The level of stupidity or selective reading got to me earlier on in this threadOriginally Posted by Saracen
I don't know why but some people seem to think what he was doing is "OK by them" and as such pesky things like facts should be ignored when they can lay some hate on the US of A!
throw new ArgumentException (String, String, Exception)
But it is illegal in both countries. If it wasn't, extradition would fail.
Nope. Minimum 12 months sentence requirement, not until serving a drink carries that, unless running that gambling site carries that sentence here.
Inside the US, they can pass whatever laws they like, just as we can .... except that they don't have the European Courts second-guessing them. If someone runs a gambling site and it's illegal in the US, they'd be well-advised to not elect to go to the US. So they have a choice - don't run a gambling site or don't go to the US. That's an entirely different issue to extradition.
Do I think it should be illegal to run an internet gambling site? Probably not, but then, gambling can be very damaging. But do the US have the right to determine laws in their own country, and apply them to those choosing to go there? Hell, yes, just as we do. If you don't like their laws, don't go there.
On that same basis, there are countries I will not visit. Those with certain punishments I regard as barbaric, such as Saudi Arabia, or whose legal systems I have little or no faith in, like North Korea. I have no right to say they can't have their legal system of choice, even though I have a problem with lack of democratic accountability. Hell, it's minimal democratic accountability here, let alone there. But I can and will exercise my right not to go there for that reason. The same applies to those running internet gambling sites - choose .... different business, or do as they wish and be pragmatic, and don't go to the US.
That's why I said forget extradition - he would have been arrested had he set foot in the country - THAT is my concern. The want to arrest him for taking actions out of their country, using servers not in their country. All because a US person accessed it?
My worry/concern is - how is this an admins problem? The expectation here is the admin somehow needs to geo-vet site accesses?
Of course why stop at the USA only laws? the implication here is one must worry on a global scale. Now then, if I set up a website ribbing the Thai king, or hosting some cartoons I'm well aware I couldn't set foot in certain countries for fear of arrest. That's expected, what is not expected is that **** to be pulled by a modern western democracy.
Extradition needs dual criminality - fine and as I say - forget that. The issue I have is US law is being pushed on people outside of the US, conducting their business outside the US.
If I set up a gambling site tomorrow, in the UK, using UK assets - what law would I need to familiarise myself with to vet site access? UK law, obviously. French? German? American? Japanese? Then apply that law based on IP location? That is unreasonable.
That was my point, I care little that what he did was illegal here too, I care that he faces jail time in america for an act patently outwith their sovereignty. To take it to an extreme, if I murder a US tourist here, would it seem reasonable for me to do time in America? Of course not, I'd do time here, because I committed the crime HERE. It's ALWAYS been about where a crime was committed, a country just cant waltz up and say "all your interwebs r belong to us" just because this was done online.
There are massive legal problems here - what if we did jail this character, what is to the stop the US jailing him afterwards too? After all, he broke the law there too?
I'm trying to look at this case as a precedent, rather than the merits of the individual case and the bottom line is: When you ignore the extradition, it matters not a jot that it was illegal here, the US want to apply their law to him regardless.
On the first para, no, not at all.
He cannot be extradited because what he did was illegal in the US. He can be extradited if what he did in the US was illegal there, and illegal here.
The only test you need to consider before running a website here, at least in terms of getting extradited, is .... is it illegal here?
And according to the judge, O'Dwyer's was, and carried a potential two years in prison, too.
So rather than worrying about screening overseas visitors, just make sure the site you're running is legal here ... or if not, isn't illegal to the point of a potential sentence exceeding 12 months.
That's one of the points a lot of people seem to be missing, or ignoring. He could have been prosecuted here, and if convicted, jailed here. The site was, according to the judge, illegal. Period. The reason he wasn't tried here appears to be the one I've mentioned several times .... having received the extradition request, the process seems to rely on the forum being wherever the bulk of the criminality took place, or where the victims suffered the bulk of the loss.
