Dual Nationality Poses Double the Problems for Iranian-Americans

In December 2015, Congress passed a new Visa Waiver Program, which included substantial restrictions for travel between the U.S. and Iran for Iranian-Americans who have dual nationality.[1] Under the previous Visa Waiver Program, individuals from certain countries were able to travel to the U.S. without obtaining a visa in advance. Those countries reciprocated this policy, thereby allowing Americans the ability to travel to those countries sans visa.

Under the new program, if an individual is considered a ‘national’ of Iran, Iraq, Sudan, or Syria, or has travelled to any of those countries in the past five years, the individual must now obtain a visa prior to their travels. This poses considerable problems because the new law does not specify how the U.S. will define dual nationality. For example, an Iranian who was born in Germany may be denied entry to the U.S. based on where their parent was born. This person may not have ever even travelled to Iran, but they are now potentially barred from the visa-free travel that similar non-Iranian individuals are entitled to.

Jamal Abdi, the Executive Director of the National Iranian American Council (NIAC), argued that the legislation is inherently discriminatory, punishing individuals “solely based on their nationality or ethnic origin.”

HR 158 was initially intended to provide enhanced security measures by restricting travels of suspected terrorists in the wake of the San Bernardino shootings. The rhetoric that followed the mass shooting was aimed at instilling fear in order to promote the idea that tighter restrictions need to be implemented to protect Americans from future tragedies. It is important to note, the individuals responsible for the San Bernardino shootings, suspected members of ISIS, did not hold dual citizenship; they were citizens of Pakistan and Saudi Arabia. Neither of those countries is effected by the new visa waiver program. Trita Parsi of NIAC rightly points out, “if the intent truly is to protect America from ISIS and not target Iran and the nuclear deal, then why is Iran included but travel to Saudi Arabia and Pakistan is not?”

The practical effect of the legislation punishes individuals who travel legitimately; artists, journalists, academics, teachers, and businesspersons. It certainly won’t stop terrorists from travelling through illegitimate means across Europe, so is it really a form of protection or a legal form of punishment?

 

Atusa Mozaffari is a 3L and a Student Work Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.

[1] Dual nationality is not the same as dual citizenship. In Iran, an individual who was born in Iran, who then moved to America and gained citizenship there, is only recognized as an Iranian citizen. As such, they are required to have an Iranian passport, as opposed to a visa, and are subject to the laws of Iran as any other natural born citizen. This extends to the children of Iranian-Americans born in the US, as well as to non-Iranian married spouses.

 

“Yes? Do You Have Full Capacity and Freedom To Say So?”

Rape is an especially horrid and heinous crime and something must be done to curtail the number of rapes occurring throughout the globe. The UN estimates that, globally, “one in five women will be a victim of a rape or an attempted rape in their lifetime.” Specifically, in the United Kingdom, the most recent data on sexual assaults showed that 15,670 women reported being the victim of a rape, and that of the 2,910 cases that got to court, only 1,070 of those accused were convicted. While the problem has no easy fix, the United Kingdom has taken an interesting approach in an attempt to make the prosecution of alleged date rape suspects easier.

The Director of Public Prosecutions, Alison Saunders, has stated that it is time for law enforcement to move beyond the concept of “no means no” for situations where a woman may be unable to consent to sex. Ms. Saunders goes further, opining that a greater onus must be placed on the suspected attacker, who under her new guidance must be able to demonstrate how the accuser consented “with full capacity and freedom to do so.” A focus of the new guidance is to curtail sexual assaults arising from attacks where the complainant is intoxicated from drugs or alcohol. The end goal of the new guidance is to create an atmosphere where more rapists face punishment for their actions, creating a deterrent against future crimes.

While this new guidance from Ms. Saunders is undoubtedly made with the best intentions, it forces the accused to prove his or her own innocence. In other words, the new guidance forces the accused into a situation where he or she is presumed guilty until proven innocent. One could argue that the guidance creates a dangerous precedent, flying in the face of the long-standing presumption of innocence legal tradition. In the U.K., the presumption of innocence traces its roots back to the Magna Carta. The presumption of innocence stipulates that the accuser must prove that the accused committed the crime, rather than the accused being forced to prove his or her own innocence. In this sense, the guidance threatens to establish a dangerous precedent by discounting the presumption of innocence tradition.

