UK Court Says US Can Extradite Julian Assange And Prosecute Him For Doing Things Journalists Do

from the DOJ-is-heading-down-a-pretty-dark-path-here dept

Julian Assange and Wikileaks did a lot over the past few years to destroy the goodwill they'd managed to accumulate prior to that by being a fearless publisher of leaked documents. At times, Assange has acted hypocritically and there's some evidence he worked with Russian operatives to gather information in an attempt to damage the Democratic Party's 2016 election hopes.

That being said, the on-again, off-again attempt to prosecute Assange over alleged Espionage Act violations threatens journalism as a whole. The DOJ occasionally appeared to recognize this, hence its stop-start prosecution effort. Attempts were made to get President Biden to drop the case, but there appears to be no turning back now. The US government has won its appeal of the UK court's decision to refuse extradition.

Here's a very brief summary of the UK court's decision [PDF]:

Today, the U.S. won their appeal against a UK High Court ruling that Wikileaks founder Julian Assange could not be extradited due to concerns over his mental health. Julian Assange can now be extradited from the UK to the U.S.

That's courtesy of the ACLU, which also released this statement:

Ben Wizner, director of the ACLU Speech, Privacy, and Technology Project, had the following reaction:

“The prosecution of Julian Assange poses a grave threat to press freedom. Bringing criminal charges against a publisher for the publication of truthful information establishes a dangerous precedent that can be used to target all news organizations that hold the government accountable by publishing its secrets. Any prosecution by the United States of Mr. Assange would be unprecedented and unconstitutional, and would open the door to criminal investigations of other news organizations. The government needs to immediately drop its charges against him.”

All of this is true. And it's also true, as Marcy Wheeler points out, that Assange's legal representation engaged in some bad faith arguing while trying to keep Assange from being extradited.

But the US is hardly without fault. It has made assurances about Assange's treatment in prison, including a promise to keep him out of solitary confinement. Even if those making these assurances firmly believe them, the US prison system is far from willing to ensure Assange and his health conditions are treated humanely. The system does not work that way. Prisoners are considered interchangeable pieces of meat, stripped of their humanity as soon as they're processed.

Here's Wheeler's take on the bad faith on both sides.

These two issues go to the dubious credibility of both sides. The High Court ruled that Kopelman did not give unvarnished expert opinion (he was in no way the only one of WikiLeaks’ experts to do so), but found that could not, at this point, affect the legal analysis. And it found that US assurances that US jails would treat Assange humanely were sufficient, even though I believe there is a high likelihood that Assange will do something that ends up getting him put in some form of isolation.

WikiLeaks has lied systematically throughout this extradition process — about why Assange was charged when he was, about what he was charged with, about how strong the case against him is, about what a Yahoo article actually said. I have described how a very close Assange associate ordered me, in advance of the first extradition hearing, to stop doing factual reporting on Joshua Schulte’s case because it would undermine the story about journalism WikiLeaks wanted to tell, which is one way I’m absolutely certain the lying is intentional. They have affirmatively told a story that was most useful to their propaganda effort, one they knew to be false.

[...]

That said, the US is little more credible. There’s scant reason to credit US assurances on jail and prison conditions. That’s true — and would be true for all international extradition cases — because our jails and prisons are shamefully inhumane. But it’s also true because a national security defendant like Assange would have little leeway before triggering more severe restrictions.

This is an example where neither side should be credited.

Without a doubt, Assange will soon find himself on the receiving end of the worst things the US penal system has to offer. Even at its best, it's still pretty terrible.

Beyond the threat to Assange's life and health, there's the existential threat this prosecution poses to journalism. Assange faces 18 charges. Seventeen of those target things journalists do regularly. Sources with access to confidential and classified information are pursued. Leaked information is published. While the First Amendment tends to do a pretty good job protecting publication, it's not nearly as helpful when it comes to the act of newsgathering, especially when the news is information the government would like to remain secret.

