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Legal news from Thursday, March 22, 2007

EU says Microsoft still not complying with antitrust ruling
Gabriel Haboubi on March 22, 2007 7:47 PM ET

[JURIST] The European Commission (EC) [official website; Microsoft case materials] Commissioner on Competition [official website] told the European Parliament [official website] Thursday that Microsoft [corporate website; EU decision website; JURIST news archive] continues to use "abusive" business practices which steadily increase the company's domination of the workgroup server market. Commissioner Neelie Kroes reported that Microsoft now has 70-75 precent of the market, a gain of approximately 10-15 percent from when the EC handed down its landmark anti-trust ruling [JURIST report] against the company in 2004. When the EU began its investigation of Microsoft in 1999, the company only held 35-40 percent of the market. The EC held that Microsoft's refusal to share information with competitors gave it an unfair advantage in compatibility between the server software and computers running Microsoft Windows.

Earlier this month, the EC sent an official letter of complaint [press release] to Microsoft over the company's pricing scheme for licensing the interoperability information. Microsoft was fined $613 million in 2004 for the original violations, and a further $357 million for non-compliance [JURIST report] with the ruling last July. Reuters has more.

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EU parliament to consider criminalizing IP infringement
Robert DeVries on March 22, 2007 7:39 PM ET

[JURIST] The European Parliament Legal Affairs Committee [official website] Thursday adopted a report on draft legislation [text, PDF; press release] designed to curtail increases in design piracy by imposing criminal penalties on commercial-scale IP infringement. The committee cited alleged links between pirated goods and organized crime to justify penalties which include fines of up to €300,000 ($400,000 US) and up to 4 years imprisonment. The committee struggled with the resolution for years trying to determine its scope before settling on only punishing commercial infringers; previous versions of the legislation included criminalization of personal and non-profit infringement. The draft legislation will now be considered at a European Parliament plenary in April.

The criminal penalties instituted by the legislation are made possible by a landmark European Court of Justice [official website] ruling [judgment backgrounder] which established that the EU has the right to lay down criminal penalties in the individual member states. The legislation has sparked an outcry in the IT industry, because the draft includes an "aiding and abetting" clause that imposes harsh penalties if infringed material is found anywhere on an IT network. Simultaneously, music industry insiders are concerned that the law might not go far enough in punishing personal infringement and basically legalizes file sharing. EUobserver has more. PC World has additional coverage.

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Federal prosecutors urge reducing Abramoff sentence for cooperation
Robert DeVries on March 22, 2007 7:16 PM ET

[JURIST] Prosecutors filed papers Thursday in federal court recommending a reduced prison sentence for former lobbyist Jack Abramoff [JURIST news archive] for giving "substantial assistance" in another Washington corruption case. The "nature, extent and value" of his cooperation will be revealed in future filings, according to prosecutors.

Abramoff was sentenced to nearly 6 years in prison [JURIST report] last March for defrauding [JURIST report] investors of millions while promising political favors. Disgraced former Representative Bob Ney (R-OH) [Sourcewatch profile] began serving [JURIST report] his 30-month prison term at the beginning of this month for his role in the Abramoff scandal [JURIST report]. AP has more.

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Sudan government suspends Darfur NGOs after alleging rule violations
Leslie Schulman on March 22, 2007 5:42 PM ET

[JURIST] Sudan suspended the work of 52 non-governmental organizations (NGOs) working in Darfur [JURIST news archive] Thursday after allegations that they were not complying with regulations. The Sudanese government said the organizations would be able to resume work after talks with the government's Humanitarian Aid Commission (HAC). United Nations Under-Secretary-General John Holmes [official profile], scheduled to visit Darfur this week, said a political resolution is needed to eliminate the need for massive humanitarian support in the region.

International NGOs make up a large part of the humanitarian effort in Sudan, the largest in the world. Over 200,000 people have died in Darfur since civil war broke out in 2003. According to a March 6 report [text] by the US Bureau of Democracy, Human Rights, and Labor [official website], the HAC hindered NGO humanitarian efforts in 2006 by requiring NGOs to only hire new staff through a five-person panel and with HAC officials present. In addition, the report said that the government harassed humanitarian workers and detained them "on various arbitrary rules and requirements without prior notification." Holmes is working to convince the Sudanese government to allow humanitarian organizations to work uninhibited. Reuters has more.