Consider another scenario. Suppose a Nigerian 401k scammer, or a share boiler-room scammer based in Spain, ripped off hundreds or thousands of UK citizens, and did it by phone, internet, email or some combination. Would we feel it right to expect that, as the crime was perpetrated on all those innocent victims here, that he/they should be subject to justice here? Yet, that scammer(s) never set foot on UK soil, but the victims may never have set foot off of UK soil. That is the nature of some modern, cross-border crime.
Double jeopardy. I dealt with that one earlier, a few posts back.
I'm not talking about extradition here though Saracen, set that aside.
If he had not been extradited I absolutely guarantee he'd have been arrested the moment he set foot on US turf. For acts not done in America. THAT is my concern.
I suspect its a bit of a legal quagmire and far less simple than it ought to be.
This case is not a precedent in that sense. It follows precedents. Even if it was, it was a district judge at an extradition hearing at a magistrate's court. Pretty low down on the precedent totem pole, and if I remember my precedent rules, it's certainly not binding on any higher court (as is true of any precedent), and I don't think (without checking) it's even binding on other parallel level courts).
But it certainly does matter that it was illegal here. It if wasn't, forget extradition.
See post #150, I think we're cross posting.
Another potential example I can think of is if someone has sex with a 17 year old America exchange student in London, based on whats happening here, it is feasible he could be arrested on landing on JFK for child sex offences.
I fear I may be explaining this badly, it feels as though US law is being applied globally, irrespective of the geographic location of the alleged act. That, is what I feel is wrong.
Okay, we cross-posted, I think.
Well, perhaps. Probably, even. But are you saying the US cannot pass laws because we might go there and don't like them?
As I said, there are many places I won't go because I don't like their laws or legal systems, including some places I might well have visited, but for their legal systems.
We can't tell sovereign nations not to pass laws. We can elect not to go there. If O'Dwyer committed an offence in the US that wasn't one here, he'd be well-advised to just not go to the US.
Not sure, but I don't think so, because the offence itself took place here, and it isn't illegal here. If he had sex with her in the US, then (as I understand US law) he could be arrested there, but if he got back here, couldn't be extradited.
And yes, we were x-posting. Again. I got a phone call while writing the last one, saying so.
I'm saying I'm worried the US might pass laws you break in $COUNTRY and be arrested on arrival.
You're right, we can't - but it is a surprise that somewhere so progressive as the 'modern western world' would pull these acts, usually its a hallmark of a BadPlace™
Remember, I'm talking about breaking a countries laws outside of their borders - something up until recently that was ok to do. Insert citations about amsterdam, autobhans, 'sex tourism' and so forth.
Edit: Re post above - that's the thing though - I think based on what we're seeing here said person COULD be arrested in America - remember they're really not caring if its legal or not here, that's merely for extradition. they want him because he's broken US law and affected US citizens whilst outside of their jurisdiction.
Actually we have a similar law on the book where we can arrest and charge you here for committing acts legal abroad but illegal here, I wasn't happy about that either.
There you have a jurisdiction issue. If you break laws in another country, that country has jurisdiction over them, not the US, so as long as there not illegal in the country where you broke them, you should not be liable to arrest in either country, or to extradition.
Where this gets murky is exactly where an action took place on the internet.
As I pointed out earlier, the US contends, and our legal system agrees, that some internet actions don't take place where the person physically is. I also gave some other examples of that, such as buying goods in a foreign country, via the net. You make a contract in that country.
Look at it this way. Back in dim and distant times, almost nobody travelled abroad, or at least, almost nobody that wasn't past of an invading army. That's why we (or anybody else) had no extradition laws until (less than, IIRC) the last couple of hundred years.
But evolving personal mobility changed that, and laws had to change to catch up. It's not that long ago that even for very serious crimes, all you had to do to escape justice was flee the country. Then it became 'flee to a non-extradition country'. That still applies, though less so than it did.
Now, in addition to personal mobility, we have cross-border crimes committed via the internet. I gave the examples earlier of Nigerian 401k'ers, or Spanish-based share boiler-room scammers.