That these charges are being brought under the Espionage Act means Assange's defense will be extremely limited. The newsworthiness of published classified information doesn't matter and there's no public interest defense to be raised. The prosecution makes its case and the defendant, for the most part, is expected to just sit there and take it.

This is why Edward Snowden fled the country. As he pointed out then, if there was a chance he'd be given a fair trial, he'd return to the US and face the DOJ in court. But the Espionage Act makes a fair trial impossible. That's why the charges against Assange are so dangerous. If they stick, the DOJ will have little reason -- other than an equally on-again, off-again sense of decency -- to not bring criminal charges against journalists who seek out and publish classified information.

Filed Under: 1st amendment, extradition, journalism, julian assange, leaks, prisons, uk, us, whistleblowing

Judge Refuses To Extradite Julian Assange, Citing US Prison Conditions & Assange's Mental Health

from the a-slight-win-for-journalism dept

Even if you think that Julian Assange conspired against the US with the help of Russia, as some allege, you should still be extremely concerned about the US's prosecution of him. As we've explained, the details in the indictment would criminalize many activities that journalists do every single day. It would be a massive expansion of how the Espionage Act was interpreted and would try to blame him for hacking he had nothing to do with.

So, at least for now, it's good to see that a UK court has refused to extradite Assange to the US. The reasons have little to do with the sketchiness of the underlying case, but rather is a condemnation of US prison conditions. The judge notes that in Assange's current mental state, he'd likely end up killing himself if placed in the US prison system, but rejected the claims from Assange that the prosecution is politically motivated, and therefore invalid.

In a mixed ruling for Assange and his supporters, District Judge Vanessa Baraitser rejected defense arguments that the 49-year-old Australian faces a politically motivated American prosecution that rides roughshod over free-speech protections. But she said Assange’s precarious mental health would likely deteriorate further under the conditions of “near total isolation” he would face in a U.S. prison.

“I find that the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America,” the judge said.

The US has already said it's appealing the ruling, so this is far from over. It's unclear if Assange's team will be appealing the rejection of the political prosecution claims, as well as the claims that Assange was acting as a journalist. The Freedom of the Press Foundation, who was an early supporter of Assange, before later fighting with him, celebrated the ruling:

Today’s ruling is a huge sigh of relief for anyone who cares about press freedom. While the judge’s opinion contains many worrying assertions that disregard journalists’ rights, her rejection of the Trump administration’s extradition request means the US government likely won’t be able to obtain any precedent that would criminalize common newsgathering and publishing practices. And that is a very good thing.

I agree that it's good that the extradition attempt has failed for now, but I'm extremely worried about the judge rejecting the free speech/journalism/political attack arguments. Again, much of what Assange did -- even if you disagree with it or think it was done under the auspices of a foreign country -- should not be considered criminal. The descriptions in the indictment could easily apply to tons of journalists, both in the US and abroad.

Whether or not Assange is a horrible person is unrelated to the legal principles at stake. The entire case appears to be a politically motivated attack on publishing embarrassing documents, and that should raise significant 1st Amendment questions.

Filed Under: 1st amendment, espionage act, extradition, free speech, journalism, julian assange, uk, us

NZ Supreme Court Gives A Mixed Bag Extradition Ruling To Kim Dotcom; Extradition Still Alive, But He Can Raise Procedural Issues

from the this-case-will-never-end dept

It's been almost a decade since US and New Zealand forces did a silly made-for-Hollywood (and possibly by Hollywood) raid of Kim Dotcom's home in New Zealand for the crime of running a cloud storage service that some people used for infringing works. Since that time, Dotcom has been fighting extradition charges to the US. The case has taken many crazy twists and turns, including the US government seizing his assets by claiming he's a fugitive, even as he's been going through the standard legal process to determine if extradition is proper (and there's a very strong legal argument it is not even remotely proper).

