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FEDERALLY
SPEAKING
NUMBER 12

by Barry J . Lipson

The Western Pennsylvania Chapter of the Federal Bar Association (FBA), in cooperation with
the Allegheny County Bar Association (ACBA), brings you the editorial column FEDERALLY
SPEAKING. The views expressed are those of the author or the persons they are attributed to and are not
necessarily the views of the FBA or ACBA..


LIBERTYS CORNER

LIGHT OF LIBERTY. Working Assets, a long-distance telephone provider, has produced a
"Flash" video that belongs in Libertys Corner. This video vividly demonstrates the
need for vigilance to ensure that the measures taken to safeguard us from terrorists do not,
instead, destroy the very liberties they are seeking to protect. It graphically depicts the
Statue of Liberty being encased in a growing series of Brick Walls made up of such
overbearing bricks as "E-mail Surveillance," "Warrant-less Searches," "Secret Military
Tribunals" and "Censorship." And the Walls grow until America is blocked from the
Light of Liberty. The video may be viewed with Macromedia Flash (standard with
most browsers) at http://www.workingassets.com/ladyliberty/flash.html.

THE ACLJ SHOCKED! I was shocked, exclaimed the ACLJ s Chief Counsel J ay Alan
Sekulow, that Bill Goodman, Legal Director of the Center for Constitutional Rights in
New York, told the New York Times that the job of his organization is to protect the
Constitution from its enemies, and "its main enemies right now," Goodman reportedly
advised "are the Justice Department and the White House." It is also shocking to the
ACLJ , an organization normally devoted to religious issues and threats to Christian
freedom, that opponents of Attorney General J ohn Ashcroft would institute a lawsuit
claiming that his Department's new investigative powers were established too quickly
without Congress' permission; that the civil liberties of detained individuals - held in
connection with Sept. 11's terrorist attacks - are being violated; and that the Attorney
General and the President are overstepping their constitutional boundaries. Shocking?
Yes, something certainly is!

THE JUDICIARY: POST 911. At issue in Patel v. Zemski (3d Cir, No. 01-2398,
December 19, 2001), are the provisions of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA), and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), requiring all immigrants serving criminal sentences
for crimes that carry with them the possibility of deportation, to remain in detention after
they finish serving these criminal sentences, regardless of how long the deportation process
may take. Patel, a lawful permanent resident, who collaterally is also appealing his
deportation, was convicted upon a plea of guilty in the U.S. District Court for the
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Eastern District of Missouri of the offense of harboring an undocumented alien, to wit,
providing said alien with employment several years after he had entered the U.S. without
documentation. The Immigration and Naturalization Service (INS) classification of
this conviction as an aggravated felony was upheld by the Immigration Judge, thus
subjecting Patel, under these statutory provisions, upon the completion of his sentence to
mandatory detention by the INS pending deportation, without an individualized
determination to justify this detention. The U.S. Third Circuit Court of Appeals rejected
this as unconstitutional, holding that mandatory detention of aliens after they have been
found subject to removal but who have not yet been ordered removed because they are
pursuing their administrative remedies, violates their due process rights unless they have
been afforded the opportunity for an individualized hearing at which they can show that
they do not pose a flight risk or danger to the community. The Third Circuit also noted
that: Ironically, such a determination [an individualized determination] is provided for
lawful permanent residents charged as alien terrorists [who, apparently, have not served
such a sentence], an accusation that has never been leveled against appellant.



FED-POURRI

NEAR MISSES TO AMERICAS BLOODLINE! No! This is not another report of
credible International Terrorist threats to a critical national resource, but, according to
the Food and Drug Administration (FDA), it is a report of credible domestic threats to
our nations critical blood supply. So charges the FDA in seeking to hold the American
Red Cross in Contempt of Court, with fines of up to $10,000 per day for each new
infraction, for violation of a 1993 Consent Decree that requires the Red Cross to comply
with FDA Regulations in the collection, processing and distribution of human blood. The
FDA charges persistent and serious violations spanning 16 years. The alleged recent
near misses include accepting blood from high AIDS risk donors and from syphilitic
donors; release of blood believed contaminated with cytomegalovirus (harmful to
newborns); and possible premature release, due to computer errors, of only partially tested
blood. But, we are also told by FDA Acting Commissioner Bernard Schwetz that the
risk of not receiving a needed transfusion far outweighs the risk of receiving blood.
Buffy, where are you when we need you?