In addition to the legal implications of the new guidance, it has faced criticism for criminalizing innocent men and infantilizing women. Situations may arise where the accused was also not in a state to remember the events of the night before, and, what happens then? The accused is seemingly facing sure conviction under the new guidelines. The new guidance would likely place more guilty rapists in prison, but how many questionably-guilty accused will have to bear the cross for this uptick in convictions? Only the future implementation of the guidance will be able to give us a definitive answer.

The global rape epidemic is real and something must be done to lower the number of crimes committed as well as lower the number of unsolved crimes. Is the new guidance in the U.K. the answer to the problem? Only time and implementation will tell, but for the time being, it threatens to set a dangerous precedent, a precedent that has the potential to make a mockery of one of the world’s longest standing legal traditions.

Ryan Mentzer is a 3L and a Student Work Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.

 

 

The International Megan’s Law and the Need for Reciprocation

On February 4, 2016, H.R. 515, International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes through Advanced Notification of Traveling Sex Offenders, was presented to President Barack Obama.[i] On February 8, President Obama signed the bill into law.[ii] The passage of the act establishes an International Megan’s Law that, among other things, requires covered sex offenders to have a “unique identifier” on their passports and provide detailed information regarding intended international travel which would then be reported to destination countries.[iii] While the law has stirred up discussion regarding its constitutionality, I want to take some time to consider whether the law can actually be effective, or if the goal would have been better achieved through the use of an international agreement among countries.

Prior to President Obama signing the bill, a lawyer from the California Reform Sex Offender Laws group had already spoken to reporters about bringing lawsuits challenging the law if it was signed into effect.[iv] The group filed the lawsuit immediately after President Obama signed the act.[v] Issues regarding the privacy concerns of requiring indicators on passports will need to work through the court system, and I do not intend to debate the legality of the new act; however, the importance of a need for reciprocation of reporting from other countries and a mechanism for the United States to be able to report to other countries draws concerns of effectiveness regardless of the constitutionality of certain provisions.

The International Megan’s Law would allow for an agency to report intended travel to a foreign country. The intention appears to be to warn foreign countries that the sex offender is traveling to the country in order for the country to either prevent the travel, at least be aware of the person’s presence for monitoring, or even simply for record keeping should any criminal issues arise. The text of the law specifically states that Congress believes there should be an effort to seek agreements with other countries to further the purpose of the act, including ways to receive notices from foreign countries and arranging reciprocal reporting.[vi] The hope that other countries will report similar information to the United States in order to allow us to prevent foreign sex offenders from traveling to the United States or internationally in general seems central to achieving the purpose of protecting people from sexual exploitation, including sex trafficking.[vii] However, without any uniform reporting mechanism or even uniform interpretation of what constitutes a criminal history that would lead to reporting, the International Megan’s Law seems to only lead us to restrict the travel and rights of our own criminals while not protecting us from international criminals.

If the law had been considered in an international setting, such as the United Nations, a uniform agreement and procedure may have been established in a manner that allowed other countries to provide input on the procedure, as opposed to discussions requiring consideration of laws and procedures now already in effect in the United States. In fact, in 2005 the United States ratified the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.[viii] According to the purposes set forth in the International Megan’s Law, it seems appropriate to consider the purpose of the act to fall under the purpose of the UN Protocol. With that, an international discussion, especially one with other countries who ratified the UN Protocol could be central to the International Megan’s Law having the ability to achieve its purpose.

By signing the law into effect, an international discussion may be facilitated, especially with other countries that ratified the UN Protocol, and an agreement on how to implement a policy of reporting traveling information among foreign countries can be created to allow the now existing law to fulfill its purpose. Without agreements with foreign countries relating to reciprocity and the actual use of the information being reported by the United States, the new law will be fighting a battle in the courts regarding constitutionality, and spending large amounts of money in establishing reporting mechanisms in the United States, while possibly not being effective in its goal of protecting persons from sexual exploitation.

