Update: Power of the Press

True or false? All publicity is good publicity.

False. The New York Times reports that Vitaly Borker, owner of the DecorMyEyes website who threatened customers to generate publicity that would push his site higher in Google search results, last week was sentenced to four years in prison and $100,000 in restitution and fines. (See prior post.) After The New York Times broke the story in November 2010 Google changed its search algorithm to ensure that “being bad is, and hopefully will always be, bad for business in Google’s search results.”

Perhaps Borker’s lawyer’s leniency argument sounded better in court than it does in the Times article:

Mr. Amorosa also contended that only a tiny fraction of Mr. Borker’s customers were threatened and that his business was otherwise a thriving enterprise. DecorMyEyes had thousands of repeat customers, he said, and millions of dollars in revenue.

“He threatened, horribly, 25 people,” Mr. Amorosa said, suggesting that was a small number, given the scale of the company.

Dharun Ravi Trial

The prosecution is in the midst of presenting its case in Dharun Ravi’s trial for invasion of privacy of his Rutgers University roommate Tyler Clementi. Clementi committed suicide shortly after discovering that Ravi spied on him during a sexual encounter. Some observers see Ravi’s trial as critical to defining legal consequences for cyberbullying. Ravi is not facing criminal charges connected to Clementi’s death, but his suicide hangs over these proceedings as the tragic unintended consequence of Ravi’s spying. The video coverage of the trial is sad, a sobering demonstration of immature callousness and its consequences.

Tyler Clementi

The New Yorker’s February 6 edition has a long story about the Fall 2010 suicide of Rutgers University student Tyler Clementi that dispels some of the misconceptions that sprouted in its wake. The trial of Clementi’s roommate  Dharun Ravi began last week and is expected to last about a month. Ravi is charged with 15 counts including invasion of privacy, hindering prosecution, and bias intimidation, which carries a maximum prison sentence of 10 years. Ravi rejected a plea offer that would have imposed a maximum sentence of five years. My conclusion is that Ravi is an insensitive young man who did inexcusable, casually cruel things, but whose attitudes and actions still place him within the fat part of the bell curve  for 16-22 year old boys and men. It is also difficult to explain Clementi’s suicide in light of his behavior and demeanor in the days following the events and hours before he leaped from the George Washington Bridge. After reading the article I know more and understand less about whole story.

Comment on Paterno

A student’s comment on last week’s post about Joe Paterno:

I came across an article that may be of interest to the student who inquired about Joe Paterno being used as a scapegoat: http://www.cnn.com/2011/11/15/us/penn-state-citadel/index.html   Although this isn’t the main focus of the article, it does suggest that Paterno’s actions or lack thereof, are a classic example of the bystander effect, when “people may assume someone else is taking action, or that those above them are handling the situation” (Kirk Hanson, executive director of the Markkula Center for Applied Ethics and a social ethics professor at Santa Clara University in California). CNN senior legal analyst Jeffrey Toobin also points out that “Criminal law imposes very few affirmative obligations on people . . . criminal law is mostly about ‘don’t do this, don’t do that. Don’t kill somebody, don’t do drugs, don’t engage in fraud.” Technically Paterno did not break any law, and according to our textbook, “you have no duty duty to assist someone in peril unless you created the danger” under the bystander’s obligations rule (Business Law 74). Being that Paterno was not directly involved with the heinous crimes committed, perhaps he will remain safe under this general rule.

Though I do not subscribe to these views (for I cannot imagine neglecting to report such blatant crimes to the proper authorities), they raise an interesting point: is Paterno guilty in the eyes of the law? Or only in the moral sense? It goes back to the first day of lecture when you asked the distinction between law and ethics, which Toobin addresses in a similar fashion: “the difference between the legal and the moral (obligations), while important, obscures the fact that every individual who sees the abuse, who sees an evil like this, should feel morally obliged to act in order to protect the victim and future victims.”

Again, I propose this as merely food-for-thought, devil’s advocate kinda stuff, and am by no means defending Paterno’s shameful silence.

