Over at LP, Shaun Cronin has posted on the - prima facie - very strange case of Hew Griffiths, sometime tech nerd, software pirate and now (it seems) soon to be stateless person. I’d not been planning to do any more blogging before heading back into court for another lengthy stretch tomorrow, but an email from new Catallaxy (and LP regular) commenter Sir Henry Casingbroke alerted me to Shaun’s post. This case is simply too perplexing to ignore. Alas, I don’t have all the details - and nor does Shaun or Richard Ackland, his informant - but what I do know is very odd to say the least.
Griffiths was once a member of Drink or Die, a serious software cracking and piracy outfit shut down in 2001. Since the DOD operation was rolled up, Griffiths has been charged with breaching US copyright laws by a US Grand Jury constituted in Virginia. For those unfamiliar with the American system, a grand jury works similarly to an Australian committal proceeding, in that evidence is tested in a preliminary way in order to ascertain whether it is strong enough to warrant a criminal trial.
What is particularly disturbing about Griffiths’ case is that he has spent two years and nine months in the slam pending extradition. Even worse, his bail was revoked for what seem to be particularly spurious reasons:
In March 2004, a Local Court Magistrate, Daniel Reiss, found that he was not eligible for ’surrender’ to the waiting arms of the Americans, but this decision was overturned on appeal to the Federal Court in July that year. His bail was revoked and he went back to prison, where he’s been since.
Griffiths has since been down the appeal route - his application for special leave to appeal to the High Court was refused last September - and he’s indicated his willingness to proceed by way of a plea. It is worth noting that it’s possible for him to be charged under similar provisions in Australia’s Copyright Act - probably why his solicitors have advised him to plead.
Chris Ellison has the power to refuse the US request for Griffiths’ extradition - which Bob Debus, NSW Attorney-General - has suggested he do. All that has happened, however, is bureaucratic obfuscation and delay (including eight months last year while employees in the AG’s department drafted a ministerial submission).
Meanwhile, Griffiths is still in chokey, Ellison has issued a warrant for Griffiths’ extradition, and it is likely his Australian pre-sentence custody will not count towards any US sentence imposed. Even worse, he was born in England, not Australia (he’s been here since he was 7), and may find it impossible to return on the grounds that he has a criminal conviction. Like many Pommy immigrants, he’s neglected to take out Australian citizenship.
From a classical liberal perspective, this raises two issues. First is the utter stupidity of much intellectual property law, viz, is intellectual property deserving of the same protections as other forms of property? Second, what are we to make of US attempts to control internet use across state borders? Griffiths did his downloading in Australia, and has never set foot in the US. Shaun points to a piece by Jacob Sullum in Reason, which notes various cases of US paternalism with respect to online gambling and drug legalization lobbyists:
The timing of the indictment is also suspect. BetOnSports has been in business since the early 1990s, but the Justice Department waited until this summer—coincidentally, less than two weeks after the House voted to ban online gambling and shortly before a Senate vote on the same bill—to announce its charges. Carruthers has been one of the most visible opponents of the ban, urging Congress to legalize and regulate the business instead.
There’s no need to speculate about political motives in the case of Marc Emery, the Canadian marijuana seed dealer and vocal anti-prohibitionist who was nabbed by the long arm of American paternalism last year. Karen Tandy, head of the U.S. Drug Enforcement Administration, described Emery’s arrest as ‘a significant blow’ against ‘the marijuana legalization movement,’ bragging that ‘drug legalization lobbyists now have one less pot of money to rely on.’
Like BetOnSports, Emery’s online seed business had been operating openly for more than a decade, with minimal harassment from Canadian law enforcement authorities. In the United States, which is seeking his extradition, he could face a life sentence.
Griffiths is the only one of the original DOD gang the US is seeking to extradite. The British members were dealt with under UK Copyright law. Richard Ackland constructs Australia’s actions as slavish kowtowing to US interests, but I suspect there’s something more in play here. Whatever is going on, it reeks to high heaven.
UPDATE: Legal Eagle has some useful comments on this case, including the concept of ‘national treatment’ under Australian and US IP law.
16 Comments
He won’t be “stateless”, he’ll still be a citizen of the UK.
