Last week, Washington, DC federal judge Beryl Howell ruled on three mass file-sharing lawsuits. Judges in Texas, West Virginia, and Illinois had all ruled recently that such lawsuits were defective in various ways, but Howell gave her cases the green light; attorneys could use the federal courts to sue thousands of people at once and then issue mass subpoenas to Internet providers. Yes, issues of "joinder" and "jurisdiction" would no doubt arise later, but the initial mass unmasking of alleged file-swappers was legitimate.

Howell isn't the only judge to believe this, but her important ruling is especially interesting because of Howell's previous work: lobbying for the recording industry during the time period when the RIAA was engaged in its own campaign of mass lawsuits against individuals.

The news, first reported in a piece at TorrentFreak, nicely illustrates the revolving door between government and industry. And it reminds us just how complicated questions of influence can be.

The door keeps revolving



Howell has had a long career in law enforcement. She was an assistant US attorney in New York during the early 1990s and oversaw "numerous wiretap investigations and conducted lengthy grand jury investigations, including cases against the leadership of the Chinatown Flying Dragons gang, extortion cases resulting in the convictions of twenty-nine New York City building inspectors, and a money laundering case resulting in the seizure of $19 million in cash narcotics proceeds," according to her bio.

She then moved to the Senate, where she served as general counsel for the Senate Judiciary Committee under Sen. Patrick Leahy (D-VT), who has close ties to the copyright industries (Leahy is one of the big backers of the COICA Web censorship law that he guarantees will be passed later this year.)

There, Howell helped to write CALEA (the law extending wiretap powers to the Internet) along with the No Electronic Theft Act (providing tougher penalties for online copyright crimes), the DMCA (making it illegal to break or bypass DRM, even if you want to rip a movie from a DVD you own to your iPod), and the Digital Theft Deterrence and Copyright Damages Deterrence Act.

She then moved into private life at Stroz Friedberg, where she began lobbying for the RIAA, according to the Center for Responsive Politics. Between 2004-2009, Howell was the only listed lobbyist at the firm; the RIAA was her exclusive lobbying client for most of that time. A lobbyist disclosure form describes her as working on "legislation concerning copyright laws as applied to digital music"—which she would be well-placed to do, having previously helped to write such laws.

Howell made some small donations to Barack Obama. When Obama won the presidency, for instance, Howell gave $327 to help fund inaugural events in DC.

In 2010, the Obama administration tapped her to move back into government, serving as a federal judge. In December, she was installed in the DC District Court, where the US Copyright Group filed most of its mass P2P lawsuits. Howell took on several of the cases.

A respected legal mind, Howell's published work focuses more on privacy, government surveillance, and the PATRIOT Act. Back in 2004, she won a "First Amendment Award" from the Society for Professional Journalists for her work expanding the Freedom of Information Act. She also serves on the US Sentencing Commission since being appointed by George W. Bush, helping to craft appropriate sentencing guidelines for use by US judges.

And she's currently listed as a "Board Alum" for the Center for Democracy & Technology, which generally stands up for Internet privacy, opposes COICA in it current form, and objected to Anti-Counterfeiting Trade Agreement.

Howell's work at Stroz Friedberg also went well beyond RIAA lobbying; the FBI even gave her a "Director's Award" during her time at Stroz Friedberg for her "valuable contributions" to a case the Bureau investigated.

Howell isn't some one-dimensional industry shill; she was a philosophy major at Bryn Mawr, has three kids, and her husband works as a producer for National Geographic Television & Film. But lobbying money tends to raise questions when the lobbyists move back into public life.

Recusal conditions



Many judges were previously lawyers, and they are not required to recuse themselves from areas in which they previously litigated or lobbied unless they meet certain conditions. Those conditions are spelled out in Title 28, part I, chapter 21, section 455 of the US Code:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

Having worked with the RIAA rather than the small movie producers bringing the current suits, and having worked for the industry on legislation rather than litigation, Howell does not appear to have any direct stake in these particular cases. And all judges come to their work with a personal perspective and a cast of mind.

Still, years of paid work for particular corporate interests could certainly be perceived as having undue influence on a judge's approach. For instance, Howell's recent ruling was concerned that P2P lawyers simply couldn't afford lawsuits if they had to file their $350 cases against every IP address separately. "It is highly unlikely that the plaintiffs could protect their copyright in a cost-effective manner," she noted.

But for other judges, this was precisely the point: mass P2P lawsuits were an inappropriate attempt to go to court and still save some cash, at the expense of due process. Federal judge Milton Shadur in Chicago recently shut down a mass lawsuit on behalf of the film Cowgirl Creampie, saying, "No predicate has been shown for thus combining 300 separate actions on the cheap. If CP had sued the 300 claimed infringers separately for their discrete infringements, the filing fees alone would have aggregated $105,000 rather than $350."

Howell's different perspective is defensible on its merits—but was it unduly influenced by her past as a copyright lobbyist? Does that matter? And where do we draw the line when it comes to a judge's history?

Howell's case is only one specific example of a much larger issue, one that always revolves around people working for corporations, entering government to make law or policy relating to those corporations, and then returning to private life (and perhaps to those same corporations). This was a concern early in the Obama administration when it appointed several litigators with extensive RIAA work to key posts in the Department of Justice. Critics complained, but others noted that most lawyers work with a wide range of clients and on a host of issues.

That doesn't stop the criticism. Boing Boing noted early this year that the new US Solicitor General would be Tom Verrilli, "a notorious entertainment industry lawyer" who "masterminded the case against Grokster." (See a defense of this practice and comments on why it doesn't represent a government "infiltration.")

In the meantime, that revolving door keeps revolving—and it creates problems of perception, if nothing else.