US Govt Pursue UK hacker [Archive]

Joker85

05-10-2006, 15:26

US want to extradite hacker (http://news.bbc.co.uk/1/hi/technology/4757375.stm)

I am ever amazed about how vindictive the US govt is. Tey really want to put this guy in prison for the rest of his life. All for the sake of a few unprotected files.

"It said one attack at the Earle Naval Weapons Station took place soon after September 11, 2001 made it impossible to use critical systems. The US Department of Justice said it took a month to get systems working in the aftermath of this attack."

Poor guy, spent two years F'ing up a place he had no buisness being, but he's the victim.

I think I'll rob a bank tommorow and work my way into the safe. If I get caught I can always say "I was just doing it out of curiosity I didn't take anything!!!"

He openly admits he was trying to find, steal, and release technology that belonged to the government. That is not harmless looking around. He was actively trying to damage the dod.

Noone told him to spend 2 years of his life trying to F the govt and release classified technology.

He'll get 5-10 years and a fine and should consider himself lucky it's not worse. If he gets a slap on the wrist it will encourage every moron with too much time on his hands to try and crack their way into dod/govt systems and steal technology to release/sell.

Rodion Romanovich

05-10-2006, 15:30

Joker85

05-10-2006, 15:34

Actually, if there's no password protecting a computer system, it's generally considered to be free to visit for everyone, and it isn't an offense to do so. With the logic of the persecutors in this case it would be illegal to visit for example the .org if the .org one day suddenly decides it's not open for everyone who wants to visit... Now if you have a bad, easy to break password, that's another thing. But if there's no obvious access denied message like a password requirement, then it's hardly a crime to bypass... ehm ... bypass what? There's no crime in this case, any sentence at all for visiting a not at all password or bio-protected (retina scan/fingerprint reader) system would be outrageous.

Well without knowing the facts of the case, I think it's safe to assume that simply because there was no password does not mean it was as easy as typing go to www.letmeinyoursystems.com and you have instant access to highly sensetive DoD systems and techs.

While there may have been no password, I'm sure there were other security measures he had to violate to hack his way in.

To use your analogy about the .org a bit further. If the mods had a secret board for other mods only and the only way to have access to view it was to have them change your member status to "super duper cool guy" they might not password protect those forums because they assume the only people with access will be those who get super duper cool guy status. So if someone hacks his way into them, gets caught, and says, "but they wern't password protected!" it wouldn't really matter would it?

Rodion Romanovich

05-10-2006, 15:36

edyzmedieval

05-10-2006, 15:37

"super duper cool guy"

Maybe that's the password. ~D

Joker85

05-10-2006, 15:38

Also, let me add, it's not about making him a scapegoat. If all he did was read around for a while for the "coolness" of being in a secret place I would understand. But he spent two years trying to find, steal, and release classified US technology. That takes it much further. He was actively attempting to damage the dod and research that in all probability cost millions. His attacks also crippled systems after 9/11 that were needed in the response.

He has caused a great deal of damage and is not some innocent scapegoat who got caught looking around. His actions and intentions were not "free of malice" as he claims. No more so then me deciding I can break into someone's house and steal their property because "well they left their door unlocked".

Rodion Romanovich

05-10-2006, 15:42

Joker85

05-10-2006, 15:44

To change the member status to "super duper cool guy" you need to type in a password to access the database. Thus, it's password protected.

I think that if you knew more about computers, you'd realize that the "guilt" in this case is completely on the side of the military computer systems. If you're responsible for a nation's military resources then it's your duty to hire a professional at computer security or you're a threat to your nation. In fact those responsible for the lack of computer security should rather be tried in court to see if they took proper measures to hire experts at the subject. This thing is like wanting to punish the little child that goes pass the embassy and happens to see a confidential paper that a diplomat accidentally dropped.

I think you should re-read his quote.

"The fact that I logged on with no password showed there was no security to begin with."

First considering that he is not exactly unbiased in this, it goes back to my point that he had to get into the system in the first place to be able to logon and try to steal technology. It would be interesting to learn the security measures taken to prevent that.

Or, are you simply taking his word at 100% and because he said it was "your fault for making it easy" believing that.

Going back to my question about breaking in. If you forget to lock your door and someone breaks in and steals your stuff, is the "guilt completely on the side" of you? Of course not.

You do not have the right to exploit someone else's slip or percieved slip in security and steal their properity. If you believe a person does, then we find ourselves at a disagreement that will never be resolved.

He was a place he did not belong, trying to steal something that was not his. He has admitted both things. His only defense is "well they try hard enough to stop me". If you try to use that argument about any victim in any court of law in the western world you will be laughed out of it. Unless your victim is the government I guess. Then it's ok to steal as you please and blame them for not doing more to make sure you couldn't.:wall:

Joker85

05-10-2006, 15:48

Well, if you make research for millions and don't password protect it you've committed a serious crime. Accessing a page that wasn't password protected is not. The stuff about crippling 9/11 response is just a fake excuse, just say 9/11 bla bla and it sounds like it's serious. No, it's fully the responsibility of the chiefs of computer security within these military networks.

In computers it's not the same as doing burglary because the door was left unlocked, because you can end up accessing networks you didn't intend to depending on how you get the reference to them. For instance you might google and find a subpage within a site. On the front page it says "access denied", but on the subpage it doesn't say so. Have you committed a crime then? No. Similarly you might bookmark and often visit that subpage, without ever finding out the main page said "access denied". For purposes of legal security the principle is that anything you can access without being asked for a password is free to visit.

I'm sorry, but he has already admitted he went there with the purpose of stealing "suppressed technology" which means he KNEW he was not supposed to be where he was or do what he was doing. Therefore he did not "stumble into a place".

You are making it out as if he accidently found something and never went back and was arrested. No, he spent two years actively trying to steal from a place he knew he shouldn't be. And, furthermore, his claim that it "did not require a password to logon" says nothing of his other means used to bypass security to gain access. You are taking his word 100% and conveniently dismissing anything the govt says. There is no point in debating because anything they do say is dismissed as "oh they are just saying that" while anything he says is taken as the word of God.

Rodion Romanovich

05-10-2006, 15:49

I don't think you're too ignorant about how computer networking works to be able to understand that the parable with the burglary isn't relevant to this situation. Read my post above, it was probably registered as edited after you posted your response. I explain it again:

In computers it's not the same as doing burglary because the door was left unlocked, because you can end up accessing networks you didn't intend to depending on how you get the reference to them. For instance you might google and find a subpage within a site. On the front page it says "access denied", but on the subpage it doesn't say so. Have you committed a crime then? No. Similarly you might bookmark and often visit that subpage, without ever finding out the main page said "access denied". For purposes of legal security the principle is that anything you can access without being asked for a password is free to visit.

Again, no matter if this guy is considered guilty or not, those responsible for the computer security of the network are guilty of a very serious crime in not hiring proper experts at computer security to protect networks containing research for millions of dollars. It's their responsibility to their nation. I guess they just spent that budget on champagne and russian caviar representation parties. Well, in any case, no matter the guilt of the British guy, they should be tried in court for such behavior, to see if they really did hire any experts, as is their responsibility.

Fragony

05-10-2006, 15:55

I'm sorry, but he has already admitted he went there with the purpose of stealing "suppressed technology" which means he KNEW he was not supposed to be where he was or do what he was doing. Therefore he did not "stumble into a place".

In that case this was a terrorist act, let me guess, one of these extreme leftist militant types? Forget what I said, put him on the plane right now.

Rodion Romanovich

05-10-2006, 15:57

I'm sorry, but he has already admitted he went there with the purpose of stealing "suppressed technology" which means he KNEW he was not supposed to be where he was or do what he was doing. Therefore he did not "stumble into a place".

You are making it out as if he accidently found something and never went back and was arrested. No, he spent two years actively trying to steal from a place he knew he shouldn't be.

Maybe you've heard of provocation to crime (or what the proper English term is)? If you're making a crime too easy then whoever commits it can't be considered guilty. Now if you enable someone to log into a network without being asked for a password then you're trying someone's curiosity quite a lot.

And, furthermore, his claim that it "did not require a password to logon" says nothing of his other means used to bypass security to gain access.

Well, the failure of the government to prove the existence of any such further security requirements implies so.

You are taking his word 100% and conveniently dismissing anything the govt says. There is no point in debating because anything they do say is dismissed as "oh they are just saying that" while anything he says is taken as the word of God.
Well, since the government refuses to say which those further security systems would be, let alone prove it, their statements are just regular political BS. "It hurt the 9/11 response", it's like "why do you hate freedom?". You can say that anything hurt the 9/11 response - this salesman had run out of donuts so this diabetic policeman was too hungry to be able to get to the 9/11 site quickly enough but could maybe have helped more if he got there faster. That guy had chosen bad shoes on the morning so he couldn't walk faster, so OMG he's guilty of hurting the 9/11 response. No, all the arguments from the government so far are just BS and no real facts that can be proved. However it can be proved quite easily that the networks the British guy accessed weren't password protected. Therefore his single statement is, unlike those of the government, containing facts rather than just rhetorics. If this guy is really sentenced to anything, then it's a threat to democracy, the Internet and regular people.