That said, while Dotcom has won rulings showing illegal activity in how he was surveilled and arrested, he's also lost his attempts to block the extradition.

The latest ruling, from New Zealand's Supreme Court is unfortunately more of the same. The court has found that he can be extradited on 12 of the 13 charges against him, but also noted the procedural problems that have plagued the case mean that he still cannot be extradited. Specifically, the Supreme Court found that Dotcom (and his colleagues who were also arrested) were denied judicial review of the original ruling in the district court in 2015.

Dotcom and his lawyers have (accurately) stated that the ruling "is a mixed bag." But it's mostly mixed with bad news for Dotcom. The good part is just that he doesn't have to get shipped off to the US right away.

But on the whole this is a bad ruling for Dotcom. The key issue at play gets deep into the copyright weeds, about theories regarding criminal inducement of infringement, and whether or not New Zealand and the US have matching crimes. Unfortunately, so far it looks like the New Zealand courts (like too many of the US courts) don't really care to look at the actual specifics of what's in the law and just lump together a bunch of different concepts around "copyright infringement bad," without being willing to understand that building a platform that is used for infringement is not the same thing as infringing yourself. The court didn't seem to understand the difference here -- which is unfortunately not that surprising, but it is disappointing. These kinds of rulings damage the open internet, limit the kinds of services that can be built, and bring us closer to a locked down broadcast-only internet, the kind which Hollywood wants.

Filed Under: cloud storage, copyright, extradition, intermediary liability, kim dotcom, new zealand, procedural issues, us
Companies: megaupload

DOJ Indicts Cyprus National Who Apparently Hacked Ripoff Report And Deleted Negative Reviews

from the managing-everyone's-reputation-but-your-own dept

We've covered incidents involving Ripoff Report for several years here at Techdirt. In most of the cases that we've covered, Ripoff Report has been the target of bogus DMCA takedowns and libel lawsuits from entities who would do pretty much anything to see negative reviews disappear.

Ripoff Report has plenty of critics. The company refuses to take any review down, even if the reviewer is the one asking for it to be removed. People have accused Ripoff Report of engaging in extortionate behavior by encouraging third parties to flood complaining companies (and individuals) with negative reviews. And the site's hardline stance of review removal (it simply never happens) hasn't earned it much sympathy in other countries where Section 230 immunity and other free speech-friendly laws aren't in effect.

But the latest news involving Ripoff Report is some of the weirdest. And it comes from an unusual source: the Department of Justice. A Cyprus national with links to a California reputation management company has been extradited to the US to face criminal charges related to the malicious hacking of Ripoff Report.

The indictment alleges that on Oct. 30, 2016, [Joshua] Epifaniou obtained unauthorized access to the database of Ripoff Report (ROR), a company located in Phoenix, Arizona, through a brute force attack. A brute force attack is a trial-and-error method used to obtain information, such as a user password or personal identification number. Epifaniou allegedly used the attack to successfully override ROR’s login and password protection to access its database through an existing account for a ROR employee. On Nov. 18, 2016, Epifaniou emailed ROR’s CEO using an email address, threatening to publicly disseminate stolen ROR data unless the company paid him $90,000 within 48 hours. According to the indictment, Epifaniou emailed again the following day with a hyperlink to a video recording demonstrating Epifaniou’s unauthorized access to the ROR CEO’s account.  

This would be on top of Epifaniou's other alleged extortion schemes. He also illicitly harvested personal information from a number of other sites, including those belonging to an online game publisher, an employment service, and a sports news site run by Turner Broadcasting. Epifaniou and his conspirators emailed users of these sites, threatening them with exposing sensitive data unless a ransom was paid.

Trying to extort Ripoff Report's site owner wasn't the only thing Epifaniou did. He also leveraged his illicit access to the review site to benefit California-based SEO Company's customers, ensuring a healthy payout for himself in the process. From the indictment [PDF]:

On or about November 8, 2016, SEO Company negotiated a "reputation management service agreement," charging the client an initial $4000 for removal of a complaint from ROR.

