The Legal Geographies of Transnational Cyber-Prosecutions: Extradition, Human Rights and Forum Shifting

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Mann, Monique, Warren, Ian, & Kennedy, Sally (2018) The legal geographies of transnational cyber-prosecutions: extradition, human rights and forum shifting. Global Crime, 19(2), pp. 107-124.

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Notice: Please note that this document may not be the Version of Record (i.e. published version) of the work. Author manuscript versions (as Sub- mitted for peer review or as Accepted for publication after peer review) can be identiﬁed by an absence of publisher branding and/or typeset appear- ance. If there is any doubt, please refer to the published source. https://doi.org/10.1080/17440572.2018.1448272 The Legal Geographies of Transnational Cyber-Prosecutions: Extradition, Human Rights and Forum Shifting

Monique Manna*, Ian Warrenb and Sally Kennedyb aFaculty of Law, Queensland University of Technology, Brisbane, Australia

bFaculty of Arts and Education, Deakin Univeristy, Geelong, Australia

*Corresponding author: [email protected] orcid.org/0000-0001-8372-3797

Dr Monique Mann is the Vice Chancellor’s Research Fellow in Technology and Regulation at the Faculty of Law, Queensland University of Technology. Dr Mann is advancing a program of socio-legal research on the intersecting topics of algorithmic justice, police technology, surveillance, biometrics and transnational online policing.

Dr Ian Warren is a Senior Lecturer in Criminology at Deakin University, Geelong, Australia. His research interests focus on surveillance, transnational justice cooperation and exclusionary criminal governance policies.

Sally Kennedy is a Doctoral candidate at Deakin University, Geelong, Australia. Her research focuses on comparative extradition law and procedure.

Acknowledgements: The authors would like to thank Dr Angela Daly, Dr Dean Biron and the anonymous reviewers for their helpful comments on earlier versions of this article and Mr Michael Wilson for his excellent research assistance.

1 Abstract This paper describes legal and human rights issues in three cases of transnational online offending involving extradition requests by the United States (US). These cases were selected as all suspects claimed the negative impacts of Autism Spectrum Disorders (ASD) were sufficient to deny extradition on human rights grounds. We demonstrate how recent developments in UK and Irish extradition law raise human rights and prosecutorial challenges specific to online offending that are not met by established protections under domestic and internationally sanctioned approaches to extradition or human rights law. In these cases, although the allegedly unlawful conduct occurred exclusively online and concurrent jurisdiction enables prosecution at both the source and location of harm, we demonstrate why national courts hearing extradition challenges are extremely reluctant to shift the trial forum. We conclude by discussing the implications of the new geographies of online offending for future criminological research and transnational criminal justice.

Keywords: Extradition; Computer Hacking; Legal Geography; Human Rights, Autism Spectrum Disorders, Asperger’s Syndrome

2 Introduction

Despite a rich and often contentious history,1 extradition is a lynchpin of transnational justice cooperation that has largely avoided criminological scrutiny.2 Extradition attempts to reconcile the conflicting legal geographies of a sovereign state’s power to criminalise and punish,3 usually when a person suspected or convicted of a crime in one jurisdiction flees to another. A combination of judicial and executive processes4 facilitates ‘reciprocal recognition and preservation of the sovereignty and territorial integrity of individual nation state(s)’5 under bi- and multi-lateral extradition treaties incorporated into domestic laws. This process conflates the criminological aspects of transnationalism6 with international relations, by attempting to reconcile ‘national interests’ in crime control with the suspect’s ‘individual rights’.7

Transnational crime treaties aim to promote ‘the efficiency of domestic prosecution’ through the harmonisation of domestic laws and cooperative measures.8

For example, Article 16 of the United Nations Convention Against Transnational

Organised Crime (UNTOC or Palermo Convention) and Article 24 of the Council of

Europe Convention on Cybercrime (CoC or Budapest Convention) recommend harmonisation via cooperative national investigative, prosecutorial, extradition and mutual legal assistance agreements.9 In the absence of a unified body of transnational criminal law,10 harmonisation produces the ‘functional equivalence’ of established national laws.11 Significantly, harmonisation also enables the trial forum to be shifted to the jurisdiction where the harm originated, which reinforces ‘the Internet’s transformation from a technology that resists territorial law to one that facilitates its enforcement’.12 This raises important questions about the viability of forum shifting as an alternative to extradition, as it is now common for states to share concurrent

3 jurisdiction for most forms of transnational crime under the UNTOC, the CoC and other bilateral treaties.13

The cases of Gary McKinnon (UK), Hew Griffiths (Australia),14 Deniss

Čalovskis (Latvia), Sergei Tšurikov (Estonia), Yevgeniy Nikulin (Czechoslovakia)

Kim Dotcom (NZ),15 Gary Davis (Ireland), Eric Marques (Ireland) and Lauri Love

(UK), represent an emerging pattern of transnational cyber-prosecutions instigated by the US, involving ‘fugitives’ who allegedly offended remotely via the Internet. Forum shifting offers an alternative to extradition as many transnational cybercrime suspects have never physically entered the jurisdiction where harm was experienced. The extensive publicly available records of the legal challenges to extradition by Gary

McKinnon, Gary Davis and Laurie Love, demonstrate how common law courts view forum shifting as an alternative to surrendering a suspect to face trial in the US, specifically where there is a clinical diagnosis of intermediate or severe Autism

Spectrum Disorder (ASD), or Asperger’s Syndrome (AS).16 As with domestically administered criminal laws, AS diagnostic criteria also differ17 and have varied implications for determining liability and sentencing for different forms of crime under distinct national laws.18 These three cases are significant for examining evidence of ASD to support legal arguments for shifting the trial forum to the UK and

Ireland, which is permissible under relevant domestic extradition laws and various bi- and multi-lateral treaties also ratified by the US.19 In each case all alleged US offending occurred extraterritorially and it was claimed severe ASD magnified each suspect’s risk of suicide if extradition proceeded. Each suspect also offered to accept guilt for equivalent UK and Irish computer misuse and cyber offences, which was rejected by national prosecutors and courts.

We adopt Blomley’s concept of ‘legal bracketing’ to examine how UK and

Irish courts attempt to reconcile conflicting individual, domestic and bi-lateral factors associated with forum shifting or surrendering a suspect to face trial in the US. Based on reported case records that demonstrate the formal consequences of illicit transnational activity,20 each case study we present below demonstrates how legal bracketing by domestic courts aims to ‘stabilise or fix a boundary’ that favours extradition to the US, by emphasising specific factual and legal issues that are framed

‘more or less independently of their surrounding context’.21 Specifically, we examine how UK and Irish courts selectively emphasise the comparability of justice and sentencing procedures to override concerns emanating from each suspect’s AS diagnosis when examining forum shifting as a potential alternative to surrender. Our analysis reveals how this shapes emerging common law extradition precedents that overlook concerns for a defendant-centred approach to prevent unfairness in transnational criminal prosecutions conducted in national courts.22 After outlining the centrality of legal geography to extradition law, we examine how the bracketing of

ASD is insufficient to bar extradition on human rights grounds, or validate forum shifting even when all alleged offending occurs outside US territory. We conclude by arguing that forum shifting is a crucial defendant-centred element of contemporary legal geography meriting more serious consisderation in the interests of transnational justice.

