“HOLD IT RIGHT THERE!” Jeremy shouted as he hung up his cell phone. “Our attorney will be here in less than twenty minutes. You may have thought you could sneak a barely legal search in while we were away, but you thought wrong. From this moment forward, ’by the book’ means with US present, and with OUR ATTORNEY present. Until he arrives, this search is on hold. Nothing is to leave the premises. Anything that you have already removed and that has not already been logged in as of,” he looked at his cell phone, “4:37 needs to be returned here immediately. Our attorney wants to examine it to be sure the chain of evidence has not been violated.
“Now which one of you is in charge, here,” Jeremy asked.
“I am,” answered a tall, burly guy in a dark suit . . . but then all the agents were in dark suits. They’d all shown us their badges when we first walked in, but I couldn’t remember their names to save my life. I guess Jeremy couldn’t either, as he asked, “And you are?”
But before he could answer, Kurt responded, “Special Agent Thomas Howard.” We all looked at Kurt like he’d grown an extra ear or something. He just shrugged and said, “I have a photographic memory, remember?” It finally began to sink in just how powerful that memory really was, but Trevor just grinned, as if he’d always known.
“Right . . . Special Agent Howard,” Jeremy continued, “has anything left this dorm room?”
“Not yet, Mr. Kimball,” he responded. “We were just about to remove your laptops and take them to headquarters when you arrived.”
“Then it looks like we got here just in time,” Jeremy replied. “Now can you please explain what in the world is going on here?”
“I’m not at liberty to say,” the special agent tried to say, but Jeremy wasn’t going to let it rest at that.
“What the FUCK do you mean you’re not at liberty to say?” Jeremy practically spat back at the federal agent. We have our rights and that search warrant has to specify a reason for this search. If that warrant doesn’t specify a reason, then this is an illegal search and nothing’s leaving the premises.”
“See for yourself,” Special Agent Howard said as he handed the search warrant to my boyfriend.
This was a whole new Jeremy I was seeing - a ‘take charge’ Jeremy I never knew existed. I guess around me, Jeremy was used to kind of being in my shadow. It wasn’t something intentional on my part, but I did tend to dominate the conversation. This evening Jeremy was showing he clearly had balls. Everyone was always saying he was every bit my equal, and I always knew it inside, but this was the first time I’d really seen him in action.
A moment later, Jeremy shouted, “What the FUCK is ‘suspected illegal activity’ supposed to mean? Hell, that’s about as specific as a preemptive war against Iraq because they might have WMDs.”
“Just because we didn’t find WMDs didn’t mean they didn’t have them,” came the special agent’s retort.
“Right . . . and just because we’ve never managed to actually capture Bigfoot doesn’t mean he doesn’t really exist, or the Loch Ness monster, for that matter. And look how the war turned out in any case,” my boyfriend replied. “Bottom line, Special Agent Howard, is . . . this warrant is way too general to hold up in court.”
“It doesn’t need to hold up in court,” the agent replied. “It was issued by Congress, and only needs to merit the requirements of a congressional subpoena.”
“Since we have engaged in absolutely nothing illegal, I can state with confidence that there is absolutely nothing to find,” Jeremy countered, “but even if you had found something, how stupid! You could bring it before Congress, but you still couldn’t use it against us in a court of law, because the search warrant’s too broad.”
Laughing, the agent countered, “You think you know it all, kid. We could always argue inevitable discovery. For example, if we find a thousand illegal music downloads on one of your computers, we’ll get you for it, even though it wouldn’t have been part of the original search warrant, because we’d have found something like that, no matter what.”
“Not gonna happen,” Jeremy spat back at the agent, “and you better not erase my hard drive either, even though I have backups at home. I’ve got thousands of dollars of iTunes downloads on there, and it would be a pain in the ass to have to restore them all.”
“No guarantees, kid, so maybe you’d better start treating us nice,” the agent replied.
As the agent and Jeremy were exchanging jabs at each other, I noticed that Trevor had a look of near panic on his face and was looking at the floor. I hoped that none of the other agents in the room were looking at him as it dawned on me - he was a computer geek and often bragged about his use of open source software. For him, it wasn’t about money - until very recently, the major music download services weren’t Linux-friendly. I’d listened plenty of times to Trevor’s rants about Apple’s lack of iTunes Linux support and his inability to use an iPod without buying a Mac or purchasing Windows - something he refused to do.
I knew that Trevor had a third party MP3 player that he used with open source software. He more than likely relied on Amazon’s MP3 store for his music using Firefox of late to download music from the Internet, but I feared he still probably had hundreds or even thousands of dollars worth of illegal downloads on his laptop from the days when there was no way for him to obtain legal copies, even though he would have gladly paid for them if a way had existed.
This could give the feds incredible leverage against Trevor - leverage they wouldn’t hesitate to use to try to get him to turn against the rest of us. I seriously doubted Trevor ever would, even if it meant he would go to jail, and I seriously feared under the political environment that was developing, he very well might.
Just then, Jeremy’s lawyer arrived. He took one look at the search warrant and said, “This is not a valid search warrant.”
Special Agent Howard then repeated what he’d told us - that the warrant came from Congress - not the Judiciary - and it wasn’t subject to the same rules. He went on to say that he had waited for our attorney to arrive out of common courtesy, but that Congress is in fact exempt from the laws that govern the Judiciary. The agents then went back to what they had been doing before we arrived, pretty much ignoring us.
“Mr. Lancaster,” I asked the attorney, “could we maybe talk to you in private before the agents start taking stuff away?”
“I don’t think it’s wise for us to leave them alone right now,” he replied. “We don’t want to take a chance on leaving the chain of evidence unguarded. I want to see to it that every item that’s removed is placed into sealed evidence containers, and I want to be present when they’re logged into evidence at the other end as well.”