On or about November 9, 2016, EPIFANIOU and his co-conspirator via an instant messaging service discussed their plan to remove data from the ROR website for a fee but pretend to SEO Company's clients that it was accomplished through court orders rather than computer hacking.

[...]

On or about February 13, 2017, SEO Company negotiated a "reputation management service agreement" with another client, charging an initial $4,000 for removal of a complaint from ROR.

On or about February 14, 2017, EPIFANIOU and his co-conspirator via an instant messaging service discussed the status and profits of their ROR hack, and their intent to hack-additional customer complaint and review websites (including through website vulnerabilities and stolen employee login credentials).

On or about March 3, 2017, SEO Company negotiated a "reputation management service agreement" with another client, charging an initial $4,150 for removal of two complaints from ROR.

On or about March 31, 2017, SEO Company negotiated a "reputation management service agreement" with another client, charging $11,000 for removal of two complaints from ROR.

On or about April 27, 2017, EPIFANIOU and his co-conspirator via an instant messaging service discussed another method for unauthorized access to ROR's database, "in case the original exploit gets patched so we can drag this out for another at least 6-7 months."

Between October 2016 and May 2017, EPIFANIOU and his co-conspirator removed at least 100 complaints from the ROR database, charging SEO Company's clients approximately $3,000 to $5,000 for removal of each Complaint.

And that's how you remove a negative review from Ripoff Report. All you need is a willing conspirator, admin-level access to the site itself, and the willingness to put your freedom on the line to help companies patch up their reputations. It's not a great plan, but it worked right up until it didn't. And that six-month run was enough to delete 100 negative reviews and generate at least $300,000 in payments from SEO Company customers who are now linked to illicit hacking and ransom demands. Fun stuff.

Filed Under: breach, doj, extradition, hack, joshua epifaniou, reputation management, seo
Companies: ripoff report

New Indictment Tries To Tie Julian Assange To A Hacking He Had Nothing To Do With

from the several-versions-of-truth-and-this-one-is-the-DOJ's dept

The government is still trying to get Julian Assange out of the UK so it can ring him up on a variety of charges related to obtaining and publishing a large number of sensitive documents. Most of the charges are still related to the documents obtained from Chelsea Manning. The DOJ wants to use the oft-abused CFAA to put Assange behind bars because he supposedly helped Manning hack a CIA database.

Another indictment [PDF] has been issued by the DOJ, making this its third attempt to throw the book at Assange. If the DOJ can prove Assange contributed to hacking attempts, it may end up with a case worth pursuing. But much of what the indictments deal with is normal journalism behavior: the cultivation of sources and the encouragement of sources to locate/leak newsworthy documents. The blurry line the DOJ is walking on is the same line the previous administration seemed to feel wasn't worth crossing, no matter how much harm/embarrassment Assange had caused with the release of sensitive documents.

The latest indictment expands the government's espionage theories. The government's second superseding indictment deals with Assange's alleged "unlawful overt acts:" the hacking attempts supposedly made targeting Defense Department computers, possibly with the aid of Chelsea Manning and other Wikileaks associates.

Much of this expanded narrative seems to rely on the input of FBI informants, including Sigurdur Thordarson, who was convicted twice for sex with minors after he began working for the FBI in 2011. Sketchy contributors aside, there are some major omissions in the government's narrative.

First, as Dell Cameron points out for Gizmodo, the indictment casually ignores the government's contribution to cyber attacks on American businesses located overseas, as well as some foreign government targets. But there is a significant omission in the new indictment. And the purpose of this crucial admission appears to be an attempt to link Assange to a data breach he never participated in.

A section of the indictment titled “Sabu, Hammond, and ASSANGE” begins on the date December 25, 2011, and refers to an attack on servers belonging to a private firm identified only as “Intelligence Consulting Company.” This is obviously Stratfor, the Austin-based private intelligence company whose millions of pilfered emails comprise the WikiLeaks drop known as the Global Intelligence Files.