 

Sharon Mclaughlin is a 3L and an Articles Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


[i] International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, 2015 Bill Tracking H.R. 515.

[ii] Jonathan D. Salant, Obama Signs International Megan’s Law, New Jersey (Feb. 8, 2016), http://www.nj.com/politics/index.ssf/2016/02/obama_signs_international_megans_law.html

[iii] Pub. L. No. 114-119, 130 Stat. 15, 240(b) and § 5.

[iv] Andrea Noble, Bill to Mark Sex Offender Passports Rises Ire of Criminal Justice Advocacy Group, Washington Times, (Feb. 3, 2016), http://www.washingtontimes.com/news/2016/feb/3/bill-to-mark-sex-offender-passports-raises-ire-of-/

[v] Lauren Walker, Civil Rights Group Challenges New Law Requiring Marking on Sex Offender Passports, Newsweek (Feb. 9, 2016), http://www.newsweek.com/civil-rights-group-sex-offender-passports-marking-state-department-424754

[vi] International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, Pub. L. No. 114-119, §7

[vii] Id. at §2.

[viii] United Nations, Treaty Collection, Chapter XVIII Penal Maters (Feb. 17, 2016 10:00 AM), https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-a&chapter=18&lang=en

 

European Parliament’s Move to End Unjustified Geo-Blocking Leaves Questions Unanswered

Geo-blocking consists of blocking a person’s online access to goods, services or audiovisual content on the basis of territorial or geographical boundaries. The extent to which such actions are permissible in the EU remains an unresolved question. What exactly constitutes unjustified geo-blocking in Europe has been a mystery and topic for debate following the announcement of the Digital Single Market initiatives by the European Commission in May of 2015. However, a resolution passed last month by the European Parliament asserts that “geo-blocking consumers’ online access to goods and services on the basis of their IP address, postal address or the country of issue of credit cards is unjustified and must stop.” The resolution represents an important first step in the prevention of unjustified geo-blocking in the EU. However, it also leaves open some important questions that need to be answered.

Exposure to geo-blocking most often arises when a person attempts to view a video from another geographic region only to be greeted with a message stating that the desired content is unavailable due to copyright restrictions. However, while the most widespread example, the issue runs far deeper than simple access to online copyright material. European consumers are often unwillingly redirected from foreign retail websites to domestic ones when purchasing goods, online retailers from different member states can charge greater fees and costs to consumers across national boundaries, and those shoppers are regularly denied shipment cross-border. As a result, geo-blocking has caused a fragmentation in Europe’s digital economy which has made innovation and competitiveness suffer.

In a press conference last year, Vice Commissioner Andrus Ansip stated that “[t]here are two logics. The logic of geo-blocking and the logic of internal market. We have to make our choice. Those two, they cannot coexist.” According to Ansip, ending unjustified geo-blocking represents a move toward greater online access to goods and services, increased innovation, and greater competition in the EU. However, before these goals can be attained, uncertainties must be resolved. Resolution will require the consultation of member states, different governing agencies of the EU, and the general public, each with the opportunity to complicate the issue further.

One uncertainty is whether the Parliament’s definition of ‘unjustified’ is exhaustive or can be expanded to include other areas not specifically mentioned. For example, the Parliament limited its definition to consumers’ “access to online goods and services” which begs the question of whether audiovisual content and copyrighted material should be considered goods in a traditional sense. Further, the limitation to only online goods and services raises questions about whether geo-blocking in other, unforeseen, mediums might be permissible.

Another area left unresolved by Parliament’s resolution is whether ‘justified’ geo-blocking may exist. Copyright laws in the European Union are harmonized by the Copyright Directive. Article 4(1) of the Directive grants authors and copyright holders the “exclusive right to authorize or prohibit any form of distribution to the public by sale or otherwise.” From this, copyright holders derive complete latitude to determine the means by which their material is disseminated in Europe. Generally, copyright holders have chosen to award copyrights on a country-by-country basis. However, should such action be regarded as unjustified geo-blocking, the extent to which copyright holders may exert control is an important question, not just for copyright holders, but for consumers as well. So, whether forcing copyright holders to permit access to their material across national boundaries is impermissible, per the Directive’s mandate, or whether such regulations could be regarded as justified is unclear and unaddressed by the Parliament’s resolution.

