jdb10987 at yahoo.com
Sun Aug 22 02:11:10 PDT 2021
On Sunday, August 22, 2021, 01:51:16 AM PDT, jim bell <jdb10987 at yahoo.com> wrote:
On Wednesday, August 11, 2021, 06:41:37 AM PDT, Peter Fairbrother <peter at tsto.co.uk> wrote:
On 11/08/2021 04:31, jim bell wrote:
>> To: Stephan Simanowit Amnesty International press at amnesty.org
>> From: Jim Bell
> 1. In virtually every issue against Assange, there appears to be no
> "extraterritoriality jurisdiction" present in American Federal law.
> This means that American courts have ruled that in order to apply
> American law to crimes committed in areas physically outside America,
>However if the effect of a crime committed by person who is outside
>america is against eg a computer or other thing or person inside
>america, then in american law that crime was committed within the bounds
>of the unitedstates, notwithstanding that the criminal was not in
>america. So issues of extraterritoriality do not apply.
Yes, that's an ARGUMENT, but it isn't clear to me that it's a VALID argument. I haven't had access to the LEXIS law library computer system for nearly a decade.
Today, and even 2009, generally Internet users don't know where the computer their inquiries are accessing resides. It would be somewhat grotesque if people automatically became subject to foreign law if they had no idea they were accessing a foreign-located computer.
Keep in mind that most American laws involving computers or crimes were written prior to the time when the Internet 'turned on' for most people; I think of the year 1995 as being that approximate point in time.
>Applies also to some US forces when they are abroad, their bases andassets are sometimes regarded as being inside the unitedstates.
>As an aside, for the purposes of the UK extradition hearing, whether the
US courts have jurisdiction is a question of UK law, not US law.
Well, I think that UK courts could look to American law to determine if American courts are purported to have jurisdiction. I cited a lot of American court decisions, some indicating that unless the statute itself claimed "extraterritorial jurisdiction" (not necessarily in those literal words), American law has no jurisdiction. I believe most American criminal computer law was and remains old, written long before people thought of accessing foreign computers remotely. That suggests that Congress did not even consider extraterritoriality in writing those laws.
"It is just possible (though unlikely) that assange might be correctly
extradited under UK law then a US court might decide not to continue on
US law extraterritoriality grounds."
There is also the issue of "dual criminality", the idea that if an extradition is to occur, a given act must be considered a crime by both the sending nation and the receiving nation.
One more issue is that if there is indeed 'dual criminality', then logically some kind of prosecution is appropriate for UK, but we haven't seen that, or even heard about it.
Also, remember that I described an argument based on the limitation period ("statute of limitations"), pointing out that if there is indeed extraterritorial jurisdiction, then Assange should have been considered 'within US jurisdiction' from 2009 through 2015, and so the likely 5-year limitations period should have expired 5-6 years ago. I certainly believe a valid argument against extradition is that there is no limitation period valid excluding the time the American government attempted to begin extradition. One of the reasons that I forwarded a copy of my arguments to Jennifer Robinson, Assange's barrister, is to ensure that she was at least exposed to the arguments.
I'd certainly be willing to read arguments made, both by American government lawyers, and Assange's lawyers, as well as UK lawyers, to determine if they are considering the matters I see as being valid.
The URL here has a lot of potentially relevant information:
Extraterritorial Jurisdiction See Pages 6+7.
"Extraterritorial Jurisdiction "
"There is one jurisdictional aspect of paragraph 1030(a)(3) that is unclear. Under whatcircumstances, if any, does the paragraph reach hacking initiated or occurring overseas? As ageneral rule, federal laws are presumed to apply within the United States and not overseas.12 Insome instances, Congress explicitly negates the presumption. The treason statute, for example,outlaws the offense whether committed “within the United States or elsewhere.”13
"In other instances, when the criminal statute is silent, the courts will conclude that Congress musthave intended the statute to apply to overseas misconduct because of the nature of the offense andthe circumstances under which it was committed. For example, the Supreme Court concluded thatCongress must have intended the federal statute that prohibited fraud against the federalgovernment to apply to fraud against the United States committed abroad, particularly whenthe offenders were Americans.14 The Court later decided that a federal statute that outlawedconspiracy to violate federal law applied to an overseas conspiracy to smuggle liquor into thiscountry.15
"In the cybercrime context, at least one court determined that paragraph 1030(a)(4), whichprohibits unauthorized computer access to defraud, applied to a hacker in Russia who gainedunauthorized access to “protected computers” in this country.16 The court’s conclusion wasinfluenced by an amendment in which Congress had added computers used in “foreign commerceor communications” to the definition of “protected computers” and by the legislative history ofwhy it did so.17 While the case was pending, Congress further amended the definition of“protected computer” to include “a computer located outside the United States that is used in amanner that affects interstate or foreign commerce or communication of the United States.”18
[end of quote]
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