LinkBack URL
About LinkBacksThanks for clearing that up for me Saracen
Thanks for clearing that up for me Saracen
I want to say thanks to Saracen for some informative and well considered posts, and to those on the other side of the debate too, its been an interesting read.
I still think that this extradition stuff could go either way, in any number of theoretical scenarios, but the arrogance & brazenness of the accused in this case, probably contributes considerably to the decision.
Saracen: "They are asserting that the offence took place in the US, or at least, some did, as US citizens used the site and US citizens paid some of the advertising revenue"
Or to put it another way the US are claiming jurisdiction over the web on the basis that a US citizen might look at a web page.
So if the US can claim world wide jurisdiction then so can every other country. So if you post criticism of (for example) the Chinese govt on a social forum that can be viewed in China then you are committing an offence in China are should be shipped off to that country for trial.
That way lies madness.
I repeat the point I made, the extradiction should be refused because there will not be a fair trial because the US courts have consistently shown that they have no interest in jurisdiction arguments and no matter what international law and treaties the US govt may have signed up to.
That is completely different to my view that the UK student should be tried and put in prison (but in UK)
What a joke.
Except that criticising the Chinese Govt is not a crime in the UK. And that is how sense shall be retained in a world of madness.Originally Posted by cjs150
Indeed it only applies to crimes that are crimes in both nations.
The problem here is there is a lot of ignorance masking the important debate of how one sided our arrangement with the USA is. This guy is in trouble under UK law, he is merely been extraditated because the ragscallion cost US firms more than he cost UK ones.....
throw new ArgumentException (String, String, Exception)
Extradition is usually for cases where crimes are committed and the suspect flees the country.
The *problem* here is that this chap is being (or they are trying to) tried/arrested in america, yet he's never been there, didnt have servers there or anything.
It'll certainly be an interesting trial....usually "were the offences committed on this soil:no" would see it heading for the door. Consider the ramifications if he was just pinched at an airport somewhere in USA with an outstanding warrant - for crimes not committed in the states. They don't want him for trial because its illegal in both countries, they want him because what he did is considered illegal in theirs with utter disregard for where the actions took place.
Whether you agree with the extradition or not, no matter your stance on the site or the subject matter it dealt with: This is a clear case of US law being applied (or attempting to) to people outwith US jurisdiction.
The logical extension of this is a barman could be lifted in America for serving an 18 year old alcohol over here. Ok, so that's never happened yet, but what about running a gambling site....?
I think the whole extradition thing is a bit harsh but consider this.
If it wasnt copyrighted material that he had linked to, but child pornography instead, mainly consisting of links to abused american children, would we even debate whether this is right or wrong? Would we say that he hadnt hosted the content, so he wasn't guilty? Would we be defending him at all?
Now, not wanting to compare the guy to the absolute bottom of society any more, but what he has done is help perpetuate illegal downloads, and yes the UK gov should have first decision on prosecution, but if they waive that right (and our prisons are overcrowded enough, thankyou) and decide to let the US attempt to extradite (down the home secretary now i think) and prosecute, then that decision is their hands.
On balance, i would prefer to see him bankrupted, made to pay back every penny in revenue he has earned from the site, his credit rating go down pan and being unable to sit on the board of any company for 7 years etc etc than left to rot in an american prison, those places do not look nice.
He made over 100k from his site, probably cost the companies who own those copyrights several million, and as has been stated previously, was fullly aware that his actions were illegal.
Piracy, like it or not, do it or not, is illegal. I have been known to copy a few tunes in my time, had C90 tapes full of spectrum games whilst growing up and I have watched TV on a chipped Virgin box one of my mates has. Laws are getting tougher, penalties harsher and one day someone might come knocking on my door to arrest me for downloading that episode of Game of Thrones i missed and forgot to record and really didnt want to watch the rest of the series without seeing until it was repeated next time around, but until that day comes the authorities are going to try and get the people responsible for several thousand parties downloading software, rather than the individual who does the downloading.
