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Sklyarov Denied Visa to Return to U.S. for Trial
Kurt Foss writes "Visa applications for Alexander Katalov and Dmitry Sklyarov of ElcomSoft were recently denied by the American Embassy in Moscow, jeopardizing their return to the U.S. in time for
the company to face criminal charges for allegedly violating
the Digital Millennium Copyright Act (DMCA) last year. The
already rescheduled trial is presently set to begin in the
U.S. District Court of Northern California on October 21."
The guy your're talking bout is Ira Einhorn. France refused to extradite him because he could possibly face the death penalty in America. The circumstances are quite different than Skylarov's.
Entrepreneur : (noun), French for "unemployed"
Extradition is usually done for certain types of crimes, like murder for example. As far as I know Russia and the USA have not signed any extradition treaties for DMCA violations.
Not in this case. In the case you cite the defendant absconded during the trial. Under English common law it is only necessary for the defendant to be present in court to actually enter the plea. Once the plea is entered and the trial has begun the trial can complete whether or not the defendant absconds.
This case is very different, the government is preventing the defendants from attending. They are clearly being denied due process and the government is not entitled to prosecute the case in their absence.
While the article is correct that the consular officials have autonomy I very much doubt that this is an accidental occurrence. There is no way the DoJ wants this trial to take place. The FBI would look like complete idiots, particularly when it becomes obvious that Freeh and Ashcroft were more concerned about copyright than terrorism. The whole point of the scheme was to make the incomming AG look like a tough crime fighter aggressively going after the threats to society that Clinton ignored. Thats why the arrest took place July 2001. I predicted that this would happen when the plea agreement was entered.
Stopping the defendants from appearing for the trial is the easiest way to get the case to fade from view with the least possible amount of fuss. Someone from the DoJ will have had lunch with someone from DoS.
The judge may throw the charges out or leave them on file until the statute of limitations expires. I don't know the federal proceedure. It is possible that the charges will be thrown out on other grounds, the jurisdicition claim looks somewhat dubious to say the least. While the US courts does allow for extra-jurisdicitional charges the courts tend to only do so when the act in question explicitly states that it claims to be applicable in foreign jurisdictions.
What might be interesting is if a civil lawsuit was filed against Ascroft as AG claiming that the case was brought to violate Skylarof's civil rights.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
Everyone in the world is held to US laws, EXCEPT US Law Enforcement Officials.
If those said US law enforcemnet officals ever go to Russia, they can expect to be captured, tried (if they're lucky), and jailed.
We've got a good 15-50 years of "supernationalism" until some agreed-upon mechanism for punnishing extra-national criminals is agreed upon. Probably by an extension of the UN War Crimes court into a body to deal with inter-country legal affairs that aren't War Crimes.
To whit; I can get on a boat chartered in China from California, hook up to an international communications system not owned by the USA, hack a server in Japan, go back to the USA, and ignore any legal threats on the basis that no applicable law makes what I did illegal. If I'm out of the country ANYWAY and I've got a good reason, I've got an even better situation.
Until I go to Japan, of course.
(IANAL; if you, knowing that I am not qualified to dispense legal advice, decide to act upon my suggestion, you should also jump into the ocean while you're out there and save the gene pool.)
Ironic that this is being modded as +1 Funny, because that's actually his defense!
This sig intentionally left justified.
The US has refused to ratify the treaty on the international criminal court because of the completely hypothetical possibility that US citizens might be tried elsewhere. I don't believe the US is going to subject its citizens to any form of foreign jurisdiction if it can help it.