Thursday, January 26, 2012

Collateral Damage

Guilty, unless proved innocent

"Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution."                                                             [Supreme Court Justice William O. Douglas]

I was asked to explain the collateral damage aspect of the DOJ action against Megaupload.

Megaupload was indeed the purveyor of pirated goods; and they should be investigated and perhaps penalized for their misdeeds.  If there are proven crimes, then appropriate punishments need to be meted out.  Those could range from a Cease and Desist order to fines.   This is new territory, and certainly requires "Due Process" using tools such as Warrants, as directed by our Constitution.

Shutting down the Megaupload site without a formal hearing or Due Process is a totalitarian, censorship act and smacks of dictatorship.   It appears Chris Dodd and the Motion Picture Association of America [MPAA] orchestrated the DOJ action; enforcement would normally be managed through the Federal Trade Commission,  but DOJ took draconian measures and shut down the entire URL network -- threatening Internet commerce across the board.

To paraphrase legal parlance, it lubricates the old slippery slope and turns it into a luge chute.

The collateral damage incurred as a result of this warrantless DOJ action closed down a Cloud Service Provider, which hosted a variety of storage, to include millions of personal and business data files -- which are now irretrievable since the company's subsidiary sites are no longer accessible.

Among Cloud providers are such scofflaw organizations as Google, Amazon, and Picasa, each of which has at one time or another found that it was carrying pirated material.  The same principles Holder used to shut down Megaupload could be used to shut down these enterprises -- along with access to your data.

YouTube has received similar threats from DOJ, but they fought back with some fairly vicious trial lawyers -- and beat back DOJ.

Extending the principle of DOJ's action:
When you ship a package, UPS or FedEx might hire subcontractors to deliver your packages when their shipping volume is high -- say around Christmas. Using the DOJ rationale, if a subcontractor carries contraband or pirated goods, UPS/FedEx  could be shut down -by DOJ -- and you lose your merchandise until the legal process is finished.
As for dodging the bullet on Cloud computing/storage, no matter what Cloud company you select, many subcontract to nondescript "server farms" hosting thousands of zetabytes [one ZB = 1 Trillion GB] to store virtually any volume of data you can imagine.

Since these subcontractors support thousands of companies -- to include Megaupload, they can also be seized by the DOJ since they are legally "accessories" to the crime since the actual pirated material would reside on/be accessible via their servers.

Since, ignorance is not a legal defense, DOJ would say, and has said, "It is the responsibility of the individual or the company to determine if it is involved in wrongdoing."

Having been a part of that system for a number of years, I can assure you that is how the government works.  If your data is seized by a DOJ warrantless action - ignoring due process, you can kiss your data good-by in the near term.

As for Civil Suits as a recourse; you would have no standing until

a) The criminal processing was complete
[could be months, or years].

b) You would have to specifically identify your "property" and prove that it had been seized illegally
[could take months, or years]

c) If you file a civil suit, you might come under suspicion as a "Person of Interest", leaving you open to surveillance, investigation, and possible detention. If they tag the merchandise to "terrorism", you could be held under the provisions of the Patriot Act -- and now the NDAA --  as a possible "terrorist" without legal representation -- and you could be shipped to another country, incommunicado, for incarceration - and maybe even water-boarding.

On the surface, it would appear that the interests you list above are being protected by the DOJ action.

In reality, the collateral damage is immeasurable. And, the legislation protects DOJ agents from any penalties if they screw up.

Do you feel "protected" by the government now?