Once detained in US, ElcomSoft and Sklyarov now denied visas for DMCA trial
Defendants in landmark copyright case in California may be landlocked in Russia
15 October 2002
By Kurt Foss, Planet PDF Editor
Just more than a year ago there were worldwide protests exhorting the U.S. Government to 'Free Dmitry,' demanding that young ElcomSoft Co. Ltd. programmer Dmitry Sklyarov be allowed to return to his native Russia. Eventually both Sklyarov and his employer were indicted on criminal charges of violating the Digital Millennium Copyright Act (DMCA). On July 16, 2001 Sklyarov had been arrested by the FBI in Las Vegas, stemming from allegations raised by Adobe Systems regarding an ElcomSoft software program that could be used to decrypt Adobe PDF-based ebooks. In December Sklyarov was finally allowed to leave the U.S. after a five-month detainment, with charges against him deferred in return for his testimony in a trial involving ElcomSoft.
Now that the already re-scheduled court date of October 21 is fast approaching, both Sklyarov and ElcomSoft's CEO Alexander Katalov face an opposite predicament: the American Embassy in Moscow has reportedly denied their respective applications for visas. Ironically, their legal team -- headed by Joseph Burton of Duane Morris LLP and Affiliates -- now needs to protest those decisions in order for the two Russian citizens to be allowed back into the United States to defend themselves in their own trial.
If taken literally, the situation might seem especially troublesome for Sklyarov, since the agreement that initial charges against him individually will be officially dropped was made in exchange for his testimony in the case.
According to Marina Serebryanaya, a San Francisco-based solo practitioner in the Law Offices of Marina Serebryanaya and an immigration attorney who represents ElcomSoft and Dmitry Sklyarov in their immigration matters, the visa applications clearly indicated that the reason for travel to the U.S. was to prepare for and participate in the criminal trial, facing charges brought by the U.S. Department of Justice (DOJ). Nonetheless, visa applications for both ElcomSoft employees were recently denied, she said; no reasons were given.
"While the case is prosecuted by the Department of Justice, visas are issued by the Department of State consulates," says Serebryanaya. "This distinction is especially important for understanding of a context in which visa application are considered. Consuls are vested with a great deal of responsibility and a great deal of power, and their decisions are not subject to judicial review."
Information posted at the Web site of the American Embassy in Moscow confirms that:
"Immigration law delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final say on all visa cases. By regulation, the Department of State has authority to review consular decisions, but this authority is limited to the interpretation of law, as contrasted to determination of fact. A consul's determination whether or not a person qualifies for a nonimmigrant visa is based solely on what the applicant's circumstances indicate his/her intentions to be."
The Embassy Web site notes that the "U.S. visa process is relatively simple," adding that "most applicants who visit the Embassy are successful. We issue nonimmigrant visas to three people out of four of all of those who apply."
Also explained on the Web site are "common reasons for visa refusals," none that would seem to obviously apply in the ElcomSoft case -- neither Sklyarov or Katalov seems likely to have intentions of relocating permanently in the U.S. once the trial is over -- both said as much while they were in the country under indictment for several months last year -- and to date there's been no indication either is or has been involved in any sort of drug trafficking or terrorism.
The Embassy in Moscow states that it "receives approximately 125,000 visa applications annually ... with some 500 or more people who apply in person daily," making it the second busiest in Europe behind only the American Embassy in London. (Perhaps the ElcomSoft defendants picked a particularly bad day.)
In any case, Serebryanaya says the next step for the defense team is to work with the Consulate in Moscow "to clarify the situation and seek reversal of the denials." If the initial decisions are ultimately reversed, she says the worst-case scenario is that "the denials would mean some inconveniences for both sides in preparing for the trial." With the next trial date less than a week away, there's an urgency to get matters promptly squared away. But given the anti-terrorist climate and counter-terrorism efforts that have been put in place since September 11, 2001, trying to expedite the visa process may prove challenging.
A notice regarding visa processing delays, posted at the Web site of the US Embassy in Moscow Web, explains:
"In the wake of the September 11 terrorist attacks against New York, Washington, DC and Pennsylvania, visa applications are subject to greater scrutiny. This may lead to significant delays in visa issuance. You may be assured, however, that every effort is being made to process all visa applications as expeditiously as possible, consistent with all relevant security concerns."
Serebryanaya hopes the issues can be resolved quickly. On the other hand, there's a possibility that one or both of the ElcomSoft employees could ultimately be denied entry -- in time for the beginning of the trial, or in the worst-case scenario, denied entry at any time in the near future. What then for the defense team -- and for the landmark copyright trial itself?
"If, however, Alexander and Dmitry are unable to come to trial at all, we are likely to face a host of legal issues, including constitutional issues," says Serebryanaya. She deferred further speculation, citing a preference to "cross that bridge if we come to it."
Meanwhile, the previously rescheduled October 21 court date appears increasingly unlikely, although Serebryanaya said they'd know more after October 17. The previous trial date was pushed back due to an overbooked calendar by U.S. District Court Judge Ronald C. Whyte of the Northern District of California. The initial court date set in May by the judge was August 26.
Once Sklyarov was allowed to go free -- pending his forthright testimony -- most of the protest uproar that had followed his arrest quickly diminished, and the case has barely garnered any public attention since the trial date was set. The DMCA remains a no-less controversial law [EFF: "Unintended Consequences: Three Years under the DMCA" 195kb PDF], one that has numerous flaws according to the ElcomSoft legal team, organizations such as the Electronic Frontier Foundation, various computer security experts and many First Amendment defenders. Even another U.S. District Court Judge recently commented he found the DMCA to be unclear and inconsistent, points critics of the law frequently have made. According to an October 4 BBC news report on its Web site, U. S. District Judge John D. Bates was hearing a test case dealing with the online swapping of copyright music:
"Judge Bates said there were ambiguities in the Digital Millennium Copyright Act."
"The 1998 act was intended to uphold copyright laws on the internet but protect internet service providers from legal liability in piracy cases if they co-operate with enforcement efforts."
"Congress 'could have made this statute clearer,' he said."
"'This statute is not organised as being consistent with the argument for either side.'"
And also in the past few weeks, there has been significant activity in Washington, DC to bring some of the issues and concerns relevant to and amplified by the ElcomSoft case to the fore. Two bills were proposed that seek to challenge certain provisions within the current DMCA that critics allege trample Fair Use rights of legal owners of digital content. Silicon Valley Congresswoman Zoe Lofgren (D-CA) introduced the "Digital Choice And Freedom Act Of 2002," designed to respect consumer rights and expectations. Rep. Rick Boucher, a long-time critic of certain DMCA provisions, also proposed the complementary "Digital Media Consumers' Rights Act of 2002" to reaffirm and reinforce the Fair Use doctrine in the digital era.
And a few days ago, the U.S. Copyright Office of the Library of Congress announced it is preparing to conduct proceedings to "determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention." The Copyright Office is soliciting written comments from all interested parties between November 19 and December 18, with a period for rebuttals to follow.