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UK police arrest three suspected in 2005 London transit bombings
Leslie Schulman on March 22, 2007 5:04 PM ET

[JURIST] British police arrested three men [press release] on Thursday in connection with the London transit bombings [JURIST news archive; BBC News timeline] on July 7, 2005 that killed 56 people, including the bombers, and injured more than 700 others. Two suspects were detained at Manchester Airport while catching a plane to Pakistan, and the third was arrested at his home. According to police, the detainees were arrested under the Terrorism Act 2000 [text] on suspicion of committing, instigating, or preparing acts of terrorism and will be held and interrogated.

These were the first significant arrests in the bombings case. No one has ever been charged. Al Qaeda officially claimed responsibility for the attacks on September 1, 2005, in a videotape which aired on al Jazeera TV. In 2005, some bombing suspects detained in Greece alleged they were tortured, prompting the British Intelligence and Security Committee and the Greek Ministry of Justice [JURIST reports] to launch investigations. BBC News has more.

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Four more Egypt opposition parties to boycott constitutional referendum
Leslie Schulman on March 22, 2007 4:15 PM ET

[JURIST] Egypt's four largest opposition parties - the Tagammu, Karama, Wafd and Nasserist parties [party websites] - announced Thursday they will boycott next week's referendum on controversial constitutional amendments [JURIST report] proposed last year by President Hosni Mubarak [official profile; JURIST news archive] and recently approved by lawmakers [JURIST report]. The announcement comes one day after Egyptian opposition group the Muslim Brotherhood [party website, JURIST news archive] announced it too planned to boycott the referendum [JURIST report], which was originally scheduled for April 4 but then rescheduled for next Monday. Opponents have called the expedited timeframe an attempt to quash opposition to the amendments. AFP has more.

Critics say President Mubarak is using the amendments to clear the way for his son to assume the presidency when he steps down. The constitutional changes will prohibit religious political parties and require that any future presidential candidates be from a party holding at least 3 percent of parliamentary seats. They also would allow the president to refer terrorist crimes to a "judicial authority," which critics interpret as allowing the president to use military courts which render unappealable decisions. Rights group Amnesty International [advocacy website] specifically condemned the anti-terrorism law [press release], calling the amendments the "greatest erosion of human rights in 26 years."

Also on Thursday, prominent Egyptian judge Mahmoud Mekky said he feared fraud could mar the referendum's credibility. He called for international human rights groups to monitor them, even though a small panel of judges has volunteered to watch for potential abuses. Mekky said there were not enough volunteers to replace international oversight. The vote requires only a simple majority to pass. Reuters has more.

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Spain charges against Basque separatist leader dropped
Joshua Pantesco on March 22, 2007 3:25 PM ET

[JURIST] Spanish prosecutors on Wednesday dropped all charges against Arnaldo Otegi [Wikipedia profile], the leader of Batasuna [BBC profile], which is alleged to be a front for the illegal Basque separatist militants ETA [BBC backgrounder]. Otegi had been charged with glorifying terrorism for praising an ETA member who killed herself while preparing explosives.

The Spanish Supreme Court in 2005 affirmed a slander conviction [BBC report] of Otegi relating to a 2003 press conference when Otegi said the King of Spain was responsible for torture as the head of the Spanish Army. Otegi was also convicted in 2006 on charges of glorifying terrorism, but he is now free on bail pending an appeal [JURIST report]. BBC News has more.

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Senate Judiciary Committee subpoenas Rove, Miers, DOJ aides in US Attorney probe
Joshua Pantesco on March 22, 2007 2:47 PM ET

[JURIST] The US Senate Judiciary Committee [official website] on Wednesday authorized subpoenas for former White House Counsel Harriet Miers [official profile], Deputy White House Chief of Staff Karl Rove [official profile], and several DOJ aides to testify and provide documents to the committee regarding the recent US Attorney firing scandal [JURIST news archive]. Last week, the Committee subpoenaed five other DOJ aides [JURIST report] to testify. Democratic committee members roundly rejected President Bush's offer [PDF text; JURIST report] to allow the committees to question Miers, Rove, and Sampson during a private questioning session, not under oath. On Wednesday, a House Judiciary Committee panel subpoenaed Rove, Miers, and several aides [JURIST report] to testify in a concurrent investigation. Read the statement [text] delivered by chairman Sen. Patrick Leahy (D-VT) [official website] to the Committee on Thursday. AP has more.