Extradition, Concurrent Jurisdiction and Legal Geography

The UNTOC and CoC build on established principles of transnational criminal justice cooperation that preserve national jurisdiction and territorial sovereignty for the

5 administration of justice.23 Transnational crime control and extradition treaties ultimately confer responsibility for cooperative decision-making on national courts, which have three main options when considering a suspect’s legal challenge to a request for extradition: (1) accept the request and order surrender to the jurisdiction where the harm is experienced; (2) deny the request with no further action if there is insufficient evidence to justify proceeding or high legal thresholds for human rights protection are established;24 or (3) deny the request and shift the prosecution forum to the source of the harm. These options conform to the 1935 Harvard principles, which indicated a ‘requested State may decline to extradite a person claimed for an act committed in whole or in part within its territory.’25

However, different national conceptions of concurrent jurisdiction can legitimately identify ‘the place of the action, the place of the intermediate goal of the action and the place of the result’ as equally viable justifications for an appropriate trial forum.26 This variation reflects distinctions in domestic law and justice philosophies embedded in the processes of extradition that stem from the degree to which national courts are prepared to prevent the exposure of their citizens to potentially biased or prejudiced foreign trials.27 For example, the extradition of nationals is permitted under common law, yet barred in most civil law jurisdictions.28

As these principles remain wedded in distinct historical conceptions of territorial sovereignty, their suitability in meeting the contemporary challenges of transnational online communication processes is questionable on varying grounds.29

Certain aspects of concurrency are embedded within domestic extradition procedures. For example, extradition courts must assess whether the summary of

6 evidence in the formal request conforms to equivalent laws in the receiving state under the double criminality test.30 This rule serves to avoid the prospect of an extradition hearing becoming a de facto criminal trial, while protecting suspects from facing foreign trials for conduct that is not recognised as criminal in the jurisdiction where they are located. Increased harmonisation of domestic criminal laws under the

UNTOC, the CoC and other transnational treaties appears to erode the protective significance of double criminality. Extradition is commonly barred when a fair trial appears unlikely in the requesting state, but this does not extend to examination of procedural variations in determinining the length or types of sentences for equivalent offences, save for the death penalty.31 International law permits denial of extradition for alleged political or military offences, conduct previously prosecuted or punished in any jurisdiction, or where a person’s race, sex, sexual orientation, religion, nationality or political opinions might compromise a fair trial. Any legally sanctioned bars to extradition are ultimately determined by states receiving extradition requests according to ‘domestic policy, political considerations, and sovereignty’, which can either accede to or resist ‘inter- or supranational’ political pressure from requesting states.32

Modifications to the US extradition treaties with the UK in 2003 and Ireland in 2005 reinforce the viability of forum shifting if the allegedly unlawful conduct occurred outside the requesting state’s territory.33 This spawned the UK’s ‘forum bar’ test, which formally came into force on 14 October 2013 and sought to promote

‘greater transparency’ in domestic prosecution decisions involving concurrent jurisdiction.34 The forum bar enables District Court judges to block extradition if a substantial measure of the alleged criminal activity occurred in the UK and the

7 ‘interests of justice’ warrant shifting the prosecution forum, even if the Crown

Prosecution Service (CPS) has decided not to proceed.35 This requires UK courts to consider the geographic location ‘where most of the [alleged] loss or harm … occurred or was intended to occur,’ ‘the interests of any victims,’ the location of witnesses, co-defendants and other suspects, and the practicalities of transferring evidence,36 when determining whether or not a request should be granted. Similarly, extradition was previously barred under Irish law if any alleged conduct occurred on domestic territory. Today, Ireland’s Director of Public Prosecutions (DPP) may commence proceedings where concurrent jurisdiction exists, but the suspect is not entitled to written reasons for a decision not to prosecute that leads to surrender.37 Our analysis in the next three case studies demonstrates how the rules governing forum shifting reflect and are contingent upon specific forms of legal bracketing by UK and

Irish extradition courts. We suggest the focus on the harm underpinning the US request preserves political comity to supersede adequate consideration of the potential for forum shifting to protect genuine human rights concerns raised by each suspect, which ultimately undermines a defendant-centred approach to transnational justice administration.

Case study 1: Gary McKinnon

Gary McKinnon was an unemployed computer systems administrator, aged 36 years at the time of his arrest in London on 19 March 2002. Two separate Grand Jury indictments issued in New Jersey on 31 October and the Eastern District of Virginia on 12 November 2002,38 alleged McKinnon used a ‘suite of hacking tools’39 to gain administrator privileges and unlawfully alter, delete, scan or copy classified account details, passwords and system files in contravention of US law via ‘his home

8 computer in London.’40 The indictments claimed McKinnon ‘intentionally sought to damage up to 73,000 US government computers,’41 including the computer network at Naval Weapons Station Earle in New Jersey,42 and 97 computers located at various

Army, Naval, Air Force and NASA facilities throughout the US, costing the government and private industry around $US 1, 200, 000 to restore.

McKinnon was released on bail, and expressed willingness to plead guilty to equivalent unauthorised computer access and data modification offences under the

Computer Misuse Act 1990 (UK). At the time these offences carried maximum penalties of between 6 months and five-years imprisonment. McKinnon claimed to be uncovering evidence of Unidentified Flying Objects (UFOs) that gradually evolved into ‘a personal challenge … to succeed in cracking the [US] security system … [and test] how secure it was.’43 However, US prosecutors were unwilling to accept shifting the trial forum, as they regarded ‘English sentencing as too lenient for the conduct alleged.’44 Between November 2002 and April 2003, a series of plea negotiations sought to secure McKinnon’s voluntary surrender and acceptance of guilt for two charges on the New Jersey indictment, and an agreement to pay restitution of between

$US400, 000 and $US1 million, waive all rights to appeal a sentence in the range of 3 to 4 years imprisonment, and be assured of expedited repatriation under the US-UK prisoner transfer agreement.45 If rejected, ‘all bets were off’ and New Jersey prosecutors would argue for the maximum of 8 to 10 years imprisonment for each charge to be served in a high security prison, with only 15% sentence remission and no guarantee of repatriation.46 McKinnon rejected this deal and commenced proceedings challenging extradition in the UK courts in 2004.

9 On 10 May 2006, the Bow Street Magistrate’s Court rejected arguments that

McKinnon was unfairly targeted due to his political beliefs, his AS activated human rights protections to block extradition, and the US plea offer involved a coercive abuse of process. Secretary of State Alan Johnson then ordered extradition on 4 July

2006,47 which McKinnon challenged in the England and Wales High Court of Justice.

He argued his surrender was incompatible with human rights protected under UK law, and US authorities used ‘extraneous considerations’ regarding his ‘nationality … or political opinions’ to cause undue delays and an abuse of the extradition process.48

The High Court and the House of Lords rejected these arguments. Finally, McKinnon challenged the legality of the Secretary of State’s extradition order and the failure of the DPP to consider charging McKinnon for equivalent offences in the UK. These claims were also denied.49

Each UK court consistently ‘bracketed’50 the impact of McKinnon’s conduct in victimising the US and violating US laws as more important than the location of his alleged wrongdoing. For example, the unreported District Court ruling in 2004 stressed McKinnon’s conscious decision to violate US law clearly justified his surrender.

