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Thrown in jail, it could be you: the FBI's Kurtz case

by Upstate NY Thu Sep 20th, 2007 at 05:43:27 AM EST

I am too late to include this post in Migeru's excellent airport secret legislation diary, but I wanted to alert Tribuners to an organized operation to secretly push the bounds of anti-terror legislation into the realm of mundane and banal acts.

This is a story that is local to me in Buffalo, and to my work at the University of Buffalo as an academic and artist.

Last week, I went to a fundraiser for the defense of artist/academic Steve Kurtz, which was held in a church owned by the singer folk artist Ani DiFranco. At the fundraiser, we watched the film STRANGE CULTURE (starting Tilda Swinton) which is about the FBI's Kurtz case. (As an aside, Kurtz will be at the Oct 20 Festival Neurotica in Madrid to discuss his art, the movie and his case.)

[I've given some background on the Kurtz case in the extended copy below.]

After the movie, we listened to Kurtz and his lawyers discuss the case. It became apparent as we listened that the Feds are using this as a test case. They are trying to criminalize certain mundane cases of so-called "mail fraud" in order to vastly expand the powers of the Federal gov't. If Kurtz loses his case, then a new precedent will be set. In the US, if you incorrectly fill out your warranty card for your TV, for instance, that may land you in jail. Fill out a wrong date, be sent to the klink, etc.

Diary rescue — promoted by Migeru

Background: Strange Culture

Lots of articles can be found at these links. I'll try to summarize as best I can after the links:


Kurtz is an outspoken critic of corporate influence in American politics, and especially on agribusiness and GMO foods. Kurtz's wife died unexpectedly a few years ago. Upon entering his home, local authorities found test tubes and the like, part of Kurtz's art project (he was working with benign ecoli cultures at the time; an explanation of his art project can be found here):


The FBI was brought in, and the nightmare began. Long story short, after confronting Kurtz about emails and his political views, he was initially charged as a terrorist for his art project materials, but when the materials were determined to be benign, he was later charged for mail fraud (i.e. receiving a shipment of cultures by mail over state lines when they were purchased by someone else). In addition, his collaborator, a biologist and geneticist at the University of Pittsburgh, has also been charged. This is something professors around the US do regularly in collaborative research. No one has ever been prosecuted for it, mail fraud in collaborations, that is. Mind you, this isn't a safety concern at all. If Kurtz had actually purchased the cultures himself, he would have been fine. But his collaborator in the same project purchased them and mailed them to Kurtz. The actual indictment contains absolutely no charges related to the cultures themselves since they were benign, the stuff of everyday high school lab projects. NY State has officially declared the cultures harmless.

Strictly speaking, the mere fact of sending the package over state lines is what makes it illegal. It's not illegal to purchase cultures for someone else. It's not illegal to give cultures to someone in another state. It's only illegal to mail them over state lines unless you are the company that produced the cultures. And it's not illegal to mail them from one colleague to another within state lines. This is a technicality. Formerly, this was a civil offense. You'd pay a fine. In the FBI's Kurtz case, they are making it a criminal case under the Patriot Act. Mail fraud treasonous terrorist crime. The actual charge of mail fraud is so broad intentionally because this way, ANY ACT of mail fraud whatsoever may fall under the Patriot Act's purview.

After the film, Kurtz indicted academics, intellectuals and scientists for giving in all too often to the thug tactics employed against him. Instead of rising up, academics and artists are self-censoring themselves, according to Kurtz. The Feds have already won. The local arts paper interviewed Kurtz this week. This is the interview, but you may want to skip to the key quote pasted below:


Artvoice interview

    Artvoice: Given that legal proceedings continue, how much can you talk about? Can you talk about the disposition of your case?

    Steve Kurtz: I can talk about that. Except I'm in an airport so I have to be a little delicate. [He laughs.] We're in a sort of neutral zone, where the first round of motions has ended and the second round is about to begin. So there's really at this particular time nothing interesting to say about it. I'm just in this slow, bureaucratic grind. The judge I have is very elderly and prone to illness these days, and that throws even more of a wrench into the time table.

    AV: Do you feel that dragging this out is part of the prosecution's game plan--that this long embroilment is part of your punishment?

    SK: Well, yeah, but I don't think it's personal to me. It may be somewhat personal at this point, because you know the Department of Justice has gotten so much flack because of this case. They won't even talk about it anymore. But it's not really personal to me; I just happened to be the example. It could be you, right? They could have arrested you and decided to make you the example, but it happened to be me. They're hoping to intimidate academics and artists and journalists and anyone else they possibly can with this. Saying, "Yeah, don't think we won't put you in jail if we can, if you continue with any kind of dissident agenda."

    It's working, too. It's win-win for them, whether they win or lose this case.

