US urges stiffer penalties for Net crimes

We never cease to marvel at the smooth, silent process by which corrupt alliances among well-heeled industry lobbyists, putatively 'independent' government commissions and Congress can pervert justice. Most recently, the US Sentencing Commission (USSC) sent a new and grossly Draconian packet of industry-inspired guidelines to Congress, requiring substantially more severe punishments for malefactors convicted of using the Internet to commit crimes. Industry Flacks as Legal Scholars The USSC is acting under orders from Congress to recommend federal sentencing guidelines compatible with recent legislation addressing on-line crime. The Commission has generated numerous recommendations and guidances related to Net crime in the past two years, though interestingly, the Commissioners seem to have consulted exclusively with 'industry representatives' possessing clear vested interests in devising these schemes. While perusing a number of these documents we were soon impressed by the frequency with which the phrase 'industry representatives' appeared in citations of legal authority, especially for copyright cases. "Industry representatives provide both anecdotal reports and data suggesting that intellectual property offences are damaging American industry and that currently such crimes are not deterred adequately," the Commissioners dutifully report. "Industry representatives repeatedly complained that infringement cases were not prosecuted frequently, and that when prosecuted, the penalties were not sufficiently severe," they add. "Industry representatives look to the Commission to send a signal to both the public and prosecutors via heightened guideline penalties that these crimes are serious and that their prosecution is important in the hope that this will deter intellectual property offences," the Commission insists. "Industry representatives believe an additional important reason to increase penalties for intellectual property offences is to provide a model for overseas law enforcement," they say. And who are these 'industry representatives' which the Commission trusts so completely and is so slavishly bent on accommodating? No less than the Software Publishers Association, the Business Software Alliance, the Motion Picture Association of America (MPAA), and the Recording Industry Association of America (RIAA) - four of the many special-interest groups most hysterically terrified of the Internet. In an amazing piece of legislative sleight-of-hand, the guidelines now base sentences on the retail value of the copyrighted or trademarked goods infringed. This is where the rubber leaves the road, as sentences that overvalue deterrence often have no rational connection to the actual damages to victims. "The Commission adopted retail value of the infringing items not because they were trying to use gross gain as a measure of the seriousness of the offence, but because it was a clear and easily applied proxy for loss to the victim," the guidance states. The Commission is "particularly concerned that proxies for loss be easy to calculate even if not precise." This is pure, unadulterated, Massachusetts-Bay-Colony, Puritan vindictiveness masquerading as justice, because the sale of pirated goods does not necessarily displace the sale of legitimate ones. Often, consumers who buy pirated goods could not have afforded, and would never have bought, the factory product. It's unfair as well because retail prices don't account for production, marketing and distribution costs and other business overhead. The true loss to copyright holders is obviously the profit they earn on their goods, but this is difficult to calculate in a fluid marketplace and often too small a figure to result in satisfying penalties, so the Commission has pushed all the sliders to maximum and decided to sentence offenders on the basis of a loss that, however easy to calculate, is one it would be impossible for any company to sustain. Thus those who upload pirated content to the Web, "thereby making the software instantly available for downloading by others throughout the world," should get longer sentences than your garden-variety, part-time pimp, huckster and street peddler. What we have here is a lot of 'industry representatives' clever enough to get Uncle Sam to do their dirty work so that they can bleat about the 'freedom' and 'empowerment' afforded by new technologies, and with apparently clean hands to boot. It's a Sin to Tell a Lie Saving the children is another of the Commission's preoccupations, with stiffer penalties recommended for on-line sexual enticements directed at minors. The USSC affirmed that it was "particularly concerned about sexual predators who 'troll' the Internet (using its anonymity and large number of 'chat rooms' intended for children) to contact and sexually exploit children." Fair enough, but also included is a most ominous provision which essentially makes it a crime to lie about yourself to a brat. Now, one can be busted for "misrepresentation of... name, age, occupation, gender, or status, as long as the misrepresentation was made with the intent to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct; or facilitate transportation or travel, by a minor or a participant, to engage in prohibited sexual conduct." This may be a pre-emptive strike at those who might be tempted to repeat a defence used by Internet celebrity and Java developer Patrick Naughton, who argued at trial that he never believed he was chatting with a kid, but was merely indulging in a bit of harmless on-line fantasy with an unknown correspondent. Lying might be construed as evidence that the adult participant is not taking the dialogue seriously; thus the new legal language makes lying part of establishing criminal intent, and so diminishes its effectiveness as a defence. The Commission also recommends stiffer criminal and monetary penalties for identity fraud and hacking credit cards. Predictably, not one word was said about the responsibility of those entrusted with such data to secure it. If the guidelines are approved by Congress, judges will be required to conform to them unless they can cite compelling legal reasons not to do so. The proposals look good for Congressional approval. The timing couldn't be better: in an election year, no Member dares to risk being labelled as soft on crime, regardless of any civil-liberty implications. The smart thing to do is vote for any measure that implies the ruthless defence of victims, and let the appellate courts sort out all the Constitutional niceties later.