DOJ omits several crucial details about the Stratfor hack in its attempts to name Assange as a conspirator in a breach that happened without his knowledge. Most notably, prosecutors exclude that the actual breach of Stratfor’s security, in late 2011, occurred 83 days prior to the events they describe, unknownst by anyone DOJ identifies as part of the conspiracy, including Assange.

Assange and Wikileaks may have helped distribute the documents obtained in the breach and there does appear to be evidence Assange provided the hackers with some tools for searching the stash of five million emails, but there's nothing in the indictment that ties Assange to the underlying hacking. The only thing in the indictment is stuff the DOJ is generously calling "evidence."

At best, these are copies of exchanges taken from chat rooms in which a user claims to be Assange, which is not likely to hold up in court.

To be sure, indictments are often a pile of helpful omissions designed to speedily initiate prosecutions. But the more the government adds to its accusations, the more glaring its omissions become. This case was already problematic -- willing to walk right up to the First Amendment and dare it to do something about it. Now it's become more farcical, with the government accusing someone of doing something it appears clear they didn't do and bolstering it with half-truths about the FBI's own involvement in malicious hacking efforts.

Filed Under: cfaa, doj, extradition, hacking, indictment, julian assange, leaks
Companies: stratfor, wikileaks

When A 'Trade War' Involves Seizing And Imprisoning Foreign Execs, It's No Longer Just About Trade

from the it-kinda-leads-to-actual-wars dept

For years we've been writing about the weird US government infatuation with the Chinese telco equipment firm, Huawei. The company has built a widely successful business, but going back many years there's been a loud whisper campaign that the company's equipment would send information back to the Chinese government. Of course, when our own government investigated this, it could find no evidence at all that this was true. It also seems notable that Huawei itself asked for this investigation, claiming that it would clear the company's name, since it wasn't doing anything that people were accusing it of doing. This doesn't mean that the company isn't doing something nefarious, but such claims should have some sort of evidence to back them up, and so far they've been lacking.

Of course, this may have been one of those situations where people assumed that whatever we would do to others, others must be doing to us, because what we do know, is that the NSA broke into Huawei's computers and grabbed a bunch of emails and source code. That bit seems to get left out of all the fear mongering reporting about Huawei. Oh, and it later came out that much of the whisper campaign about Huawei spying for the Chinese government... originated from the US firm Cisco, which was seeing its market share eroded by Huawei.

So we've long taken the claims about Huawei with a large grain of salt, even as most in the media have been willing to repeat the allegations about Huawei without mentioning the lack of evidence, Cisco's involvement, or the fact that the US government swiped a bunch of stuff from Huawei, even though all of those things seem kinda relevant.

By now, of course, you've probably heard that Canadian officials arrested Huawei's CFO, Meng Wanzhou, who also happens to be the daughter of the founder, and there are plans to try to extradite her to the US. While no charges have been revealed, most people claim it has to do with violating US sanctions on Iran by shipping US made equipment to Iran. The details here will matter, but it's still incredibly unusual to have a friendly country arrest a top exec and then try to extradite them.

Even if the official charges have nothing to do with the ongoing trade war with China, as nearly everyone is pointing out, there's no way this doesn't create massive blowback on any new trade agreement. Remember it was just a few days ago (was it really just a few days?) that President Trump announced that he'd agreed to end the senseless trade war he'd started (which has created a massive import tax on American businesses and consumers). Of course, when the Chinese gave their version of the story, it sounded remarkably different than Trump's version.

But, at least it sounded like progress was being made, and maybe we could end the insanity. But, of course, by having an ally arrest a top exec, it's thrown everything up in the air. Imagine, for example, if Sheryl Sandberg was on a trip to Pakistan, and was arrested by authorities there and extradited to China to face criminal charges. That's kind of the equivalent of what the US has just done via Canada.