“Then let’s speak hypothetically,” I said. “Special Agent Howard suggested that evidence turned up on the hard drives of our computers could still be used against us in a court of law, even though the search warrant was pretty flaky, because the stuff on our hard drives would have been discovered eventually, anyway, regardless of the legality of the initial search warrant. He called it inevitable discovery.”
“Is it internet porn you’re worried about?” the attorney asked.
“I wouldn’t be surprised if there are bits and pieces of pornographic material in the cache of all our computers, I sheepishly admitted, but they’d probably think there’s something wrong with us if they didn’t find a little porn, and of course we all have bookmarked gay-themed websites. We are gay teenagers, after all.
“No, the agent specifically brought up the issue of illegal music downloads. Now this scenario is strictly hypothetical, mind you, but suppose someone has a non-standard operating system . . .”
“You mean like a Macintosh?” Mr. Lancaster asked.”
“No, no, Jeremy has a MacBook Pro with thousands upon thousands of dollars of legal music and video downloads. That’s not a problem at all. I’m talking about an open source operating system like Linux . . .” As soon as I said the words, Kurt’s face registered a look of total shock. His eyes bugged out and his mouth opened wide. For his part, Trevor started to color up. He knew exactly where I was going with this, but I hoped he’d stop looking so damned guilty.
Continuing, I said, “Until recently, there were no legal methods for purchasing and downloading music from the internet. You still can’t legitimately use an iPod unless you have a Macintosh or Windows computer.”
“But Windows computers are so cheap,” the attorney said. “Why not get one?”
“It’s not about money,” Trevor said under his breath as Mr. Lancaster held up his index finger to his mouth, indicating he should remain silent.
“Things have gotten a lot better in the last year or so,” I added. “Firefox is a browser that is available for Linux as well as Windows and Macintosh, and it supports downloads from Amazon’s MP3 store, but that’s a very recent change. Before that, the only way to get music for your computer or MP3 player was to buy the CD and rip it yourself. If you really like the whole CD, that’s fine, but if you only want one or two songs off a CD, you do what kids have always done.”
“You share,” the attorney stated flatly. “It used to be using cassette tapes, and now it’s over the Internet, and on a much larger scale, which is why the recording industry is up in arms.”
“This is all hypothetical, of course,” I reminded the attorney.
“Of course it is,” he replied, “which is why we aren’t going to discuss it any further this evening. I realize you’re probably very anxious to discuss how we might handle such a scenario, and believe me, we’ll talk further tomorrow.”
The federal agents spent another three hours in our dorm room going through our stuff. In the end, it was surprising what they ended up taking with them as so-called evidence for the congressional committee. Of course they took our laptops and every associated piece of computer equipment, including USB drives, CDs, DVDs, recordable CDs and card readers. They also took our digital cameras and our extra SD cards as well. We protested loudly when they confiscated our cell phones, but we were hardly surprised. Our attorney assured us we would all have replacement cell phones by the morning. They also confiscated our razors, tooth brushes, combs and brushes (for DNA evidence, our attorney explained), our supply of condoms, and an assortment of our underwear (to check for extraneous pubic hairs, according to our attorney). What a crock!
Finally, the agents left and, after they had gone, our attorney said, “I can’t be sure, but it’s possible your room has been bugged. You yourself heard what the agent said about not having to follow the rules. Usually it requires a court order to bug a place, but I wouldn’t put it past them to go ahead and bug you for the committee anyway. Bottom line . . . don’t say anything tonight that you don’t want to say directly to the committee.
“I’ll swing by tomorrow morning at ten and we’ll go out for brunch and talk about strategy.”
“Could you maybe do us a favor?” Jeremy asked. “It’s not far, but we have like, ten minutes before the food court at Union Station closes, and it’s our last chance at getting a meal without heading farther afield. Could you give us a lift there?”
“Unfortunately, I need to go to headquarters with the agents to be sure the ‘evidence’ they collected isn’t tampered with . . .”
“What if they planted evidence before we even got here?” I asked.
Sighing, he said, “David, I’d like to tell you that sort of thing never happens, but unfortunately it sometimes does. My guess is they wouldn’t be so brazen . . . at least not yet. Let me assure you that if there’s anything unusual in the inventory of items taken from your room, we’ll go after the legitimacy of the search with a vengeance.
“Anyway, it’s Saturday night, guys. Go out on the town! Forget about the Feds for tonight. The Red Line passes through Union Station, so instead of just grabbing a bite there, head to Dupont Circle, or maybe Bethesda . . .”
But before he could finish, I said, “We love Bethesda.”
“That’s the spirit,” Mr. Lancaster said with a smile. You need to get your minds off what happened here, so promise me you won’t ruminate on it. I’m being paid to ruminate on it. You kids have fun, and I’ll see you in the morning. Now I have to take off.”
Technically, we had a cufew, and we really needed to spend the time putting our room back together, but the Sergeant at Arms, who'd heard the whole exchange, said, “I’m with your lawyer on this one. You’ve got to eat anyway. Under the circumstances, I think we can bend the rules just this once. Why don’t you forget about your troubles and go out on the town? You can deal with this mess in the morning.”
Being allowed out on a Saturday night was a rarity, so we weren’t about to look a gift horse in the mouth. Our outbound trip on the Red Line to Bethesda, in spite of our attorney’s admonition, was rather somber - we just couldn’t help it - we were still in a state of shock and far from in the mood to talk.
After we arrived in Bethesda, I asked, “So where to, guys?”
“I feel like a nice, thick, juicy steak,” Trevor said with a smirk.