Is it really acceptable for anyone to be utterly free to commit, for instance, fraud on your credit car, merely because they're doing it from a foreign country via the internet?
Clearly, no it isn't. That means we need laws to deal with cross-border crime, be it terrorism, fraud or, yes, IP offences. Anything less is not justice.
So I come back to one of my original points. O'Dwyer clearly (IMHO, from the points the judge made) knew what he was doing was illegal, he was damaging the rights owners by doing it, and made quite a lot of money in the process. He lost the first domain because it was seized, and responded by immediately putting the site straight back up with a different one, and a very cocky taunt to the authorities in the process. What he did was illegal in the US, illegal here, and he utterly deserves whatever he gets, IMHO.
Yeah, the internet is knackering it big time.
The law hasn't caught up and I'm not really sure how it can, its too decentralised. I just fear the policy makers will completely screw it up.
Something still just niggles in my mind that there's something wrong here, perhaps its just the checks and balances are not transparent/visible as opposed to seemingly non existent Only time will tell.
We're going to go off onto another discussion if we're not careful, and its a technical one. I'll make the point briefly, mainly 'cos I'm off to get lunch, but I can fill in a lot more detail if you wish.
Question 1) - are you aware of what's necessary to arrest someone?
Question 2) - are you aware it's actually quite a bit harder to arrest someone in the US than it is in the UK?
Background : to arrest, one of two basic situations exists. Either the police catch someone doing something, or about to do something, or have grounds to believe they've just done something. In the UK, that's a hellish complicated list. Authority to arrest is given by a LONG list of statutes, but they are ALL subject to challenge by the arrestee in a court, and if the justification for the arrest cannot be made, the policeman in potentially in trouble, not least by getting sued for false arrest, and if force was used, possibly assault (in it's various forms) too. In fact, technically, since any arrest relies on implied force even of not physical force, and pure assault is the threat of force without needing physical application, well, you can see where this is going. Its also why using the so-called citizen's arrest is a dodgy proposition.
Anyway, absent that immediacy, getting someone arrested requires the issuance of a warrant, and that requires the justification for the arrest. In the UK, that can be as simple as "reasonable suspicion". What that means, exactly, is a minefield of it's own. Read PACE for some guidance. But in the US, that type of warrant requires either a judge to sign off on it, or a Grand Jury to issue an indictment. In either case, the authorities need to prove "probable cause", and the criteria for that are certainly tougher than the "reasonable suspicion" criteria here, and arguably, tougher than the 'prima facie case' criteria, too. And, by the way, that's where much of the supposed inequality between US-UK extradition comes from too, in that ANY extradition request must be preceded by an arrest warrant in the US, and that only gets issued if "probable cause" can be met.
No more detail required, it's probably already derailed enough and I think I managed to air my reservations relatively clearly in the end.
It's all 'ifs', 'buts' and 'maybes' for now - thought interesting that they need a warrant in the US to begin to extradite - would suggest even without filing for that, he would be nicked if he set foot on the soil.
I suppose in summary I could say I feel that people abusing "the internet is different" for their own ends are not just the pirates
They could be a bit more transparent, I grant you, but one of the problems is that laws, like the extradition act, have to be technical enough to be clear in meaning, or they get challenged all the time, yet they have to be able to permit an actual system of implementation that is both efficient and as cost-e4ffective as possible, consistent with the needs of justice. And it's hard to be technically clear, administratively efficient and transparent to the lay person, all at the same time. In fact, never mind "hard" to do it, I'd say it's damn near impossible.
Also, we almost never manage it. Ever read an actual piece of legislation as apparent simple as even the Distance Selling Regs, or the Sale of Goods Act?
If not, try it with one of those, and you'll see what I mean, even for legislation many of us rely on regularly, and probably think we know the implications of. Now imagine trying to cope with all that, and the administrative and diplomatic issues of two completely, and I use the word carefully, "foreign" legal systems, with all the similarities and differences in principle, practice and administration that that implies. Then you have an idea of the extradition process.
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