educational

Courtrooms In The Clouds — Travel Plans You Won’t Forget

J.D. Obenberger

The recent, high-profile arrest of a leading adult Internet figure in a Belgian airport on the basis of a German tax fraud warrant has captivated the interest and attention of the entire online adult community like few other news stories during the past year; the episode possesses all of the features of high drama with themes of good versus evil (at least in some eyes), of evil brought to the test, and a dénouement in which the apparent resolution of the crisis unravels in confusing directions.

Just the kind of stuff that may, some day, inspire a great made-for-TV movie or at least a Country Western ballad. The episode has turned the minds of some significant international players in this industry to think about the potential that a trip to attend a U.S. show or even to change planes here en route to a Caribbean or South or Central American vacation perhaps might be detoured dangerously by federal agents carrying arrest warrants based on violation of U.S. law.

If the U.S. government is ever to enforce obscenity offenses or violations of 18 U.S.C. § 2257 by arrest and criminal prosecution against foreigners, it will be made by arrests at the airport or later inside the U.S.

Any competent assessment of the risk that such an arrest might take place will depend on the operations that take place, where they take place, and their intended connection to transactions inside the U.S.

In some (few) cases, an argument might be made that a particular U.S. statute has extraterritorial effect and is capable of punishing U.S. citizens, nationals, permanent residents or even strangers to our nation on the basis of their activity anywhere as long as the activity has some connection to the U.S., but in the garden variety case one expects to find prosecuted, the U.S. would assert jurisdiction because at least part of an illegal transaction knowingly occurs within American territory, and the government’s argument would run that such a prosecution is domestic rather than extraterritorial. It is certainly a violation of Title 18 U.S. Code Section 1462 to “bring into the U.S.” any “obscene ... electrical transcription “ and “or other article or thing capable of producing sound” by means of “an interactive computer service.”

To this effect, the U.S. Treasury Department has articulated that “every computer monitor is a port of entry into the U.S.” Similarly, Title 18 U.S. Code Section 2257 at (f) (4) (and at other points) seemingly imposes duties on those who import covered material into the U.S. in which the obligations of the statute have not been met when the intent is interstate or international distribution, including the insertion of an image into a website intended for international commerce.

So far as I have been able to determine, there is no extradition treaty in force or effect between the U.S. and any foreign government concerning obscenity offenses or violations of 18 U.S.C. § 2257 itself; if the U.S. government is ever to enforce those statutes by arrest and criminal prosecution against foreigners, it will be made by arrests at the airport or later inside the U.S.

The history of such arrests shows that in some cases, a U.S. grand jury has rendered a sealed indictment against foreigners, a federal judge has issued a warrant on the basis of such an indictment, and that its execution has been held in abeyance until the unwitting arrival of the foreigner on American soil.

This is precisely what happened to Saeed Talebi when he arrived at New York’s JFK airport on July 12, 2012 — on the basis of having wired $300,000 to a New York bank and having arranged for the shipment of petrochemical equipment to Iran without a required export license. Also at JFK, on Sept. 6, 2006, Sportingbet Chairman Peter Dicks was arrested on the basis of a fugitive warrant issued in Louisiana and arising from online gaming alleged to violate U.S. statutes. Similarly, BetonSports Chairman David Carruthers was arrested at the Dallas-Fort Worth Airport on July 13, 2006, on allegations of online wagering violations while changing planes en route from London to his corporate headquarters in Costa Rica.

In other well-documented cases involving hacking, the U.S. has invited suspected Russian hackers into the U.S. under the guise of job interviews, has set them up with computers containing key-logging devices to show off their skills, and once their passwords to Russian computers were intercepted, arrested them for a long string of U.S. hacking activity. All of this was done without a warrant.

The courts have held that neither the deceptive enticement nor the key-logging for access to Russian computers was illegal and that the 4th Amendment simply does not apply to tricks that give FBI Agents access to computers in Russia. You may find the particulars of one of these cases at U.S. vs. Gorshkov, 2001 WL 1024026*1 (W.D. Wash., 2001).

Under current American law, one generally has no protectable interest in privacy at the customs counter; closed containers may be opened and searched and computers may be examined and searched without probable cause and even without reasonable suspicion of any wrongdoing.

The computers may be taken away to a remote location for forensic examination and be held indefinitely for that purpose; a drug-sniffing dog may be used to render a forensic opinion about your odor.

A requirement of a “particularized suspicion” arises only when the intrusion is “nonroutine,” such as in the case of bodily cavity searches.

There has been some disagreements in the courts about one’s right to refuse to divulge a password, but the better practice seems to be to invoke one’s right, even at the border, to refuse to answer questions when the waters get chilly, and to invoke one’s right to speak with an attorney. A foolhardy attempt to destroy a device or delete its contents may be taken to be obstruction of justice and may, itself, lead to your arrest.

The trend and current in recent years toward such arrests is alarming, and at least one large and well-respected law firm concentrating in international transactions opined as early as 2008 that “U.S. law enforcement agencies have become increasingly aggressive in investigating and charging non-U.S. companies and their executives with violations of U.S. criminal law.”

The international members of the online adult community, before travel to or through the U.S. should:

1. Consider whether it is prudent to come here at all? Whether it is dangerous to do so?

2. Consider whether it is prudent to bring with them devices capable of storing significant, sensitive data, devices such as laptops, ipads, and smart phones?

3. Especially when dealings between the entity and the U.S. are tense, and especially when the existence of an investigation is known, key employees should be briefed before travel here as to the far reaching scope of the examination that they may be subject to, and they should be trained how to handle themselves if the situation gets ugly.

4. Be aware of the potential of arrest; and also to understand that, even in the absence of a criminal charge, there is a possibility of being held indefinitely as a “material witness.” Martin Liechti of UBS was incarcerated by the U.S. as a material witness without charges for four months.

5. Carry the name and cellphone number of an American lawyer with whom your company has a continuing and ongoing relationship, who knows something of your rights at the border.

You cannot be ordered to answer questions — and while the law is not explicit in this area — it stands to reason that you possess a right to speak with an attorney in deciding how to proceed.

It is dangerous to speak with law enforcement officials because any alleged falsehood or misrepresentation to a federal agent is in itself a separately prosecutable crime; the danger is that it may later be claimed that you expressed a falsehood when you did not do so, they will sometimes possess notes that contain statements attributed to you that you simply cannot comprehend, and several of them will back up those notes.

The only sure protection from this danger is to make no statement at all. In any such contact, you should attempt to secure the business card of any person interrogating you and to ask what the basis of suspicion is. While you have no right to these things, and the odds are that you will be met with silence or evasion, you risk nothing by asking for this information, and it may help you decide whether to answer their questions, being aware, however, that what they say just might be misdirection.

My fondest hope is that your stay in the U.S. will be pleasant and without incident. If fate takes you in a different direction, be ready to get the help you need exactly when you need it most.

J. D. Obenberger is a trial lawyer who has represented adult interests since 1993 and has practiced law since 1979. He represents clients from Budapest to Hong Kong with stops in every region of the U.S. His email address is obiwan@xxxlaw.com, his firm website is XXXLaw.com, and he can be followed on Twitter at @2257JD.

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