“If that’s what you really want,” I said, “Then lead the way. God knows you deserve something to take your mind off your troubles, and I’m sure I can find something on the menu that I can eat, no matter what.”
“Actually, I don’t deserve anything,” Trevor said in tears. “I really fucked up, and now they really do have something, thanks to me.”
“No, they don’t,” I said. “It’s still a trumped up charge, and let’s wait and hear what Mr. Lancaster has to say about it in any case. Anyway, you’re still our best friend . . . you know that, don’t you?”
“Yeah, I do,” Trevor smiled, “and you can’t imagine how much that means to me.”
“And you’ll always have me,” Kurt said, “even if I have to come visit you in jail.”
“You asshole.” Trevor said, but then he kissed his boyfriend on the lips and said to the rest of us, “Let’s go find something to eat. I have no idea where we’re going, and without our cell phones, it’s gonna be a bit hard to look anything up, so let’s just follow our noses.”
“Sounds like a plan,” I agreed.
We actually did manage to find the Lebanese vegetarian place Will had mentioned the other night, and it was outstanding. We had a wonderful meal and a surprisingly good time in spite of what was hanging over our heads. We got back to Webster Hall well after our normal curfew, and had to be let into the building.
Awaiting us inside, we found that not only had our room been straigntened, but our beds had been made and our clothes neatly folded and put in piles, ready for us to put away. Someone had certainly gone out of their way to make us feel better. We got a surprisingly restful night’s sleep.
The next morning, we got up and prepared to meet with Mr. Lancaster over brunch. As I guess was to be expected, we got a lot of strange looks from all of the other pages.
Just as we were about to leave, the Sergeant at Arms handed Trevor a note and said, “This message came in from your parents a few minutes ago, Mr. Austin. They wanted to be sure you got it before you met with your attorney. I wanted to warn you, though . . . I had instructions to forward anything that came in to the FBI, so even though it’s marked ‘confidential’, they have a copy of this.”
“Fuckin’ violation of privacy,” Trevor muttered under his breath. As he started to read the fax he’d just been given, he then muttered, “What the fuck?”
“Save it ’til we talk to Mr. Lancaster,” I whispered to Trevor, reminding him that others might be listening. As soon as we were in our attorney’s car, however, Trevor handed him the fax.
“Hmm . . . this is interesting,” he said, “and I’m sure there’s even more here than meets the eye that you can enlighten me about . . . we’ll talk at brunch, but first we need to talk about the scope of the issue.
“Boys, I thought we’d better go someplace private where it’s unlikely we’ll be spied upon. Attorney-client conversations are entirely privileged, but it’s obvious the Feds aren’t fully playing by the rules and there is no true expectation of privacy in a public place. Hearsay by a third party in a public place is permissible in a court of law. I’ve therefore reserved a private dining room at a private club that our firm belongs to. It’s in McLean, Virginia.”
As we drove to McLean through progressively more rural territory, the attorney got down to business. “The real issue here, as I’m sure you all know, is a bogus allegation that you’re running some sort of gay prostitution ring out of your dorm room. The whole thing’s preposterous, but naturally, they’re looking for any other kind of dirt they can find on any of you, which brings up the matter of what they might find on your computers.” Taking a deep breath, he continued, “So I take it, Trevor, there may be a problem with some illegal downloads on your computer?”
“Um, yeah . . .” he shyly answered. “It’s not like I deliberately set out to break the law, Mr. Lancaster. I just have a strong bias against Microsoft and Apple’s hegemony in the computer marketplace, and so I try to avoid using their software whenever I can. I use free, open source software not because it’s free, but because I believe in the open source concept. I’ve even written some code myself that I’ve contributed to the open source movement.”
“But if you’ve shared and downloaded copyrighted material over the Internet,” Mr. Lancaster countered, “Many would see that as outright theft, pure and simple.”
“Don’t you think I know that?” Trevor asked with a definite edge to his voice. “I’ve known all along there was a risk to what I was doing. I just never expected something like this to happen. I would have gladly paid for the music I downloaded, and I did pay for a number of the CDs from which I kept only one or two songs . . .”
“But you also uploaded some of that music to trade for music you wanted. Am I right?” Mr. Lancaster asked.
“That’s how I could download the songs from CDs I didn’t have,” he countered. If the music industry would practice fair trade, this wouldn’t be a problem. Until recently, the only available fee-for-service download stores were Mac and Windows only. It was just ridiculous to spend fifteen dollars to buy a CD for only one or two songs. Like I said, it wasn’t about the money . . . it was a matter of principle. I could trade a fifteen-dollar CD into fifteen dollars worth of music. That was fair.”
“Fair or not,” our attorney said, “that’s not how a jury would likely see it, particularly coming from an affluent background such as yours.”
“But would this really go to trial?” Trevor asked.
“I don’t know, Trevor,” he answered honestly. “The FBI hasn’t hesitated to prosecute these cases vigorously. They might as well be working directly for the recording industry. They’ve imposed million dollar fines for having only a few proven illegal downloads."
“Fuck, Fuck, FUCK!” Trevor shoutet. Calming down a bit, he continued, “Mr. Lancaster, I never downloaded music without trading someting in return, and I only traded songs once. I was truly swapping a legally purchased song for what I hope was someone else’s legally purchased song. It was true file swapping . . . not sharing.”
“How could you be sure that the people with whom you traded songs were playing by the same rules?” our attorney asked.
“How can the recording industry know that a CD they sell won’t be pirated?” Trevor countered. “The situation’s no different.”
“Trevor, let’s get down to basics. How much music are we talking about?” the lawyer asked.