Both committees want Miers and Rove to testify on allegations that the firings of several US Attorneys by US Attorney General Alberto Gonzales [official profile] were politically motivated [JURIST report]. The accusations have led Congress to consider restricting the Attorney General's power [JURIST report] to appoint interim US Attorneys. Despite Bush's assertions that Gonzales has "got support with me," reports have surfaced that the White House is considering potential replacements for Gonzales [JURIST report].

Last week, reports emerged that Rove originally suggested firing all 93 US Attorneys in January 2005, according to an e-mail conversation [JURIST report; e-mail text] released by the DOJ. The e-mails appeared to contradict the White House's prior assertion that the idea to comprehensively dismiss US Attorneys first came from Miers [JURIST report].

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Child Online Protection Act held unconstitutional
Joshua Pantesco on March 22, 2007 2:08 PM ET

[JURIST] A federal judge on Thursday granted a permanent injunction [decision, PDF] against enforcement of the Child Online Protection Act (COPA) [text], a federal law that imposes civil and criminal penalties on website operators for making sexually explicit materials available to minors over the Internet and require adult websites to verify viewer age with a credit card number or any other reasonable method of age verification. Senior District Judge Lowell A. Reed, Jr. [American Inns of Court profile] of the Eastern District of Pennsylvania [official website] ruled:

After a trial on the merits, for the reasons that follow, notwithstanding the compelling interest of Congress in protecting children from sexually explicit material on the Web, I conclude today that COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Congress’ compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (4) COPA is vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA.
The US Supreme Court in 2004 upheld a temporary injunction against the enforcement of COPA in Ashcroft v. ACLU [text], holding that COPA would likely violate the First Amendment, and remanded the case back to the District Court. Judge Reed presided over a four-week trial on the merits which concluded in November 2006.

COPA was enacted in 1998 after similar provisions contained in the Communications Decency Act (CDA) [text] were struck down in Reno v. ACLU [text] as unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available. Last year, Google fought a Justice Department subpoena [JURIST report; subpoena text, PDF] seeking to force the search engine giant to hand over a large amount of user data, including one week's worth of query searches and up to 1 million web addresses as part of a federal effort to rewrite COPA. AP has more. Read the ACLU press release here.

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Northern Ireland airport considers rendition flight ban
Gabriel Haboubi on March 22, 2007 1:32 PM ET

[JURIST] Northern Ireland's publicly-owned City of Derry Airport [airport website] and Amnesty International (AI) [advocacy website, UK office] are discussing the implementation of an official policy barring the United States and its allies from using the airport for controversial rendition [JURIST news archive] flights, AI announced [press release] Wednesday. If passed by the Derry City Council [official website], the policy would be a first for Europe. AI originally believed the airport was being used as a stopover point for secret CIA flights transporting terror suspects, but retracted its suspicions after seeing the airport's flight records.

Amnesty's draft anti-rendition policy includes provisions requiring planes implicated in rendition flights to provide detailed information about passengers listed as prisoners or detainees before being granted permission to land or enter airspace. Last month the European Parliament [official website] officially condemned member states [JURIST report] who have assisted the CIA in rendition and detention in secret prisons. The Belfast Telegraph has more. BBC News has additional coverage.

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France newspaper cleared of defamation for Muhammad cartoons republication
James M Yoch Jr on March 22, 2007 1:27 PM ET

[JURIST] A French court Thursday cleared Charlie-Hebdo magazine and director Philippe Val of defamation in last year's republication of caricatures of the Prophet Muhammad [JURIST news archive] originally published in a Danish newspaper in September 2005. The court ruled that the defendants did not intend to purposely offend Muslims and so did not slander or defame anyone. Had Val been found responsible in the defamation action, he could have faced six months' imprisonment and over $28,000 in fines because the French legal system allows criminal sanctions in certain civil defamation actions [Taylor Wessig backgrounder, PDF]. The Paris Mosque [mosque website, in French] and the Union of Islamic Organizations of France (UIOF) [advocacy website, in French], the Muslim organizations that filed the lawsuit, had originally sought to prevent the cartoons' publication [JURIST report], but a French court refused to hear the lawsuit on procedural grounds. The UIOF said it plans to appeal, but the Mosque of Paris will probably abandon the suit.

French Interior Minister and presidential candidate Nicolas Sarkozy [official profile] prepared a statement defending the right of the newspaper to publish the cartoons that the defense read during opening arguments [JURIST report]. State attorneys also called for the case to be dismissed. AP has more.