Paterno’s Shameful Legacy

Merriam-Webster dictionary defines scapegoat as “one that bears the blame for others.” A student asked if I thought Joe Paterno–fired as Penn State head football coach for his failure to deal with a longtime assistant’s history of sexual abuse of children–was being made this scandal’s scapegoat. (See here, here, and here if you’ve somehow missed this story.) Paterno was told of Jerry Sandusky’s rape of a child in 2002. He reported it higher up the University chain and then did nothing else. No report to the police. No follow-up with the University.  Nothing to bring this crime to light or to ensure Sandusky did not rape again. I replied that Paterno and everyone else in the University who knew about this and did nothing should be fired. The student said “but it wasn’t his job to investigate this!” Wrong. It was his job as Sandusky’s supervisor, his job as the supervisor of the assistant who reported the rape to him. And it does not matter whether it was his job; it was his duty as an adult human being. Paterno and his family are upset over how the University handled his firing. A source close to Paterno reportedly said “You give your life to this place and that’s how you’re treated.” Boo-hoo. Let’s reword the source’s statement. “You fail to report child rape by an employee and this is how you’re treated.” It’s sad that Paterno, the winningest coach in college football history, must end his career in this fashion. It’s more sad that Paterno allowed Sandusky to continue preying on children.

Forget What I Said About Mens Rea

It has long been a principle of criminal law that criminal liability requires mens rea, “guilt mind” or intent to commit a wrongful act. That’s what we teach in Introduction to Law.  The insanity defense is premised on the defendant’s lack of mens rea, his inability to understand the consequences of his actions or that his act was wrong.  It is Criminal Law 101.

Except the United States Congress did not get the memo.  The Wall Street Journal reported recently (As Federal Crime List Grows, Threshold of Guilt Declines) that “Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent.”  The article relates the following tale:

When the police came to Wade Martin’s home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can’t. That included the 10 sea otters he had recently sold for $50 apiece.  Mr. Martin, 50 years old, readily admitted making the sale. “Then, they told me the buyer wasn’t a native,” he recalls.

The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.

He pleaded guilty in 2008. The government didn’t have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.

In other words the law imposed strict liability:  commit the act the statute defines as criminal (the actus reus for those who remember back to our discussion of criminal law four weeks ago) and you are guilty.

This is not a crazy idea in theory.  I was taught “ignorance of the law is no excuse.” The Journal notes “that principle made sense when there were fewer criminal laws, like murder, and most people could be expected to know them.  But according to University of Virginia law professor Anne  Coughlin, when “legislators ‘criminalize everything under the sun, it’s unrealistic to expect citizens to be fully informed about the penal code.'” With reduced intent requirements “suddenly it opens a whole lot of people to being potential violators.”

The problem is the intersection between proliferating federal criminal statutes–“there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s”–and lesser mens req requirements: “more than 40% of nonviolent offenses created or amended during two recent Congresses—the 109th and the 111th, the latter of which ran through last year—had ‘weak’ mens rea requirements at best.”

Perhaps the moral is don’t leave home without the United States Code and the Code of Federal Regulations.

Bet he never shoveled his sidewalk, either

You know that neighbor who plays loud music too late, or hangs out with friends at 3 AM on his driveway beneath your bedroom, or who walks too loud on the floor above? Count your blessings.  This guy was worse: “WiFi-hacking neighbor from hell gets 18 years in prison.”  18 years is a long sentence for a first offense where there was no physical injury, but he deserved it.

I wonder how he’ll get on with his new neighbors in Cell Block D?

Whitey Bulger

Those not from Boston, those who’ve not lived in Boston for decades, and those too young for it to have registered must wonder why we are so caught up in Whitey Bulger’s arrest after 16 years on the run.  It’s a rare thing when discussion with my morning coffee buddies settles on a single topic for more than ten minutes.  Rarer still is when there is one inclusive conversation rather than two, three, or four small-group conversations.  Today nine of us talked about Whitey for more than a half hour.

I first heard of Whitey Bulger in 1973 or 1974.  I’d dropped out of college and found work in Spalding Printing Company, running an Ozalid blueprint machine (it was surrounded by a miasma of the ammonia used to fix images) and working the bindery.  Richie, the delivery guy, was my age, from South Boston., and a natural story-teller whose material all related to his hometown:  growing up in Southie, dating in Southie, hanging out with friends in Southie, fighting outsiders who strayed into Southie, going on his only trip outside Massachusetts with Southie friends and fighting people they met who were not from Southie.  From Richie I learned both the official lyrics to Southie is My Home Town–

I was born down on “A” Street, Raised up on “B Street, Southie is my hometown;

There is something about it, Permit me to shout it, It is tops for miles around;

We have doctors and flappers, Preachers and scrappers, Men from the Old County down;

They will take you & break you, But they’ll never forsake you; For Southie is my hometown

And his twist on the final stanza:

If you want to stay healthy, stay the hell out of Southie, because Southie is my hometown.

