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A Tale of Two Countries: Bilateral Extradition Treaties and the Fight for Real World Jurisdiction Over Virtual Crime

The Internet has dissolved jurisdictional boundaries and, as cybercrime goes viral, bilateral extradition treaties are becoming increasingly important tools in the quest for global justice.

What do UFOs, cybercrime, human rights, and the “biggest military computer hack of all time”[1] have to do with the U.S.-UK Extradition Treaty?

With the rise of the Internet, cyber security has become national security’s newest frontier – raising real-world jurisdictional concerns for the prosecution of virtual crimes.
Just ask Gary McKinnon, a U.K. citizen who spent ten years fighting extradition to the United States. In 2002, a grand jury indicted McKinnon on seven charges of computer-related crimes for accessing 97 devices linked to NASA, the Pentagon, and U.S. Navy databases.[2] In a Wired News interview, McKinnon admitted that he hacked the networks to look for information on extraterrestrials.[3] “I wouldn’t call what I did an attack,” said McKinnon. “It was more like probing, snooping around… what hackers call ‘hactivism’. Attack suggests some sort of malicious intent, which there simply wasn’t.”[4]

With the rise of the Internet, cyber security has become national security’s newest frontier – raising real-world jurisdictional concerns for the prosecution of virtual crimes. McKinnon’s “hacktivism” is one of many high-profile extradition cases that relies on the U.S.-UK Extradition Treaty to prosecute foreign suspects.

McKinnon’s legal journey began in 2004, when the U.S. Justice Department submitted an extradition request under the 2003 U.S.-UK Extradition Treaty.[5] The treaty governs the current U.S.-U.K. extradition framework. It was enacted to “[strengthen] each country’s ability to extradite serious offenders wanted for a wide variety of crimes – including terrorism, other violent crimes, organized crime, and white-collar crime.”[6]

After his extradition was authorized in 2006, McKinnon was diagnosed with Asperger’s syndrome. Asperger’s, a type of autism, causes obsessive behavior that, McKinnon argued, may have played a central part in his hacking.[7]

A trial in the United States would remove McKinnon from his native environment, family, and, if convicted, he could face 60 years in a super maximum security Federal prison.
In arguments to the High Court and House of Lords, McKinnon contended that extradition and an American trial would violate Article 8 of the European Convention on Human Rights.[8]  A trial in the United States would remove McKinnon from his native environment, family, and, if convicted, he could face 60 years in a super maximum security Federal prison.[9] McKinnon argued this would “amount to a disproportionate interference with [McKinnon’s] right to respect for his private and family life under Article 8.”[10] Prosecution in the United States would limit his access to U.K. legal resources and make adequate Asperger’s treatment difficult to guarantee. As such, McKinnon appealed for a trial in the United Kingdom, the forum in which his alleged crimes were committed, to protect his legal and human rights.[11]

The Justice Department dismissed McKinnon’s concerns and argued extradition was lawful under the current treaty. The Justice Department said the hack was “intentionally calculated to influence. . . the US government by intimidation and coercion” and caused $800,000 in damage to military computer systems.[12] When a transnational crime is illegal in both the United States and United Kingdom, the extradition treaty allows prosecutors to choose the trial forum.[13] Thus, the Justice Department may try British suspects in the United States – even if no charges are brought by U.K. prosecutors. As the United States is not subject to the European Convention on Human Rights, foreign suspects receive Constitutional protections in U.S. courts.

McKinnon’s plight was widely publicized and ignited a fierce debate in the United Kingdom. In October 2010, Home Secretary Teresa May appointed Rt. Hon. Sir Scott Baker to conduct a detailed review of U.K. extradition arrangements. Known as the Baker panel,[14] the group was to determine whether the extradition treaty advances U.K. national interests and adequately serves the pursuit of justice.[15], [16]

After losing his final appeal, McKinnon’s extradition appeared all but certain. He became deeply depressed, and doctors warned McKinnon was likely to commit suicide if forced to stand trial in the United States. On October 16, 2012, Home Secretary Teresa May made a dramatic statement in the House of Commons:

Since I came into office, the sole issue on which I have been required to make a decision is whether Mr. McKinnon’s extradition to the United States would breach his human rights. Mr. McKinnon is accused of serious crimes, but there is also no doubt that he is seriously ill. He has Asperger’s syndrome, and suffers from depressive illness. The legal question before me is now whether the extent of that illness is sufficient to preclude extradition. After careful consideration of all of the relevant material, I have concluded that Mr. McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr. McKinnon’s human rights.[17]

May became the first Home Secretary in history to prevent a court-approved extradition. McKinnon’s case may be an outlier in the current trend favoring treaty compliance, but May’s announcement signals the United Kingdom’s willingness to reform the treaty’s enforcement in favor of human rights protections.[18]

Parliamentarians and the British public supported May’s decision. Liberty Party director Shami Chakrabarti commented, “This is a great day for rights, freedoms and justice in the United Kingdom. The Home Secretary has spared this vulnerable man the cruelty of being sent to the US and accepted Liberty’s longstanding argument for change to our rotten extradition laws.”[19] Other individuals facing extradition to the United States hope May’s decision marks a long-term shift in the extradition debate, paving the way for future parliamentary legislation to make the treaty more flexible.