Joker85

05-10-2006, 15:57

Well, in any case, no matter the guilt of the British guy, they should be tried in court for such behavior, to see if they really did hire any experts, as is their responsibility.

Well I believe that if the security is found to be as weak as this man claims, then the person who was responsible for ensuring the system and files stayed classified should be at the very least fired and possibly court martialed if there were advanced warnings that the security measures could be exploited and bypassed.

But my issue is with passing off the blame from him to the victim. Regardless of how easy he claims it was for him to hack into the dod system to try and steal someone else's technology, that does not change the fact that he did it. Therefore he should be jailed for it. If someone from the dod's neglegence made that easier than it should have been for this man to commit his crimes, then they should be held accountable for their incompetence as well.

But he is not a scapegoat, or a victim, and his crimes indeed caused damage. That is why he is being brought back to the US to answer for it.

Joker85

05-10-2006, 16:02

Maybe you've heard of provocation to crime (or what the proper English term is)? If you're making a crime too easy then whoever commits it can't be considered guilty.

Interesting, I don't think we have anything even similar to that in the US. If a woman is wearing provacative clothing and is raped, we don't say "well you shouldn't have dressed like a slut" or "well you shouldn't have been walking down a dark alley drunk at 3 in the morning".

So you did dismiss my burglury argument and even though I disagree with you I chose to let it go.

However, now that you have broadened the subject not to computer crimes but to all crimes and claimed that under British law "if you make a crime too easy whoever commits it can't be considered guilty", I think I'll bring it up again.

Under British law, if you leave your door unlocked and someone steals your property, is it your fault?

If British law indeed works that way, and you can blame a victim for making it "too easy for a crime to be commited against you" then I can see why we are disagreeing here.

Unfortunately for this man, he did not commit his crimes against the UK, he commited them against the US, that is why he is being extradited to the US to answer according to our laws.

Rodion Romanovich

05-10-2006, 16:03

Well, computer networking works in the way that you request a service, you're given the service via 5 different hosts, and end up being connected to a 6th host you didn't ask the service from. That's how the basic infrastructure works. You can never be assured that you don't accidentally ask for a resource you're not supposed to get, and if it happens to not be password protected, then you've ended up in there. Now the fact that this guy has been doing it for so long is just a matter of him not being discovered earlier. He has never received a formal message that he shouldn't be there, but he might be guessing he isn't allowed to be there. That's a clear distinction. Plus computer security laws are not yet built out to cover all new technology, so you can't really apply any normal laws to it yet, and have to stick to the mildest interpretations until proper laws have been founded. It's like the situation when you play a game with kids, then you discover a flaw in your rules. You don't change the rules to apply also to the instance which made you realize the rules were flawed, but you apply the rule for all future cases from the moment you made the new rule.

Interesting, I don't think we have anything even similar to that in the US. If a woman is wearing provacative clothing and is raped, we don't say "well you shouldn't have dressed like a slut".

No, the rules are thought-through and fair. If you put an unlocked motorbike outside a bar where people get drunk, it's provocation. The drunk people that exit the bar behave less responsibly than a sober person, and the unlocked motorbike wouldn't give any insurance coverage either. If you leave your door to your house open, it's much more clear that it wasn't provocation. Similarly any clothing is allowed (but in some countries it's common that running around entirely naked apart from during special festivals is considered "anger-causing behavior" or something like that...).

So you did dismiss my burglury argument and even though I disagree with you I chose to let it go.

However, now that you have broadened the subject not to computer crimes but to all crimes and claimed that under British law "if you make a crime too easy whoever commits it can't be considered guilty", I think I'll bring it up again.

Under British law, if you leave your door unlocked and someone steals your property, is it your fault?

I dismissed your burglary argument because computers work entirely different. It's not immediately clear what is allowed and what isn't, sometimes you even need to "hack" around some bug which doesn't enable you to immediately show what you wanted to show. It's not immediately clear what is allowed or not until you get a formal request for a password. Just like in other laws, there must be clear definitions of when it's provocation of crime, or when there's a formal message of access denied or traditionally well-known that it's access denied. It's traditionally well-known that you may not enter a house for burglary, there's formal "access denied" when you enter a bank and ask if you can get one million bucks without providing them with either data (password) for your account number which hopefully contains one million, or ask for a loan and they think your income status etc makes you able to pay it back according to their rules.

Unfortunately for this man, he did not commit his crimes against the UK, he commited them against the US, that is why he is being extradited to the US to answer according to our laws.

That's another part of computer related law that isn't completely adapted to modern inventions yet. He was in UK when he committed the crime. His crime, if any, was against the US. So which law applies?

English assassin

05-10-2006, 16:14

Legio means incitement to crime, but I can't go so far as to say that a badly protected computer system is incitement.

I'm afraid I don't have huge sympathy. Its not a case of him logging onto the Org and finding out that unknown to him the Org techheads have hosted it in a secret place behind the pentagon firewall. He did hack computer systems that were obviously in the US and that he really did know he wasn't supposed to be in.

All right, the Americans are now going to go ape and give him some completely ridiculous sentence, but he should have thought of that beforehand shouldn't he.

Joker85

05-10-2006, 16:19

All right, the Americans are now going to go ape and give him some completely ridiculous sentence, but he should have thought of that beforehand shouldn't he.

I hope not and don't think he will. I mean I don't want his life to be over because of this, but I do want a serious enough sentence that it sends a clear message to other people that it's not a game and you can't hack into govt systems to try and steal technology.

As I said earlier I see 5-10 years and a fine. If he gets 15-20+ years it would be too much.

Haudegen

05-10-2006, 16:19

I just wonder why the USA wants revenge here. I mean, it´s not like he has sold some stuff to hostile nations or planned to do this. IMHO the USA should say: Hmm this guy has hinted us towards some security problems, we´ll fix them, and now let´s remain quiet about it.

In the trial that is about to begin, the government will have to talk about details of this affair if they want a conviction. Is that such a good thing for national security?

Or will the prosecutor just say: Mr Judge, I have evidence that he´s guilty but unfortunately I can´t show you. Please convict him now! That would be a true crime, I think.

English assassin

05-10-2006, 17:13

You see, I just am not buying this white hat business. White hat is hacking into the pentagon one night, sending them an email the following day telling them everything wrong with their system, and never doing it again. Its not having a good old rummage for two years.

OK so he says he was looking for suppressed info on UFO FTL drives and not the launch codes for the ICBMs, but its not a rule that you only prosecute the successful criminals.

@joker, 5-10 years in a US jail is more or less what I meant by going ape and giving him a ridiculous sentence, but like I said, he should have thought of that first.

Haudegen

05-10-2006, 17:29

I have little doubts that he has committed computer crimes and I was not trying to apologize him. My point is that I think that the US interests were served better if they had kept it under the carpet.

Louis VI the Fat

05-10-2006, 17:58

Mr McKinnon will obviously face a sentence in the US that the general UK public would find disproportionate. Therefore I would trial him before a UK court.

The UK is an independent country and well up to the task of arresting and prosecuting her own citizens, under her own laws.

Xiahou

05-10-2006, 18:01

Actually, if there's no password protecting a computer system, it's generally considered to be free to visit for everyone, and it isn't an offense to do so. Yeah right. Just like if you forget to lock your door when you go away your house is free for everyone to come inside, snoop around your personal records and release anything interesting they find to the public. Get real. :laugh4:

I dismissed your burglary argument because computers work entirely different. It's not immediately clear what is allowed and what isn't, sometimes you even need to "hack" around some bug which doesn't enable you to immediately show what you wanted to show.He knew full well he wasnt supposed to be there- he's admitted to it. The analogy applies. Had he just wandered in, realized where he was and then quickly logged out- your argument might hold some water. But 2 yrs? I think not.

Interesting, I don't think we have anything even similar to that in the US. If a woman is wearing provacative clothing and is raped, we don't say "well you shouldn't have dressed like a slut" or "well you shouldn't have been walking down a dark alley drunk at 3 in the morning".Beat me to that one too. :wink:

I hope they throw the book at this guy- he destructively hacked into DoD computers with the intent to steal national security secrets. Yes, it's shameful that the DoD had such lax security- but it doesnt excuse his crimes.

English assassin

05-10-2006, 18:03

Redleg

05-10-2006, 18:25

But, if Biff Chunks III hacked into Scotland Yard's computers from his home in Gatorville, Florida, it would be a UK computer he compromised so I'd want him dealt with over here. And lucky Biff because he's get about six months in jail featuring decent telly and no anal rape. Well, the telly's not that good anymore. And there might be a little bit of anal rape. But it would still be a cakewalk compared to the US.

So I have to let the US have the same priviledge when its the other way about.

Agreed

The United States is following the process that both countries use when dealing with criminal activies.

The arguement about unprotected systems because of a lack of password protection doesn't seem to hold much water in the English judicial system.

So either the judge didn't buy his story, or found major fault with his reasoning.