    AV: Why do you think it's working?

    SK: A lot of people are scared, particularly in the sciences, where they have so much money on the line. Researchers have to be able to stay in close with the National Science Foundation. Academic scientists, they're just screwed, their careers would be over if something like this was done to them.

    It's had an effect on distributors of perfectly legal goods. They are now much more cautious and have put restrictions on things because they don't want the FBI on them. It's affected cultural institutions, in that they are not as willing to participate in the kind of live projects than they might have before this case--and that one is maybe more particular to us, to Critical Art Ensemble.

    I generally find that there is a palpable chill. It hasn't gone the way that I had hoped, that people would become more adamant and more radical about what they wanted to show and support.

    AV: But this event at Hallwalls represents a rallying of the troops, and you've had successful fundraisers and exhibits and screenings of the film. Isn't there a lot of support for your cause?

    SK: There is and there isn't. There is in the sense of helping with fundraising, showing Lynn's films, showing Critical Art Ensemble's films, having us out for talks--there's been tons of that. Everyone is real supportive of that. But if you say, "Let''s do a real project," everyone says, "Oh, no, no..." That's when next thing I know there's a lawyer in the room.

    AV: In other words, it's okay for you to talk about the case, about past projects that led you into this situation...

    SK: Yeah. "We can talk about that, and we'll show images of what you do, just don't come do it."

    AV: Just don't show up yourself to present new, critical art that might draw additional heat from the feds or from donors.

    SK: Yeah. "Go and make a video of it and bring it back and we'll show that."

    One of the places that we used to buy reagent from has pretty much stopped selling to amateurs; you can't call them up and say, "Send out some food-testing kits." They won't do that anymore. What's really kind of strange about is they're not even an American company, they're a British company. That's how far the rings of this have spread out...it has gotten international attention. And we do know the FBI investigated them.

In the process of defending himself from ridiculous charges of mail fraud, Kurtz has come to understand a great deal about federal prosecutors and how they operate. For instance, he believes they are under orders to find any means of trumping up anti-terrorist measures under the Patriot Act, and they are hell bent on expanding their powers by pressing test cases into areas never before tried.

Kurtz's is one such test case. He's not only being muzzled for his political views, but he's being used to further a law which will be used to muzzle all dissidents (academics, artists, ordinary people). This isn't necessarily a personal vendetta against Kurtz, but a programmatic attempt to reel in dissident voices, especially from the academic and arts community.

Can we use the F-word yet?
by Colman (colman at eurotrib.com) on Mon Sep 10th, 2007 at 12:23:32 PM EST
It's here already.
by Upstate NY on Mon Sep 10th, 2007 at 12:26:10 PM EST
[ Parent ]
Maybe I'm being stupid, but I just don't even begin to see where the fraud is. what is dishonest  about someone buying something and sending it to someone else's address?

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 10th, 2007 at 01:14:35 PM EST
It violates laws of commerce. Certain commodities are restricted from crossing state lines through the mail. Primarily because of tax laws. Some of these laws are technical and arcane. For instance, in the Humanities fields, we were warned after 9/11 that translating texts (novels, poems even) from countries on the restricted trade list (i.e. Iran and the like) would be prosecuted, since such texts are also considered commodities, and fall under the NO TRADE rules. In this specific case, there is a law prohibiting the U. Pitt professor from mailing the package (a package purchased with university funds) over state lines.

Think of it this way: New York State allows you to purchase wine through the mail. Pennsylvania doesn't. If I send a bottle of wine to my friend in Pennsylvania, I have committed an act of mail fraud. I would have to pay a fine. Or, if the Feds win this case, go to jail.

by Upstate NY on Mon Sep 10th, 2007 at 01:32:34 PM EST
[ Parent ]
And there was me thinking that the states was a bastion of free trade. ;-)

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 10th, 2007 at 01:37:02 PM EST
[ Parent ]
Oh and I don't see how the wine example is fraud either, I've brought the wine legally, I'm not selling the wine to my friend, I would argue that I haven't broken the law.

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 10th, 2007 at 01:40:13 PM EST
[ Parent ]
It's "mail fraud" by legal definition: that's the way the law is written. All about protecting state tax incomes as far as I know.

You're forgetting that the US is a federation of suspicious and jealous states.

by Colman (colman at eurotrib.com) on Mon Sep 10th, 2007 at 01:45:52 PM EST
[ Parent ]
I just clipped this from a PA winery's website:

The Supreme Court Ruling

On May 16, 2005, we were relieved that the U.S. Supreme Court finally ruled on the legality of shipping wine directly to consumers across state borders.  However, the new ruling is not as permissive as we would like, and the media has frequently over-simplified the story.

