Juridical Hyperinflation, Extradition Treatises and Prosecutorial Abuse
Nobody knows for sure how many laws populate the American legal system but with congress engrossing its folios by an average of 55 federal laws a year yielding an approximate total of 5,000 federal crimes and somewhere around 300,000 violations your possibilities for malfeasance are just about endless. But this is nothing when you compare it to the total number of trasngressions for which an individual can be detained in the US. The first day of January 2012, something like 40,000 new laws went into effect, a few shy from the same date the previous year. With these yearly averages it is hard to see how the law could be presumed known by all. Yet, it is.
The US is undergoing a veritable legal hyperinflationary crisis which has led Harvey Silvergate to calculate that, unbeknown to him or her, the average American citizen commits three felonies a day. Let us make the point clear: when every action is regulated, every action can be a violation. And because somewhere in the US there is a law that criminalizes telling certain jokes in an airport, unlocking an iPhone, sharing a music file, storing music files, linking to music files, using free wifi without authorization, twitting something some American authority dislikes, consuming raw-milk, wearing a short dress, wearing a costume, cursing in public, dancing near a national monument or skateboarding among many, many other things, it is hard to believe that anyone around the world has not violated some American statute. Sure, you may think that after all you are not American so you need not care.
But even if the road will never lead you to a US immigration booth, what we have learned from cases such as Hew Raymond Griffiths‘, Gary McKinnon‘s, Deniss Calovskis‘s, Christopher Tapping‘s and David McIntyre‘s but most notably and disturbingly the case of Richard O’Dwyer and Kim Dotcom is that you can stay put at home and if someone in the American Department of Justice wants to turn you into an example they have the way to do so. In fact, in 2007 former Australia’s NSW Chief Judge in Equity, Peter Young, wrote: “the bizarre fact that people are being extradited to the US to face criminal charges when they have never been to the US and the alleged act occurred wholly outside the US”. (see article) If you wonder what was the darkest of clouds that the semi-defunct ACTA and SOPA treatises cast on the international legal arena, you should know that it was–and still is–the aggressive prosecution even with the threat of extradition of piracy of copyright violators. Not convinced? Here you go.
But here is the most important part of this–much like Carmen Ortiz who essentially sealed the fate of Aron Swarz–the lawyer at the DOJ or the casual prosecutor ogling a political career built on a muscular law-and-order reputation–and to know what this means you should be aware that much of the American prosecutor appointments are the result of political jockeying and electioneering–simply needs to indict you. Yes you, who would show that for this man or woman, no sin is too small and the law is applied universally even if this is an absurd lie. If you take into consideration that only a minuscule fraction of criminal cases (under 5% in the mid-noughts) go to trial because almost all is resolved in plea agreements, one comes to realize that in the American legal system, the prosecutor is also judge and executioner. So In fact, extradition, prosecution, defense, verdict, sentence and jail-time are entirely superfluous when the indictment is enough to ruin your life.
Ruined Reputations, Political Intimidation and Trial by Mob
Take the case of Dominique Strauss Kahn whose political destiny was murdered by the hands of the New York Police Department, which incidentally forever change the political future of the French Republic and, by extension, of Europe and its institutions. For better or worse and irrespectively of what one may think took place in that room, DSK’s crime was never proven beyond a reasonable doubt–as the law requires to secure a conviction. All that the NYPD had to do was to parade the man in handcuffs in front of an international audience and permit the American public to indulge in one of its time-honored sports: justice by mob. And that was that.
In the wake of the legal debacle, anyone with a sense of decency should have been faced with the inevitable question: how could this man be convicted before proven guilty? The answer is simple: by discredit, at the hour of the accusation and at the end of the pointing finger. Besides the deep sense of disgust that the memory of the DSK case continues to produce, the more atrocious realization should be how much we stood to loose and we eventually lost by the doing and political perversity of the American prosecutorial practices even if, in the end, nobody received a jail sentence.
So this is the fact: you have something to hide because by the lights of the US system you are prosecutable. Not guilty. Prosecutable. And, importantly, we now know that the American Department of Justice has at its disposal a total roster of all those violations, indiscretions and incriminating words you have ever typed.
If you were a student in a Spanish or Greek university who has been illegally downloading academic papers and sending them on to your friends for the past, say, five or six years, would you be willing to organized protests against Guantanamo after knowing that your IP had been tracked? Would you be willing to express your dismay at the American contempt for human life in the used of drones for summary assassinations if you were traveling to Mexico through Miami? Would you be willing to joke about the fact that–as McClatchy reports–the sudden threat to American embassies being foiled seem to have had “no basis in fact” if you were on your way to your brother’s wedding in California?
Watch Your Politics or Else…
And here is the bigger political question. In an environment in which American policies become more systematically scrutinized and more broadly criticized for things such as their punishing pharmaceutical patent law pushed through embassies to third world countries, the usurpation of cultural spaces through copyright law enforced by extradition treatises, their imposition of aberrant financial practices, their incarceration in extra national detention camps, their military adventures, their often aggressive promotion of their agrochemical industry with the consequent destruction of native farming cultures, their global warming waffling and, of course, the visibly problematic privacy and data handling methods and practices among other things, one should ask how many European politicians would dare in the end raise their voices?
We now know what we only suspected: the US has the wherewith to silence any opponent at all by indictment or character assassination. Prosecute or leak. A finger pointed in your direction from the American Department of Justice can cost you your job, your church membership, your friendships, your wife and children, your financial stability, your home or all of those things together so as yourself this: if today you were a Eurodeputy form a conservative party with libertarian leanings, with a wife and two children, who has been having an affair with one of your male colleagues, knowing what we now know about Prism and Tempora, would you be willing to ask for an investigations of the NSA and GCHQ spying practices on European citizens and institutions?
There is no moral to this story. In fact, this entire debacle of public policy should be enough to shift the entire center of gravity of discussions about data away from discussion about technology of the type that geeks and hacker have been left to ineptly negotiate and should be returned to the domain of the thinking citizen who has tracked the history of abuse of the state. What the NSA and the GCHQ show us is that, as we have argued before, the internet is no more and no less that the public sphere. And that as it has always been the case and will probably always be the case, the powers that be–monarchs, chancellors, presidents and prime ministers mounted on vast bureaucracies–have a vested interest in mediating, filtering and determining what is the content and form of the information that circulates in the that space because it is there where power is negotiated.