Whitey Bulger was one of the colorful, outsized characters in Richie’s stories–a legendary tough guy, brother of one of Boston’s most adept politicians (brother Billy did not become president of the Massachusetts Senate until 1978), a fiercely loyal Irish Robin Hood who Took Care of His Own, a fierce defender off Southie from all outsiders.  Richie told stories of Bulger’s financial generosity and contempt for outsiders.

With this vivid portrait lodged firmly in my consciousness in early 1975 I started doing paralegal work in MCI-Walpole, the state’s maximum security prison.  (Years later at the behest of Walpole’s image handlers the state changed it’s name to MCI-Cedar Junction, but to me it will always be MCI-Walpole.)  There I met many Irish mob guys and learned more of the culture.  They were loyal to their crime partners, murderous to their enemies, and abhorred rats.  I heard more whispered tales of Whitey. His portrait became more ominous and shadowy.

With this background every story about Whitey compelled my attention.  His co-purchase of a winning Mass Lottery ticket and his strong-armed takeover of a South Boston liquor store show different his different faces: the irreverent maverick and the stone gangster. (The first story provides some flavor of the ambiguity of Bulger’s reputation in late 1980’s, although its author misses the sarcasm in the Mike Barnicle column he quotes.) The idealized gloss of Richie’s portrait faded.  Bulger was a plain hood, not Robin Hood.  But I was still shocked by the claimed extent of Bulger’s murders, and then by revelation of his long-time cooperation with the Boston F.B.I. An informant? Bulger?  In the code of honor (such as it was) that I learned from my old Walpole clients, nothing is more despicable than a rat. Murdering 19 people, according to the government indictment, is bone-chilling. Murdering 19 people while cooperating with the F.B.I. requires incomprehensible, cold-blooded, calculating duplicity.   How does a person live a lie of that magnitude?  Boston is hanging on this story’s latest chapter.

Power of the Press

Last fall the New York Times reported on the abusive tactics of DecorMyEyes.com, seller of designer eyeglass frames.  The site’s owner, Vitaly Borker, intentionally practiced horrible customer service, figuring that customer complaints on online consumer advocacy sites would raise his site’s profile–more mentions of the company’s name, more links to the site, more buzz for search engines to pick up–and generate more business.  His insight was true, for a while.  Google’s search algorithms did not adequately distinguish between positive and negative references to a site, so any press was good press.  Until it wasn’t.  The Times reported that when one customer complained about receiving counterfeit frames and said she’d call her credit card company after the site refused to resolve the problem, someone identified as Mr. Russo said

“Listen, bitch,  . . . I know your address. I’m one bridge over” — a reference, it turned out, to the company’s office in Brooklyn. Then, she said, he threatened to find her and commit an act of sexual violence too graphic to describe in a newspaper.

The Times reported that the site’s campaign of threats, retaliatory lawsuits, and harassment continued for months.  Borker freely admitted what he did:  “I’ve exploited this opportunity because it works. No matter where they post their negative comments, it helps my return on investment. So I decided, why not use that negativity to my advantage?”

Here’s why not.  The Times story prompted Google to revise its algorithm to prevent this type of gaming, and prompted law enforcement to investigate Borker’s practices and bring criminal charges.  A few weeks ago the Times reported that Borker pleaded guilty “to two counts of sending threatening communications, one count of mail fraud and one count of wire fraud.”  He’ll be sentenced on September 16.  Under federal sentencing guidelines he could receive 5-6.5 years; his lawyer expects a sentence of 12-18 months.  Another case in which the Internet amplifies the consequences of stupidity/a failed moral compass/poor judgment.

Cyberbullying Jury

The Missouri jury that acquitted Elizabeth Thrasher on a felony charge of cyberbullying said the prosecutors proved every element of the crime, save one:  proof of the victim’s emotional harm.  The victim testified that after Thrasher posted the victim’s photos, cell phone number, and other personal information on a Craigslist “casual encounters” site she received phone calls, texts, and photos from men who seen the posting, and that one man came to the restaurant where she worked.  The victim also testified that she feared being raped and killed.  This first-person testimony was not enough for the jury; they wanted third-party testimony to corroborate the victim’s emotional distress.  The prosecutors did not think their case required more testimony on the victim’s harm:  “We didn’t feel it was necessary to go on any further to prove what comes out of her mouth based on the assumption that most people would be distressed to have their personal information put on Craigslist.”