Rodion Romanovich

05-10-2006, 19:45

Yeah right. Just like if you forget to lock your door when you go away your house is free for everyone to come inside, snoop around your personal records and release anything interesting they find to the public. Get real. :laugh4:

He knew full well he wasnt supposed to be there- he's admitted to it. The analogy applies. Had he just wandered in, realized where he was and then quickly logged out- your argument might hold some water. But 2 yrs? I think not.

Beat me to that one too. :wink:

I hope they throw the book at this guy- he destructively hacked into DoD computers with the intent to steal national security secrets. Yes, it's shameful that the DoD had such lax security- but it doesnt excuse his crimes.
Because you aren't clever enough to read the responses I already made when Joker85 made those comments, I think it might be appropriate to point out that below the post of mine that you quoted, you can find my responses to those comments, so I don't have to post them again.

It's obvious that you have no idea of how computer networks work. It's about the principle you're using to judge, and it can't be compared to any non-computer related situation. If you sentence this guy you've said yes to principles which mean any normal day surfer could be a criminal and sentenced at random. Computer networking consists of making request and getting responses. If you're not authorized you get a "access denied" response, or no response at all. That response doesn't necessarily mean you're never allowed to go there, it means that the last request posted isn't to be considered allowed to give the wanted response. Also, most applications do these requests for the user, so you don't really know exactly what requests they make. There's a chance, small but still existing, of network traffic accidentally being corrupted in the control data part, so you receive or packages that aren't yours, or send requests you didn't intend to. Sending any request message must be allowed, given that: 1. programs generate the request messages, 2. there's no built-in functions in the protocols that tell whether a negative response means access denied forever, server having temporary problems, or access denied at this specific time. 3. without asking explicitly for it, many requests are made via other servers. Normal policy is that any request message is allowed, and all responses you receive are allowed to receive, but that you aren't allowed to hack past a password. Now if there's no password then it's really easy to get inside the systems by accident. If your principles of "guilt" apply then anyone can be accused of being hacking illegally and sentenced, because if there's no password it's very easy to accidentally end up inside the systems even for a regular user. It's the duty of the host to provide a password or challenge response system both to protect himself, and to protect someone else from accidentally committing a crime they didn't want to commit. And if the host fails to fulfill his part of the agreement, then it's really hypocritical to try and call the user a breaker of the agreement and a criminal. The guy is innocent, and any sentence at all for that guy would be a shame. I think we both agree that there should be some kind of legal protection against this hacking, but the principal requests he made over the Internet can hardly be differentiated from normal computer communication at all, so unless there are explicit access denied signals like asking for password it's really impossible to see the difference between the two types of communication. That's why it's necessary for anyone to have a password prompt before he can speak of anyone being guilty for entering the system, because it's possible, and easy, to do it by mistake. You might say that "he did it for so long time", but what is long time? Is there any formal legal limit on for how long you're allowed to do it before it's a crime? You can't draw lines with "long time", "quite big", "pretty long", "I thought it looked cruel" etc., that's not a serious way of approaching the subject of law. It's not comparable to burglary, because you can't commit burglary by accident. It's not comparable to any non-computer related situation. If people who know nothing about computer security and networking in general make statements about computer related laws it's pretty ridiculous AND dangerous as they seem to quite often end up making the definitions in a way such that normal usage becomes possible to interpret as criminal, which is a threat to the security of citizens.

Don Corleone

05-10-2006, 20:00

Rodion Romanovich

05-10-2006, 20:16

So the guy basically found a DoD website that posted national secrets for anybody that cared to look, Legio? I find that hard to believe. Wouldn't that be the real shock of this story, not that the DoD was actually going after him? What's more, if that's the case, why do they refer to him as a 'hacker'? Just accessing a network PoP makes you a user. 'Hacking' implies that you have taken some step to defeat privacy/security protocols, no?

So how come they can't mention a single security protocol that they had? And since they seem to not have had any proper security it's very embarassing to them and they obviously know very little about computers so they call him a hacker. You can call someone terrorist if you don't like what they think, even if they've never used any violence. That doesn't make them guilty of being terrorists. It's when they beyond reasonable doubt plan or carry out such actions that they become terrorists. The problem in this case is that since there are no security protocols there's nothing in his communication that differs it enough from normal usage that you can formulate it into a general law. Only if you use passwords and accept any request message but respond to unauthorized with an access denied and question for password response message, can you clearly differ between when it's hacking and not hacking, in a way that can easily be formulated into a law.

Xiahou

05-10-2006, 20:25

It's obvious that you have no idea of how computer networks work.Really? Here I thought I worked in the IT industry, had a Bachelor's degree in Data Communications, a MCSE and a CCNA.... but it turns out I know nothing at all about networks. :laugh4:

I'm really not at all sure what your argument is... but it smells like a red herring. Of course its possible to 'accidently' connect to a system that you're not authorized to be on. But this clearly is not the case. He knew he was in areas that were confidential, he crashed systems and otherwise caused damage while nosing around with the specific intent to find classified information. Your argument that "He didnt know" is ludicrous. He knew what he was doing- that's not even in question.

Then, you're left with your absurd claim that if a computer is not adequately secure then there's nothing wrong with breaking in with intent to steal information. That idea is just laughable on the face of it and is very similar to the burglary and rape analogies others have made.

Just to be clear, you would see nothing wrong if he connected to a WAP setup by your average Joe who neglected to secure it and then proceeded to sift through his financial records, finding Joe's checking account information and posted it on the Internet for everyone to see before seeding Joe's system with viruses- because it wasnt secured? Because that's what you're saying. :dizzy2:

Don Corleone

05-10-2006, 20:29

So how come they can't mention a single security protocol that they had? And since they seem to not have had any proper security it's very embarassing to them and they obviously know very little about computers so they call him a hacker. You can call someone terrorist if you don't like what they think, even if they've never used any violence. That doesn't make them guilty of being terrorists. It's when they beyond reasonable doubt plan or carry out such actions that they become terrorists. The problem in this case is that since there are no security protocols there's nothing in his communication that differs it enough from normal usage that you can formulate it into a general law. Only if you use passwords and accept any request message but respond to unauthorized with an access denied and question for password response message, can you clearly differ between when it's hacking and not hacking, in a way that can easily be formulated into a law.

You're not making any sense. He claims to have hacked into the system, admits he knew exactly what he was doing and that he was accessing systems he didn't have authorization to access, and you claim it's okay because 1) the DoD won't list their security protocols to the beeb and 2) he didn't have terrorist intentions?

Sorry man, no matter how much you want the 'free electronic frontier' and a free world for hackers as long as they don't have a political motive, it's still wrong, it's still illegal, and as your friend is about to find out, it's still punishable.

English assassin

05-11-2006, 10:23

The judges comments:

"I readily accept the probable sentence is likely to be appreciably harsher in the US than in comparable circumstances it would in the UK," the judge told the court. "But it must be obvious to any defendant that if you choose to commit a crime in a foreign country, you run the risk of being prosecuted in that country."

That's the beginning and end of it IMHO.

Haudegen

05-11-2006, 11:03

I´m just happy to live in a country where the constitution protects me from being delivered to non-european courts. :2thumbsup:

Louis VI the Fat

05-11-2006, 12:08

But it must be obvious to any defendant that if you choose to commit a crime in a foreign country, you run the risk of being prosecuted in that countryWas it commited in a foreign country? The question of international jurisdiction is always interesting, even more so with the advent of new technology. Where was this crime commited?
If you mug an American tourist in London, you obviously get trialed in the UK. But what if you plunder his bank account over the internet, from London, without the victim ever having set foot in Britain?

His acts are a criminal act within the UK as well. If it wasn't, I would see no reason whatsoever to not extradite him indeed. But as it stands, A UK law was broken in UK territory, and I believe extradition should be applied under the principle of subsidiarity, that is, if British legal means for prosecution are either exhausted or non-existent.

Mr McKinnon was originally tracked down and arrested under the Computer Misuse Act by the UK National Hi-Tech Crime Unit (NHTCU) in 2002, and later that year was also indicted by the United States government

Louis VI the Fat

05-11-2006, 12:10

I´m just happy to live in a country where the constitution protects me from being delivered to non-european courts. Really? French law doesn't, which I fully support.

Haudegen

05-11-2006, 12:24

Yes, Sir! Look:

Article 16 [Citizenship; extradition]

(1) No German may be deprived of his citizenship. Citizenship may be lost only pursuant to a law, and against the will of the person affected only if he does not become stateless as a result.
(2) No German may be extradited to a foreign country. A different regulation to cover extradition to a Member State of the European Union or to an international court of law may be laid down by law, provided that constitutional principles are observed.

IMHO it´s a good thing. After all one of the reasons for having a nation is that it protects the individual from other nations. Exceptions are only made for our very good friends in the EU. ~;)

Louis VI the Fat

05-11-2006, 12:40

'No German may be extradited to a foreign country'

Meh, German preoccupation with the 'Volk' again?

These things work in two directions. Agreements over extradition of suspects also means that those who break your own laws do not get to live happy lives in Argentina or Paraguay without fear for prosecution.