Justice Anthony Kennedy wrote "If a state chooses to allow direct shipments of wine, it must do so on evenhanded terms."  It cannot ban direct shipment of out-of-state wine while simultaneously authorizing direct shipment by local producers.  In response to the new ruling, a state like Pennsylvania might become more restrictive and prohibit its in-state wineries from shipping to consumers within its borders.  A nearby state,  New Jersey, has already done so.

Shipping wine to consumers in another state is not as simple as it sounds, either.  Even when states are theoretically open for us to ship into, they almost always have permit fees, taxes, record-keeping requirements, etc., which can make shipping to a particular state unfeasible.  Researching and complying with many state requirements is an overwhelming task for a small winery like ours.  Therefore, we must rely on guidelines established by the trade associations which we have membership in.  To complicate the picture, many states will need to change their laws, which means that the guidelines will be in constant change for quite some time.

Reciprocal Agreements

Although some states have reciprocal agreements which allow direct shipments between them, Pennsylvania has no such agreements at this time.  

Shipping by Individuals

You (the consumer) are not permitted to ship wine at all, whether it be within the state or outside, because shipping of wine requires a license to do so.

We Will Notify You

If you would like to be notified when/if we are positioned to ship into your state, please use the contact numbers above.  Let us know your email address (or U.S. Mail address) and the state where you live.

by Upstate NY on Mon Sep 10th, 2007 at 01:49:31 PM EST
[ Parent ]
Is this some form of holdover from prohibition? it seems insane to put that level of control over the individual citizen.

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 10th, 2007 at 01:55:29 PM EST
[ Parent ]
No. Colman explained it best. In terms of commerce, each state operates more or less like a country, tightly regulating trade and protecting local business. This is why California and New York are two of the very few states that allow wine to be sent through the mail, since both states are known for producing wine.
by Upstate NY on Mon Sep 10th, 2007 at 02:21:51 PM EST
[ Parent ]
I may be being thick again, but how does it get through the intervening states?

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 10th, 2007 at 02:24:01 PM EST
[ Parent ]
You mean the wine?

Well, at this point, it doesn't. Only states like Cali and NY can trade with one another.

If you mean literally how does it get from point A to point B, it either goes through courier (UPS, DHL, Fedex) or the federal mail system (USPS). 99% of the time, the Feds have no idea what they're carrying (you have to declare the category of goods for UPS, Fedex) which is why mail fraud laws exist. So, if someone bothers to open up your package to see what's inside, you're good if it's going from NY to Cali. If it's not, you may be in trouble.

To answer your question, 99.99% of mail arrives at its destination regardless of its contents. Only mail that is opened by suspicious Feds and confiscated (or, in Kurtz's case, they found records) doesn't reach its destination. Intervening states never bother to check, which is why most mail fraud laws are broken repeatedly, and rarely if ever prosecuted.

by Upstate NY on Mon Sep 10th, 2007 at 02:40:32 PM EST
[ Parent ]
No I'm saying fine you can trade between NY and California, but unless you go round or over, you have to pass through several intervening states, how come thir laws don't interfere?

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 10th, 2007 at 02:46:42 PM EST
[ Parent ]
Well, most of the mail does go through the air.

But, for one, the post office is not in the habit of opening up mailed packages. If it were, I'm sure there would be findings of many violations of mail fraud law.

Two, only the destination matters. If it's sent from Cali and the postmark is NY, then those are the only jurisdictions involved.

by Upstate NY on Mon Sep 10th, 2007 at 03:51:59 PM EST
[ Parent ]
So levitating wine doesn't count, but if it touches the ground someone is in big trouble?

Does the law also apply to pigs?

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Sep 20th, 2007 at 07:06:42 AM EST
[ Parent ]
I can´t find the Madrid event in their site, but I will try to find out locally.  It will be interesting and I will post it, if I can go.

Our knowledge has surpassed our wisdom. -Charu Saxena.
by metavision on Sun Sep 16th, 2007 at 08:54:26 AM EST
Wake up America !! You're losing your country and your politicians don't even care. Why is Teddy Kennedy silent about the number of times he's appeared on the DHS no-fly list ? It's deliberate intimidation.

The TSA & DHS have a plan to make you ask permission before you travel and everybody watches american Idol and whistles that there's nothing wrong, everything is as it should be, move along folks, nothing to see here.

But look out !!! There was an ad. In a newspaper.

It seems you learnt nothing from McCarthy, how freedom is stolen not in a coup but reasoned slice by reasoned slice. Exactly how american is an accusation of being un-american ? The Soviet Union had a more democratic Constitution than the united States, but if the Government and its officers declare themselves beyond its remit, then it has no force. Your constitution has been shredded and you are powerless to prevent it.

You need America2.0, the last one has crashed.


keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Thu Sep 20th, 2007 at 01:39:03 PM EST

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