in a city’s streets,” she writes. “Traffickers reap profits from the exploitation of others, leaving individual victims and their local communities to face the consequences.”

Broader attention is being paid to human trafficking, both in the international community and in the United States, in light of the United States controversial sex trafficking law, FOSTA.  The Global Initiative, Babson College’s Initiative on Human Trafficking and Modern Slavery, and the United Nations Migration Agency recently founded the RESPECT initiative: the Responsible and Ethical Private Sector Coalition against Trafficking. The initiative aims to foster public and private sector cooperation to combat human trafficking.

Critics of FOSTA have denounced the legislation for infringing on free speech and sex workers’ rights. The digital rights organization Electronic Frontier Foundation (EFF) recently filed a motion for a preliminary injunction against the government, arguing that the law violates the First and Fifth Amendments.

The full 2018 Trafficking in Persons Report can be accessed here. The EFF complaint can be accessed here.

The government of Venezuelan president Nicholas Maduro claims to have released 40 political activists on Saturday in a gesture of apparent political good will, the New York Times reports. The Saturday releases follow the alleged release of 39 activists on Friday. The regime originally jailed the activists for participating in political protests in 2014 and 2017 against the government, which had turned violent, resulting in 170 deaths.

Human rights groups allege that the number of activists the government claims to have released are inflated, and put the true number closer to a total of 40 over the two days. Among those released are Daniel Ceballos, the former mayor of San Cristobal, and Angel Vivas, a retired general. Both men are vocal critics of the Maduro regime. Maduro’s most prominent critic, Leopoldo Lopez, however, was not among the released.

 

Venezuela’s Descent

Oil-rich Venezuela had once been one of the most prosperous countries in South America. Up until the early 1980s, Venezuela was designated by the World Bank as an upper-middle income country – one of only four countries in Latin America to achieve that designation. It also boasted a stable, center-left democracy. Venezuela’s prosperity at the time was largely buoyed by high oil prices – the country has the largest known petroleum reserves in the world.

The Venezuelan economy contracted dramatically in the early 1980s, when global oil prices dipped. As a result, the country experienced massive inflation and shortages. Oil prices soared again in 2000, months after Hugo Chavez took office. Chavez’s far-left socialist economic policies consolidated and extended the government’s control over oil wealth. The Chavez government weakened private businesses and institutions on one hand, while simultaneously managing the distribution of the country’s oil wealth among the Venezuelan people. This strategy further increased the Venezuelan people’s dependence on the government, and made the economy even more vulnerable to external shock from fluctuating global oil prices.

Now, petroleum revenue accounts for roughly 95% of the country’s exports and 50% of its GDP.  The effects of the country’s heavy reliance on and mismanagement of oil revenue have proven devastating.  Between 2015 and 2016, a startling two thirds of Venezuelans now report involuntary weight loss due to hunger.

The current crisis began in 2014 with a series of protests against the government of Nicolas Maduro, Chavez’s successor and former vice president.  Maduro has continued many of the economic policies of his predecessor, but lacks Chavez’s political charisma and savvy. The rupture in this political cult of personality, coupled with some economic bad fortune — oil prices tanked just as Maduro took office – have rendered the current Venezuelan president a widely unpopular leader. Maduro has responded to his critics by employing increasingly authoritarian tactics, including arbitrarily arresting and killing political dissenters.

 

Response of the International Community

The international community has taken some steps to pressure the Maduro regime to step down, but has stopped short of a unified response. The Trump administration has wisely avoided widespread economic sanctions that would punish the poor, instead opting for more narrow sanctions targeting Maduro administration officials and elites. The United States also recommended today that Venezuela be removed from the Organization of American States (OAS).

In February of this year, International Criminal Court prosecutor Fatou Bensouda announced that her office would be opening a preliminary examination into widespread human rights violations committed by the Maduro regime. The ICC’s preliminary examination period tends to be arduous, however, and may take several years.

Perhaps the most effective strategy would be for the U.S. to partner with regional allies, such as Brazil, Chile, and Mexico, to politically isolate Maduro and force his hand. The Trump administration’s bellicose posture toward many of the Central and South American governments, however, makes significant regional diplomatic cooperation less likely.

The DOJ and Microsoft have both filed motions to dismiss as moot the seminal data privacy case before the Supreme Court this term, United States v. Microsoft Corp. At issue in the case 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.

In their respective motions, the two parties agree that there was no longer a “live case or controversy” with respect to the question presented, due to a piece of recently-enacted legislation called the Clarifying Lawful Overseas Use of Data Act (CLOUD Act). Congress attached the bipartisan legislation to an omnibus spending bill, and it was signed into law on March 23, 2018. The act states as follows:

“A provider of electronic communication service or remote computing service shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.”

The CLOUD Act also includes provisions governing foreign governments’ access to U.S.-held data. Human rights and privacy organizations have opposed this part of the act the most. The CLOUD Act authorizes the president to enter into reciprocal data-sharing “executive agreements” with foreign governments. Human rights and privacy organizations like the ACLU, EFF and Amnesty International have denounced the executive agreement mechanism for giving unfettered access to U.S.-held data to foreign governments.

It is worth noting, however, that the act puts forth significant requirements that foreign governments must meet in order to be considered a “qualifying foreign government” under the CLOUD Act. Among other requirements, the government in question must:

• Have domestic law that “affords robust substantive and procedural protections for privacy and civil liberties in light of the data collection and activities of the foreign government that will be subject to the agreement;” and
• Have instituted “appropriate procedures to minimize the acquisition, retention, and dissemination of information concerning United States persons subject to the agreement;” as well as that;
• The government adopts procedures that guard against targeting, either direct or indirect, of a U.S. citizen or person located in the United States.