It must be obvious to any defendant that if you choose to commit a crime in a

foreign country, you run the risk of being prosecuted in that country. If you

will be punished in accordance with the sentencing regime as would apply to

any other national of that country, and if the level of punishment in that

country is higher, than in comparable circumstances it would be in the UK, so

be it.51

This view presumes McKinnon’s online conduct was a rational and conscious choice, yet overlooks the impact of his AS on his intention to offend and the relevance of his location in the UK. Similarly, delays between first detecting the offences in February

2001 and the May 2006 District Court ruling were considered ‘fairly modest’ given

‘the complexity of the case’, and not ‘attributable to culpable conduct of Mr

McKinnon.’52 However, the second High Court ruling on 30 July 2009 attributed these delays to McKinnon’s ‘own action in resisting extradition.’53 This reveals an underlying attitude that exercising a legal right to challenge extradition is simply an

‘unmeritorious’ attempt to delay facing trial in a foreign country.54

Such contradictory logic also extends to the interpretation of the US plea- bargaining attempt. The UK High Court expressed ‘serious concern’ regarding statements by New Jersey prosecutors that McKinnon would ‘fry’55 and lose potential repatriation to a UK prison if the deal was not accepted.56 While viewing this offer

‘with a degree of distaste’, it was not considered a form of duress by ‘threatening something unlawful against which the person would normally have legal protection.’57 Therefore, any decision to accept or reject a plea agreement was

McKinnon’s free choice: ‘(i)f he has a defence, he was right to stand firm. If he does not, he may yet live to regret his decision.’58 Any potential undue influence is ultimately bracketed as a US legal issue, enabling UK courts to adopt ‘a broad and liberal construction of extradition laws (to serve the transnational interest in bringing to justice those accused of serious cross-border crimes),’ while avoiding ‘fastidious’ arguments about the details of foreign criminal procedure.59 This form of bracketing neutralises any negative conceptions of US justice administration through extremely

11 generalised comparisons that suggest any ‘difference between the American system and our own is not perhaps so stark as the appellant’s argument suggests’, as both jurisdictions offer various sentencing discounts for guilty pleas.60

McKinnon also unsuccessfully petitioned the European Court of Human

Rights (ECtHR) for an injunction to prevent his surrender.61 This case identified no

‘real and substantial risk’ to McKinnon’s rights under the European Convention of

Human Rights (ECHR), even though he ‘would be detained in severe conditions in a supermax prison, without the ability to contact his partner or family.’62 Subsequent

UK High Court proceedings examined whether the Home Secretary’s decision to extradite contravened Articles 3 and 8 of the ECHR, which prohibit exposing

European nationals or residents to ‘torture … inhuman or degrading treatment or punishment’ and undue interference with private and family life.63 This case also sought to compel the DPP to reconsider the decision not to pursue charges, even though McKinnon had made ‘relevant admissions of criminal offences’ when questioned by UK authorities and was willing to plead guilty and accept any term of imprisonment under equivalent UK computer misuse laws.64 The High Court rejected this common law precursor to the forum bar test, emphasizing that because ‘the full evidence of … [his] offending and its consequences is in the USA, not in this country

… the DPP can be under no duty to seek to investigate these matters further’.65

Expert testimony stressed surrender would exacerbate McKinnon’s ‘serious psychiatric problems’, with the UK courts generally accepting his ‘limited social awareness, social skills and experience’ heightened his risk of suicide in an unfamiliar and ‘threatening environment.’66 McKinnon accepted responsibility under UK law,

12 his risk of reoffending was low, his motivations were ‘unrelated to any terrorist agenda,’ and he did not overtly ‘wish to cause harm, damage, or loss to the US as a nation or to any individual.’67 The High Court acknowledged extradition ‘will cause

Mr McKinnon certain stress and may exacerbate any illness,’ but his anxieties were insufficient to order that he was ‘not fit to stand trial’ or to ‘make it unjust to surrender him to the United States.’68 This outcome confers ‘substantial value’ on the formal assurances from a ‘friendly state’ that McKinnon would be ‘appropriately treated,’ and shows the willingness of UK courts to prioritise bi-lateral political comity over the risks of mental infirmity, even when a suspect is willing to admit responsibility for equivalent offences in his or her home country.69

An extensive public campaign against the decision to extradite70 and the protracted nature of McKinnon’s case led the then Home Secretary Theresa May to announce in the House of Commons on 16 October 2012 that extradition would not proceed.71 May emphasised McKinnon’s high risk of suicide and criticised the

‘flawed and unlawful reasoning’ by the UK courts that rejected his Article 3 ECHR claims under the Human Rights Act (UK) 1998.72 Paradoxically, May announced a suite of reforms to the Extradition Act (UK) 2003 that would limit the Home

Secretary’s role in future extradition cases by expanding the factors to be considered during the judicial stage, including the introduction of the forum bar test.73 On 14

December 2012, McKinnon’s saga finally concluded when DPP Keir Starmer stated no prosecution would commence in the UK.74

13 Case study 2: Gary Davis

Irish citizen Gary Davis, a.k.a. ‘Libertas,’ is pending extradition for his alleged six- month involvement in the Silk Road cryptomarket, an online drug bazaar operating on the dark-web between February 2011 and October 2013.75 Davis was identified during investigations into the activities of US citizen Ross Ulbricht, a.k.a. ‘Dread Pirate

Roberts’ (DPR), who was convicted and sentenced to life imprisonment in the US for various offences linked to the Silk Road.76 Davis’ case is complicated by ongoing litigation between the US government and the Microsoft Corporation, examining whether digital communications between Davis, Ulbricht and other Silk Road users stored on Irish servers should be provided to US authorities without a formal mutual legal assistance request.77 Davis was alleged to have knowingly ‘facilitated and advised upon’ numerous illegal transactions as a Silk Road site administrator, and was charged with three counts of conspiracy to engage in transnational narcotics distribution, computer hacking and money laundering.78

The Southern District of New York issued a warrant for Davis’ arrest on 5

December 2013. A formal extradition request followed the exchange of diplomatic correspondence, and Davis was arrested in Ireland on 9 January 2014. He then contested extradition in the High Court of Ireland, claiming disparities between US and Irish justice procedures, sentencing policies and human rights laws justified barring extradition. Davis argued extradition would expose him to disproportionate sentencing compared to Australian co-conspirator Phillip Nash, who engaged in similar ‘moderator’ and ‘customer support’ roles on Silk Road but accepted a plea deal and 17-month term of imprisonment after voluntarily surrendering to the US without an extradition hearing.79

14 The Irish High Court considered whether US due process and mandatory sentencing policies conflicted with Ireland’s Constitution. While recognising ‘(t)here may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution,’ detailed examination of specific ‘rules of criminal practice, procedure and due process in the Federal Courts of the United States’ was resisted, as

Davis did ‘not establish the type of fundamental defect in a system of justice that might justify a refusal for an application for surrender.’80 Therefore, Irish courts bracketed their examination of US justice procedures as a broad ‘fact-sensitive’ inquiry focusing solely on the prospect of a ‘flagrant’ human rights violation if surrender were granted.81 Variations in US and Irish sentencing procedures were considered in general terms in the context of potential disproportionate treatment between Davis and Nash, and the prospect of being prosecuted for offences not listed in the extradition request in contravention of the rule of specialty.82 Davis was concerned about being drawn into the grander Silk Road prosecutions against Ulbricht and other more longstanding co-conspirators, even though he was only employed for a six-month period well-after the site was established.