I have absolutely no sympathy for people who live here for 30 years, never bother to take out Australian citizenship and then complain they won’t be let back in if they commit a crime.
Taking out Australian citizenship isn’t especially difficult.
That said there is absolutely no justification for revoking the guy’s bail.
Australian courts have done the same thing in reverse, finding that Joe Gutnick was defamed in Australia by a publication on a US server.
I might add, too, that these sort of draconian criminal punishments for infringing copyright provide one of the arguments for strong DRM. Strong DRM can help prevent these types of offences from occurring in the first place.
On the supposed libertarian disdain for intellectual property, my understanding is that this is an issue that divides libertarians. Some strongly favour property rights including IP.
“I have absolutely no sympathy for people who live here for 30 years, never bother to take out Australian citizenship and then complain they won’t be let back in if they commit a crime.”
I have, the place is full of yobbos.
“last year. Karen Tandy, head of the U.S. Drug Enforcement Administration, described Emery’s arrest as ‘a significant blow’ against ‘the marijuana legalization movement,’ bragging that ‘drug legalization lobbyists now have one less pot of money to rely on.’”
What the hell is going on here, the DEA is not focusing on political activities of opponents of drugs laws.
“What the hell is going on here, the DEA is not focusing on political activities of opponents of drugs laws.”
This indeed stinks to high, high heaven.
The DEA thinks it has powers to investigate opponents of it’s activities. Great.
Sorry
should be
the DEA is NOW focusing on political activities
What do you expect with the Republic Party in power? They have always had, like most right wingers, totally screwy attitudes towards the “drug problem”. The Right gets incredibly paranoid about drugs, the DEA has always been a political body. Perhaps it is becoming academic because the youngins are turning away from marijuana in droves, the claim being that the recent publicity re marijuana causing schizophrenia has sunk in. Yet another stupid lie and the naive fall for it.
Great post, SL. I have linked to your post in one of my own.
What really stood out to me was the bail revocation, especially as the Extradition Act provides for the following:
Admittedly this occurs at the appeal stage, but even so it is difficult to see how this fellow constituted such a risk as to be effectively placed in a ’show cause’ situation with regards to bail (what normally happens to alleged violent offenders).
There are lots of examples where US law has far too much reach around the world.
1. Tax law. We have extradition rules allowing for the IRS to go after Aussie nationals. This is insane especially because the IRS can be very bloody minded about going after people who it knows are innocent.
I know of one pefectly innocent person who the IRS is going after because his US business partner went bust. The IRS thinks the Aussie partner has deeper pockets and can be frightened into coughing up money owned by the other partner. Insane!
Aussie financial firms cannot issue prospectuses around the world if they don’t comply with SEC regulations. They may comply with say Singapore’s but the SEC basically stops that under the pretext that it could interest US nationals.
This US thing is insane and the rest of the world is rolling over.
As LE pointed out over at her place, we are going to have to figure out what to do with the extraterritorial application of US (and other) domestic law. At the moment the whole thing is a mess, and this (to me) is a clear case of injustice.
I don’t know what we can do, SL? The US is very arrogant over this whole thing. The problem lies with the fact that it’s a good case of if can get away with the first one, keep doping it.
They ham fisted Caribbean countries to give them the names of credit card holders in those places as that would lead them to gray money American citizens were holding overseas.
They threatened Visa and Master card with various sanctions and also threatened the small countries with trade sanctions if the y didn’t give them up. This was well before 911. They rolled over under threat of sanctions and fines.
Now I don’t have much time for tax cheats but this does go way over the line.
And so they keep on doing it.
Our ATO/ government is just as bloody-minded over these issues too and salivate at thought of what they US can get away with.
I have a pal who woks in private banking in one of the Asian centers and he tells me that the Aussie Authorities are there almost every six months begging the various government to give up the names of Aussies with banks accounts there. The Fin Review is always reporting on ATO shenanigans.
I actually think the terrorism/ financial laws around the world were a once in a lifetime opportunity for the banking/tax authorities to go hard in without fear of repercussions.
All these are examples of regulators running rampant.
