The tentacles of extradition

Being hailed as "incredibly brave" to stand up to the United States, UK home secretary Theresa May has halted the extradition of British computer hacker Gary McKinnon because of medical reports warning that McKinnon - who was first indicted by a federal grand jury in Virginia in November 2002 –would kill himself if he was sent to stand trial in the United States. But unanswered questions remain about the nature of political extradition cases more generally.

In 2007 former NSW Chief Judge in Equity, Justice Peter Young, highlighted in the Australian Law Journal 'the bizarre fact that people are being extradited to the US to face criminal charges when they have never been to the US and the alleged act occurred wholly outside the US.'

Justice Young's comments were raised in the context of the case of Hew Griffiths, an Australian who was the first person in the world to be extradited and criminally prosecuted in the United States for copyright infringement. Griffiths was indicted by the now infamous U.S. District Court in Alexandria, Virginia for copyright infringement and conspiracy to infringe copyright under the US Code for his involvement in the group Drink or Die, which decoded copy-protected software and media products and distributed them free of cost.

He was clinically depressed; unemployed; had never made money from his activities; had no prior convictions, and was incarcerated in Silverwater and Parklea for three years because there's no presumption of bail in extradition cases. British-based members of Drink or Die were tried in Britain, just as Griffiths could have been charged, and tried, in an Australian court.

Justice Young pointed out at the time that 'although International copyright violations are a great problem.... there is also the consideration that a country must protect its nationals from being removed from their homeland to a foreign country merely because the commercial interests of that foreign country are claimed to have been affected by the person's behaviour in Australia and the foreign country can exercise influence over Australia... Assuming this decision is correct, should not the Commonwealth Parliament do more to protect Australians from this procedure?'

The Howard Government was widely criticised at the time for forsaking Hew Griffiths. Australia's negotiations for a free trade agreement with the United States were then underway. They covered cooperation on intellectual property issues and theoretically enhanced the risk of Australian citizens becoming susceptible to extradition and prosecution in the United States for copyright infringement carried out here, but the focus was on harmonising copyright laws and there was nothing specifically providing for the extradition of nationals from one country to the other.

Justice Young's surprise remains well founded: there appears to be a trend to use extradition laws in US copyright and intellectual property cases. If copyright and/or intellectual property laws are not enforced they are worth nothing. Some may argue that global enforcement of IP rights is a new form of economic imperialism, with the long arm of the Government using criminal enforcement powers to enforce commercial interests at the behest of corporations and their lobbyists. It's about power.

The 2010 US Joint Strategic Plan on Intellectual Property Enforcement describes theuse of foreign based and foreign controlled websites and web services to infringe American intellectual property rights as a growing problem that undermines America's national security, particularly national economic security, and vowed to increase international collaborative efforts through international organisations, such as the World Intellectual Property Organisation, the World Trade Organisation, the World Customs Organisation, the World Health Organisation, the Group of Twenty Finance Ministers and Central Bank Governors, INTERPOL (used by some to pursue political dissenters), Asia Pacific Economic Cooperation and the Organisation for Economic Co-operation and Development.

Add to that the possible ratification of the Anti-Counterfeiting Trade Agreement (ACTA), criticised by Australia's Joint Standing Committee on Treatiesbecause of the ambiguity of its language, the disproportionality of criminal offences for copyright infringement and the need for independent economic analysis of the anticipated costs and benefits to Australia.

And to cap it off there's Australia's participation in negotiations for the secretive, multi-national Trans Pacific Partnership Agreement which contains an intellectual property chapter. Members of the press are barred from attending the sessions but 600 corporations are directly participating.

In March this year Australia's lead negotiator, Hamish McCormick, reportedly declined to give assurances that participants will not agree to anything that undermines Australian law.

All of these developments fit the international trend towards the enactment of harmonised laws that give multinational protection to commercial interests to the detriment of national sovereignty.