If convicted in the US, Davis could expect between 151 and 188 months or

235 and 293 months imprisonment, including a ten-year mandatory minimum term for conspiracy to commit narcotics trafficking.83 However, the Irish High Court rejected arguments that US sentence enhancements for charges not listed in the extradition request violated the specialty principle. The court noted ‘relief from … mandatory minimum terms’ was permitted under the discretionary US federal sentencing guidelines, and drew on the experience of Nash by emphasising his voluntary surrender made him ‘eligible for a so-called “safety-valve” relief … which rendered

15 the ten year mandatory minimum sentence inapplicable.’84 Therefore, as with

McKinnon, any perceived disparities in US and Irish sentencing practices would be addressed through Davis’ voluntary surrender and cooperation with US authorities, including participating in pre-trial plea negotiations and relying on judicial discretion under the ‘advisory’ sentencing guidelines.85 This averted the need for Irish courts to examine the comparability of US procedures for determining criminal responsibility and sentences when considering Davis’ surrender.

Like McKinnon, Davis claimed extradition would affect his mental and physical health in contravention of Articles 3 and 8 of the ECHR. Davis was diagnosed with AS, depression, and anxiety disorders, placing ‘his health and life at grave risk,’ and magnifying his profound fears:

… of the effect of prison conditions upon his health if subjected to pre-trial

detention or post conviction imprisonment … He believes that he will be

imprisoned at a maximum security facility pending trial, and following his

conviction, and that conditions in such a facility will have a highly damaging

effect on his mental health … contrary to the rights guaranteed under Articles

3 and 8 ...86

The High Court questioned whether Davis faced ‘a real risk of being subjected to treatment of an inhumane or degrading nature’ in the US.87 While physical access to family support would be limited, it was accepted that ‘appropriate assessment, care and if necessary, treatment is available’ in the US federal prison system, and

‘American prison officials will take all necessary measures to protect him.’88 As with

16 McKinnon, evidence of mental impairment and a high risk of suicide were insufficient to establish human rights protection in light of the:

… solemn assurance to the court by the Government of the United States that

all reasonable and necessary care and treatment will be given to the respondent

during all periods of imprisonment while in the United States.89

The High Court gave scant attention to the geographic scope of Davis’ alleged offending. In briefly dismissing an argument that extradition should be barred because the ‘offences … were allegedly committed in Ireland,’ the court ruled:

… the affidavits submitted contain evidence of commission of the offence in

the United States, including evidence of undercover operations in the course of

which contraband materials were supplied to agents in the United States.90

Davis’ legal arguments did not examine whether the Irish DPP considered or refused to commence proceedings. The High Court ruled the prosecution forum could not be shifted to Ireland based exclusively on the effects of Davis’ alleged conduct.

This view was endorsed by the Court of Appeal in February 2017, which reinforced

Irish Supreme Court precedents affirming that extradition processes imply ‘a level of mutual political trust and confidence in the legal systems of the cooperating States.’91

Case study 3: Lauri Love

Lauri Love, also known as ‘nsh,’ ‘route,’ ‘peace,’ and ‘Smedley Butler,’ studied engineering at the University of Suffolk and worked for Hacker House, an

17 organisation involved in ‘ethical’ hacking services. He faces extradition to the US on three separate indictments issued in Virginia,92 New Jersey93 and New York,94 involving a pattern of ‘hactivism’ originating in the UK, facilitated by several unknown co-conspirators located in Australia and Sweden.95 US prosecutors assert that between October 2012 and 2013, Love:

… was a sophisticated and prolific computer hacker who specialised in

gaining access to the computer networks of large organisations, including

government agencies, collecting confidential data including personally

identifiable information (PII) from within the compromised networks, and

exfiltrating the data out of the compromised networks.96

The attacks manipulated vulnerabilities in Adobe ColdFusion database administration software. Hidden malware and backdoor files were installed after a computer network was compromised, allegedly enabling Love and his co-conspirators to steal the names, dates of birth, telephone numbers, social security and credit card numbers, salary information and other confidential PII of tens of thousands of US government employees and private subcontractors. Agencies affected included the US

Army Corps of Engineers, the US military’s Plans and Analysis Integration Office, the Strategic Studies Institute, the Missile Defence Agency, NASA, and the Federal

Bureau of Investigations (FBI) Regional Computer Forensics Laboratory. The hacking ‘resulted in millions of dollars in damages to the [US] Government Victims,’ and an estimated £13 million in restoration costs.97

18 The UK National Crime Agency (NCA) obtained a warrant to search Love’s home on 25 October 2013, and discovered a computer logged into an online chatroom using the moniker ‘nsh’. The chatroom had been infiltrated by an FBI informant.98

Although Love refused to provide NCA investigators with passwords and decryption keys to his devices,99 the search revealed some data stolen during the attacks.

Excerpts of the chatroom logs formed the summary of evidence in the three indictments, which include one count of conspiracy to cause damage to a protected computer, one count of conspiracy to access US Department or Agency computer without authorisation, one count of access device fraud, six counts of causing damage to and aiding and abetting the damage of a protected computer, two counts of aggravated identity theft, one count of aiding and abetting identity theft, and one count of unauthorised access of US government information. The maximum sentences for these charges is a 99-year term of imprisonment and a fine of US$9 million under

US law, or life imprisonment under current UK law. Love was arrested in the UK on

15 July 2015, immediately challenged extradition and was granted bail.100

Love’s is the first substantive case examining the human rights implications of

ASD under the forum bar test. The Westminster Magistrate’s Court considered the impact of extradition on Love’s risk of suicide, given all his family and social

‘connections are in the United Kingdom’ and his ongoing ‘mental and physical’ health problems.101 The availability of appropriate mental health services while being conveyed from the UK and during pre-trial detention under the authority of the US

Federal Bureau of Prisons was examined alongside various US procedural issues, including the range of plea options, the ability to consult with counsel and scrutinise digital evidence when preparing his defence, the potential consolidation of the three

19 separate indictments into a single trial, the severity of the alleged offences, and the possible post-conviction outcomes, including the prospect of serving all or part of any

US sentence in the UK.

Clearly, most loss or harm from the attacks impacted government, private subcontractors, and individuals located in the US. The CPS expressed no view about the appropriateness of commencing proceedings in the UK. However, the District

Court considered most electronic evidence could be readily transferred to activate the forum bar, although oral witness testimony, particularly from the anonymous FBI informant who infiltrated the online chatroom, would be difficult to obtain. The prospect of audio-visual testimony was not considered in depth, even though the

Westminster Court used a video conferencing application to hear evidence from several witnesses, including Love’s US counsel, who were located in the US at the time of the extradition hearing.

Love’s claims that surrender would violate Articles 3, 6 and 8 of the ECHR were all rejected. Expert evidence linked his AS, severe depression and eczema to an increased prospect of suicide, but these factors were not considered sufficiently

‘unjust or oppressive’ to bar extradition, as Love had previously resisted medical treatment in the UK, and US federal prison authorities offered strong assurances regarding the appropriate management of any individuals with diagnosed mental conditions.102 Similarly, the right to a fair trial under Article 6 of the ECHR was preserved through clear US ‘procedures … [enabling] access to computers and/or disclosure and confidential facilities to see and instruct lawyers.’103 Love could not prove any interference with his ‘private and family life’ was sufficient to offset the

20 ‘extremely serious charges’, given the appropriateness of available ‘medical facilities in the United States prison estate on arrival and during any sentence if he is convicted.’ When combined, it was argued that these factors would ensure Love’s

‘needs will be comprehensively met by US authorities.’104

As with McKinnon, Love’s case is publicly divisive, with an online campaign soliciting donations to continue further extradition challenges domestically and in the

European courts depending on the eventualities of Brexit. This site also acts as a public repository for all relevant UK and US legal documents.105 The case proceeds slowly through the UK courts, with UK Home Secretary Amber Rudd endorsing

Love’s extradition on 14 November 2016, leave to appeal to the UK High Court being granted in April 2017, and arguments heard in that case in late November 2017 with no judgment handed down at the time of writing.