I do think the fact that he’s offered to plead guilty in Australia, and could be prosecuted in Australia, and in particular the fact that he won’t get credit for time served, means that extradition here is an extraordinary step. It’s also worth noting that the penalties under US law for criminal copyright infringement are considerably harsher than the Australian penalties, at least on the books (I’m not sure how harsh they are ‘as applied’).
It’s also scary to contemplate that acts done entirely in Australia can lead to prosecution overseas.
That said, it’s worth pointing out that if I remember the case rightly (and I remember reading the earlier extradition judgments in the Federal Court), the charge in the case is a conspiracy charge, relating to an alleged pirate ‘ring’, many of whom were based in the US. This somewhat complicates the ‘long arm of the law’ extraterritoriality issue, as it’s reasonably well established in various contexts that a country can exercise jurisdiction over a person who engages in a conspiracy to break their laws - even if the conspiring is happening overseas. (or at least, can exercise jurisdiction if it can get hold of them: thus the extradition). The conspiracy angle is also one reason (and there may be others) why the US is keen to get Griffiths over there.
“The Right gets incredibly paranoid about drugs, the DEA has always been a political body.”
Give us a break Dead Soul. I suppose the DEA was shut down when Clinton was Pres was it?
Thanks Kim. The conspiracy issue didn’t come up in Richard’s piece, which is why the whole thing is very perplexing. Even so that doesn’t explain the bail revocation.
Firstly Hew Griffiths was extradited to the US on Saturday 17/02/07.
It is true that a Grand Jury is like a commital hearing but there are some very big differences;Grand Jury sittings are secret, the defendant has no right of having legal counsel present in the Grand Jury room, nor is he allowed to call any witness. Evidence is not tested as a Grand Jury will accept unsubstantiated hearsy as evidence.
On this basis the indictment handed down against Hew Griffiths charges him with conspiracy and copyright infringement. It doesn’t mention what these copyrighted works are that Hew is alledged to have infringed upon and therefore cannot show if a copyright was actually infringed or who the owner of the copyright in question is. For the US government to convict a defendant of copyright infringement, the government must prove beyond a reasonable doubt, the following elements;
(1) A valid copyright exists
(2) It was infringed
(3) The infringement was willful
(4)(a) The infringement was for commericial advantage or private financial gain
(b) The infringed works’ retail value exceeded the statutory thresholds.
The Grand Jury indictment against Hew Griffiths fails on all these counts. Yet the Australian government is all to willing to accept what the US government claims totally ignoring any burden of proof and any presumption of innocence. They also denied Hew Griffiths of Legal and Humanitarian rights.
To put this into perspective Hew has spent 33months already in prison with more time to come what did the rest of the members of “Drink or Die” recieve?
John Sankus - 46 months, reduced to 18months
Davis Grimes - 37 months, reduced to 16 months
Nanthan Hunt - 33months, reduced to 24 months
Richard Berry - 33 months, reduced to 2 years home detention
Andrew Clardy - 41 months
Michael Kelly - 33months, reduced to 4 months
Sabuj Pattanayek - 41 months, reduced to 3 years probation
Anthony Buchanan - 2 years probation
Christopher Tresco - 33 months, reduced to 6 months.
The list goes on, and Hew Griffiths has already served more jail time than anybody else who was convicted. Why? All of the above mentioned are after all American. One interesting name seems to be missing from all D.O.J. information and that is the name of James Cudney aka “bcr8tive”. Why you may ask? Well Mr Cudney was not only given immunity, but was on the payroll of U.S. Customs agency. $104.00US per hour. His job was to identify other members to the Feds. The indictment mentions that Hew Griffiths was sent some computer parts by “bcr8tive”. This was done for two reasons, firstly as members were only known to each other by screen names this gave “bcr8tive” the opportuniy to get Hew Griffiths name and address. This ploy was also used on a Swedish cracker for the group “Znip3r”.
This information is the basis of the charges against Hew Griffiths - I call it ENTRAPMENT.
This is the information Mr Chris Ellison so happily accepted to extradite Hew Griffiths to the U.S.
I would urge everybody who thinks that this stinks to e-mail Mr Chris Ellison and tell him so, as well ase-mailing your local Federal member of parliment as well, there is an election coming…..