“To be honest, I’m not entirely sure,” he practically cried. “I have some fifteen . . . maybe twenty thousand songs on my hard drive. The vast majority are from CDs I own and ripped myself, so those are completely legal. That’s fair use. There are prolly a few hundred legally purchased downloads from the last year, for which I have receipts. That leaves some five thousand songs at least that I downloaded illegally, and every one of those was swapped for something I uploaded to someone else, peer-to-peer.”
“Trevor, what you did is a felony,” Mr. Lancaster said in his most serious tone. “It’s serious and these cases have been prosecuted vigorously by the FBI. They’ve prosecuted them as rigorously for kids as for adults. You could go to jail for this.”
“But I had no choice!” Trevor protested.
“Yes, you did,” our attorney countered. “You could have gotten off your high horse, installed Windows on your PC, downloaded iTunes for free and used it to download music from the iTunes store, or from Rhapsody or from any other music service for that matter. If you were that hell-bent on listening to it using Linux, you could have burned the music to a CD using iTunes and then re-ripped it to any format of your choosing . . . or you could have tried your hand at using one of dozens of hacks using a Windows emulator. Am I not right about that? Wouldn’t that have been better than going to jail?”
“It was a matter of principle,” Trevor insisted, tersely.
“A lot of people have gone to jail for their principles, Trevor,” Mr. Lancaster commented. “Don’t get me wrong, we can fight this all the way to the Supreme Court if you want us to, but it could well end up depleting your family of their entire life savings in the process, and then some. Are your principles worth that much to you, Trevor?”
“I just never thought I’d get caught,” he said with tears in his eyes and a resigned tone in his voice. “No, it’s not worth taking my family down with me. I’d never do that.”
“Don’t sell your family short either, Trevor,” Mr. Lancaster said. “That letter you gave me tells me they’ll stick by you, so long as we can defend you, and we are going to defend you. It’s the resources of the recording industry you can’t afford to take on, and that’s probably where we’ll have to draw the line.”
“But what about the fact that the search was illegal?” Trevor asked, a glimmer of hope in his voice.
“Believe me, that’s our first line of defense, and it’s a good one, but I’m not all that optimistic. Trust me, the Feds’ll argue inevitable discovery, and your only viable defense will be a very shaky one - that you would have had time to destroy all that music between when they executed the improper search warrant and when they came back with a proper one.”
“And I would have, too!” Trevor shouted.
“But would the Feds have then found backup copies of your music when they executed a search warrant of your parents’ home?” the attorney asked.
“Not if I tell my parents to dispose of them,” Trevor said, “much as it would kill me,” he added.
“And so you would make your parents accessories to tampering with evidence and quite probably leave proof of their complicity, assuming the Feds are monitoring all of your communications,” Mr. Lancaster pointed out.
“Shit! Are they going to search our houses back home?” I asked.
“You can count on it, David,” he replied. “They may well already be en route. Last night’s search warrant was hastily drawn up. The one they execute today or tomorrow at all your homes will undoubtedly be done right. And don’t even think of trying to destroy evidence as Trevor suggested. It would only backfire on you if you tried. However, what your parents did, Trevor, is interesting, and we’ll get to that in a moment. It sounds like they’re already a step ahead of you, and may have given a lot more thought to this than you have.
“The biggest issue we face is keeping you out of jail. The Feds are going to try to use that as leverage to get you to flip you against your friends. The trouble is that there’s nothing to flip . . . not unless you fabricate lies against them.”
“Are you insinuating that I would make up lies against my friends to keep out of jail?” Trevor practically shouted. “You don’t know me well at all, Mr. Lancaster. I would never do such a thing. I’d rather spend the rest of my life in prison than say anything that would hurt my friends.”
“I didn’t think you would, Trevor, and we need to make that clear from the beginning . . . that there’s nothing you can give the Feds and that threats of jail time are a waste of their time,” he said.
Finally, we arrived at what looked like a sprawling plantation, right out of the Old South. Most of the hired help, I noticed, were African Americans wearing white uniforms and even white gloves and I was decidedly not pleased - it was a throwback to an era best buried in the past, in my opinion. I could tell that the others felt uncomfortable with the surroundings, too.
As we exited the car, I decided that if the club could play into stereotypes, so could I. “Oh don’t you just love this place?” I said in my most effeminate voice as I placed a limp-wristed hand on Jeremy’s shoulder.
He soon caught on and, putting one hand on his waist and sticking the other limp wrist out, said, “Dahling, it’s just fabulous.”
Trevor and Kurt were just laughing too hard to even try to act gay, so they settled for putting their arms around each other and giving each other a quick peck on the lips.
Even the valet was laughing hysterically. When he was finally able to speak, he said, “You’re actually not the first gay guys to do that, and we get more and more complaints to the management all the time . . . but the pay is good and the tips are phenomenal. There are just some traditions in the Old South that don’t die easily.”
Once we were seated inside, Mr. Lancaster asked, “Are there any food restrictions I need to know about? David, I already know you’re a vegetarian, but will eat fish and seafood, am I right?”
“That pretty much covers it,” I agreed.
“And I don’t eat red meat any more, thanks to my doofus of a boyfriend,” Jeremy added, “but I’ll eat poultry and seafood.”
“Anyone with a dairy allergy?” the attorney asked. When no one spoke up, he said, “Great! I’ve ordered a very traditional Jewish Sunday brunch. Smoked whitefish, lox and bagels, blintzes, potato pancakes, and a whole lot more. I grew up in New York, and this is New York soul food. Besides, I love making this club prepare this meal. Thirty years ago, by gentlemen’s agreement, they didn’t even allow Jews to dine here. Call it retribution . . . like your little act outside.