Conclusion

Increased global digital interconnectedness creates an illusion that physical location is

‘immaterial’ to cyber-offending.106 This is reflected in national judicial decisions on extradition that promote new and problematic forms of online legal imperialism,107 through methods of legal bracketing privileging the geopolitics of where online harm is experienced, rather than a defendant-centred approach that upholds or advances human rights protections to justifying shifting the trial forums to the UK or Ireland.

While further research is needed to test these conclusions in other jurisdictions and for other crimes leading to extradition requests, it is clear that despite harmonisation of national criminal laws under transnational crime control treaties, forum shifting is consistently rejected as an avenue to protect transnational cybercrime suspects who

21 have never entered the jurisdiction where the harm is experienced.

By prioritising the site of victimisation, these three cases demonstrate that mutual trust in the administration of justice is the key measure of bi-lateral political comity. Thus, a diagnosis of ASD is only significant if there is an imminent risk of suicide,108 a speculative assertion that is almost impossible to prove. This relegates questions involving the suspect’s medical vulnerabilities, ability to form relevant intention at the time of the alleged offending or structural variances in US criminal procedure to avoidance tactics or subjective fears of facing a foreign trial. Procedural variations are framed as matters to be best determined at trial, with the scale, scope, location of harm and political assurances forming the key determinative factors supporting extradition.109 This reinforces a problematic legal geography that treats suspects as equally mobile as the digital activities associated with the alleged crime, thereby rendering them disconnected from the protections of domestic extradition, due process and human rights laws in their own jurisdictions.110

The vagueness and imprecision of contemporary principles of transnational criminal jurisdiction111 establishes conflicting notions of the ‘interests of justice’. In high profile cases affecting government, military and national security,112 the interests of increased US transnational investigative and “prosecutioral vigor” are clear.

However, in states receiving requests, extradition is notionally designed to protect individuals from experiencing the hardships of a foreign trial.113 The judicial bracketing identified in this study shows individual protection is readily superseded by deference to US investigative, court and sentencing processes and assurances from prison authorities in a ‘friendly’ state, rather than seriously scrutinising the fairness of

22 plea negotiations or procedures requiring offshore suspects to assert their rights to challenge extradition while willing to face trial in their home country.

Calls for a Multilateral Convention on the Extradition of Computer

Criminals,114 or a neutral international judicial forum to safeguard individual rights115 offer potential remedies, which point to an entirely new conception of Internet jurisdiction that more closely reflects the fluid transnational geographies of contemporary online offending.116 However, we argue shifting the trial forum to the source of the harm offers alternate prospects that suspects will accept criminal responsibility under the laws, human rights requirements and prison standards in the country of their location, rather than facing protracted or potentially fatal consequences in a country that they have never visited. Ironically, this process commenced in both Love’s extradition hearing, where video conferencing was considered an acceptable method of hearing oral testimony from US-based witnesses and through McKinnon’s willingness to plead guilty to equivalent English computer misuse offences.117 This has significant potential to offset the hazards of limited ‘fact sensitive inquiry’ into the administration of justice in requesting states118 that form the substance of current protective rights in these three landmark extradition cases.119

Bibliography

Andreas, Peter and Ethan Nadelmann. Policing the Globe: Criminalisation and Crime

Control in International Relations. New York, NY: Oxford University Press, 2006.

American Society of International Law. “Codification of International Law.” Supplement to

the American Journal of International Law 29 (1935): 1-1240.

Arnell, Paul. “The European Human Rights Influence upon UK Extradition – Myth

Debunked.” European Journal of Crime, Criminal Law and Criminal Justice 21, nos.

3-4 (2013): 317-337.

Arnell, Paul and Alan Reid. “Hackers beware: The Cautionary Story of Gary McKinnon.”

Information and Communication Technology Law 19, no. 1 (2009): 1-12.

Attorney General v. Davis [2016] IEHC 497.

Attorney General v. Davis [2017] IECA 50.

Aughterson, Ned. “The Extradition Process: An Unreviewable Executive Discretion?”

Australian Yearbook of International Law 24 (2005): 13-35.

Bassiouni, M. Cherif. “Law and Practice of the United States.” In International Criminal

Law. Volume II, Multilateral and Bilateral Enforcement Mechanisms, 3rd ed, edited

by M. Cherif Bassiouni, 269-341. Leiden, The Netherlands: Koninklijke Brill NV,

2008.

Bassiouni, M. Cherif. International Extradition: United States Law and Practice, 6th ed.

Oxford, UK: Oxford University Press, 2014.

Baker, Sir Scott, David Perry and Anand Doobay. A Review of the United Kingdom’s

Extradition Arrangements, London, UK: Home Office, 2011.

Blakesley, Christopher L. “The Practice of Extradition from Antiquity to Modern France and

the United States: A Brief History.” Boston College International and Comparative

Law Review 4, no. 1 (1981): 39-60.

Blakesley, Christopher L. “A Conceptual Framework for Extradition and Jurisdiction Over

Extraterritorial Crimes.” Utah Law Review 1984, no. 4 (1984): 685-761.

Blomley, Nicholas. “Disentangling Law: The Practice of Legal Bracketing.” Annual Review

of Law and Social Science 10 (2014): 133-148.

Boister, Neil. “International Tribunals for Transnational Crimes: Towards a Transnational

Criminal Court.” Criminal Law Forum 23, no. 4 (2012): 295-318.

Boister, Neil. “Further Reflections on the Concept of Transnational Criminal Law.”

Transnational Legal Theory 6, no. 1 (2015): 9-30.

Brewer, Neil and Robyn L. Young. Crime and Autism Spectrum Disorder: Myths and

Mechanisms. London, UK and Philadelphia, PA: Jessica Kingsley Publishers, 2015.

Bowling, Ben and James Sheptycki. “Global Policing and Transnational Rule with Law.”

Transnational Legal Theory 6, no. 1 (2015): 141-173.

Čalovskis v. Latvia Appeal no. 22205/13. European Court of Human Rights. 15 December

2014. Accessed 16 November 2017. https://hudoc.echr.coe.int/eng#{"itemid":["001-

145791"]}.

Clough, Jonathan. Principles of Cybercrime, 2nd ed., Cambridge, UK: Cambridge University

Press, 2015.

Council of Europe. Convention on Cybercrime 2001. Accessed October 24, 2017.

http://www.europarl.europa.eu/meetdocs/2014_2019/documents/libe/dv/7_conv_buda

pest_/7_conv_budapest_en.pdf

Crime and Courts Act 2013 (UK). Accessed June 2, 2017.

http://www.legislation.gov.uk/ukpga/2013/22/contents/enacted

Cullen, Holly and Bethia Burgess. “Extradition from A to Z: Assange, Zentai and the

Challenge of Interpreting International Obligations.” University of Western Australia

Law Review 39, no. 2 (2015): 208-238.

Daskal, Jennifer. “The Un-Territoriality of Data.” The Yale Law Journal 125, no. 2 (2015):

328-398.

Davidson, Rosemary, Ben Lloyd and Adam Payter. “Recent Developments in Extradition

Law – Some Practical Implications.” Criminal Law Review, (2015) no 7: 504-521.