In short, these are only two examples of questions facing upcoming geo-blocking regulations in Europe and whether sufficient answers will be provided, and who will provide them, has yet to emerge. It remains to be seen how the issue of unjustified geo-blocking will evolve as it moves through the EU’s various legislative branches and later to the member states. But, regardless of the outcome, ending unjustified geo-blocking must remain a high priority if Europe is to remain competitive with other growing and developed markets (lest it miss out on new forms of innovation as it has in the past). Moreover, as long as the internet and e-commerce continue to be a primary means for consumers’ to access goods, services and audiovisual content, a focus on geo-blocking will remain necessary within the EU.

Jeremiah Johnston is a 3L and an Articles Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.

Corruption and Bribery within FIFA: What’s Next for Soccer’s Governing Body

“They were expected to uphold the rules that keep soccer honest, and protect the integrity of the game. Instead, they corrupted the business of worldwide soccer to serve their interests and to enrich themselves.”

-Loretta Lynch, United States Department of Justice and Attorney General

In May 2015 the U.S. Justice Department indicted 14 FIFA officials and several executives in one vast sweep, charging the individuals with racketeering, wire fraud, and money-laundering conspiracy. In December 2015, 16 more officials were charged in Switzerland in a superseding indictment. The alleged bribes and kickbacks in both indictments total over $200 million. For years there had been rumors of widespread corruption within soccer’s international governing body, but these charges still surprised the world.

A persistent rumor of corruption within FIFA relates to the bidding process to host the FIFA World Cup. The 2010 World Cup was hosted by South Africa after a typically competitive bidding process. While South Africa denies giving out bribes to secure the bid, new records show that South Africa lost the vote to Morocco, bribed Jack Warner, a FIFA Executive Committee member, and then were awarded the bid. Overall, it appears that $10 million in bribes were used to secure South Africa’s position as host. Warner, one of the high profile individuals charged in the indictment, is alleged to have had his son fly to Paris to retrieve a suitcase full of money in $10,000 bundles from a South African official, and then return the suitcase to Warner.

Now, there is an ongoing FBI investigation into the bidding process for future World Cup hosts Russia (hosting in 2018) and Qatar (hosting in 2022). The bidding process for the future tournaments occurred in 2014, with England, Spain/Portugal and Holland/Belgium in the running for 2018, and the United States, South Korea, Japan, and Australia in the running for 2022. The nations spent millions of dollars in investments to stadiums and infrastructure, celebrity endorsements, and heavy advertising campaigns hoping to woo and secure votes from FIFA officials and voting members.

When Qatar was named as host of the 2022 FIFA World Cup, most observers were extremely surprised. The country is tiny, has a horrendous human rights record, soccer games are sparsely attended and temperatures during the World Cup could reach 120 degrees Fahrenheit. While the current indictment does not address the bidding processes for the 2018 and 2022 World Cups, the corrupt actions and bribery by FIFA officials in previous bidding processes show that it is very possible that similar actions were taken.

If there is evidence that Russia and Qatar used bribery to win their bids, it is likely that their hosting duties would be revoked. Each nation claims the bidding processes were free from any impropriety. As of yet, there is no evidence that there was any corruption, and the bids remain with Russia and Qatar.

In the aftermath of the DOJ indictments, FIFA President Sepp Blatter was suspended from office in December 2015, after holding the position for 17 years.

An election for the new President of FIFA is planned for February 26, 2016. There are currently six candidates for the position, most of whom have significant ties and relationships to members of the corrupt “old guard” that have been indicted by the U.S. Department of Justice. While the candidates have talked about reforming FIFA, the facts indicate that business will continue as usual. Oversight from independent, external sources seems to be the best hope for reform and transparency, rather than continuing to operate through shadowy intrigue that FIFA officials are most famous for.

Kayleigh Watson is a 3L and a Student Work Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.