The Lengthening Arm of Uncle Sam’s ‘Pirate’ Justice

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File-sharing was firmly on the agenda when the head of the US Department of Homeland Security touched down in the Australian capital last week. The four new agreements - promptly signed before Secretary Janet Napolitano flew back out of Canberra - were less about sharing season two of Game of Thrones and more about sharing the private, government held information of Australian citizens with US authorities.

pirate sam“Because today’s threats do not recognise national boundaries, our responses must also transcend borders,” Ms Napolitano told her hosts in a speech overly dominated by assurances the US would respect the privacy of Australian citizens.

The legal reach of the US government has lengthened considerably over the past decade. Under the banner of fighting terrorism, law after law has been introduced, up to and including the creation of the Department of Homeland Security itself. Allies of the United States have signed up to bi-lateral and multi-lateral treaties giving that country enormous power over non-US citizens.

The perceived imbalance of many of these arrangements is starting to draw official protests. British Parliamentarian Dominic Raab recently stated, “Richard O’Dwyer [is] subject to US extradition orders based on [his] actions in Britain. Yet, no American has ever been extradited for alleged offences committed on US soil. It smacks of double standards, and strengthens the case for extradition reform.”

Richared O’Dwyer‘s alleged crimes involve facilitating copyright infringement via the website Midway through 2010, Napolitano’s department used America’s control of the .net domain name register to extraterritoriality seize the TVShack domain.

Just under a year later the US Justice Department sought to have O’Dwyer extradited for alleged breaches of US law. O’Dwyer’s supporters have strongly questioned why a UK citizen can be sent to the US, despite having committed no crime on US soil for an offence that has generally been considered a civil, not criminal, matter.

Meanwhile in New Zealand, German celebrity hacker and internet entrepreneur Kim Dotcom is also fighting extradition to the United States for allegedly breaching the copyright of US corporate interests. Unlike the 23-year-old O’Dwyer, Dotcom has gained global media attention thanks to a high profile and limited access to considerable resources.

While facing extradition to Sweden from the UK, Wikileaks’ Julian Assange also fears the ever lengthening arm of US justice. Sweden holds a “special” arrangement with the United States which allows that country to temporarily surrender people into American custody. Assange and his supporters believe that should he be sent to Sweden, he will be promptly handed to the US authorities. (Although it should be asked why Assange does not fear he will be extradited by the British Government themselves.)

Should either the UK or Sweden fail to do America’s bidding, the Australia Government reportedly has a contingency plan. In March this year, the Australian federal parliament passed the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act, lowering the bar to extradite its own citizens while removing many previously held defences.

Combined with so-called “Wikileaks Amendments” and other expansions of their powers in the post 911 era, Australia’s spy agencies are now equipped to legally snoop on Australian citizens and share the information internally. Napolitano’s visit and the agreements she and Australian Attorney-General Nicola Roxon signed allow for much greater sharing of that information with the US government.

Australia’s Rama Brothers may consider themselves fortunate their copyright infringement trial began before this bilateral legal regime was expanded to its current form. Both received suspended jail sentences under the Queensland legal system, unlike Britain’s Richard O’Dwyer who faces a lengthy sentence in a foreign country. Future Rama Brothers will conceivably be shipped off to the United States for trial and punishment, with little to no ability to challenge an extradition under Australian law.

Last month the Australian High Court emphatically rejected an attempt by Hollywood studios to have local ISPs held responsible for the file-sharing activities of their customers. The legal precedent is binding in Australia and influential in countries who share a similar legal system such as India, Canada and the UK.

Through bypassing the courts and going straight to our legislators, who are arguably compromised in their ability to deal with the United States, the American Government is achieving the outcomes Hollywood lawyers and lobbyists could not. If Australian law will not deliver the results entities such as the RIAA and MPAA are pleased with, it can be circumnavigated by applying US law instead.

We have reached a point in Australia where citizens can be arrested and extradited to the United States based on information supplied by Australian spies for breaches of US law on Australian soil. Australia has effectively signed away its right to govern its own in matters of copyright infringement when those matters overlap the interests of the United States.

About The Author

Myles Peterson was on the periphery of the Melbourne Underground in the early 90s, sharing games that were unavailable or censored in Australia. Peterson’s former employers include the Departments of Prime Minister & Cabinet, Environment and Health, law firm Mallesons and most recently Fairfax Media where he was a journalist.


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