European Arrest Warrant (Application to Third Countries and Amendment) and Extradition

(Amendment) Act 2012 (Ireland). Accessed 16 November 2017.

http://www.irishstatutebook.ie/eli/2012/act/30/enacted/en/html

European Convention on Extradition 1957. Accessed November 16, 2017.

https://rm.coe.int/1680064587

Extradition Act 1965 (Ireland). Accessed November 16, 2017.

http://www.irishstatutebook.ie/eli/1965/act/17/enacted/en/html

Extradition Act 2003 (UK). Accessed June 2, 2017.

http://www.legislation.gov.uk/ukpga/2003/41/pdfs/ukpga_20030041_en.pdf

“Free Gary McKinnon.” Accessed June 2, 2017. http://www.freegary.org.uk/.

Freckleton, Ian. “Autism Spectrum Disorders and the Criminal Law.” In A Comprehensive

Book on Autism Spectrum Disorders, edited by Dr Mohammad-Reza Mohammadi,

249-271. Croatia: InTech, 2011.

Gless, Sabine. “Bird’s-eye View and Worm’s-eye View: Towards a Defendant-based

Approach in Transnational Criminal Law.” Transnational Legal Theory 6, no. 1

(2015): 117-140.

Goldsmith, Jack and Tim Wu. Who Controls the Internet: Illusions of a Borderless World.

New York, NY: Oxford University Press, 2006.

Hildebrandt, Mireille. “Balance or Trade-off? Online Security Technologies and

Fundamental Rights.” Philosophy and Technology 26 (2013): 357-379.

Holt, Thomas J. “Exploring the Social Organisation and Structure of Stolen Data Markets.”

Global Crime 14, nos. 2-3 (2013): 155-174.

House of Lords, Select Committee on Extradition Law. Extradition: UK Law and Practice

(HL Paper 126). London, UK: The Stationary Office Ltd, 10 March 2015.

Human Rights Act 1998 (UK). Accessed June 2, 2017.

http://www.legislation.gov.uk/ukpga/1998/42/contents

In the Matter of an Application Under Section 1 of the Police Property Act 1897; Love v.

National Crime Agency, City of Westminster Magistrate’s Court, 10 May 2016.

Keane Woods, Andrew. “Mutual Legal Assistance in the Digital Age.” In The Cambridge

Handbook of Surveillance Law, edited by David Gray and Stephen E. Henderson,

659-676. New York, NY: Cambridge, 2017.

Kibbie, Kelly S. “Maleficent or Mindblind: Questioning the Role of Asperger’s in Quant

Hedge Fund Malfeasance and Modelling Disasters.” American Criminal Law Review

49, no. 2 (2012): 367-402.

Ledingham, Rebecca and Mills, Richard. “A Preliminary Study of Autism and Cybercrime in

the Context of International Law Enforcement.” Advances in Autism 1, no. 1 (2015):

1-10.

Lemieux, Scott. 2012. “UK’s Gary McKinnon Extradition Call Reflects Scepticism about US

Justice.” The Guardian, October 17. Accessed December 14, 2016.

https://www.theguardian.com/commentisfree/2012/oct/17/gary-mckinnon-extradition-

scepticism-us-justice.

Loader, Ian and Sarah Percy. “Bringing the ‘Outside’ In and the ‘Inside’ Out: Crossing the

Criminology/IR Divide.” Global Crime 13, no. 4 (2012): 213-218.

Mann, Monique and Ian Warren. “The Digital and Legal Divide: Silk Road, Transnational

Policing and Southern Criminology.” In Palgrave Handbook on Criminology and the

Global South, edited by Kerry Carrington, Russell Hogg and Maximo Sozzo.

Basingstoke, UK: Palgrave Macmillan, forthcoming.

Marques v. Director of Public Prosecutions and others [2014] IEHC 443.

Marques v. Director of Public Prosecutions and others [2015] IEHC 798.

Martin, James. Drugs on the Dark Net: How Cryptomarkets are Transforming the Global

Trade in Illicit Drugs. Basingstoke, UK: Palgrave Macmillan, 2014.

May, Theresa. “Gary McKinnon Extradition Case: Home Secretary’s Statement.” Gov.uk

(2012). Accessed December 14 2016. https://www.gov.uk/government/speeches/gary-

mckinnon-extradition-case-home-secretarys-statement.

Meyer, Jeffrey A. “Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial

Application of U.S. Law.” Minnesota Law Review 95, no. 1 (2010): 110-186.

McKinnon v. Government of the USA [2007] EWHC 762.

McKinnon v. Government of the USA [2008] UKHL 59.

Moore, John Bassett. A Treatise on Extradition and Interstate Rendition, Vol 1. Boston,

Mass: The Boston Book Company, 1891.

Palmer, Darren and Ian Warren. “Global Policing and the Case of Kim Dotcom.”

International Journal for Crime, Justice and Social Democracy 2, no. 3 (2013): 105-

119.

Parrish, Austen. “The Effects Test: Extraterritoriality’s Fifth Business.” Vanderbilt Law

Review 61, no. 5 (2008): 1455-1505.

Plachta, Michael. “(Non-)Extradition of Nationals: A Never Ending Story?” Emory

International Law Review 13, no. 1 (1999): 77-159.

R v. Walker [2008] NZHC 1114.

Raustiala, Kal. Does the Constitution Follow the Flag? The Evolution of Territoriality in

American Law. Oxford, UK: Oxford University Press, 2009.

Rebane, Kai. “Extradition and Individual Rights: The Need for an International Criminal

Court to Safeguard Individual Rights.” Fordham International Law Journal 19, no. 4

(1995): 1636-1685.

Schell, Bernadette and June Melnychuk. “Female and Male Hacker Conference Attendees:

Their Autism-Spectrum Quotient (AQ) Scores and Self-Reported Adulthood

Experiences.” In Corporate Hacking and Technology-Driven Crime: Social Dynamics

and Implications, edited by Thomas Holt and Bernadette Schell, 1075-1099. Hershey

PA: IGI Publishing, 2011.

Söering v. United Kingdom 14038/88, European Court of Human Rights, 7 July 1989.

Soma, John, Muther, Thomas and Heidi Brissette. “Transnational Extradition for Computer

Crimes: Are New Treaties and Laws Needed?” Harvard Journal on Legislation 34

(1997): 317-371.

Svantesson, Dan. “Sovereignty in International Law – How the Internet (Maybe) Changed

Everything, But Not For Long.” Masaryk University Journal of Law and Technology,

8, no 1 (2014): 137-155.

Svantesson, Dan. Solving the Internet Jurisdiction Puzzle. Oxford, UK: Oxford University

Press. 2017.

The Courage Foundation. “Free Lauri.” Accessed June 2, 2017. https://freelauri.com/

Treaty between the United States of America and the United Kingdom of Great Britain and

Northern Ireland 2003. Accessed November 16, 2017.

https://www.state.gov/documents/organization/187784.pdf

Treaty between the United States of America and Ireland 2005. Accessed November 16,

2017. https://www.state.gov/documents/organization/185388.pdf

Turner v. Government of the USA [2012] EWHC 2426 (Admin).

The Government of the United States of America v. Love, Westminster Magistrates’ Court, 16

September 2016.

The Queen on the Application of Gary McKinnon v. Secretary of State for Home Affairs; The

Director of Public Prosecutions [2009] EWHC 2021.

United States of America v. Love, a/k/a “nsh”, “route”, “peace”, “shift”, US District Court,

Eastern District, Virginia, Alexandria Division, 24 July 2014.

United States of America v. Love a/k/a “nsh”, “route”, “peace”, “shift” US District Court,

New Jersey, undated with superseding indictment 23 March 2015.