“Oh, before I forget, let me hand out your new cell phones,” he said as he handed us cell phones that were updated versions of the ones the Feds had confiscated last night. Jeremy even got a new iPhone 3GS. Whoa! “These are all programmed with your old phone number, and activated, so you shouldn’t miss any calls. I also had your carriers copy over your old contacts lists, calendars, text messages, e-mail messages and the like. Don’t ask me how they did it when the Feds have the originals . . . I’m not sure I want to know.”
“Thanks, Mr. Lancaster,” I said, and everyone else echoed my sentiment. I was truly amazed he was able to do all that on such short notice.
Just then, a huge platter of smoked white fish and assorted greens and melon slices arrived. As we got down to the business of some serious eating, Mr. Lancaster asked, “So Trevor, it was nice of your parents to send you a faxed letter of support, telling you how much they loved you and were there for you, but somehow I don’t think that was the main point of the letter, was it? What was that about giving away your entire CD collection?”
“That’s just it, Mr. Lancaster. I may have said once or twice that my CD collection was taking over my room and that I needed more space, and that I hardly ever played them once I ripped them to my hard drive, but I never said anything about giving them away to charity. This thing about giving them all away . . .”
“Trevor,” Mr. Lancaster interrupted, “one thing you need to understand is that there’s a fine line between an attorney advising his client to protect his best interests and an attorney advising his client to perjure himself. The former is just plain good legal sense, whereas the latter is unethical and illegal.
“Regardless, as your attorney, I would still like to know the truth, but my advice will always be against perjury. You just need to understand that, up front. If you don’t want to hear me tell you not to disclose something, then don’t tell me, but be forewarned that my advice may be compromised in the end.”
“OK, well with that in mind, although I never told my parents to give my CD collection away, I can see where they might have gotten the idea that it’s something I might have wanted,” Trevor said with a huge grin on his face, the grin reflecting an obvious realization that his parents knew exactly what they were doing. “In today’s fax, they said they had some other stuff they were planning to give to the Salvation Army, so they figured they might as well give my CD collection to them at the same time. My parents said they got a receipt for all 4697 of my CDs. They said they counted the number themselves, but I’m pretty sure I didn’t even have half that many.”
“Trevor,” the attorney said, “if your parents said they counted that many, then we can safely assume you had that many. Any error in counting would have been an honest mistake,” he said with a wink. “The bottom line is that by donating your entire CD collection, the Feds will have no way to prove you didn’t rip the songs on your hard drive yourself . . . unless they can find other evidence that the music came from elsewhere. Some music is watermarked, and some file sharers tag the music they rip. I did some reading on this overnight.”
Trevor shook his head and said, “No way, Mr. Lancaster. As you talked about on the way here, I did the electronic equivalent of burning and re-ripping everything I downloaded. I wasn’t taking a chance on downloading files with malicious code or anything that might be traceable, plus I have software that can clean up a lot of the imperfections from less than perfect rips. All of the songs on my hard drive are pristine, with original tags and artwork. The Feds won’t be able to find anything on my hard drive that they can prove I didn’t rip from one of my CDs.”
“What about your use of Internet bandwidth?” Lancaster asked.
Trevor smiled and said, “My dad runs a security company and does a lot of his work from home. Our bandwidth usage is humongous to begin with, and my portion of that is a drop in the bucket. My dad already gets a lot of video data via the Internet, so picking out music downloads would be a true needle in a haystack scenario. It’s not like we have a regular ISP either . . . we have a dedicated T1 line.”
“Trevor, you may have dodged a bullet on this one, but if there’s a way the Feds can pin anything on you, believe me, they will. Don’t underestimate them. Especially if they lack solid evidence, they’ll do everything in their power to get a confession out of you, even if it’s unwittingly. That’s probably why your parents sent you that fax . . . to warn you not to say anything that might incriminate you.
“Considering the speed with which they acted, it almost makes you wonder if they had this whole thing planned in advance,” our attorney added.
“Ha! It’s just like the way your old man knew you were gay all along,” Kurt chided his boyfriend.
“Seriously, I wouldn’t put it past my dad to have planned this out.” Looking Mr. Lancaster directly in the eyes, Trevor continued, “He figured out I was gay from the fact that gay porn sites were attacking our firewall. Part of Dad’s business is Internet security, so I should have known better, but I stupidly assumed that I was covering my tracks by clearing my browser cache and history after each session.
“Well, being an Evangelical Christian, Dad could have confronted me years earlier, but instead, he decided to get more information. He was determined to win the battle for my soul, but he ended up coming to realize he’d run a greater risk of losing me forever if he tried. He’s still not sure of the debate on whether someone’s born gay, but having me live my life as a good Christian gay man, married to Kurt, is something my parents can live with. Besides, my parents adore Kurt as much as I do.”
“He really does have great parents,” Kurt said, and then they both kissed, and this time it wasn’t just a quick peck on the lips, either.
“Get a room, you two,” Jeremy kidded them.
“Believe us, we’d love to,” Kurt agreed.
“Well, getting back to your defense, Trevor,” Mr. Lancaster began, “it looks like your parents have done everything they can to make it difficult for the Feds to prove you didn’t rip all the music on your computers from your own CDs. Of course, it would be better if you had receipts to prove you owned all the CDs in question, but there’s no way to prove you didn’t pay cash for the bulk of your CD collection.
“Giving your CDs away doesn’t let you off the hook entirely, however. The recording industry has long argued that giving a CD away to charity after you’ve recorded it for personal use in effect violates fair use, even if you don’t take it as a tax deduction, as someone else is able to make money from it from the secondary sale, even though it’s for non-profit purposes. Fortunately, the FBI has never gone after those cases, even when there is a claim as a tax deduction, as a lot of people in the mainstream give away their old CDs to charity and there would be a real public uproar if they did. Suffice it to say, I think we’re pretty safe on this one, but if the FBI does try to go after you on this count, we’ll force them into a box where they either have to prosecute every case of donations to charity, or drop the charges altogether.”