Haudegen

05-11-2006, 13:10

'No German may be extradited to a foreign country'

Meh, German preoccupation with the 'Volk' again?

Sorry, I think it´s not at all nationalistic. And mind you: The EC-contract demands us not to discriminate against EC-cititzens, therefore we grant them the same rights, i.e. a Frenchman, Englishman, ... is protected by Art 16 II, too.

And all other nationalities at least can rest assured they will not be extradited to some place where a fair trial and human rights are not guaranteed. However this doesn´t follow from Article 16 but Article 1 I Grundgesetz.

These things work in two directions. Agreements over extradition of suspects also means that those who break your own laws do not get to live happy lives in Argentina or Paraguay without fear for prosecution.

If a German criminal is caught in, say Argentina, there wouldn´t be a problem. Argentina could agree to extradite him, as we could offer them the same.

In the case that the crimanal is not a German: German criminal law doesn´t have the ambition to punish offenders everywhere and under every circumstance.

If the price we have to pay for our Article 16 is, that we don´t get offenders from others countries delivered as efficiently as others do, then so be it.

Ser Clegane

05-11-2006, 13:17

In the case that the crimanal is not a German: German criminal law doesn´t have the ambition to punish offenders everywhere and under every circumstance.

Actually I think German criminal law should have the ambition to punish offenders who commit crimes in Germany, even if they are not of German nationality

Louis VI the Fat

05-11-2006, 13:34

Sorry, I think it´s not at all nationalistic. It isn't nationalistic. Nor is Germany in general.

No, what struck me, is the extend to which German law is personal, not territorial. That laws and jurisdiction are tied to membership of a Volk and not a territory is in sharp contrast to the underlying principles of French law.

Haudegen

05-11-2006, 13:36

Actually I think German criminal law should have the ambition to punish offenders who commit crimes in Germany, even if they are not of German nationality

German authorities will if they can get him.

But if the offender flees to a foreign country that doesn´t want to extradite him, what shall we do?

Perhaps the other state simply refuses the extradition because the state thinks that itself can take care of the criminal. Germany handles it this way, see § 7 II Strafgesetzbuch.

Anyway: If Article 16 infringes Germany´s ability to punish offenders who have fled to other countries, as Louis mentioned, I´ll say it´s okay for me. I´m glad we have Article 16.

Haudegen

05-11-2006, 13:49

It isn't nationalistic. Nor is Germany in general.

No, what struck me, is the extend to which German law is personal, not territorial. That laws and jurisdiction are tied to membership of a Volk and not a territory is in sharp contrast to the underlying principles of French law.

All our laws are naturally only applicable on German territory, therefore Art 16 is strictly territorial. Other nations are not bound by it, of course.

English assassin

05-11-2006, 14:01

His acts are a criminal act within the UK as well. If it wasn't, I would see no reason whatsoever to not extradite him indeed.

This is a basic requirement of extradition generally. I seem to recall we used to have specific problems in the UK with something that the Americans call (IIRC) wire fraud (?wire something, anyway) which was an offence in the US but not here at the time, due to peculiarities in the Theft Acts. The long and the short of it was we didn't extradite people for wire fraud until we had amended our own criminal law to catch up.

I didn't know the German position, although I did know other countries took the same approach (You might remember ex-president Alberto Fujimori suddenly rememberd he had Japanese citizenship and fled to Japan when it looked as if Peru would indite him for corruption).

Given that no state could afford to deny a territorial basis of jurisdiction (since that would mean that Germans were perfectly free to commit crimes in the UK and we would have to leave it to the German state to deal with them) I would have thought that the personal approach should give way in time, since they clearly clash. What happens if a German commits a murder in, say, Morroco, and makes it back to Germany before being arrested? Is he really not extradited? Do you try him in Germany instead? if so, according to the law of Germany or of Morroco? Do you fly the witnesses over?

Haudegen

05-11-2006, 16:11

Is he really not extradited? Do you try him in Germany instead?

Yes, that´s right.

if so, according to the law of Germany or of Morroco?

German courts will always apply German criminal laws. (Unlike in civil law, where courts eventually apply foreign laws)

Do you fly the witnesses over?

Yes

English assassin

05-11-2006, 16:15

Golly. Well, its consistent, anyway. A lot of effort IMHO, but there you go.

(Note to self: if you commit a serious crime in a country you would rather not go to prison in, flee to Germany immediately.)

Hey, hang on. Why doesn't this hacker jump on the Eurostar and head for Germany? He'd be sorted even now. Can this REALLY be right? it seems very odd.

Louis VI the Fat

05-11-2006, 16:52

Rodion Romanovich

05-11-2006, 17:21

Really? Here I thought I worked in the IT industry, had a Bachelor's degree in Data Communications, a MCSE and a CCNA.... but it turns out I know nothing at all about networks.

Then it's law you don't know anything about. You need a formal definition of when it's a crime, not just "it feels like he's not nice". As we'll see below, your statements are of that form :laugh4:

I'm really not at all sure what your argument is... but it smells like a red herring. Of course its possible to 'accidently' connect to a system that you're not authorized to be on. But this clearly is not the case. He knew he was in areas that were confidential, he crashed systems and otherwise caused damage while nosing around with the specific intent to find classified information. Your argument that "He didnt know" is ludicrous. He knew what he was doing- that's not even in question.

Then, you're left with your absurd claim that if a computer is not adequately secure then there's nothing wrong with breaking in with intent to steal information. That idea is just laughable on the face of it and is very similar to the burglary and rape analogies others have made.

Just to be clear, you would see nothing wrong if he connected to a WAP setup by your average Joe who neglected to secure it and then proceeded to sift through his financial records, finding Joe's checking account information and posted it on the Internet for everyone to see before seeding Joe's system with viruses- because it wasnt secured? Because that's what you're saying.

Apart from your judgement of his intention, based on him admitting, can you point to any exact difference in the communication between his communication and normal communication? What would be the exact definition of when it becomes a crime? What could be a sensible motivation for a law. Assume the guy hadn't confessed, would he be innocent in your eyes then? No, he wouldn't. So I'm again asking you what in the actual communication you think he's doing that is illegal. Normal procedure on the Internet for finding out whether you have permission or not for a service is to request the service, and get a negative or affirmative response. All I'm asking is for you to explain an exact definition of when his actual communication becomes a crime, in a way so that it differs his communication from that of an innocent. Please explain why this guy should be sentenced even if he hadn't confessed he had bad intentions in whatever he was doing. Why is requesting a service you're allowed to access without password illegal. So far I've seen arguments along this line mentioned from you and others in this thread (of course the arguments weren't clearly formulated either, since you obviously turn it into an ad hominem attack race instead of a civilized discussion, so I've been forced to try and read your mind):
- he knew he wasn't allowed into that particular data. How? Is there any list of which data you aren't allowed to check? Normal procedure is, again, to ask for the service and get a response on whether you've got permission or not. Because law is based on the principle that you can't say you didn't know what the law is, the law is responsible for providing full info for knowing exactly when you've committed a crime or not.
- he made many attempts and for a long time. "Long" is very subjective, there must be an exact time or number of requests or similar before it gets illegal. But if the .org server is down and I type in www.totalwar.org and it doesn't respond the first time, I'll keep reloading until I receive the page or I get "access denied", or until I get bored and/or realize the server is down, and try later some other time. If I get "access denied" without being informed that I no longer was allowed to visit www.totalwar.org, then I'd certainly try a few times more because I'd believe the access denied message was a bug or some failure at www.totalwar.org. If I keep trying for a long time different days I'd realize I had lost permission if I got the same access denied message each time. So where is the exact line drawn for when it's illegal action to make a request for a service?

English assassin

05-11-2006, 17:46

He is not German, therefore the German constitution does not prevent extradition by Germany.

EA, let us discuss international jurisdiction a bit more. I'm quite interested by it and you're a lawyer. :balloon2:

- Englishman X sets up an online shop selling ecstacy-tablets. He sells and ships to customers in the UK itself, the US, France, and Wallis and Fortuna. He is arrested in the UK. Where should he be prosecuted?
- Frenchman VI travels to Dover, and fires a long-range cannon that kills a man in Calais. VI immidiately gets arrested for it in England. Where should VI be prosecuted?

Re the hacker, yes it does because he's an EU citizen and there is a principle of non-discrimination on the ground of nationality, which Haudegen also confirmed. Unless you could argue that did not apply as EU law is generally non-competent in the criminal sphere? Hmm. These are deep waters, Watson.

I'd be interested to answer your questions, but unfortunately I have a pressing meeting in the pub in five minutes. I could probably look up the murder qu fairly quickly (though not after having been in the pub). The internet qu is going to be more interesting (eg "I don't know") and I might see if I can slip it past an IT lawyer here in the guise of a real enquiry. I'll let you know what they say.

Who do I send the bill to? ~;)

Redleg

05-11-2006, 18:01

Rodion Romanovich

05-11-2006, 18:21

Your arguement falls flat on its face LegioXXXUlpiaVictrix the individual admitted to hacking into the Department of Defense Computer system.