DENOUNCED TREATY DECLARED DEFUNCT. President Bush has denounced a 1972
Treaty with a defunct demon nation and has declared that treaty itself defunct.
Nonetheless, instead of simply walking away from the three decades old Anti-Ballistic
Missile (ABM) Treaty with the dis-unioned, dismembered, and defunct Soviet Union,
he has followed the Treatys cancellation provision and given Russia the required formal
six-months Notice of Withdrawal. I have concluded the ABM Treaty hinders our
Governments ability to protect our people from future terrorist attacks or rogue-state
missile attacks, stated the President. The Democrats have, of course, gone on the
attack, asserting that the resumption of ABM testing will cause the resumption of arms
races (plural), and that the withdrawal itself is premature as actual testing in violation of
the Treaty would be years away.

BUSH SHIELDS CLINTON! After using the power of an Executive Order to overrule
Congress and protect certain Reagan-era Presidential Papers, as reported in last months
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Federally Speaking column, President Bush has now directed the U.S. Attorney
General not to comply with a Congressional Subpoena ordering himto turn over U.S.
Department of Justice Records pertaining to Clinton-era campaign financing and
apparently unrelated alleged FBI corruption. I am concerned that Congressional access
to prosecutorial decision-making documents of this kind threatens to politicize the criminal
justice process, the President advised. Its nice to see at least lip service being given to
keeping politics out of something, though the Republican chaired House Government
Reform and Oversight Committee, which is doing the probing, seems confident that
openness always seems to win when the Courts get involved, even President Clinton
never invoked Executive Privilege over these kinds of records. Indeed, on learning of
this course of Presidential precedential preferential conduct, one concerned citizen
cynically commented, hes really laying the groundwork for protecting his own papers,
isnt he?

RESISTANCE IS NOT FEUDAL. So scribed J im Girard in a recent Lockergnome e-mail
column. He was cautioning against the "Security Systems Standards and Certification
Act" (SSSCA), a proposed, apparently Borgian, entertainment industry Bill which
would require all new personal computers to have built-in "policeware" to prevent
apparently even fair use copying of Copyrighted materials, and which would carry with
it Federal Criminal Penalties of up to five years in Federal Prison and $500,000 in fines,
for disabling or tampering with such policeware. Why Feudal? Because according to
the self-ascribed scribbles of this Scribe, if this Bill were to become law it would
represent the first such restriction on the individual use of intellectual property (at least in a
Western democracy) since the Middle Ages, where resistance was futile, for, as he
advised, the Medieval Church controlled what was read and who got to read it. All books
were held in church libraries and copied only by monks, and it was necessary to take
religious orders even to learn how to read. The invention of moveable type made it
possible for writers and readers to bypass the Church's control of information, and
communicate with one another directly, sparking, he asserted, the Renaissance and the
Reformation. Scribe J im views the SSSCA as an unconstitutional and, hopefully
futile, return to Freudianism, oops! Feudalism, and directs all Anti-Borgians to go to
StopPoliceware.com to J oin the Resistance (http://www.stoppoliceware.com/).