Shifting his posture, the attorney continued, “Now if there’s one thing and one thing only that you take away from today’s session, it’s that you shouldn’t volunteer any more information than necessary. As they say, you have the right to remain silent. I strongly recommend you exercise that right. Don’t answer any questions unless I tell you to, and even then, only give the briefest of answers.
“For example, your parents stated you owned 4697 CDs, which was easily enough to have accounted for all of the music on your hard drive. You, however, think that sounds a little high, and perhaps they might have miscounted. Obviously, it’s not in anyone’s best interest to try to prove or disprove the accuracy of your parents’ inventory of your CD collection. If the Feds ask you how many CDs you had and I advise you to answer, you can simply and honestly answer, ‘I long ago lost track of how many CDs I purchased.’ If they ask you if you had 4697 CDs, you should answer, ‘I certainly trust my parents’ ability to count.’
“Note that you never say that you actually had 4697 CDs or that you trust the accuracy of the count . . . only that you trust your parents’ ability to count, which I’m sure you do. If pressed on the question of accuracy, you can then legitimately say you believe you’ve already answered the question. This is an answer you can even use under oath without perjuring yourself!”
“That’s pretty cool,” Trevor agreed.
“Now when you are under oath, you can always take the fifth, which means you’re permitted to not answer on the grounds that answering would incriminate yourself, but it gets tricky when answering before the congressional committee. Technically, they can ask you anything they want, and because theirs is an investigation only and not a legal proceeding, you can’t take the fifth. The problem is that you’ll still be testifying under oath and anything you say under oath could then be used against you in a criminal trial. But if you fail to answer, Congress could hold you in contempt and subject you to jail time.”
“But that’s not fair,” Trevor countered.
“Believe me, if that happens, we’ll be all over it in the media,” Mr. Lancaster assured all of us. “Still, we have to be careful, as we want to paint you as the victims and it’s hard to do that if we’re talking about self-incrimination. I believe I have a strategy that will work, however, that will tug at every American’s heart strings should it come to that. Let’s just hope we never find out.”
As the busboys cleared away our plates, the waiters brought in the next course, which consisted of potato pancakes with apple sauce and sour cream, cheese blintzes topped with blueberries, and a bowl of matzo ball soup. Our attorney was right - we sure weren’t going to starve.
“Not to sound dumb,” Kurt asked, “but what are these fluffy round things in the soup?”
“What, you’ve never had a matzo ball?” Mr. Lancaster asked incredulously. “Oh you poor, deprived Midwestern boy.”
Trevor was laughing so hard at his boyfriend, but then he finally said, “I’m sorry, honey, it’s just that the look on your face when you tried to figure out what those were, was priceless.”
“Obviously, Kurt’s missed out on one of the finer experiences in life,” I said. “Rather than tease him, we’ll just have to make it a point to make a pilgrimage up to Shapiro’s in Carmel.”
“The original one on the South Side downtown is better,” Jeremy asserted.
“That may be, but the one in Carmel is a hell of a lot more convenient,” I pointed out. Then noticing he still hadn’t touched his soup, I said, “Kurt, that’s nothing more than a fluffy, bread-based dumpling in a chicken-based soup. I don’t normally eat poultry, but this I’ll eat. Go ahead and give it a try.”
Finally sinking his spoon into a matzo ball to break it into pieces, and then eating a piece, he smiled at me and said, “You’re right, David, this is good,” and then we all laughed as he devoured the rest of it.
Turning to the lawyer, I asked, “So how long is this whole investigation going to take?”
“That’s hard to say, David. These things often take time. They may bring you in for questioning, but chances are they won’t until they’ve completed their investigation, at which point they’ll hold congressional hearings before the full committee. It could be a matter of days, or weeks, or even months before the investigation is complete and they’re ready to hold hearings. Of course if the investigation does turn up any hard evidence of illegal activities, they may just go ahead and make arrests and turn the matter over to the FBI for prosecution, but that’s unlikely except in Trevor’s case with regard to illegal file sharing. Again, we’ll have to cross that bridge when we come to it. The more likely scenario with Trevor’s case is they’ll try to use his file sharing as leverage to flip his testimony, but there hopefully won’t be any leverage left to use once we get done with them.”
“Why is this happening now?” I asked. “After all, the allegations of our running a prostitution ring first came out at Kurt’s medal ceremony a couple of weeks ago.”
“Ha! You’re not going to believe this, but it was a simple case of wrong place, wrong time. This much information I was able to get since last night. After the allegations came out two weeks ago, some people in the Republican Party . . . I won’t name names, took it upon themselves to suggest to the President that he appoint a special prosecutor to investigate. Of course the President refused because there was absolutely no evidence of any wrongdoing on anyone’s part. The whole thing was a rumor started by a tabloid and a caller on a talk show that was picked up by the mainstream press.
“That, of course, didn’t stop certain members of Congress from starting their own clandestine investigation . . . not that there was anything to investigate, other than the fact that all of you have been propositioned by certain members of Congress, but then so have virtually all the pages, male and female. Unfortunately, that’s nothing new.
“All of that changed last Wednesday. David, Jeremy, do you remember where you were at 12:35?”
Thinking for only a second, the answer came quickly. “Yeah, we had lunch at the Hay Adams Hotel. It’s a bit on the expensive side, but Jer was offering to take me some place really nice, and it’s very close to the White House, and so we splurged.”
“The deal is that you were seen entering the hotel at 12:35 and a very prominent congressman, whose name I’m not going to divulge for obvious reasons, but who’s long been suspected of being gay, entered the same hotel at 12:38. The same congressman left the hotel at 1:42 and you guys were seen leaving the hotel at 1:44. The timing was thought to be a bit too coincidental.