Having at one time had access to different aspects of the military internet - I can safely state that to go where the individual alledgely stated to have gone requires a password. If he didn't have a password granted by the administrator of the site, one would have to agree that his access was in violation of the law.

Now here is the internet page that is open to all to view.

http://www.defenselink.mil/

Now there are several links on that site that if you click on requires the individual to have the correct access authorization and is password protected.

Thanks! Finall someone answering my question seriously. Minus this part:

Your arguement falls flat on its face LegioXXXUlpiaVictrix the individual admitted to hacking into the Department of Defense Computer system.

I already said above that "what would differ his actions from that of normal actions IN AN ALTERNATE SCENARIO WHERE HE HADN'T ADMITTED.

This part is the first serious answer I've gotten to that question:

Having at one time had access to different aspects of the military internet - I can safely state that to go where the individual alledgely stated to have gone requires a password. If he didn't have a password granted by the administrator of the site, one would have to agree that his access was in violation of the law.

To all who just responded to me with sneer smilies and irrelevant ad hominem attacks and various red herrings I can say that it would aid the discussion if next time you actually listened to the questions I made, and answered like Redleg did, answering the specific question I posted and not something else you made up I said. Or if you don't understand my question please ask what I mean instead of choosing an arbitrary interpretation.

Now that I finally got the facts I asked for, I can make a proper judgement, and according to these facts I now know that there was a difference between this hacker's behavior and normal behavior, so now I can agree that the facts imply that he committed a crime. Trying to read your minds from your not very explicit posts (even if this message is quoting Redleg, the following comment is not directed at Redleg), it seems like you immediately thought that my opinion was that he was innocent in any case. The opinion I expressed and still hold, is that:
- until I've heard proof of a difference between his requests and normal operation, I'll wait with judging him
- if there are no laws for computer crimes yet, it's necessary to apply the mildest interpretation until proper laws are made. If you discover a loophole in the law, you should change the law, but only apply the new law to future cases
- the law definitions must be made carefully so that they protect innocents from accidentally committing crimes they didn't want to, and make sure it's very easy to differ crime from innocence, both for a user, and for people working with law in court or as policemen.
- computer technology is developing so fast that it requires new laws. In many cases these aren't fully built out, which gives a problematic situation. For safety of citizens, the mildest interpretation must always be chosen until the proper laws have been made. Changed laws can only apply to cases of crime committed AFTER the new law was passed, and not apply to earlier cases.
- I've now seen a difference between his behavior and normal behavior. If there are proper law definitions according to above points, then he can and should be sentenced according to what the law says. I doubt American law recommends life sentence in prison for crimes like these, so the American reaction seems exaggerated and not according to American law, but rather a statement made in a state of emotional rage.
- it's unclear whether American or British law should apply to this case. For Internet related crimes this is a serious flaw that international law, maybe through UN, should correct. It should be more clear what applies in a situation like this.

Redleg

05-11-2006, 19:04

Thanks! Finall someone answering my question seriously. Minus this part:

I already said above that "what would differ his actions from that of normal actions IN AN ALTERNATE SCENARIO WHERE HE HADN'T ADMITTED.

This part is the first serious answer I've gotten to that question:

Of course I took it serious - however you are missing the point the admission of guilt alreadly takes presedence over all other evidence. The scenerio you are attempting to paint would still find the individual facing the consequences of his own acts. Hacking into secure systems - even those with a paper door security - is still an illegal activity.

Now that I finally got the facts I asked for, I can make a proper judgement, and according to these facts I now know that there was a difference between this hacker's behavior and normal behavior, so now I can agree that the facts imply that he committed a crime. Trying to read your minds from your not very explicit posts (even if this message is quoting Redleg, the following comment is not directed at Redleg), it seems like you immediately thought that my opinion was that he was innocent in any case. The opinion I expressed and still hold, is that:

Oh I don't hold it against you at all - the evidence was reviewed in a court of law and they found enough evidence to warrant a continuing of the legal process. I just found your arguement weak on its face, because of the individuals own admissions of guilt.

- until I've heard proof of a difference between his requests and normal operation, I'll wait with judging him
- if there are no laws for computer crimes yet, it's necessary to apply the mildest interpretation until proper laws are made. If you discover a loophole in the law, you should change the law, but only apply the new law to future cases
- the law definitions must be made carefully so that they protect innocents from accidentally committing crimes they didn't want to, and make sure it's very easy to differ crime from innocence, both for a user, and for people working with law in court or as policemen.
- computer technology is developing so fast that it requires new laws. In many cases these aren't fully built out, which gives a problematic situation. For safety of citizens, the mildest interpretation must always be chosen until the proper laws have been made. Changed laws can only apply to cases of crime committed AFTER the new law was passed, and not apply to earlier cases.
- I've now seen a difference between his behavior and normal behavior. If there are proper law definitions according to above points, then he can and should be sentenced according to what the law says. I doubt American law recommends life sentence in prison for crimes like these, so the American reaction seems exaggerated and not according to American law, but rather a statement made in a state of emotional rage.
- it's unclear whether American or British law should apply to this case. For Internet related crimes this is a serious flaw that international law, maybe through UN, should correct. It should be more clear what applies in a situation like this.

In bold is what several posters have stated. The evidence warrants futher review and possible trail - which is what the English Judge in essence stated.

Rodion Romanovich

05-11-2006, 19:09

Of course I took it serious - however you are missing the point the admission of guilt alreadly takes presedence over all other evidence.
I was discussing what laws should exist for such cases more than the specific case.

The scenerio you are attempting to paint would still find the individual facing the consequences of his own acts. Hacking into secure systems - even those with a paper door security - is still an illegal activity.

Only when the communication can be clearly distinguished from normal usage or accidents. And when we're discussing how laws should be, we need to find a clear definition on exactly where the line is drawn. Given that it appeared that several drew their line were vaguely, I pointed out the inner workings of computer networks and the legal necessity of clearly drawn lines. Not until a technical description of something that showed the difference was provided, was anything really found that could differentiate the two cases from both a legal and computer engineering point of view.

In bold is what several posters have stated. The evidence warrants futher review and possible trail - which is what the English Judge in essence stated.

Yes, and that's why I find it quite funny that they, unlike you, responded to my posts with flaming instead of answering my question :dizzy2: Quite strange, considering their opinion was almost the same as mine, but they tried as hard as they could to interpret it differently and ignored most of what I wrote.

Redleg

05-11-2006, 19:24

I was discussing what laws should exist for such cases more than the specific case.

The prosecution could not proceed without laws alreadly having been established.

Only when the communication can be clearly distinguished from normal usage or accidents. And when we're discussing how laws should be, we need to find a clear definition on exactly where the line is drawn. Given that it appeared that several drew their line were vaguely, I pointed out the inner workings of computer networks and the legal necessity of clearly drawn lines. Not until a technical description of something that showed the difference was provided, was anything really found that could differentiate the two cases from both a legal and computer engineering point of view.

That is what the legal process is for, the process seems to be working correctly in this individuals case. An allegation of wrong doing has occured, the legal process has been started, and now it will go to trail to determine if there was a clear crossing of the legal boundries. I would find more credence with your argument if he was not being charged under existing statues (SP)

Yes, and that's why I find it quite funny that they, unlike you, responded to my posts with flaming instead of answering my question :dizzy2: Quite strange, considering their opinion was almost the same as mine, but they tried as hard as they could to interpret it differently and ignored most of what I wrote.

Happens more then we like..

Louis VI the Fat

05-11-2006, 19:26

I'd be interested to answer your questions, but unfortunately I have a pressing meeting in the pub in five minutes. I could probably look up the murder qu fairly quickly (though not after having been in the pub). The internet qu is going to be more interesting (eg "I don't know") and I might see if I can slip it past an IT lawyer here in the guise of a real enquiry. I'll let you know what they say.
Alas, but an ale should take preference over murder.

The internet qu is all the more interesting because I think it the better analogy to the hacker case.

Who do I send the bill to? ~;)You can send the bill to:

Monsieur Louis le Gros
35, rue du faubourg Saint-Honoré
75383 Paris

Rodion Romanovich

05-11-2006, 19:30

The prosecution could not proceed without laws alreadly having been established.

That is true, but only half the truth. In computer related and other fast changing businesses there are seldom specially designed laws to fully cover up the fast changes, so then they often have to stick to old laws in many situations. From the start of the discussion it seemed likely that there could have been such problems in this particular case, but given more facts it doesn't seem to apply. Still, an important point to remember: that in some cases no longer modern laws can end up having to be applied. In some cases of unmodern laws the old laws are even ignored or considered invalid, did you for example know that in some countries there are still laws from the Medieval period about nobles, swords, horse theft and so on? Not many people take those laws seriously these days :laugh4:

Xiahou

05-11-2006, 21:35

Then it's law you don't know anything about. You need a formal definition of when it's a crime, not just "it feels like he's not nice". As we'll see below, your statements are of that form :laugh4:
Again you're the one showing your apparent ignorance- this is your opening statement.