I would like to see action taken against the advertisers tho, and hope that this scares the bloke enough to stay away from illegal activity and turn that ingenuity towards a more legitimate purpose
now im off to watch Game of Thrones (j/k) again
ps : in the interests of healthy debate, points have to go to Saracen for well thought out, eloquently written, highly researched and above all, apparently accurate posts that have broken down a lot of legal mumbo jumbo and made sense. There are a lot of good points on both sides, especially that our extradition treaty does appear rather one sided, wonder if it applies to Scotland....hopefully not after 2014
We're only here for the Banter - The Luvvies - Chewin' The Fat
Violence and Lubrication is the solution to fixing everything, if it still doesn't work, you need more lubrication.
mikerr (18-01-2012)
And my point? Ignore extradition for moment and consider the USA over-reach here.
I'd (genuinely) love to see why I'm mistaken in that post.
In short: US law, applied on foreign soil using foreign assets. How do the usa have jurisdiction?
But unlike a barman who serves an 18 year old alcohol in a different country, which has absolutely no effect whatsoever on America (thus no-one has ever been prosecuted in America for serving an 18 year old alcohol in a different country), running a gambling site, or indeed this current case, does affect America (or more specifically, American businesses/citizens). This is why America cares, and why they (arguably) have jurisdiction: it affects them.
Crimes in the traditional sense of extradition treaties are (?always) committed on that country's soil because that was the only way it could affect them. These days, due to the nature of the internet, it is much easier for crimes to be committed on foreign soil that affect sovereign nations, and thus extradition laws may be used despite not having committed the crime on the extraditing nation's soil.
So really then, we're saying that if you run a website to be safe one must screen all visitors location and apply the laws from every country in the world? That's quite a ridiculous amount of legal liability to be having.
This probably sounds hyperbolic, however that's basically the status quo. Traditionally though. I'd expect a warrant to be issued to be served on entry into the country, rather than extradition proceedings.
Now obviously, this "mostly" won't happen, but the question is....should it be allowed at all? It's an attempt to draw boundaries in a world without land.
From the most informative discussion here I'll say you're wrong (although understandable - my first reaction was the same - yankee imperialists!).
To restate: this dirtbag could be prosecuted in both UK and US (although I'll admit to being a little hazy as to how come something that was claimed to be legal in the UK was adjudged to be "illegal" by that judge looking at the case). However, for whatever reason the UK isn't going to clap the irons on 'im, so at this point the US has stepped forward and effectively said "if you aren't going to give 'im a doin', then can we?"
US involvement (I presume) is because the "victim" in this case is the US-based media corporations - so in effect the US DoJ are trying to look after the interests of their citizens (or at least a select group of them in this case).
ps : in the interests of healthy debate, points have to go to Saracen for well thought out, eloquently written, highly researched and above all, apparently accurate posts that have broken down a lot of legal mumbo jumbo and made sense. There are a lot of good points on both sides, especially that our extradition treaty does appear rather one sided, wonder if it applies to Scotland....hopefully not after 2014on those sentiments - while I may not be wiser, I'm certainly better informed!
Not sure what the deal will be up here after 2014 - I would guess that we'd be forced to inherit these kind of agreements. Depends what King Alec the First decides.(Although personally I can't see him winning that vote - especially if Devo-Max is also an option).
Career status: still enjoying my new career in DevOps, but it's keeping me busy...
That is why people get so worked up over it, because its a "trivial" matter, or more exactly, something they could see themselves doing.
Unless there are specific laws governing something, most laws are rather vague and general, and that is why we have judges who interpret and apply the law.
As such, it means that two "infringements", that are morally a long way apart, can be prosecuted in the same way.
That's what I was wondering earlier on - is he more liable given it was a .com than if it were a .co.uk ?
(ignoring the fact that servers/ips ca be geographically anywhere)
That's not quite what they're saying, no. They're saying that it's not as simple as where the individual is, physically. And they're right.
The whole point of an Extradition process, right back to the first Extradition laws (about 1840, in France, IIRC) is that the (accused) offender cannot escape justice for his acts by fleeing jurisdiction.
Over time, personal mobility changed. That complicated, and massively enlarged the scope for, jurisdictional problems. So the laws changed. And there is no doubt that the existence of communications technology, not limited to but massively expanded by, the internet, complicated it yet again.