“Confronted with this ‘evidence’ the President still refused to appoint a special prosecutor, fearing it would turn into a witch hunt. The evidence was then presented to the senior senator from your state. Apparently recognizing the potential for his reputation to be harmed if he didn’t allow the investigation to proceed, he agreed to sponsor legislation supporting the formation of an ad-hoc special ethics committee.
“The vote was by a razor-thin margin, but it only requires a simple majority in both houses, and since the sponsoring senator was also the senior senator from your state and the one who sponsored Trevor and Kurt’s page applications, I think that was the deciding factor for a lot who voted for the resolution. Of course congressional resolutions don’t require a presidential signature and, likewise, he has no veto power, either.”
“The bastard!” Trevor shouted. “This is all payback because I wouldn’t go behind Kurt’s back. And to think I used to think so highly of him,” he said.
“What do you mean?” Mr. Lancaster asked.
“When I first arrived, the senior senator asked me to do clandestine research on farm subsidy bills sponsored or supported by the junior senator’s father. His intent was to try to use the junior senator’s current lack of support for corporate farm subsidies in contrast to his father’s voting record as a means of defeating him in the next election.
“Not only did I feel this was an inappropriate thing for a page to do, but I pointed out that my boyfriend was working for the junior senator, and that I held no secrets from my boyfriend. In other words, he was asking me to do something that would put us in an impossible situation. How could I keep this secret from my boyfriend? If I told my boyfriend, how could he keep it secret from his boss?
“I also gave the senior senator a piece of my mind and told him I thought the objective should be to find a compromise on farm subsidies rather than to use the issue for partisan purposes. All he could talk about was loyalty and how different I was from my father, which is something with which I vigorously disagreed. My father would never compromise his principles like this. If anything, this jerk’s driving me away from the Republican Party . . . not that I’m ready to become a Democrat, mind you, but the Republicans sure don’t seem to want me.”
“You should spend some time with Senator Bayh, Trevor,” Kurt suggested. He’s a really good guy . . . a true purist who votes his conscience. Socially liberal, but not a bleeding heart, and fiscally conservative, I think you’ll find a lot to like. He’s the kind of person you could use as a mentor after we get through this, and we will get through this. Senator Jerk will retire in a few years, and then you’ll have someone you can really look up to.”
As the busboys cleared away our plates and the waiters brought out a humongous stack of bagels and a platter piled high with lox, cream cheese, sliced tomatoes, sliced cucumbers, gefilte fish and assorted melons, we continued to discuss the sorts of things that could happen over the coming weeks, or even months.
Not unexpectedly, Kurt pointed to the gefilte fish and sheepishly asked, “What in the world is that?”
“It’s called gefilte fish, Kurt,” Jeremy answered. “I honestly have no idea how it’s made, except that it tastes heavenly.”
Kurt did try some, and said, “You’re right, it’s really good,” which got a chuckle from all of us.
Toward the end of the meal, when a large New York style strawberry cheesecake was brought out, I asked, “What’s going to happen with the rest of our summers? I mean, our internships and the Page Program will only last another two weeks, and then we’re supposed to go home. A couple of weeks after that, Jeremy and I start soccer practice. We’re both trying out for varsity this year. It would really suck big time if we missed out on making varsity because of this whole fiasco.”
“David, I’m afraid I can’t promise you anything,” Mr. Lancaster replied. “If we push too hard, we might actually exacerbate the problem and end up with more extensive hearings than we might have had otherwise. For better or for worse, we need to let the committee do their work, but I’ll do what I can behind the scenes to try to find out if there are any members of the committee who are sympathetic . . . more than likely the Democratic members, who can push to move things along as quickly as possible. The most important thing is getting the hearings over and done with before school starts, and we’ll certainly push for that. Unfortunately, we have to face reality, and your sports activities may end up being a casualty.”
“Fuck!” was all I could say.
“David,” Jeremy cautioned, “it’s not Mr. Lancaster’s fault.”
“But I fully agree with the sentiment,” our attorney said as he patted me on the shoulder. “Now as far as your work is concerned, I recommend you continue in your regular activities, but don’t be surprised if people treat you differently now that there’s an investigation going on. Most of your colleagues have probably been or will be approached. Whatever you do, do not under any circumstances talk to anyone about the investigation.
“I know this is tough on all of you, but hang in there. I’ll be working with a whole team of my own investigators and attorneys to get to the bottom of this, believe me. We aren’t going to just sit by and wait for the ad hoc committee to finish their work and start issuing subpoenas before we get started on preparing our defense. We’ll be ready at all times with ours. You’re really in great hands. Just sit back and let us take care of you. I think you already know this, but Jeremy’s father employs our firm, and he’s already made it clear that any additional billable hours for any of you will be covered in full.
“It’s going to be OK.”
We were all quiet on the drive back to Webster Hall. There wasn’t much left to say.
Being treated differently at work wasn’t the half of it, as Jeremy and I found out the next day when we arrived at the West Wing of the White House. For all intents and purposes, our internships were over. Our security clearances were downgraded and we no longer had unfettered access to the White House. We weren’t allowed to go anywhere unless we were escorted by someone with a higher security clearance, which basically meant we were prisoners of our cubicles.
Our computer accounts were locked down as well, so that we couldn’t even access the internet at large. We would have had better access from Webster Hall - if we’d still had our laptops. The one saving grace was Will. I kept worrying that our tarnished image would rub off on him, but he kept telling us that was his worry and not ours. Will made sure to involve us in his ongoing projects and to keep us busy so we still had work to do, and working with Mr. Emanuel, he saw to it that we continued to learn the ways of presidential politics. Oh, we were learning all right.