Actually, if there's no password protecting a computer system, it's generally considered to be free to visit for everyone, and it isn't an offense to do so.This is factually wrong. It is a crime to knowingly access a non-public system that you are not authorized to access, particularly when you do so to steal private information and to cause damage to the system.

I'm very confused how you got from that first statement to having the same opinion as me...
Quite strange, considering their opinion was almost the same as mine, but they tried as hard as they could to interpret it differently and ignored most of what I wrote.But as long as you now understand that the legality of an intrusion isnt dependant on the security in place, all is well. :wink:

Haudegen

05-12-2006, 10:00

Louis and English Assassin,

before anyone plans an extended holiday in Germany ~;) , I would like to add a bit.

IMHO Article 16 combined with the EC contract doesn´t protect other EC citizens from being extradtited to their home countries. This is because the idea of Article 16 is that a person should be tried in his home country. Therefore it´s not discriminating to extradite them to their home countries. They are only protected from extraditions to non-EU states.

So if Mr McKinnon had come to Germany he would have been brought to the UK.

English assassin

05-12-2006, 12:17

Yes, but then from the UK he would be extradited to the US. So, if he was a UK citizen in Germany, he might wind up in the US, (albeit in a two stage process) whereas if he was german he would not.

Put it like this, if I ever find myself facing 20 years in a Turkish jail, (I haven't forgotten what they did to Laurence of Arabia) I'd at least pop over to Berlin and try my luck. Nothing to lose.

Now, as for Louis qu, this turned out to be quite interesting. according to the books, the traditional basis of English criminal jurisdiction is territorial, it being the function of the criminal courts to maintain the Queen's peace within the realm. Save for statutory exemptions (I'll come to those) the courts were not concerned with conduct abroad.

Pausing there, I cannot help observing that that means so far as traditional English criminal law was concerned, it was perfectly acceptable to pop accross the channel, slap a Frenchman, and pop back. Which of course is more or less what we had spent about 800 years doing.

Anyway, then a more sophisticated rule took hold, that the existence of any geographical limitation to an offence could only come from the rules of international comity, which only call for a state ("England") to refrain from punishing conduct in another state ("France") where the conduct has no harmful consequences in England. What we might call a "Mind you own business" rule. Therefore on that aproach if EITHER a criminal act OR its consequences occur in England, the English courts wil try it, if not, not.

The modern law is that where a substantial part of a crime occurs in England then it may be tried in England, except in an exceptional case where some other state ought to be given a crack at it. In particular it is not necessary that the "final act" or gist of the crime occurs in England. So relating that to the hacker, it would seem we COULD have tried him here if we had wanted, thiough very possibly international comity and the fact that it was US defence computers he was messing with point to us declining jurisdiction.

However Louis's example of murder is subject to a longstanding statutory exception to these common law rules in the Offences Against the Person Act 1861, s.9:

Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen’s dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty, in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter … may be dealt with, inquired of, tried, determined and punished … in England or Ireland … Provided, that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Ireland, in the same manner as such person might have been tried before the passing of this Act

Of course if Louis had put his victim not in Calais but in a boat the answer would have been even more interesting:

Where a man in a boat at a short distance from the shore was shot by a person on the shore, and died instantly, it was held that the shot and death were both upon the high seas, and therefore triable under the Offences at Sea Act 1536 (rep.): R. v. Coombes (1785) 1 Leach 388; and see 1 Hawk. c. 37, s. 17

Well, I think its interesting.

Soulforged

05-13-2006, 02:22

Well, I think its interesting.I think that all issues of jurisdiction and competence are subject to theoretical and dogmatic struggles. In the end the one who wins is the state with more power in the concret case. For example in a recent case, an argentian was killed in one of the beaches of Brazil. There was a dispute about the place in wich it will be tried, one alleging nationality principle and the other territorial principle where the crime was commited. Brazil won, not only because the criminals were brazilian but because they could get them faster than the argentinian state.

About the boat case... It's really difficult. I think that in that case it would depend of the distance from the shore, of wich country was that shore, of the nationality of the criminal and of the victim. What the positive law of any country states about the issue could become moot, because one could state in their Constitution that all crimes commited in their territory should be tried by the judge of his last residence, always in that territory. While the other states that anyone with X nationality should be tried in X country wheter the crime occured in X, Y or Z. This should be subject to international law and a dispute between the two states.

But I think it could be even more complicated. Let's take the boat case for example. Subject X, of nationality Z, shoots B, of nationality Q, in point A, near the shore of Y. Unfortunately B doesn't die there, he keeps on sailiing until point T near the shore of C, when he dies of bloodlost. Even better, reaching point C another subject I, of nationality O, shoots him again, and then he dies. We could even add that X and I were conspirating to commit murder against B, and there's enough theories to justify the involvement of every jurisdiction in the case.

scooter_the_shooter

05-13-2006, 06:15

I am not even through this whole thread yet and I am disgusted!:help:

Some how It's the US's fault he got in?

Why the heck are many of you blaming the victim? Don't attack the victim, attack the criminal.....oh wait its the usa it must be our fault:no:

I will post more later.:furious3:

Louis VI the Fat

05-13-2006, 13:12

Well, I think its interesting.Utterly fascinating. If I have some time, I will try to get my hands on a book about international legal jurisdiction next week. :book:

Soulforged, yes the most outlandish hypothetical cases are imaginable. And so far, we've only been discussing criminal law. In private law, impossible to disentangle constructions involving half a dozen or so countries with conflicting laws are even more common. Often, actively sought out. All the more reason for more international harmonization of law between countries.

Soulforged

05-13-2006, 16:41

Soulforged, yes the most outlandish hypothetical cases are imaginable. And so far, we've only been discussing criminal law. In private law, impossible to disentangle constructions involving half a dozen or so countries with conflicting laws are even more common. Often, actively sought out. All the more reason for more international harmonization of law between countries.Yes. There's a lot of treaties signed between nations, not to talk about EU (that I see as a great step forward dispite what everyone thinks), to make the job easier. Human right treaties, economic treaties and comercial treaties, and treaties about treaties. Now the problem is that almost every country takes a nationalistic stance before this events and they try always, in some way, to give their Constitution, and therefore some inferior laws, a greater importance than the treaties. But as far as jurisdiction goes there's always an undifined dispute.

scooter_the_shooter

05-13-2006, 20:15

Soulforged

05-13-2006, 20:53

:skull: Soul I about keeled over when I read that post....Lets put this as an example (but lets not go to OT) Say the UN makes a treaty banning small arms from private citizens (in which case it's time to get ready for the blue helmet invasion!) But our constitution says we can have them. Are you saying that we should give them up? That makes no sense at ALL! Just because: insert a bunch of countries here: wants us to give up what is considered a civil right in our country... you think we should give it up!
Then your executive power shouldn't sign it... simple.~;)
Anyway, I find it pretty hard that things like that will be ever discussed in the UN, the subjects discussed are axiological concepts and foundations of principles. Most of human right treaties, wich are widely applied (economic and comertial treaties don't have the same strenght right now), are written as any constitution, containing various general principles and general procedures, it's up to the states to regulate it into more specific laws or translate them into sentences wich sets a precedent. And all of them are of mutual concent between the nations who are present in the reunion and sign them, if the process of signing and ratifying a treaty is more democratic in your country then it's the responsability of adults to not let their representatives sign treaties that they don't like. Violating them will carry responsability from the state, but only economic in the ultimate case (never an invasion!!!).

EDIT to add: If the case comes and your state signs it, then you'll have to get rid of your guns. But notice that in the international treaties the parts are not the people inhabiting a territory, but the ideal person of the State, so such a treaty as the one you're imagining will be formally impossible right now.

Joker85

05-13-2006, 22:23

Then your executive power shouldn't sign it... simple.~;)
Anyway, I find it pretty hard that things like that will be ever discussed in the UN, the subjects discussed are axiological concepts and foundations of principles. Most of human right treaties, wich are widely applied (economic and comertial treaties don't have the same strenght right now), are written as any constitution, containing various general principles and general procedures, it's up to the states to regulate it into more specific laws or translate them into sentences wich sets a precedent. And all of them are of mutual concent between the nations who are present in the reunion and sign them, if the process of signing and ratifying a treaty is more democratic in your country then it's the responsability of adults to not let their representatives sign treaties that they don't like. Violating them will carry responsability from the state, but only economic in the ultimate case (never an invasion!!!).

EDIT to add: If the case comes and your state signs it, then you'll have to get rid of your guns. But notice that in the international treaties the parts are not the people inhabiting a territory, but the ideal person of the State, so such a treaty as the one you're imagining will be formally impossible right now.

Our president doesn't have the right to sign a law taking away our constitutional rights, yet you expect us to believe he has the power to sign a treaty doing so? I think not.

Anyone trying to convince Americans foriegn laws or treaties supercede the US constitution will be in for a hard sell. And I believe that is bi-partisan.