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Argentina ex-president to face trial for alleged 'dirty war' rights abuses
James M Yoch Jr on March 22, 2007 12:57 PM ET

[JURIST] Argentine federal Judge Alberto Suarez Araujo ruled Wednesday that former president Reynaldo Bignone [Wikipedia profile] will face criminal charges for his alleged role in disappearances and human rights abuses during Argentina's 1976-83 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. According Araujo's spokesperson, Bignone faces prosecution for the illegal arrest, torture and killing of dissidents at secret detention centers in Buenos Aires. Argentine authorities arrested [JURIST report] Bignone, 78, earlier this month pursuant to a statute that allows detention of suspects over the age of 70. Bignone denies any role in the disappearances or the alleged abuses. Araujo also ordered former army chief, Santiago Omar Riveros, to face prosecution.

Bignone was the last of Argentina's 1976-83 military dictators before democracy was re-established in 1983. Nearly 13,000 people are officially reported as missing during the military crackdown, although human rights groups say the toll is closer to 30,000 victims. In January, Argentine judges issued two separate warrants [JURIST report] for the arrest of former president Isabel Peron [BBC profile], currently living in exile in Spain, for her alleged role in dirty war disappearances before she left office in 1976. AP has more.

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Plea deal results in record fine for tanker company that polluted 5 US cities
Joe Shaulis on March 22, 2007 12:48 PM ET

[JURIST] One of the world's largest oil tanker companies was sentenced to pay a $27.8 million criminal fine for intentionally polluting the waters near five cities, the US Justice Department and the US Attorney's Office in Boston announced [press release] Wednesday. Overseas Shipholding Group Inc. (OSG) [corporate profile] pleaded guilty Wednesday in the US District Court for Massachusetts [official website], admitting that a dozen tankers leaked waste during a nearly five-year period that ended last March. The cities affected were Portland, ME, Wilmington, NC, Boston, Los Angeles and San Francisco. OSG was charged with 12 offenses including conspiracy, false statements, obstruction of justice, and violations of the Clean Water Act [text; EPA summary] and the Oil Pollution Act of 1990 [text; EPA summary].

OSG agreed to pay $9.2 million toward marine environmental projects nationwide, bringing the total penalty to $37 million - the largest resulting from a plea agreement for deliberate vessel pollution, according to the Justice Department. US District Judge Reginald C. Lindsay [official profile] also approved whistleblower payments to 12 OSG workers pursuant to the Act to Prevent Pollution from Ships [text]. Each will receive $437,500. OSG is also subject to an independently monitored environmental compliance program during its three-year probation. Reuters has more. The Boston Globe has local coverage.

This report was prepared in partnership with the Pittsburgh Journal of Environmental and Public Health Law.

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Bush campaigner's conviction in New Hampshire phone jamming case overturned
James M Yoch Jr on March 22, 2007 12:19 PM ET

[JURIST] The US Court of Appeals for the First Circuit [official website] on Wednesday overturned [opinion text] the conviction of James Tobin [SourceWatch profile], President Bush's 2004 campaign chairman for New England. Tobin was convicted for his involvement in jamming phone lines to block Democratic voting drives [JURIST report] during the 2002 Senate election in New Hampshire, which was won by Republican candidate Sen. John Sununu (R-NH) [official website] by less than five percentage points. The First Circuit remanded the case to the district court because no intent to harass was alleged, proved, or disputed by the parties. Tobin, who was sentenced to 10 months' imprisonment [JURIST report] last year, remains free after the reversal. AP has more.

Tobin maintained his innocence throughout the district court trial, claiming to have no knowledge of the 800 hang-up phone calls that were placed to interfere with Democratic get-out-the-vote campaigns. In addition to the prison sentence, he was also fined $10,000 and given two years probation. In separate proceedings, Allen Raymond, former president of Republican consulting group GOP Marketplace, received a five month sentence, and Chuck McGee, the former executive director of the New Hampshire Republican Party was sentenced to seven months in prison and $2,000 in fines [JURIST reports]. McGee admitted that he had paid a Virginia telemarketing company more than $15,000 in a scheme to jam Democratic Party phone lines with computer-generated calls. In November, Shaun Hansen, former owner of the telemarketing firm Mylo Enterprises Inc., pleaded guilty [JURIST report] to two federal counts of conspiracy to commit interstate telephone harassment. A civil lawsuit brought by the New Hampshire Democratic Party against the New Hampshire Republican State Committee was settled [JURIST reports] late last year for $135,000.