There's nothing unique in being able to have a legal impact in one country without physically being there. Ever bought anything from China or Hong Kong on eBay? Or from Channel Islands suppliers, perhaps to avoid paying VAT on a DVD? If so, you've entered into a legally binding contract in those countries, without ever leaving your home.
All that's happening here is that that legal impact consists of committing an offence, and if you read the earlier posts, quite clearly doing so, and being very cocky about it too.
If you commit an offence, ANY offence, which is -
- an offence in the complaining country, and
- is an offence here, and
- is deemed serious enough here to carry a possible sentence of at least 12 months, and
- none of the statutory bars to extradition apply (like the Human Rights Act provisions) .....
.... then you are subject to extradition requests.
The US are not seeking to assert jurisdiction over the web, or at least, not via this mechanism. They
are asserting that offences can be committed via the web, without physical presence being necessary. And that is an assertion held by this country too.
Yup.
Have you actually read any of this thread?
How many times have I said it has to be an offence here too. And one carrying a potential sentence of at least 12 months too.
Please point out the UK legislation where posting criticism of China on a forum is an offence here?
Exactly.
They have jurisdiction. If they didn't, there would be no extradition. That's part of what the full extradition hearing is for.
A fair view. But a couple of points. First, it;s far from impossible that, if convicted in a US court, he could end up serving that sentence in a UK prison. It happens, believe me, and there are formal procedures for it.
But second, the assertion is that the majority of the victims are in the US. That is a point on which we, the public, could do with some additional transparency, but it is certainly a large part of the basis on which prosecutors (those in the US, and the CPS here) decide which gets to prosecute.
Consider this. An American commits an offence here. Would you prefer that he was tried and if convicted, jailed, in the US? Or would you feel that, as he committed the offence here, he should be tried here and probably serve his time here. Never mind that O'Dwyer is accused of IP offences, but assume it's, say, knifing an old lady to death. Should that notional American be tried here? I'd say, yes, and I have no doubt that the UK authorities would seek to extradite that American ... and very likely, given the necessary evidence to meet the standards of the treaties, succeed.
That is the principle applied in extradition discussions between prosecutors - where did the bulk of the criminality take place, and where was the bulk of the loss suffered. The "old lady" in this case, the victims, are in large part, US rights holders to movies and TV shows.
This is my last post on this point because it is beginning to sound like a personal rant against Saracen which it is not meant to be.
He is right on the dual criminality point - I got a bit carried away.
Simple fact is that US extradition treaty is fundamentally wrong on this point. What it should provide is:
1. Dual criminality
2. Justification for why US law should apply (in most cases this is not a problem)
3. Reasonable evidence against the individual being extradited that would justify being committed for trial
4. No over riding reason why US courts are not an appropriate forum
Currently the treaty does (1), (3) and (4) only. The position on (2) is simply left as - as long as US claims it has jurisdiction that is good enough. Well no it is not. US law should not have world wide application simply because US says so.
Consider the following. UK man assaults US citizen in London. UK law applies but for some reason UK man is not charged (with our system this is disturbingly likely) or worse is charged but for a lesser offence and convicted. US then step in and asks for extradiction (or waits until UK man released from jail and happens to take a plane which lands at US airport and gets arrested), charges UK man with attempted murder on basis that US criminal law applies to actions against US citizens and sends him to a max security prison.
That has in fact happened (although it was not a UK man)
In this case the law is fundamentally wrong, the law must be changed such that the US has to demonstrate a clear case why its law should apply (the jurisdiction point). The fact that some victims (I agree that this is the correct terminology) may have been American is not good enough - to use my example above, if you physical rob a US citizen in the UK, jurisdiction should ONLY vest in the UK. What Saracen is arguing is that because it is on the web, the web "robbery" (and that is effectively what it is) should be deemed to take place where the victim was, even if all actions that constituted the robbery were outside of the USA. Sorry but I cannot agree with that
Just to come back to one point: criticism of the Chinese govt can be a crime here if it is malicious defamation, so there are circumstances where the dual criminality issue would be met (no idea on max sentence though for it in the UK)
Last edited by cjs150; 19-01-2012 at 12:41 PM.
There are currently 1 users browsing this thread. (0 members and 1 guests)
Posting Permissions
Reply With Quote