Then, take it a step further. White House officials have told the press that they believe Meng "could be used as leverage with China in trade talks," and you realize this has fuck all to do with Iranian sanctions. No, that's the White House more or less admitting that they've taken a hostage in a trade war. That's hellishly dangerous. Because China will not hesitate to retaliate. If I were an American business exec, I'd stay far away from China or any of its allies right about now.

Arresting an executive over such a thing, and then admitting you want to use her as "leverage," just as you're negotiating a complex trade deal is... the kind of thing that turns a trade war into an actual war. It's an incredibly dangerous move that should concern everyone.

Filed Under: arrests, china, donald trump, extradition, hostage, iran, meng wanzhou, surveillance, trade war, war
Companies: cisco, huawei

Kim Dotcom Loses Latest Round In Extradition Fight, Will Try To Appeal Again

from the this-case-will-never-end dept

Kim Dotcom's ongoing legal saga continues. The latest is that the New Zealand Court of Appeal has rejected his appeal of earlier rulings concerning whether or not he can be extradited to the US. Dotcom and his lawyers insist that they will appeal to the Supreme Court, though there seems to be some disagreement about whether or not that will even be possible. The full ruling is worth a read, though much of it is dry and procedural.

And, I know that many people's opinion of this case is focused almost exclusively on whether they think Kim Dotcom and Megaupload were "good" or "bad," but if you can get past all of that, there are some really important legal issues at play here, especially concerning the nature of intermediary liability protections in New Zealand, as well as the long-arm reach of US law enforcement around the globe. Unfortunately, for the most part it's appeared that the courts have been much more focused on the whole "but Dotcom is obviously a bad dude..." and then used that to rationalize a ruling against him, even if it doesn't seem to fit what the law says.

As Dotcom and his lawyers have noted, this has meant that, while there are now three rulings against him on whether or not he can be extradited, they all come to different conclusions as to why. A key issue, as we've discussed before, is the one of "double criminality." For there to be an extraditable offense, the person (or people) in question need to have done something that is a crime in both the US and New Zealand. As Dotcom has argued over and over again, the "crime" that he is charged with is effectively criminal secondary copyright infringement. And that's a big problem, since there is no such thing as secondary criminal copyright infringement under US law. Since Megaupload was a platform, it should not be held liable for the actions of its users. But the US tries to wipe all of that away by playing up that Dotcom is a bad dude, and boy, a lot of people sure infringed copyright using Megaupload. And all of that may be true, but it doesn't change the fact that they should have to show that he actually broke a law in both countries.

Indeed, the lower court basically tossed out the copyright issue in evaluating extradition, but said he could still be extradited over "fraud" claims. Dotcom argued back that without the copyright infringement, there is no fraud, and thus the ruling didn't make any sense.

The Court of Appeal comes to the same conclusion, but for somewhat different reasons. It appears that Dotcom's lawyers focused heavily on what some might consider technical nitpicking in reading of the law. Pulling on a tactic that has been tried (not successfully...) in the US, they argued that reading through the text of the copyright shows that it only applies to "tangible" copies -- i.e., content on a physical media -- rather than on digital only files. In the US, at least, the Copyright Act is written in such a way that a plain reading of the law says that copyright also only applies to physical goods, rather than digital files. But, as has happened here, US courts have not been willing to accept that fairly plain language in the statute because it would mess up the way the world views copyright. It's no surprise that the New Zealand court came to the same end result. While it would be better if the law itself were fixed, the courts seem pretty united in saying that they won't accept this plain reading of the statute, because that would really muck things up. Unfortunately, in focusing on that nitpicking, it may have obscured the larger issues for the court.