Soulforged

05-14-2006, 01:22

Our president doesn't have the right to sign a law taking away our constitutional rights, yet you expect us to believe he has the power to sign a treaty doing so? I think not. Yes he can... following some dogmatic, following other, more conservative, he cannot. But again that will never happen through an international treaty, because it concerns state policy only. Now, I don't know how the process is regulated there, but here the process of ratification (wich means an official obligation of an state towards the international community for the concret treaty) involves both: the executive and the congress, so it's not an unilateral decision of the executive, I suppose that in the USA is almost the same.

Anyone trying to convince Americans foriegn laws or treaties supercede the US constitution will be in for a hard sell. And I believe that is bi-partisan.Yes I know. Argentina has had the same problem again and again at jurisprudential and legislative level...let's just say "nationalism". Let me ask you something, let's suppose that your Constitution not only doesn't protects the right to a second trial, but it forbids it as well. Then a treaty is signed (the question of how obligated your state is to not contradict its princeples is already decided, violation always carries responsability), an human rights treaty that gives all people the right to a double instance. Will you be reluctant to see your Constitution superceded in that case? Or did I misunderstand your point?

English assassin

05-15-2006, 10:34

Our president doesn't have the right to sign a law taking away our constitutional rights, yet you expect us to believe he has the power to sign a treaty doing so? I think not.

Anyone trying to convince Americans foriegn laws or treaties supercede the US constitution will be in for a hard sell. And I believe that is bi-partisan.

Caesar/joker, I think all soulforged was trying to say is that for an interbnational treaty to have legal effect in your country your country's government have to have assented to it. So if there was an international treaty for the banning of private ownership of firearms, before ceasar can fizz at the mouth about blue helmet commies taking his handguns the US government would have to sign the treaty.

The question of whether the treaty would have legal effect if it was in fact signed, but if the US governmentdid not have authority under the constitution to sign it, might or might not be an interesting one. If the answer was the same as in UK domestic administrative law the answer would be no. I can imagine policy reasons in public international law why the answer might be different (eg that other states ought not to be put in the embarrassing position of enquiory of a fellow government whether their domestic law gives them power to act as they are.)

Finally, as US law is based on the most excellent UK common law system, I believe you will have a dualist approach to international treaties, which is to say, your domestic courts would not give them legal effect until they have been passed into some peice of domestic legislation. That is the UK position, anyway, but we'd need a US lawyer to confirm it.

(The alternative is a system in which domestic courts will consider international treaties directly, which is the case in, eg, the Netherlands)

Redleg

05-15-2006, 12:35

Finally, as US law is based on the most excellent UK common law system, I believe you will have a dualist approach to international treaties, which is to say, your domestic courts would not give them legal effect until they have been passed into some peice of domestic legislation. That is the UK position, anyway, but we'd need a US lawyer to confirm it.

(The alternative is a system in which domestic courts will consider international treaties directly, which is the case in, eg, the Netherlands)

I believe you are correct - the government confirms the treaty through the ratification process where the Senate approves the treaty, which would then force the House and the Senate to make legislation to carry out the aspects of the treaty that apply to the domestic laws.

However one must remember in the United States Treaties can never supercede the constitution.

Or at least that is my understanding to the process

English assassin

05-15-2006, 14:57

However one must remember in the United States Treaties can never supercede the constitution.

Or at least that is my understanding to the process

That seems likely. Even in the UK, famously without a codified constitution, the rule is, if there is ambiguity in a law, the courts will assume Parliament intended them to favour the approach that is in accordance with international obligations, but if all tenable interpretations of the law are contrary to international obligations, well, so much the worse for the international obligations.

As you have a written constitution and a set procedure for amending it is seems it must be right that international treaties can't "amend" it (unless, of course, you passed an amendment)

Soulforged

05-16-2006, 04:02

However one must remember in the United States Treaties can never supercede the constitution.

Or at least that is my understanding to the processThat's with almost every nation that I know. My Constitution has an special prescription in wich some treaties, only human right treaties, receive constitutional level, but always completing the first part of the Constitution, so the treaties cannot be interpreted in a contradiction with the first part.
Anyway, this isn't so simple. The article 27 of the Vienna Convention on the Law of Treaties, states: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46."
A part is every state wich signed the treaty.
Many times has Argentina invoked such provisions and as many we got punished, at least our state. I think that in reality we might see the needle turn a little into international relationships favor.

Redleg

05-16-2006, 04:18

That's with almost every nation that I know. My Constitution has an special prescription in wich some treaties, only human right treaties, receive constitutional level, but always completing the first part of the Constitution, so the treaties cannot be interpreted in a contradiction with the first part.

Treaties can not contradict the United States Constitution as the treaty applies to the United States. If the treaty contradicts the Constitution it can not be ratified.

Anyway, this isn't so simple. The article 27 of the Vienna Convention on the Law of Treaties, states: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Without the treaty meeting the ratification process of the signature nations - the treaty in null. It happened with several treaties the United States has signed. SALT II being one of them. Absolutely no punishment comes about.

Another case in point is the Koyoto treaty.

Soulforged

05-17-2006, 05:01

Treaties can not contradict the United States Constitution as the treaty applies to the United States. If the treaty contradicts the Constitution it can not be ratified.You're just playing formal. In reality procedures are often superceded over and over again. The interesting situation should be when your state ratifies some human rights treaty, as the treaty doesn't apply to a particular territory or state.

Without the treaty meeting the ratification process of the signature nations - the treaty in null. It happened with several treaties the United States has signed. SALT II being one of them. Absolutely no punishment comes about.That's true. However I think the US signed that treaty right? Some doctrine considers that by signing it, and following the principle of good faith (again could lose sense in the translation), the State is already obliged to apply its content, leaving aside all internal excuses, such as provisions. Now this is very complex, and I think that every state will use their best weapons to fight in one sense or the other. One thing is sure though, if ratified there's no doubt about the responsabilities of the state.

Papewaio

05-17-2006, 05:20

I thought you have to show reasonable intent to secure a site for someone to tresspass it.

For instance if you have a large ranch bordered by another ranch and there is no discernable border then you can walk onto the neighbouring ranch without tresspassing as no visible border or signage is available to show you otherwise.

Redleg

05-17-2006, 05:34

You're just playing formal. In reality procedures are often superceded over and over again. The interesting situation should be when your state ratifies some human rights treaty, as the treaty doesn't apply to a particular territory or state.

Actually I am not. Without ratification a treaty is non-binding.

Soulforged

05-18-2006, 04:18

Actually I am not. Without ratification a treaty is non-binding.
No Red. That's just one theory. Now, this isn't a factual theory because laws work over the foundations of the dogma, so it can change as human mentality changes and absolutes truths are fought. To tell you the truth I prefer the second theory, once signed you're obliged. There's something sure though, following interpretation and sentences of the international courts, including our own interamerican court, and it's that once signed you cannot contradict the objective of the content of the treaty, not necessarily actively apply it, but don't contradict it either with your decisions. As I said the subject is pretty complex and worth for a whole new thread.

Redleg

05-18-2006, 04:51

No Red. That's just one theory.

In stating I am wrong - you have shown your lack of knowledge of the United States Constitution once again. Without Ratification any treaty entered is not binding.

Read Article II of the Constitution

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

So no Soulforged its not theory it is actual constitutional law.

Now, this isn't a factual theory because laws work over the foundations of the dogma, so it can change as human mentality changes and absolutes truths are fought.

It can not change until it follows the ammendment process to the United States Constitution as it relates to the United States.

To tell you the truth I prefer the second theory, once signed you're obliged.

I perfer the Constitutional Law

There's something sure though, following interpretation and sentences of the international courts, including our own interamerican court, and it's that once signed you cannot contradict the objective of the content of the treaty, not necessarily actively apply it, but don't contradict it either with your decisions. As I said the subject is pretty complex and worth for a whole new thread.

If the treaty is not ratified it is not binding. Again Case in point is SALT II.

Redleg

05-18-2006, 04:55

Part 2

Contray to some peoples opinion the United States is not ruled by a dictorship - its governed by three branches of government and is a democratic republic. Treaties can not be entered into unless it follows the constitutional process. If the President does not follow the constitutional process as it relates to a treaty - ie the senate does not ratifiy it, the Supreme Court has no choice but to rule the treaty un-constitutional - which in essence negates the treaty.

I like your attempt at using the word theory - it however does not negate your failure to consider the constitution as it relates to the discussion we are having.

Soulforged

05-19-2006, 00:33

In stating I am wrong - you have shown your lack of knowledge of the United States Constitution once again. Without Ratification any treaty entered is not binding.Ufff...This is so tedious. Not everything revolves around your Constitution. The theory I'm talking about considers signed treaties to be above the national Constitution of every country.

So no Soulforged its not theory it is actual constitutional law.Mmmm...No, is a theory, since laws are always interpreted. Some consider the Constitution to be the supreme law, some others consider the international treaties to be in that space.

It can not change until it follows the ammendment process to the United States Constitution as it relates to the United States.You don't know of what you're talking about...

I perfer the Constitutional LawSuit yourself...