The evolution of McKinnon’s case from “hacktivism” to “human rights” reflects the complex balance of national interests, domestic politics, and trans-national justice at the heart of the treaty itself. As the Internet dissolves traditional notions of jurisdiction and cybercrime goes viral, bilateral extradition treaties like this one will become increasingly important tools in the quest for global justice.

 


[1] Alan Cowell & John F. Burns, Britain Refuses to Extradite Computer Hacker Sought in U.S. The New York Times (Oct. 16, 2012), http://www.nytimes.com/2012/10/17/world/europe/britain-refuses-to-extradite-computer-hacker-sought-in-us.html?_r=0.

[2] Owen Bowcott, Gary McKinnon: how unknown hacker sparked political and diplomatic storm, The Guardian (Oct. 16, 2012), http://www.guardian.co.uk/world/2012/oct/16/gary-mckinnon-hacker-sparked-storm.

[3] Nigel Watson, ‘UFO Hacker’ Tells What He Found,” Wired Magazine (June 21, 2006), http://www.wired.com/techbiz/it/news/2006/06/71182?currentPage=all.

[4] Jerome Taylor, The Big Question: What exactly did Gary McKinnon do wrong, and should he be extradited? The Independent (Aug. 4, 2009), http://www.independent.co.uk/extras/big-question/the-big-question-what-exactly-did-gary-mckinnon-do-wrong-and-should-he-be-extradited-1766967.html.

[5] Bowcott, supra note 2.

[6] Fact Sheet on the U.S.-UK Extradition Treaty, Embassy of the United States, London UK (Nov. 16, 2011) http://london.usembassy.gov/gb140.html.

[7] Taylor, supra note 4. “When he was caught, Mr. McKinnon was spending up to 18 hours a day on his computer, obsessed with the idea of finding extraterrestrial life. His lawyers maintain that far from the dangerous cyber-warrior American prosecutors portray him as, he is in fact an eccentric and vulnerable individual who should not have to go through the trauma of being imprisoned thousands of miles from home.”

[8] Home Affairs Committee, The US-UK Extradition Treaty, 2010-12, H.C. 644-I, (Mar. 27, 2012), http://www.official-documents.gov.uk/document/cm84/8465/8465.pdf

[9] Id.

[10] Id.

[11] Taylor, supra note 4.

[12] Gary McKinnon extradition to US blocked by Theresa May, BBC News (Oct. 16, 2012), http://www.bbc.co.uk/news/uk-19957138.

[13] Frequently Asked Questions on the US-UK Extradition Relationship, Embassy of the United States, London UK (Oct. 2012), http://london.usembassy.gov/gb176.html. “Prosecutors in both countries are the ones who decide where to prosecute a case. They do that according to established guidelines and after a detailed consultation about the circumstances of the case. They consider a number of factors, including the location of the victims and where the harm or loss occurred, as well as the location of the accused, the evidence and the witnesses.”

[14] Home Affairs Committee, supra note 8.

[15] Id.

[16] The panel found no functional differences in the treaty’s application to U.S. and UK residents, despite language suggesting different evidentiary tests for arrest and extradition. Second, the panel concluded a forum bar requiring UK judges to rule on where a suspect may be prosecuted would burden the courts and delay the extradition process. The U.S. and UK had mixed responses to the Baker panel’s findings. U.S. Ambassador Louis B. Sussman praised the report, saying the panel “reached the only conclusion that could be supported by the facts: that the U.S.-UK treaty is balanced, fair, and needs no changes.” The Home Affairs Committee, a House of Commons committee dedicated to oversight of Home Office policies, was more cautious: it supported the panel’s findings but worried about the treaty’s impact on domestic perceptions of justice. The Committee noted that the treaty’s wording had created a “widespread impression of unfairness in the public consciousness and, at a more practical level, gives US citizens the right to a hearing to establish “probable cause” that is denied to UK citizens.” Addressing human rights concerns, the Committee urged Parliament to implement a prima facie evidence test and a forum bar, requiring open judicial review, to prevent extradition when a suspect can be prosecuted in UK courts. Id.

[17] BBC News, supra note 11.

[18] Embassy of the United States, London UK, supra note 11. “Under this treaty, 130 extradition REQUESTS have been submitted from the U.S. to the UK. Of those 130 requests, the UK has refused 10. Of the remaining 120, 77 individuals have actually been extradited from the UK to the U.S.; and in the other 43 cases, either the case is still pending in the UK system or the individuals returned to the U.S. on their own, or some other circumstance intervened to make extradition from the UK to the U.S. no longer necessary/relevant.”

[19] Id.