Over and over again in the ruling, the court seems to bend over backwards to effectively say, "look, Dotcom's site was used for lots of infringement, so there's enough evidence that he had ill intent, and therefore we can hand him over to the US." That seems like a painfully weak argument -- but, again, par for the course around Dotcom. So, basically, even though it has other reasons than the lower court, this court says there's enough here to extradite:

We have departed from the Judge in our analysis of s 131.260 But the Judge’s conclusions on ss 249 and 228 (the latter of which we will turn to shortly) were not affected by his conclusion on s 131. Each of the ss 249 and 228 pathways depended on dishonesty, as defined, and the other elements of the actus rei of those offences. Inherent in the Judge’s finding was that dishonesty for the purpose of s 249 (and s 228) did not require proof of criminal conduct under s 131. With that conclusion we agree. It is plainly sufficient that for the purposes of s 217 that the relevant acts are done without belief in the existence of consent or authority from the copyright owner. It does not need to amount to criminal conduct independently of s 249. Put another way, “dishonestly” as defined in s 217 is not contingent on having committed another offence, but is instead simply an element of the offence.

That may be a bit confusing, but basically they're saying it doesn't much matter whether or not there was actual criminal copyright infringement or not, because there was enough "dishonesty" to allow Dotcom to be extradited on other issues.

Again, none of this is that surprising, but it does again feel like the courts reacting to how they perceive Dotcom himself, rather than following what the law actually says. That should worry people. At this point, it seems highly likely that Dotcom's attempts to appeal to the Supreme Court will fail and that he will be extradited. Of course, then there would still need to be legal proceedings in the US -- though the judge assigned to his case has already shown little interest in understanding the nuances of copyright and intermediary liability law, so it's likely to be quite a mess here as well.

Whatever you think of Kim Dotcom, many of the legal arguments against him seem almost entirely based on the fact that people want to associate him with the actions of his users, and the fact that he didn't seem to much care about what the legacy entertainment industry thought of him. Maybe he deserves to be locked up -- but it's hard to argue that the process has been fair and based on what the law actually says.

Filed Under: appeals, due process, extradition, intermediary liability, kim dotcom, new zealand
Companies: megaupload

Hacker Lauri Love Wins Extradition Appeal; Won't Be Shipped Off To The US

from the phew dept

We've been writing about the saga of Lauri Love for almost four years now. If you don't recall, he's the British student who was accused of hacking into various US government systems, and who has been fighting a battle against being extradited to the US for all these years. For those of you old timers, the situation was quite similar to the story of Gary McKinnon, another UK citizen accused of hacking into US government computers, and who fought extradition for years. In McKinnon's case, he lost his court appeals, but the extradition was eventually blocked by the UK's Home Secretary... Theresa May.

In the Lauri Love case, the situation went somewhat differently. A court said Love could be extradited and current Home Secretary Amber Rudd was happy to go along with it. But, somewhat surprisingly, an appeals court has overruled the lower court and said Love should not be extradited:

Lawyers for the 32-year-old, who lives in Suffolk, had argued that he should be tried for his alleged crimes in the UK and that he would be at risk of killing himself if sent to the US.

The court accepted both of the main arguments advanced by Love’s lawyers that there was no reason he could not be tried in England and that he might suffer serious damage to his health if he were extradited.

Love may now face a trial in the UK -- but that is considered a much better option than being shipped overseas. After the ruling, Love noted that this could impact future cases of individuals in similar circumstances, and the link above quotes some lawyers suggesting that it's going to be much more difficult for the US to extradite people for computer crimes going forward. Given the ridiculousness of the CFAA and the way that the US treats computer crimes, this is clearly a good thing.

Filed Under: cfaa, computer crimes, extradition, hacking, lauri love, uk, us

GCHQ Knew FBI Wanted To Arrest MalwareTech, Let Him Fly To The US To Be Arrested There

from the so-much-for-those-'flight-risk'-fears dept

It looks like the UK found an easy way to avoid another lengthy extradition battle. Its intelligence agency, GCHQ, knew something security research Marcus Hutchins didn't -- and certainly didn't feel obliged to tell him. Not only that, but it let a criminal suspect fly out of the country with zero pre-flight vetting. (Caution: registration wall ahead.)