United States of America v. McKinnon, District of New Jersey, Newark, 31 October 2002.

United States of America v. McKinnon, Eastern District of Virginia, Alexandra, 12 November

2002.

United States of America v. Love a/k/a “nsh”, “peace”, “shift”, “route”, “Smedley Butler”,

US District Court, Southern District of New York, undated but filed 21 February

2014.

United States of America v. Ulbricht, oversized brief filed 12 January 2016.

United Nations General Assembly. Model Treaty on Extradition 1990. Accessed October 24,

2017. http://www.un.org/documents/ga/res/45/a45r116.htm

United Nations Office on Drugs and Crime. United Nations Convention Against

Transnational Organised Crime and Protocols Thereto 2004. Accessed October 24,

2017. https://www.unodc.org/documents/middleeastandnorthafrica/organised-

crime/UNITED_NATIONS_CONVENTION_AGAINST_TRANSNATIONAL_OR

GANIZED_CRIME_AND_THE_PROTOCOLS_THERETO.pdf

Urbas, Gregor. “Cross-national Investigation and Prosecution of Intellectual Property Crimes:

The Example of ‘Operation Buccaneer’.” Crime, Law and Social Change 46, no. 4

(2006): 207-221.

Warren, Ian. “Surveillance, Criminal Law and Sovereignty.” Surveillance and Society 13, no.

2 (2015): 300-305.

Warren, Ian and Darren Palmer. Global Criminology. Pyrmont, NSW: Thomson Reuters/Law

Book Company, 2015.

Wauhop, Brian. “Mindblindness: Three Nations Approach the Special Case of the Criminally

Accused Individual with Asperger’s Syndrome.” Penn State International Law

Review 27 nos 3-4 (2009): 959-991.

Williams, Sharon A. “The Double Criminality Rule and Extradition: A Comparative

Analysis.” Nova Law Review 15, no. 2 (1991): 581-624.

Wilson, C. Ellie, Nicola Gillan, Deborah Spain, Dene Robertson, Gedeon Roberts, Clodagh

M. Murphy, Stefanos Maltezos, Janneke Zinkstok, Katie Johnston, Christina Dardani,

Chris Ohlsen, P. Quinton Deeley, Michael Craig, Maria A. Mendez, Francesca Happé

and Declan G.M. Murphy. “Comparison of ICD-10R, DSM-IV-TR and DSM-5 in an

Adult Autism Spectrum Disorder Diagnostic Clinic.” Journal of Autism and

Developmental Disorders 43, no. 11 (2013): 2515-2525.

Wright v. The Government of Argentina [2012] EWHC 669.

Endnotes

1 Blakesley, “The Practice of Extradition”; Moore, A Treatise on Extradition. 2 Cullen and Burgess, “Extradition A to Z.” 3 Williams, “The Double Criminality Rule,” 584. 4 Bassiouni, “Law Practice United States,” 269. 5 Meyer, “Dual Illegality,” 122. Bassiouni, International Extradition. 6 Loader and Percy, “Bringing the ‘Outside’ In”; Andreas and Nadelmann, Policing the Globe. 7 Aughterson, “The Extradition Process,” 13. 8 Boister, “Further Reflections,” 18. 9 United Nations Office on Drugs and Crime, Convention Against Transnational Organised Crime 2004, Art. 18; Council of Europe, Convention on Cybercrime 2001, Arts 25-34; Clough, Principles of Cybercrime, 2nd ed.; Keane Woods, “Mutual Legal Assistance.” 10 Boister, “International Tribunals Transnational Crimes.” 11 Gless, “Bird’s-eye View,” 130. 12 Goldsmith and Wu, Who Controls the Internet?, 10. 13 United Nations General Assembly, Model Treaty on Extradition Art. 2. 14 Urbas, “Cross-national Investigation Intellectual Property.”

15 Palmer and Warren, “Global Policing Kim Dotcom”; Warren and Palmer, Global Criminology. 16 Kibbie, “Maleficent or Mindblind,” 378; Ledingham and Mills, “Preliminary Study Autism Cybercrime,”; Schell and Melnychuk, “Hacker Conference Attendees Autism.” Aaron Caffery and Owen Walker were minors diagnosed with AS at the time of offending. Political negotiations over extradition to the US produced few publicly available documentary records and were ultimately terminated upon each being prosecuted in the UK and NZ respectively (R v. Walker [2008] NZHC 1114). Deniss Čalovskis was extradited to the US from Latvia to face trial for harm caused by the ‘gozi’ virus, but his AS diagnosis was not raised in available legal records (Čalovskis v. Latvia, 2014). Irish courts accepted that Eric Marques was diagnosed with Level 1 ASD, or AS, but ruled his fundamental rights were not affected and these arguments were discontinued in subsequent extradition appeals (Marques v. Director of Public Prosecutions and others [2015] IEHC 798, para 9.50). There is no evidence of AS in the Hew Griffiths, Kim Dotcom, Sergei Tšurikov and Yevgeniy Nikulin cases. 17 Varied AS disgnostic criteria in the World Health Organisation International Classification of Diseases (ICD-10R) and the two most recent editions of the American Psychiatric Association Diagnostic and Statistical Manual (DSM-IV-TR and DSM-5) have significant clinical effects. See Wilson et al., “Comparison of ICD-10R, DSM-IV-TR and DSM-5”. 18 Brewer and Young, Crime and Autism; Freckleton, “Autism Spectrum Disorders”; Wauhop, “Mindblindness.” 19 Extradition Act 2003 (UK) s. 83A; Crime and Courts Act 2013 (UK);; European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 (Ireland) s. 27; Treaty between the United States of America and the United Kingdom of Great Britain and Northern Ireland 2003, Art 4; Treaty between the United States of America and Ireland 2005 Art 3; United Nations Office on Drugs and Crime, Convention Against Transnational Organised Crime 2004; Council of Europe, Convention on Cybercrime 2001. 20 Holt, “Exploring Stolen Data Markets.” 21 Blomley, “Disentangling Law”, 135; See also Palmer and Warren, “Global Policing Kim Dotcom.” 22 Gless, “Bird’s-eye View”; Bowling and Sheptycki, “Global Policing”; Andreas and Nadelmann, Policing the Globe; Boister, “Further Reflections”; Boister, “International Tribunals Transnational Crimes”; Palmer and Warren, “Global Policing Kim Dotcom”; Warren and Palmer, Global Criminology. 23 American Society of International Law, “Codification of International Law”; Blakesley, “Conceptual Framework Extradition Jurisdiction.” 24 Arnell, “The European Human Rights Influence.” 25 American Society of International Law, “Codification of International Law,” 21. 26 Ibid; Blakesley, “The Practice of Extradition,” 696, referring primarily to French legal scholarship from the 1930s. These problems characterize the contemporary laws of extradition and extraterritorial criminal enforcement. 27 Blakesley, “The Practice of Extradition”; Warren and Palmer, Global Criminology, 356-357. 28 Plachta, “(Non-)Extradition of Nationals.”. 29 Svantesson, Solving the Internet Jurisdiction Puzzle; Clough, Principles of Cybercrime, 2nd ed.; Daskal, “The Un-Territoriality of Data”; Raustiala, Constitution Follow the Flag? 30 Meyer, “Dual Illegality,” 122. Bassiouni, International Extradition. 31 European Convention on Extradition 1957; Söering v. United Kingdom 14038/88, European Court of Human Rights, 7 July 1989. 32 Plachta, “(Non-)Extradition of Nationals,” 79. 33 Treaty between the United States of America and the United Kingdom of Great Britain and Northern Ireland 2003, Art 4; Treaty between the United States of America and Ireland 2005 Art 3. These provisions mirror Art 7 (1) of the European Convention on Extradition 1957. 34 House of Lords, Select Committee on Extradition Law, Extradition, 47; 52; Extradition Act 2003 (UK) s. 83A; Crime and Courts Act 2013 (UK); Davidson et al., “Recent Developments,” 513. 35 Extradition Act (UK) 2003, s. 83A(2); House of Lords, Select Committee on Extradition Law, Extradition, 45-47; Davidson et al., “Recent Developments.” 36 Extradition Act (UK) 2003, s. 83A(3); House of Lords, Select Committee on Extradition Law, Extradition, 46; Davidson et al., “Recent Developments,” 513-514. 37 Extradition Act 1965 (Ireland) s. 16, amended by the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 (Ireland) s. 27; Attorney General v. Marques [2014] IEHC 443. 38 United States of America v. McKinnon, District of New Jersey, Newark, 31 October 2002; United States of America v. McKinnon, Eastern District of Virginia, Alexandra, 12 November 2002. 39 McKinnon v. Government of the USA [2007] EWHC 762, para 3.