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Amnesty urges US to abandon military commission system
Joshua Pantesco on March 22, 2007 8:23 AM ET

[JURIST] Amnesty International urged the US to abandon the military commission system [press release] and try Guantanamo Bay detainees in the federal courts in a report [text] released Thursday, just days before the US military is poised to begin military commission proceedings against David Hicks [JURIST news archive]. Amnesty's report - Justice delayed and justice denied? Trials under the Military Commissions Act - outlines perceived problems with the military commission system set up to try Guantanamo Bay detainees:

The military commissions will operate in something approaching a legal vacuum. Defendants cannot turn to international human rights law, the Geneva Conventions or the US Constitution for protection. The military commissions are part of a universe absent of judicial remedy for detainees and their families. Even if a detainee is acquitted, he may be returned to indefinite detention as a so-called "enemy combatant".
Hicks was charged last month with providing material support to terrorists [JURIST report] and will be the first of ten detainees tried by a military commission [JURIST news archive]. His arraignment is scheduled for Monday. Amnesty also asked the UK government to protest the commissions [BBC report].

Guantanamo detainees are challenging provisions of the Military Commissions Act which prevent federal courts from hearing detainees' habeas corpus petitions. The US Supreme Court, however, has so far refused to grant expedited review [JURIST report] of the cases.

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Federal judges slow to report travel expenses as required: court watchdog
Joshua Pantesco on March 22, 2007 8:11 AM ET

[JURIST] The Community Rights Counsel (CRC) [advocacy website] said Wednesday that the new Judicial Conference Policy on Judges' Attendance at Privately Funded Educational Programs [PDF text; backgrounder] has not yet produced any public disclosures of travel expenses on judicial websites. According to the Judicial Conference:

The Judicial Conference adopted a private seminars disclosure reporting policy that requires educational program providers and judges to disclose certain information relevant to judges' attendance at privately-funded educational programs.

The disclosure policy takes effect on January 1, 2007. This means that any organization covered by the policy that issues an invitation on or after January 1, 2007 (for a program commencing after that date), to a federal judge to attend an educational program as a speaker, panelist, or attendee and offers to pay for or reimburse that judge, in excess of $305, must disclose financial and programmatic information.
The policy requires disclosure within 30 days, but CRC, a judicial ethics watchdog group, conducted a review [press release] and found that "80 days after the January 1, 2007 effective date of the new policy, not a single junket has been reported." The CRC criticized the Administrative Office for the US Courts for "applying the policy in a way that seems designed to delay the reporting of information as long as possible" by determining that the policy only applies to invitations issued on or after January 1, 2007.

The Judicial Conference of the United States [backgrounder] is the policy-making body of the federal court system and is led by Chief Justice John Roberts. A court spokesperson said Wednesday that effective implementation of the new system could take some time. AP has more.

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Forbes Russia editor found liable for defamation
Joshua Pantesco on March 22, 2007 7:33 AM ET

[JURIST] A Moscow court on Wednesday found Maksim V. Kashulinsky, publisher of the Russian edition of Forbes magazine, guilty of defamation for saying publicly that the subject of an upcoming piece had filed a lawsuit to make changes to the story, and that Kashulinsky thought the lawsuit was a violation of media freedom and amounted to censorship. The subject of the piece was the Inteko company, which is owned by the wife of the mayor of Moscow, Yelena Baturina [Wikipedia profile], who is worth nearly $1.4 billion. Intenko had sued Forbes Russia to change a caption of a cover story on Baturina that had read, "Yelena Baturina: I am guaranteed protection," which Inteko argued implied that Baturina's husband was the reason for the success of Inteko. Forbes Russia agreed to change the caption to read, "I am guaranteed protection as an investor," but Inteko maintained the suit, seeking damages of 106,500 rubles, about $4,089, representing one ruble for each copy of the magazine sold.

Kashulinsky's predecessor editor-in-chief, Paul Klebnikov, was murdered in 2004 while in the process of investigating corrupt business practices in Russia. The two Chechens accused of murdering him are standing a new trial after the Russia Supreme Court reversed their acquittal [JURIST report] in November. Kashulinsky said after the verdict was read that the decision will not affect editorial policy at Forbes Russia [RIA Novosti report]. The New York Times has more.

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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