If the treaty is not ratified it is not binding. Again Case in point is SALT II.Read what I said again (what the hell is "SALT II"???), never said it binds, I said that the state that signs it should not contradict it's purpose, that's by the principle of good faith.

Contray to some peoples opinion the United States is not ruled by a dictorship - its governed by three branches of government and is a democratic republic. Treaties can not be entered into unless it follows the constitutional process. If the President does not follow the constitutional process as it relates to a treaty - ie the senate does not ratifiy it, the Supreme Court has no choice but to rule the treaty un-constitutional - which in essence negates the treaty.:shrug: Are we on the same channel?:inquisitive:

I like your attempt at using the word theory - it however does not negate your failure to consider the constitution as it relates to the discussion we are having.What discussion Red? Try to change the channel, seriously I think that I'm seeing another movie right now. Laws work over theories, at least the part called science. What I stated is that there's a dogmatic interpretation that puts treaties over the Constitution, you might not like it, but again I'm not saying that your interpretation is wrong, I just don't like it.

Redleg

05-19-2006, 02:40

Ufff...This is so tedious. Not everything revolves around your Constitution. The theory I'm talking about considers signed treaties to be above the national Constitution of every country.

The discussion you entered into centered around the Constitution. If you did not wish to imply nor discuss the United States Constitution in this particlur issue then you should of paid attention to the topic thread and the discussion. The tedious nature is on you.

That theory is not law - and would be defeated by every nation.

Since I am discussing the law as it applies to this discussion, treaties and in particlur the United States Constitution - the onus was on you to state initially that you were not having the same discussion as I - when you attempt to call my statement wrong.

Mmmm...No, is a theory, since laws are always interpreted. Some consider the Constitution to be the supreme law, some others consider the international treaties to be in that space.

Again it is you that is incorrect - the discussion is about law - not theory. Theory only applies when your discussing possiblities. When one discussions actuality in this instance one is discussing law.

You don't know of what you're talking about...

Actually I do - it is you who entered into the discussion with a theory - when my discourse is centered upon the stated law and the United States Constitution. It seems your only losing yourself in your own arguement.

Suit yourself...

Constitutional Law is better then some half-baked theory that removes the people from the equation.

Read what I said again (what the hell is "SALT II"???), never said it binds, I said that the state that signs it should not contradict it's purpose, that's by the principle of good faith.

Binding is the same as not contradict its purpose. If a treaty is not ratified it has no binding agreement that must be meet. SALT II is easy to discover - try typing it into a google search engine. In short its the failed to be ratified Nuclear disarment treaty between the United States and the now defunt Soviet Union.

:shrug: Are we on the same channel?:inquisitive:

You never entered into the correct discussion.

What discussion Red? Try to change the channel, seriously I think that I'm seeing another movie right now. Laws work over theories, at least the part called science. What I stated is that there's a dogmatic interpretation that puts treaties over the Constitution, you might not like it, but again I'm not saying that your interpretation is wrong, I just don't like it.

Then try not saying I am incorrect when your not discussing the law.

Soulforged

05-19-2006, 04:44

The discussion you entered into centered around the Constitution. If you did not wish to imply nor discuss the United States Constitution in this particlur issue then you should of paid attention to the topic thread and the discussion. The tedious nature is on you.I don't think so Red. I was on a discussion about hipotetical cases. Louis posted a comment and I answered, not in reference to that post, but in general about treaties. Then someone asked me about what will happen in the USA as it stands now. I said that I didn't know much about the laws in USA but that I could asnwer him with a simple response. Then later you entered...Mmmm how come that I was the one who entered?

That theory is not law - and would be defeated by every nation.Never said that. The theories are applied generally in two cases: when you make a new law or when you make an arguement to support a legal stance (such as sentences). In the sentences, if founded, you can see the reasons exposed by the judges (because juries do not found), between them you'll find often a theory or two.

Since I am discussing the law as it applies to this discussion, treaties and in particlur the United States Constitution - the onus was on you to state initially that you were not having the same discussion as I - when you attempt to call my statement wrong.Again, when I made that comment in answer to your post, wich I think you're refering to, I was talking in general, wich means that it's perfectly appliable to your national system. Is there a law wich forbids that? Yes there's, but there's nothing factual that forbids a desicion of that nature, nor new legislation being passed. You could also consider that the international organisms could have a different view on the subject and punish you anyway, rare, but it can happen.

Again it is you that is incorrect - the discussion is about law - not theory. Theory only applies when your discussing possiblities. When one discussions actuality in this instance one is discussing law.Again you don't know of what you're talking about.

Actually I do - it is you who entered into the discussion with a theory - when my discourse is centered upon the stated law and the United States Constitution. It seems your only losing yourself in your own arguement.In fact I didn't want to generate a discussion. I made a comment stating that there's different theories, all of a sudden you took it as a disagreement with your stance. But you don't know of what you're talking about either...

Constitutional Law is better then some half-baked theory that removes the people from the equation.How does it removes the "people" from the equation?

Binding is the same as not contradict its purpose. If a treaty is not ratified it has no binding agreement that must be meet. SALT II is easy to discover - try typing it into a google search engine. In short its the failed to be ratified Nuclear disarment treaty between the United States and the now defunt Soviet Union.Oh SALT II is a treaty? Sorry I thought it was something else... Again Red, if your state is binded to a treaty it implies a lot more of things. For starters if only signed, the international court has no business in your jurisdiction, second you've no obligation of passing any legislation or juridic or executive resolution of any kind to make the treaty effective. Or perhaps you're using binding in some other sense... Anyway my explanation works with two concepts that have different consequences, signature and ratification. Signature, by itself, is considered sufficient to create respect for the signed treaty, ratification, involves an obligation with the international commutinity to make the treaty effective by positive action.

Just to remember, let's see my initial post:
That's with almost every nation that I know. My Constitution has an special prescription in wich some treaties, only human right treaties, receive constitutional level, but always completing the first part of the Constitution, so the treaties cannot be interpreted in a contradiction with the first part.
Anyway, this isn't so simple. The article 27 of the Vienna Convention on the Law of Treaties, states: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46."
A part is every state wich signed the treaty.
Many times has Argentina invoked such provisions and as many we got punished, at least our state. I think that in reality we might see the needle turn a little into international relationships favor.The comment is generalized. The situation on the international enviorament is the same for all states.

Redleg

05-19-2006, 05:43

I don't think so Red. I was on a discussion about hipotetical cases. Louis posted a comment and I answered, not in reference to that post, but in general about treaties. Then someone asked me about what will happen in the USA as it stands now. I said that I didn't know much about the laws in USA but that I could asnwer him with a simple response. Then later you entered...Mmmm how come that I was the one who entered?

Enter as a figure of speech - notice that you do agree with I stated in that sentence.

Never said that. The theories are applied generally in two cases: when you make a new law or when you make an arguement to support a legal stance (such as sentences). In the sentences, if founded, you can see the reasons exposed by the judges (because juries do not found), between them you'll find often a theory or two.

Judges make rulings on law - not on theory.

Again, when I made that comment in answer to your post, wich I think you're refering to, I was talking in general, wich means that it's perfectly appliable to your national system. Is there a law wich forbids that? Yes there's, but there's nothing factual that forbids a desicion of that nature, nor new legislation being passed. You could also consider that the international organisms could have a different view on the subject and punish you anyway, rare, but it can happen.

Again you were incorrect in stating I was wrong. Look at what you just stated and what I have stated. If its not current law it must follow the constitutional process to become law. International law only applies to treaties. If a treaty is not ratified international law has no presedence in regards to areas covered by that particuler treaty.

Again you don't know of what you're talking about.

Same could be said of yourself. Maybe you should stop before you attempt to make it something it is not

In fact I didn't want to generate a discussion. I made a comment stating that there's different theories, all of a sudden you took it as a disagreement with your stance. But you don't know of what you're talking about either...
How does it removes the "people" from the equation?

Then you souldn't of entered into the discussion if your did not want to discuss. Your theory is incorrect because it has no application in law. All nations that I know of required that the treaty be ratified by some sort of system. Be it the constitutional stated process of the United States or some other system

Oh SALT II is a treaty? Sorry I thought it was something else... Again Red, if your state is binded to a treaty it implies a lot more of things. For starters if only signed, the international court has no business in your jurisdiction, second you've no obligation of passing any legislation or juridic or executive resolution of any kind to make the treaty effective. Or perhaps you're using binding in some other sense... Anyway my explanation works with two concepts that have different consequences, signature and ratification. Signature, by itself, is considered sufficient to create respect for the signed treaty, ratification, involves an obligation with the international commutinity to make the treaty effective by positive action.

You might want to check out the definition of retification. Ratification is done by nations to accept the signed treaty......Your point is becoming more and more mote when your not applying the know definitions. Signature and ratification are part of the same process - without one the other is not binding.

Just to remember, let's see my initial post:The comment is generalized. The situation on the international enviorament is the same for all states.

Not at all - each state has its own law to determine what and how treaties will be accepted and ratified by that state. You only pointed out how one state deals with the issue. The point that you are missing is that my arguement show how your generalization is not completely correct nor do most nations follow such a method.