40 McKinnon v. Government of the USA [2008] UKHL 59, para 4. 41 Arnell and Reid, “Hackers Beware”; McKinnon v Government of the USA [2008] UKHL 59, paras 11-12. 42 United States of America v. McKinnon, District of New Jersey, Newark, 31 October 2002, para 4. 43 The Queen on the Application of Gary McKinnon v Secretary of State for Home Affairs; The Department of Public Prosecutions [2009] EWHC 2021, para 18; Lemieux, “Gary McKinnon Extradition Call.” 44 McKinnon v. Government of the USA [2007] EWHC 762, para 42. 45 Ibid., paras 42-46. 46 Ibid.; McKinnon v Government of the USA [2008] UKHL 59, para 20. 47 McKinnon v. Government of the USA [2007] EWHC 762, para 26. 48 McKinnon v. Government of the USA [2008] UKHL 59, para 13. 49 The Queen on the Application of Gary McKinnon [2009] EWHC 2021. 50 Blomley, “Disentangling Law.” 51 McKinnon v. Government of the USA [2007] EWHC 762, para 33. 52 Ibid., paras 20; 22-23. 53 McKinnon v. Government of the USA [2008] UKHL 59, para 82. 54 Baker et al., Review UK Extradition Arrangements, 307; Warren and Palmer, Global Criminology, 339. 55 McKinnon v. Government of the USA [2007] EWHC 762, para 42. 56 Ibid., paras 55, 64. 57 Ibid., paras 54, 60. 58 Ibid., para 54. 59 McKinnon v. Government of the USA [2008] UKHL 59, para 37. 60 Ibid, para 34. 61 Arnell and Reid, “Hackers Beware.” 62 McKinnon v. Government of the USA [2008] UKHL 59, para 17. 63 The Queen on the Application of Gary McKinnon [2009] EWHC 2021, para 1. 64 Ibid., para 3. 65 Ibid., para 53, emphasis added. 66 McKinnon v. Government of the USA [2008] UKHL 59, paras 19, 23. 67 Ibid., para 18. 68 Ibid., paras 31, 74. 69 Ibid., paras 88-89. 70 Free Gary McKinnon. 71 May, “Gary McKinnon Extradition Case.” 72 Ibid., para 3. 73 Ibid.; Crime and Courts Act 2013 (UK). 74 Arnell and Reid, “Hackers Beware.” 75 Martin, Drugs on the Dark Net; Mann and Warren, “The Digital and Legal Divide”. 76 Mann and Warren, “The Digital and Legal Divide”; United States of America v. Ulbricht, oversized brief filed 12 January 2016. 77 Warren, “Surveillance, Criminal Law Sovereignty”; Mann and Warren, “Digital and Legal Divide;” Daskal, “The Un-Territoriality of Data.” 78 Attorney General v. Davis [2016] IEHC 497 paras 2, 7. 79 Ibid., paras, 64, 122. 80 Ibid., para 52, emphasis added. 81 Arnell, “The European Human Rights Influence”; Wright v. The Government of Argentina [2012] EWHC 669; Warren and Palmer, Global Criminology, 315-321. 82 Bassiouni, “Law Practice United States,” 318-322; Bassiouni, International Extradition, 538-601. 83 Attorney General v. Davis [2016] IEHC 497, paras 120, 123. 84 Ibid., para 123. 85 Ibid, para 64. 86 Ibid., para 66. 87 Ibid., para 145. 88 Ibid., para 149. 89 Ibid., para 143. 90 Ibid., para 65. 91 Attorney General v. Davis [2017] IECA 50, para 20 affirming Attorney General v. Davis [2016] IEHC 497, para 78.

92 United States of America v. Love, a/k/a “nsh”, “route”, “peace”, “shift”, US District Court, Eastern District, Virginia, Alexandria Division, 24 July 2014. 93 United States of America v. Love a/k/a “nsh”, “route”, “peace”, “shift” US District Court of New Jersey, undated; superseding indictment in identical terms 23 March 2015. 94 United States of America v. Love a/k/a “nsh”, “peace”, “shift”, “route”, “Smedley Butler”, Southern District of New York, undated, filed 21 February 2014. 95 United States of America v. Love US District Court of New Jersey, 2015. 96 Ibid., para 1. 97 Ibid., para 3; The Government of the United States of America v. Love, Westminster Magistrates’ Court, 16 September 2016, paras 11; 74. 98 The Government of the United States of America v. Love 2016, para 14. 99 In the Matter of an Application under Section 1 of the Police Property Act 1897; Love v. National Crime Agency, 10 May 2016. 100 Ibid., The Government of the United States of America v. Love 2016. 101 The Government of the United States of America v. Love 2016, paras 17-19; 90. 102 The Government of the United States of America v. Love 2016, para 100; See also Turner v. Government of the USA [2012] EWHC 2426 (Admin). 103 The Government of the United States of America v. Love 2016, para 103. 104 Ibid., para 121. 105 The Courage Foundation, Free Lauri. 106 Arnell and Reid, “Hackers Beware,” 9. 107 Keane Woods, “Mutual Legal Assistance.” 108 Turner v. Government of the USA [2012] EWHC 2426 (Admin). 109 Arnell and Reid, “Hackers Beware,” 110 Daskal, “The Un-Territoriality of Data”; Parrish, “The Effects Test”; Raustiala, Constitution Follow the Flag? 111 Svantesson, Solving the Internet Jurisdiction Puzzle. 112 Arnell and Reid, “Hackers Beware,” 7. 113 Extradition Act (UK) 2003, s. 83A(2); House of Lords, Select Committee on Extradition Law, Extradition, 45-47; Davidson et al., “Recent Developments”; Arnell, “The European Human Rights Influence.” 114 Soma, Muther, and Brissette, “Transnational Extradition Computer Crimes.” 115 Rebane, “Extradition and Individual Rights.” 116 Svantesson, “Sovereignty in International Law.” 117 Extradition Act (UK) 2003, s. 83A(3); House of Lords, Select Committee on Extradition Law, Extradition, 46; Davidson et al., “Recent Developments,” 513-514. 118 The Queen on the Application of Gary McKinnon [2009] EWHC 2021, para 88. 119 Hildebrandt, “Balance or Trade-off?,” 374; Boister “Reflections Transnational Criminal Law.”