Furthermore, the act specifies further criteria for what constitutes a qualifying order for the disclosure of U.S.-held data to a foreign government.  In particular, the order must:

• Be for the purpose of “obtaining information relating to the prevention, detection, investigation, or prosecution of serious crime, including terrorism;”
• Identify a “specific person” or other “specific identifier” as the object of the order;
• Comply with the requesting country’s domestic law;
• Be subject to independent oversight by a judge, court, magistrate, or other legal authority; among other qualifications.

One of the best dialogues on the act unfolded in a series of response essays on Lawfare.

Jennifer Daskal and Peter Swire argued in an initial essay posted on Lawfare that the CLOUD Act will enhance, rather than dilute, privacy and human rights protections on balance. They note that the status quo for requesting evidentiary data across borders – the MLAT process – is a cumbersome diplomatic channel ill-equipped for  the sheer number of crossborder data requests currently in the system. As a result, countries are growing more and more frustrated with the MLAT process, which they view as not only cumbersome, but “imperialistic,” since it often requires getting a warrant from a U.S- based judge even if the data requested concerns a local criminal investigation.

Countries are thus turning to alternative measures to bypass the MLAT system, such as data localization laws that require that data be stored within the country. Data localization laws have been accused by critics of veiling anti-democratic motivations on the part of the instituting government – such as allowing for closer surveillance and identification of the local political dissidents. Furthermore, data localization laws lead to data decentralization, which in turn leads to multiple points of vulnerability in data providers’ security and privacy infrastructure.

Daskal and Swire also note that the CLOUD Act subjects foreign governments to regular compliance reviews by U.S. officials, which they praise as a novel opportunity for the U.S. to monitor how foreign governments use the data and guard against abuse.

Neema Singh Guliani from the ACLU and Naureen Shah from Amnesty International argue in a response essay that the CLOUD Act puts the privacy and security of individuals, particularly human rights activists at risk. “The very premise of the current CLOUD Act,” they write, “the idea that countries can effectively be safe-listed as human-rights compliant, such that their individual data requests need no further human rights vetting—is wrong.” Guliani and Shah argue that the CLOUD Act has inadequate safeguards for wide range of scenarios, such as when a country experiences a “rapid deterioration in human rights,” like Turkey did in mid-2016 following a coup attempt.

For the IELR Blog’s past coverage of the U.S. v Microsoft case, see here. For the full text of the Cloud Act, see here.

Update: Puigdemont was released on bail on Thursday. The court in Schleswig-Holstein rejected Spain’s “rebellion” charge as grounds for extradition. 

On Sunday, March 25 former Catalan president Carles Puigdemont was detained by German police. This arrest was made on the grounds of the Spanish European Arrest Warrant (EAW), which mandates EU countries to arrest the suspect in question. Once in custody, the suspect is then put on trial to determine the proper punishment.

In the case of Puigdemont, Spain is asking for his extradition on the grounds of inciting rebellion and misappropriating public funds. According to the rules of the European Arrest Warrant, countries must extradite for a certain list of offenses, but rebellion is not one of them. Because of this, Puigdemont must meet the German criteria for extradition. This is difficult for Germany because their law requires the suspect to have committed violent acts in order to be charged for high treason, a comparable crime to the Spanish rebellion. Puigdemont, however, has not used violence, making German extradition under the EAW a complex matter.

If Puigdemont is indeed extradited, Germany would most probably do so for the misappropriation of public funds that the former Catalonian president is accused of. According to the EAW, once a person is extradited, the country can only try them for the charge they were extradited on. This means that Spain can only try and persecute him for misappropriation of public funds, which carries a significantly lower sentence than rebellion.

Whether or not Germany is willing to do that is unclear, however, because of the significant repercussions of a potential extradition. If Puigdemont is extradited, the legal precedence it establishes may create a slippery slope for EU countries who are trying to punish political rivals. Countries like Scotland, Belgium, and Switzerland may feel the most immediate pressure, as a number of Puigdemont’s allies have fled to those countries and are also facing EAW’s. The Catalonian secession movement has also polarized Spanish citizens, as a number of separatists have already begun to protest Puigdemont’s arrest. The move to extradite Puigdemont may invigorate and strengthen the separatist movement, which will likely do more harm to Spain.

Sheel Patel is an editorial intern at the International Enforcement Law Reporter. 

A judge in France has ordered the former French president, Nicolas Sarkozy, to stand trial on charges of corruption and influence-peddling, a French official said on Thursday. The charges against Sarkozy are related to allegations that he tried to illegally obtain confidential info from a magistrate judge several years ago.

The charges are just the latest legal challenge for Sarkozy. He had already been ordered to stand trial in another case regarding the financing of his 2012 presidential campaign.

Sarkozy is also under formal investigation for allegedly receiving funding from the Libyan government of Col. Muammar el-Qaddafi for his 2007 campaign. During the investigation, investigators discovered wiretaps of phone conversations between Sarkozy and his lawyer, Thierry Herzog. The wiretaps revealed that Sarkozy and Herzog had discussed ways of obtaining confidential information regarding the case on whether his 2007 campaign was being illegally funded. The case was being tried by France’s top appeals court, the Cour de cassation.

Prosecutors claim Sarkozy attempted to obtain the information from Gilbert Azibert, a magistrate at the appeals court at the time. He allegedly promised Azibert a promotion to a job in Monaco, albeit he never followed through on the offer.

Sarkozy has vehemently denied the accusations of corruption and influence-peddling, denouncing them as “crazy” and “monstrous” on primetime television. Sarkozy’s lawyers have commented that they would be appealing the court’s decision to send the case to trial.

Under French law, Sarkozy may face up to 10 years in prison and a fine of 1 million euros for the corruption charge, and up to five years and 500,000 euros for the influence-peddling charge.

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