America, Extradition and 'Policing the Internet'

Wednesday 10 August 2011

Not often do US officials pay visits to students in Sheffield. But after building a website that allegedly shared links to pirated TV shows and movies, 23-year-old Richard O’Dwyer became a wanted man.

Accused of criminal copyright infringement, the Sheffield Hallam University undergraduate now finds himself at the centre of an extraordinary story. US authorities are attempting to extradite him so that he can be tried and imprisoned in America.

The threat of extradition came as a serious and unexpected shock to the O’Dwyer family. Richard’s mother, Julia, has since been forced to take sick-leave from work because of the stress it has caused her, and now spends her days trawling the internet to research the law.

“The effect of all this upon our family is immense,” she said earlier this month. “The thought of having my only son taken thousands of miles away to face an unknown legal system and without being able to monitor what is happening or to be able to advocate for him fills me with terror.”

Though Richard’s case is unusual, it is not isolated. Since 2004, 28 British nationals have been extradited to America, made possible by a treaty signed in 2003. Introduced to speed up the extradition of terrorist suspects, the treaty was negotiated by Tony Blair’s Labour government with the George W. Bush administration in the aftermath of 9/11. It allows the US to request extradition of UK citizens without evidence and on the basis of “reasonable suspicion” alone.

Using the powers of the treaty to go after people for breaching copyright and other crimes not associated with terrorism, the O’Dwyer family believe, is a clear abuse of its purpose. By allowing American authorities to seek extraditions on such grounds, they claim that the UK government is failing to protect its citizens and that the treaty is imbalanced in America’s favour.

"If Richard has committed any crime, it was committed on UK soil, and we have sufficient copyright legislation over here so that he can be prosecuted in the UK,” said a family spokesperson. “To extradite a young man in the middle of his university studies is wholly disproportionate.

“Since the Extradition Act came into force in 2004, the US has agreed to the extradition to the UK of only three people with a claim to US nationality. So presumably the US would understand if Britain were equally as protective of its own in preferring to try British defendants in the UK ... Just because an extradition request is made, doesn't mean that the British authorities have to agree to it.”

At the heart of the issue is the internet and how it has changed the nature of crime. In the seven years since the UK-US extradition treaty was brought in to force, the internet has hugely expanded – and with it hacking, piracy and other so-called “cyber-crimes”.

Another British citizen, Gary McKinnon, finds himself in a similar situation. A Scottish computer hacker who suffers from Asperger’s syndrome, McKinnon has been fighting extradition to the US since 2003. He admits hacking in to US government computer systems in order to try and find information about UFOs, but wishes to face trial in the UK. If sent to America, he could face a prison sentence of up to 70 years.

According to one of the UK’s leading experts on extradition law, Julian Knowles QC, the problem is that the extradition treaty does not contain a provision – known as “forum” – allowing courts to decide on balance whether each respective case is best heard in the UK or abroad. And because the internet has made it much easier for crime to be committed across borders at such a rapid pace – as well as change the nature of crime itself – the law has as yet failed to adapt.

“The law just doesn’t cater for this situation,” he said. “They [the Americans] will go after people who have committed crimes abroad with very little linkage to the US. And the English courts are powerless to say: ‘well, actually, the crime has been committed here in the UK.’ It’s the absence of that power that I think is the problem.

“What the McKinnon and O’Dwyer cases have indicated is that there can be real injustice in sending people back to the US to face very savage sentences – nothing like the sort of sentence that really matches the harm.”

A forum amendment, which would allow judges to consider whether McKinnon and O’Dwyer would be better tried in Britain, was tabled by politicians back in 2006. But it was not brought in to force at the time, Knowles says, because there is a “big dose of politics in extradition law making” and a reluctance to “upset the Americans”.

In June, a joint parliamentary committee on human rights recommended that urgent action was needed to make sure Britons were not extradited over alleged offences committed inside the UK or without any evidence being offered against them. “We wholeheartedly support the introduction of a forum safeguard,” the committee wrote. “It is difficult to understand why this has not yet happened.”

Isabella Sankey, director of policy for the human rights group Liberty, said that due to changes in technology there has been an upsurge in countries asserting jurisdiction over alleged actions that take place in other parts of the world. She agrees that it is in the interests of justice for a forum provision to be introduced.

“The Internet increases our risk of falling foul of the law, making it possible to commit an offence on the other side of the world without even leaving your bedroom,” she said. “[A forum amendment] would allow UK courts to bar extradition in the interests of justice where conduct leading to an alleged offence has quite clearly taken place on British soil.”

Earlier this month US authorities went further than ever before, claiming that anyone in any country who owns and runs a website with the .com or .net suffix is under their jurisdiction because these domains are by a technicality registered in the US state of Virginia.

Critics have branded this a clear attempt by America to “police the internet” as it struggles to control piracy of American-made films and television shows outside its own borders; the implications are severe. If the country was to try to prosecute every British individual with a .com or .net website linking to copyrighted content, it would put huge and unprecedented pressure on the UK’s extradition system.

In the meantime, US authorities continue to aggressively pursue both O’Dwyer and McKinnon, as well as nine other British nationals whose extradition cases are pending. McKinnon’s case is currently being reviewed by home secretary Theresa May, while O’Dwyer will face a preliminary hearing in September.

A Home Office spokesperson said: “The UK's extradition arrangements are currently being reviewed by an independent panel to ensure they operate effectively and in the interests of justice. We expect the panel conducting the review to report at the end of the summer.”

This article first appeared in issue no.887 of Big Issue in the North.

  • Extraditions pending

    Babar Ahmad

    London born Babar Ahmad was arrested in 2003 on terrorism-related charges. In 2006, Attorney General Lord Goldsmith stated that there was ‘insufficient evidence’ to prosecute Ahmad with any criminal offence under UK law, and in 2009 he was awarded £60,000 compensation from the Metropolitan Police, after an admission that anti-terrorist police had subjected him to "serious, gratuitous and prolonged" attack. Ahmad has spent seven years in British prisons but has yet to face trial. He awaits extradition to the US pending a European Court of Human Rights judgement.

    Christopher Tappin

    64-year-old golf club president Christopher Tappin is fighting extradition to the US after being accused of trying to sell missile parts to Iran. US authorities say Tappin, a Kent-based businessman, was attempting to help ship five industrial batteries from America to Tehran. He says he thought they were for use in the car industry and that he was “entrapped” by American agents; however, US authorities claim the batteries were an air defence missile component. If found guilty, he faces up to 35 years in a US jail. His case is currently pending appeal.

    Eileen Clark

    In 1998, Eileen Clark moved to England with her three children after fleeing the New Mexico home she shared with her then husband. A decade later, after her husband filed a law suit, she was placed on the FBI’s most wanted list and her children, to their amazement, were listed as “endangered adults” – though they were all happily living in Oxfordshire at the time. Clark was arrested in July 2010 on charges of “international parental kidnapping” and in March, without having tested the evidence, a judge at City of Westminster Magistrate’s Court ruled that she would have to be extradited back to America. “There is a small chance she is a classic fugitive,” he said.

    Notable others: Wojciech Chodan and Jeffrey Tesler (allegedly involved in a Nigerian bribery scandal); Gary Mckinnon (computer hacking); Richard O’Dwyer (accused of criminal copyright infringement).