Officials at the intelligence agency knew that Marcus Hutchins, from Devon, who was hailed as a hero for helping the NHS, would be walking into a trap when he flew to the US in July for a cyber-conference.

Hutchins’s arrest by the FBI on August 2 while he was returning from Las Vegas freed the British government from the “headache of an extradition battle” with their closest ally, say sources familiar with the case.

Certainly no one expected GCHQ to give Hutchins a heads-up on the legal troubles awaiting him on the other side of the pond, but there's something a bit mean-spirited about allowing a UK citizen to walk into custody in another country. And as for the "headache," too bad. That's just part of the deal when you make promises to other countries you'll ship them your citizens to face an uphill battle in an unfamiliar judicial system while facing charges for laws that may not apply the same way -- or as harshly -- at home.

This is even more disconcerting when it was Hutchins who was instrumental in killing off the WannaCry ransomware that wreaked havoc pretty much everywhere earlier this year. In gratitude for his efforts, a few publications outed the person behind the "MalwareTech" pseudonym, which probably made it a bit easier to tie Hutchins to various online personas.

As Marcy Wheeler pointed out on Twitter, it works out pretty well for the UK. It gets to outsource its prosecutions to a nation where punishments for malicious hacking are much, much higher. It also gets to dodge the publicity black eye of handing over its (inadvertent) WannaCry hero to the feds and their threat of a few decades in jail. It also suggests the Five Eyes partnership is paying off in questionable ways and, sooner or later, it's going to be an American citizen walking into the same sort of trap overseas.

Filed Under: doj, extradition, fbi, gchq, malwaretech, marcus hutchins, uk

New Zealand Court Says Kim Dotcom Still Eligible For Extradition... But Not Over Copyright

from the wait,-what? dept

After quite some time, a New Zealand court has said that Kim Dotcom is eligible for extradition to the US -- something he's been fighting for over five years. But there's a weird twist to the story. A key part of the argument that Dotcom's lawyers have been making is that for extradition to the US, there needs to be "dual criminality" (you can hear Dotcom's lawyer, Ira Rothken, discuss this on our podcast a few months back). And, the key "crime" that Dotcom is charged with involves secondary copyright infringement (i.e., creating a platform that others use to infringe). But, that's a problem, as there's no criminal secondary copyright infringement under New Zealand law (nor US law, but that's a separate issue). So, here's the twist. The court actually agreed that there's no such thing under New Zealand law -- and said that Dotcom can't be extradited for copyright infringement. However, the court said that he can be extradited for "fraud" because there's dual criminality there.

As Dotcom's lawyers point out, that means this is no longer, as was claimed by the US, the "largest criminal copyright case" because copyright is officially no longer a part of it. But, if the copyright part is taken out... where's the "fraud"? The whole claim of "fraud" is based entirely on the fact that Megaupload users infringed on copyrights. So if that's not a crime, then, um... where's the fraud?

I know that some will argue that it doesn't really matter, and they'll insist that what Dotcom and Megaupload did was "bad" -- end of story. But we're still supposed to live under the rule of law, and you don't just get to throw people in jail because they're "bad." You have to prove they actually broke the law. But that's a big problem here, because Megaupload didn't violate copyright law. And if it didn't do that... where's the "fraud"? Dotcom's lawyers will now try to appeal this part of the ruling, extending this legal fight even further. But it's a bigger issue than that. If courts can wipe away safe harbor protections by service providers by hiding behind a "fraud" claim, there are no longer safe harbor protections:

The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.

That's dangerous for free speech, it's dangerous for innovation, and it's dangerous for basic respect for the law.

Filed Under: copyright, criminal copyright, doj, extradition, fraud, intermediary liability, kim dotcom, new zealand
Companies: megaupload