In the meantime, Trevor and Kurt were faring no better in their endeavors in the Page Program. They also had their security clearances downgraded, restricting their access to most of ‘The Hill’ and precluding them from working in all but the most public areas. They were basically allowed to do little more than make coffee and answer phones, as well as look up information from the Library of Congress.
Trevor did get a chance to express his frustration directly with the senior senator, in spite of the warnings from our attorney that he not do so. According to Trevor, the senator was certainly sympathetic, and he denied that it was any form of payback, but that he felt he had no choice - that the rumors would only fester and consume the four of us if they didn’t receive an open and fair investigation and hearing. ‘Like it or not, congressional investigations are sometimes the best way to clear one’s name,’ or so the Senator said. ‘Try telling that to the victims of the McCarthy era,’ was Trevor’s response to the Senator. Trevor called the whole thing a total crock.
“He may be one of the most honest men in the Senate,” Trevor said one night in our room, “but he still hasn’t gotten past the dirty politics of the Nixon era that made him ‘Nixon’s favorite mayor’. My dad either never saw that side of him, or he thought the ends justified the means, but it almost never does.” If our room was bugged, let the Feds hear that one.
The one concession Trevor did seem to get from his boss was that he made him feel sorry for Jeremy’s and my plight in trying out for varsity soccer. The senator vowed he would do everything he could to get us home in time for the start of soccer practice.
It was at the end of the week that the President himself called Jeremy and me in for a one-on-one meeting with him and Mr. Emanuel in the Oval Office. To say that we were stunned would have been an understatement.
The President’s secretary ushered us both into the Oval Office at the appointed time and President Obama shook our hands warmly and asked us to sit down on one of the sofas, while he and Mr. Emanuel sat down opposite us.
“Boys,” the president began, “I can’t tell you how sorry I am that this whole fiasco is going on. I know how disappointed you must be that politics has gotten in the way of your summer and all that you should be doing and learning during your stay in Washington . . .”
If he thought that’s all I felt about this whole affair, the President had an earful coming from me. “Mr. President, with all due respect, this whole fiasco is about so much more than what it’s doing to our summer and our summer plans, you can’t begin to fathom the effect it’s had on our lives, on our possible futures and on the perception of openly gay teenagers in America.
“Mr. President, I think before you jump to conclusions, the first thing you need to ask yourself is, ‘Would any of this be happening at all if it weren’t for the fact that Kurt DeWitt is gay?’ Think about that for a minute. Kurt is the youngest recipient ever to receive the Congressional Gold Medal. He’s a true American hero. You know these allegations against us are completely false. You know these allegations have arisen strictly because Kurt’s gay . . . openly gay. The allegations are baseless.
“You know what the arrangements are like at Webster Hall. How could we possibly run a prostitution ring over there? We’re practically in lock-down over there?”
“There have been scandals before,” the President pointed out.
“Yes, and those were all initiated by members of Congress . . . not by the pages,” I pointed out. “Mr. President, last spring, I discussed with you the culture that gender inequality creates when it comes to matters of sexual orientation. This is a perfect example of just where that can lead. Not to be disrespectful, but you yourself are part of the problem. You promised me that ‘Don’t ask, don’t tell’ would soon be history, and yet Secretary Gates recently affirmed it would remain indefinitely. Marriage equality exists in Canada and in much of Europe, but not here.
“It is illegal to discriminate against someone in the United States based on race, ethnicity, age and in most cases, gender, but it is perfectly legal in many places to discriminate based on sexual orientation. Does my being gay make me any less of an American? Does Jeremy’s? What about Trevor Austin, or Kurt DeWitt, who’s a true American hero? We don’t deserve to be treated this way, Mr. President, and it’s not about a ‘change’ in our summer plans.
“No matter what the outcome, we’ll always be remembered as those gay kids who ran a prostitution ring during our summer in Washington. Stories like this take on a life of their own. Why can’t the whole thing be allowed to simply die?”
“I wish it were that simple, David,” the President replied, “and you’re right about me, to a degree. I am part of the problem when it comes to gay rights. I do fully support them, by the way, but I think you know I have more than a few battles I’m fighting right now. There are enough people waiting to take me down because they say I’ve already taken on more than I should have, with health care reform, education, energy and most importantly, the economy. Hell, I’m practically running General Motors and AIG myself these days,” he said with a grin.
“I guess you do have a lot on your mind,” I agreed.
“Believe me, I did everything I could to try to make the whole thing go away, and I’ve done all I could to keep the federal agents in check. They do work for the Administration, you know. They answer to the Attorney General . . . and to me. I would have stopped the congressional investigation if I could have, but the cost would have been one I think even you would have agreed was too steep.”
I swallowed hard, recognizing the president meant that stopping the investigation would have probably meant sacrificing programs he felt were critical to the well-being of the nation. As sick as I was of what was happening to us, not even I was willing to do something like that.
“I understand that Trevor Austin has a fair bit of music on his computer that may not be legal,” the President continued. “If the FBI decides they have a case against him, I can’t do anything about that, but I’ve made it clear they are not to use it over his head as leverage against the rest of you. They would have never even found the music had it not been for this stupid congressional investigation.”
“I know Trevor will be glad to hear that,” I said. “We all will be. I can also assure you from what I’ve heard from Trevor that the FBI will find nothing to support that the music was obtained by anything other than legal means.”
“I think I hear you, David, and I’m sure many valuable lessons were learned in the process,” the President said with a smile. “Please know that you really do have my full support in the hearings, and that I want you back . . . all four of you . . . for a full summer-long internship during your college years.”
“Mr. President, it would be our honor,” I said as I stood and shook his hand, “and by then maybe things will have settled down enough that we can finally talk about making true progress on gay rights.”