CYBERSQUATTERS BEWARE, JOE CARTOON IS HERE! The U.S. Congress has
enacted the Anticybersquatting Consumer Protection Act (ACPA) of 1999 (15 U.S.C.
Sec.1125 (d)). Cybersquatting is the bad faith, abusive registration and use of the
distinctive trademarks of others as Internet domain names, with the intent to profit from the
goodwill associated with those trademarks (Shields v. Zuccarini, No. 00-2236 (3d Cir.
J une 15, 2001)). The ACPA makes it illegal for a person to register, or to use with the
bad faith intent to profit from, an Internet domain name that is identical or confusingly
similar to the distinctive or famous trademark or Internet domain name of another person
or company, and imposes a penalty of from $1,000 to $100,000 per domain name (15
U.S.C. Sec.1117 (d)). Now, J oe Cartoon has shown you cannot squat on him! J oe Cartoon,
a/k/a J oseph C. Shields, a graphic artist, creates, exhibits and markets cartoons under the
names "J oe Cartoon" and "The J oe Cartoon Co.," and does so, in part, on the web through
the registered domain name joecartoon.com. In April 1998 this site won the Macromedia
"Shock Site of the Day" Award, whereupon J oe Cartoon's web traffic increased
exponentially, now averaging over 700,000 visits per month. Apparently sensing another
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J essica Rabbit bonanza, one Andalusia, Pennsylvania cyber-opportunist and
"wholesaler" of Internet domain names, J ohn Zuccarini, registered five world wide web
variations of J oes name, joescartoon.com, joecarton.com, joescartons.com,
joescartoons.com and cartoonjoe.com. Upon taking this bait, the unwitting and/or poor
spelling surfers were, in the jargon of the computer world mousetrapped," or, in
regular English, they were unable to exit without clicking on a succession of
advertisements. And each desperate click netted Zuccarini between ten and twenty-five
cents from the advertisers. In affirming the U.S. District Courts grant of Summary
Judgment and award of $50,000 in statutory damages, and punitive attorneys' fees, in
favor of J oe, the U.S. Court of Appeals for the Third Circuit concluded that, while not
involving pornography, the gentleman from Andalusias conduct here is a classic
example of a specific practice the ACPA was designed to prohibit, the registration of
domain names that are "confusingly similar," thus clearly including "typosquatting" within
the ambit of the ACPA. The squatter Zuccarini didnt know squat, did he?

THREE STRIKES AND YOU'RE ? It has been reported that at least three times in the
past year, the Federal Courts have thrown out Pennsylvania death sentences due to
improper courtroom procedures and confusing jury instructions. In explaining his decision
to throw out the Mumia Abu-J amal death sentence, U.S. District Court J udge William
Yohn cited the 2001 unanimous George Banks U.S. Third Circuit Court of Appeals
opinion, which threw out the death sentence because the jurors should have been able to
consider mitigating circumstances in their deliberations, and wherein the Third Circuit, in
turn, cited to yet another Pennsylvania death row case, Hackett v. Price, where a
prisoners death sentence was voided for the same reason. J udge Yohn advised that the
instructions given to the jury did not clearly direct them to consider crucial mitigating
circumstances when voting for the death penalty. That is, the Courts instructions in these
cases failed to dispel the juries erroneous beliefs that in considering mitigating factors they
needed to be unanimous in support of a vote against death. Why be so particular? Because
they probably want to avoid irreversible error, which they know is always a possibility,
once the execution has been executed
FTC CHALLENGE GOES UNANSWERED! Three Federally Speaking columns back we
exposed the prevalent problem of sellers adding disguised and/or hidden charges to
consumer products and services, and challenged the FTC to protect consumers from these
clearly deceptive and unfair trade practices. Though, we have again called this to their
attention, we have still not received any response.


THE FEDERAL CLE CORKBOARD

THE 2002 FBA LEARNABOUT LUNCHEON SERIES (Open to All) is devoting all
2002 hourly monthly sessions (including an hour of Ethics) to The Anatomy of a Federal
Case From Start to Finish. This years series is at Noon, the third Thursday of each
month at the Engineers Society. On Thursday, February 21, 2002 the important duel
threshold questions of Do You Have a Federal Case, and Should You Bring It in
Federal Court, will be examined. Eat your way through your CLE. For information and
reservations call Arnie Steinberg (412/434-1190), and ask him for a special rate for the remainder
of the series.

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THE 2002 FBA LUNCH WITH A FEDERAL JUDGE SERIES, for FBA members,
continues. Call Susan Santiago for information and reservations (412/281-4900).

***

The purpose of FEDERALLY SPEAKING is to keep you abreast of what is happening on the Federal
scene All Western Pennsylvania CLE providers who have a program or programs that relate to
Federal practice are invited to advise us as early as possible, in order to include mention of them
in the FEDERAL CLE CORKBOARD. Please send Federal CLE information, any comments and
suggestions you may have, and/or requests for information on the Federal Bar Association to:
Barry J. Lipson, Esq., FBA Third Circuit Vice President, at the Law Firm of Weisman Goldman
Bowen & Gross, 420 Grant Building, Pittsburgh, Pennsylvania 15219-2266. (412/566-2520; FAX
412/566-1088; E-Mail blipson@wgbglaw.com).

Copyright2002 by the Federal Bar Association, Western Pennsylvania Chapter.