In the future, everyone will be a cop for 15 minutes.
— Apologies to Andy Warhol
And if you don’t fulfill your duty, the government will indict you. United Parcel Service decided it was a better business move to pay off the government, at a price tag of $40 million. Federal Express refused. The government has now indicted FedEx for its refusal to capitulate. Via Mike Masnick at Techdirt:
Apparently, FedEx was unwilling to fall on its sword and cough up a similar amount to the US government, so the DEA and DOJ have announced they’ve gotten a grand jury to indict the company for delivering drugs associated with internet pharmacies. You can read the full indictment, which tries to spin a variety of stories into evidence that somehow FedEx “knew” what was in those packages.
Maybe it did. Maybe it didn’t. So what? FedEx is in the business of delivering packages. There is no crime in that. It is not in the business of assessing the lawfulness of the contents of the packages it delivers. And this is what pissed the government off.
FedEx is fighting these claims pretty aggressively, insisting that it’s crazy to make it responsible for what’s in the packages:
“We are a transportation company — we are not law enforcement.”
The indictment relates to internet “pharmacies,” that ship drugs to people who may have no prescription and without having been treated by a physician. Not all internet pharmacies are evil, and not all prescriptions filled are wrongful, but the government nonetheless demands that delivery companies be not only its eyes and ears, but its arms and legs, in this battle of its war against crime. If only corporate America would faithfully serve its master, it would make law enforcement’s job so much easier.
The indictment is the typical slinging together of vague back-end anecdotes which, when the salient details are studiously omitted, create the disturbing appearance of complicity, if not exactly wrong-doing. After all, shouldn’t a delivery company know that it’s being used by criminals? Because it’s their responsibility to spy on packages, or see into the hearts of recipients, or know each back office deal of their customers?
Ironically, it’s not that FedEx wants to deliver contraband, but that the government refused to cooperate.
Furthermore, the company notes that it has long asked the DOJ to provide it with a list of online pharmacies that it shouldn’t do business with, so that it didn’t have to just guess. The government did not provide the list, and seems to think that FedEx must be psychic (and should know what’s in all packages and whether or not they’re illegal.”
“We have repeatedly requested that the government provide us a list of online pharmacies engaging in illegal activity,” [VP Patrick Fitzgerald] said. “Whenever DEA provides us a list of pharmacies engaging in illegal activity, we will turn off shipping for those companies immediately. So far the government has declined to provide such a list.”
Apparently, FedEx doesn’t appreciate how busy the government is defending us from terrorists, and has no time to prepare lists for the likes of delivery companies. Yet they will make the time to indict. Priorities.
The significance of this indictment in the Northern District of California won’t be lost on other companies, say telecoms or ISPs, for instance, who might be disinclined to bend over whenever the government puts the arm on them to do its patriotic bidding. By questioning, challenging or, god forbid, refusing to do as the government commands, a corporation engaged in a fully lawful business could be accused of conspiracy for failure to serve its master well enough. That’s a very powerful message.
The concept of secondary culpability is an extremely dangerous one. It’s one thing to be an illegal internet pharmacy, sending out prescription drugs to anyone with a credit card. Regardless of how one feels about the regulatory nation, the fact remains that its illegal to sell prescription drugs without a prescription. They know what they’re doing, and know if they’re breaking the law in the process. If so, and the evidence proves it, they take their heat. That’s how crime goes.
But the secondary market offers a terrible way to fight crime, where government pressure forces companies engaged in lawful commerce to risk their fortunes on the legality of their customers, and become liable for not investigating and condemning anything with a whiff of impropriety at their own criminal risk.
There are a list of businesses the government squeezes to shut down those it can’t get legitimately. Credit card companies are pressured to refuse payments to companies the government hates. Banks are pressured to refuse their deposits. Now delivery companies are pressured to refuse to deliver their goods.
Note that the primary means of attack, indict and prosecute the party who is alleged to be engaging in criminal conduct is no longer necessary, if they can be shut down via more compliant sources. This saves the government from having to prove they committed a crime, and instead allows the government to strangle any business it pleases through secondary means.
So do you want FedEx deciding whether the contents of your parcel are worthy of their risk to deliver it? Do you want the government shutting down businesses, perhaps industries, they decide are evil, or maybe just don’t like very much, by putting the squeeze on secondary providers to terminate their relationships and services?
And do you think FedEx should be held criminally liable for their refusal to play junior G-man at the government’s demand? Remember, if the government can do it to FedEx today, without fear of this extension of conspiratorial culpability to a party engaged in wholly lawful conduct, it’s just a short slide to your door. And it could happen overnight.