from the but-of-course dept
But what if there is no business in the US? That's what the DOJ and Megaupload have been fighting about in the courts, though the courts have (so far) said that the DOJ can proceed. Still, with this requested amendment, the DOJ makes it clear it doesn't want to run into this issue again.
The Department of Justice recommends amendments to Rule 4 of the Federal Rules of Criminal Procedure to permit the effective service of a summons on a foreign organization that has no agent or principal place of business within the United States. We view the proposed amendments to be necessary in order to effectively prosecute foreign organizations that engage in violations of domestic criminal law.While most of the request for the amendment focuses on a ruling in a case involving Chinese espionage via a Chinese firm called Pangang, Megaupload and Kim Dotcom do get a mention. The DOJ first notes how unfair it seems that it can't unleash its powers on foreign companies:
First, we recommend that Rule 4 be amended to remove the requirement that a copy of the summons be sent to the organization's last known mailing address within the district or principal place of business within the United States. Second, we recommend that Rule 4 be amended to provide the means to serve a summons upon an organization located outside the United States. The proposed amendments are necessary to ensure that organizations that commit domestic offenses are not able to avoid liability through the simple expedients of declining to maintain an agent, place of business and mailing address within the United States.
Accordingly, the United States maybe faced with the anomalous result that a private civil litigant will be able to pursue an action against an organization while the government remains helpless to vindicate the laws of the United States through a corresponding criminal proceeding.And then discusses Megaupload in a footnote:
Another example is provided by a pending case, United States v. Dotcom.... A grand jury returned an indictment against foreign organization Megaupload Limited and other defendants on racketeering, copyright infringement and money laundering charges. In response, Megaupload Limited — a foreign organization that has an extensive presence in the United States (it allegedly leased more than 1,000 servers in the United States, facilitated the distribution of illegally reproduced works throughout the United States, and has caused damages in excess of $500 million to victims) — has specially appeared and argued that it is immune from prosecution in the United States simply because it does not have an agent or mailing address in the United States: "Megaupload does not have an office in the United States, nor has it had one previously. Service of a criminal summons on Megaupload is therefore impossible, which forecloses the government from prosecuting Megaupload."I wouldn't be surprised to see this amendment eventually go through, though it still does seem somewhat questionable to think that the US government can bring criminal charges against a foreign company with no physical presence within the US.