The Long Reach Of US Extradition

By Kellie Tranter

Should foreign governments give up their nationals to the US to 'face justice' over minor crimes committed outside US borders? What about in civil matters, like copyright infringement? Kellie Tranter on America's thirst for extradition

He was hailed as "incredibly brave" to stand up to the United States, but British computer hacker Gary McKinnon only narrowly avoided being extradited there. He had already been indicted by a US federal grand jury in Virginia in November 2002. UK home secretary Theresa May halted his extradition because of medical reports warning that McKinnon would kill himself were he to stand trial in the United States.

The US state department was disappointed with the decision not to extradite McKinnon for "long overdue justice". His case highlights unanswered questions about political extradition cases more generally. In 2007 former NSW Chief Judge in Equity, Justice Peter Young, highlighted in the Australian Law Journal "the bizarre fact that people are being extradited to the US to face criminal charges when they have never been to the US and the alleged act occurred wholly outside the US".

Justice Young’s comments were raised in the context of the case of Hew Griffiths, an Australian who was the first person in the world to be extradited and criminally prosecuted in the United States for copyright infringement. Griffiths had been involved with the group Drink or Die, which decoded copy-protected software and media products and distributed them free of cost. He was indicted by the now infamous US District Court in Alexandria, Virginia for copyright infringement and conspiracy to infringe copyright under the US Code.

Griffiths was clinically depressed, unemployed, had never made money from his activities, had no prior convictions, and was incarcerated in Silverwater and Parklea for three years, because there is no presumption of bail in extradition cases. British-based members of Drink or Die were tried in Britain, just as Griffiths could have been charged, and tried, in an Australian court.

Justice Young pointed out at the time that:

"…although International copyright violations are a great problem… there is also the consideration that a country must protect its nationals from being removed from their homeland to a foreign country merely because the commercial interests of that foreign country are claimed to have been affected by the person’s behaviour in Australia and the foreign country can exercise influence over Australia.. Assuming this decision is correct, should not the Commonwealth Parliament do more to protect Australians from this procedure?"

The Howard government was widely criticised at the time for forsaking Hew Griffiths. Australia’s negotiations for a free trade agreement with the United States were then underway. They covered cooperation on intellectual property issues and theoretically enhanced the risk of Australian citizens being extradited and prosecuted in the United States for copyright infringement carried out here. But the focus was on harmonising copyright laws and there was nothing specifically providing for the extradition of nationals from one country to the other.

Justice Young’s surprise remains well founded. There appears to be a trend to use extradition laws in US copyright and intellectual property cases. If copyright and/or intellectual property laws are not enforced they are worth nothing. Some may argue that global enforcement of IP rights is a new form of economic imperialism, with the long arm of the Government using criminal enforcement powers to enforce commercial interests at the behest of corporations and their lobbyists. It’s about power.

The 2010 US Joint Strategic Plan (pdf) on Intellectual Property Enforcement describes the use of foreign based and foreign controlled websites and web services to infringe American intellectual property rights as a growing problem that undermines America’s national security, particularly national economic security, and vowed to increase international collaborative efforts through international organisations, such as the World Intellectual Property Organisation, the World Trade Organisation, the World Customs Organisation, the World Health Organisation, the Group of Twenty Finance Ministers and Central Bank Governors, INTERPOL (used by some to pursue political dissenters), Asia Pacific Economic Cooperation and the Organisation for Economic Co-operation and Development.

Add to that the possible ratification of the Anti-Counterfeiting Trade Agreement (ACTA), criticised by Australia’s Joint Standing Committee on Treaties because of the ambiguity of its language, the disproportionality of criminal offences for copyright infringement and the need for independent economic analysis of the anticipated costs and benefits to Australia.

And to cap it off there’s Australia’s participation in negotiations for the secretive, multi-national Trans Pacific Partnership Agreement which contains an intellectual property chapter. Members of the press are barred from attending the sessions but 600 corporations are directly participating.

In March this year Australia’s lead negotiator, Hamish McCormick, reportedly declined to give assurances that participants will not agree to anything that undermines Australian law.

All of these developments fit the international trend towards the enactment of harmonised laws that give multinational protection to commercial interests to the detriment of national sovereignty.

And is it any coincidence that the international IP protective matrix is being constructed in tandem with a co-ordinated international move towards increased social media monitoring and data gathering, and hugely expanded data retention and analysis capabilities? According to the Electronic Frontier Foundation, unnamed parties are even seeking to broaden the uses of European Union Data Retention Directive to include prosecution of copyright infringement.

As recently amended, Australia’s extradition laws enable a person to be extradited for minor offences (punishable by less than 12 months imprisonment); any offence proscribed by Australian regulations are among those that will no longer be considered political, and extradition is not precluded if the person faces cruel, inhuman or degrading treatment or punishment that is not severe enough to amount to torture. The level of proof required for US extradition isn’t high: "evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt".

Justice Young’s comments reflected concerns about basic conceptions of laws and individual liberty. The game has changed, and is changing, for the worse. What is to become of kids who blithely ignore intellectual property rights online? What is to become of individuals who engage in non-violent political protest on the internet? How many of us really consider the potential risks of our online activities? Will our Attorney-General use the discretion she has to stop extradition of an Australian citizen? Into what other areas will extraditable offences stretch merely to protect commercial interests reframed as "national economic security"?