Thursday 18 December 2014

Colum Kenny: We need global treaties to match world realities

Considerations of jurisdiction and criminality are unclear in cyberspace, writes Colum Kenny

Published 11/03/2012 | 05:00

You cAN commit a crime in the US without ever leaving Ireland. And you could find yourself being airlifted to America, shackled and jailed for it.

Two Irish students, Donncha O Cearbhaill and Darren Martyn, were last week indicted in their absence in New York for crimes of hacking that they allegedly committed while sitting at computers in Ireland. They are being depicted as players in an informal network of anonymous hackers who target global commercial and political interests "for a laugh".

The two, from Offaly and Galway respectively, now face the prospect of possible arrest and deportation to the United States, with no trial of the full facts here and with bail denied there. They could serve 10 years in a US prison.

Their cases raise serious questions for anyone using a computer in Ireland for purposes that may be illegal elsewhere. And they pose a problem for Irish courts. Earlier this month, the Irish Supreme Court refused to extradite Ian Bailey to France partly because the crime in connection with which the French wish to question him was not committed in France.

If O Cearbhaill and Martyn did commit a crime, on which side of the Atlantic was it committed if they never left their Irish computer terminals? The Americans claim that the two students hacked a system ultimately based in the USA (even if that fact was not always obvious) and that they should be tried and jailed there.

A number of people have been controversially removed from Britain to the United States in recent years, under the 2003 US-UK Extradition Treaty. Just last week, a 65-year-old English businessman, Chris Tappin, was flown from London to Texas on charges of selling batteries to Iran for military use in contravention of US law. He found himself chained hand and foot in a US court that refused him bail.

Even more controversial has been the case of Londoner Garry McKinnon, who has Asperger Syndrome and who claims that he was merely searching for evidence of UFOs from outer space when, in 2002, he hacked into Nasa and Pentagon computers. He has been fighting extradition ever since, demanding the right to be tried in Britain, where any sentence is likely to be shorter than in the US and where the prison regime would be less tough on him.

British Prime Minister David Cameron last week said his government would undertake a "proper, sober, thoughtful review" of the US-UK extradition treaty.

The charges against McKinnon and the Irish students blow apart any fiction that the internet or cyberspace is a realm beyond regulation or control. Every site is ultimately located somewhere, and not always where you think. Global treaties are now needed to match global realities and to protect copyright, privacy or other legitimate interests in ways that are compatible with the rights of the individual and of democratic states.

One of the charges against the two Irish students indicted last week relates to a Fine Gael website, which it turns out was hosted on an American server. This gives US authorities a foothold in prosecuting Irish people in that jurisdiction.

Other reported charges against those indicted in New York last week are more serious, involving the commercial interests of services such as Visa, MasterCard and PayPal that were allegedly targeted because they refused to process payments to Wikileaks following Julian Assange's decision to release US military data on that site. Fox Broadcasting too was targeted.

O Cearbhaill is also said to have accessed at least one garda email, with the US angle being that this allegedly allowed him to hack a call between the gardai and US authorities.

Irish extradition law currently appears to be more conservative than that in the United Kingdom. In the absence of a treaty similar to that with London, US authorities may find it more difficult to get their way here than they have in a number of British cases.

For one thing, under existing guidelines, an Irish person will only be surrendered to the requesting country if the person is definitely being put on trial. This proved crucial in the recent attempts by France to extradite Ian Bailey, when the Irish Supreme Court decided that a decision to charge someone with an offence is not the same as a decision to try that person.

It is further necessary for French, US or other authorities to establish that the offence of which the wanted person is accused is also an offence under Irish law. The test of dual criminality is whether or not the acts constituting the conduct of the accused would have been criminal if committed here.

But if that turns out to be the case, the court must then decide where the offence itself was actually committed. This is a complex question in the age of the internet when online services are accessed in one country but reach your computer from or through a range of other states.

And if an Irish judge finds that an alleged offence has seemingly been committed here as well as in another country, he or she may insist that any possible trial takes place in Ireland. This happened in the recent High Court decision to refuse the extradition of Sean Garland, 78, to the USA for allegedly conspiring with Russians and North Koreans to circulate counterfeit dollars.

The prospect of being snatched from your home and rendered abroad to face charges in a foreign country is clearly problematic, not least where some of those countries have legal and political systems very different from those of Ireland.

And while the United States has many similarities to Ireland, its legal and prison systems can be much tougher than those in Europe. It may also deem some actions criminal that are legitimate elsewhere, not least in respect to carrying on business with states that the US had deemed unacceptable trading partners for various reasons.

And this raises the question of how amenable the United States is to reciprocal arrangements. In his judgement in the Supreme Court in Ian Bailey's case, Judge Adrian Hardiman expressed the opinion that it was "more than doubtful that France would deliver a person to Ireland if the situation were reversed".

The US itself has demonstrated resistance to the jurisdiction of the International Criminal Court, objecting to the exposure of nationals of non-party states to its rule and insisting that its jurisdiction should be secondary to national jurisdictions.

If Donncha O Cearbhaill and Darren Martyn do ever see the inside of a US court, their appearance there is likely to have been preceded by a long and complex legal wrangle here about the right of US authorities to take them to America.

Sunday Independent

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