Software pirate extradition a first of many, legal expert predicts

How does extradition work?

It's basically a part of international law. In Australia, in order for the Australian government to extradite someone to another country in relation to a crime, then the Australian government is only allowed to do that if the crime that's alleged in another country is actually a crime in Australia as well.

Take something like murder. Quite clearly, murder is a crime in America, and murder is a crime in Australia. So if the U.S. government says, 'there's someone who we allege murdered someone', then there would be the required dual criminality, because murder is a crime in both countries.

For the purpose of extradition, what is critical is being able to establish this concept of dual criminality. That means that what the alleged perpetrator has done in Australia, the U.S. is alleging that is a crime in the U.S. In order for Australia to extradite him, there has to be a similar crime in Australia.

I guess the clearest way to exemplify that is with the 'I Love You" virus that was around a few years ago. The guy who created that virus was based in the Philippines and the U.S. tried to extradite him, but couldn't, because in the Philippines, they didn't have a statute that made the creation of viruses a criminal act, so consequently he was not able to be extradited.

This dual criminality thing is an important issue; now in Australia, we have quite a lot of IP-related thefts and actions are subject for criminal penalties, so consequently, it's a lot easier for other countries like the U.S. to come to Australia and request extradition.

Does the dual criminality requirement mean that IP thieves are safe from prosecution in certain countries?

It's really a distinction between the jurisdiction where the offence originated, and the jurisdiction where the crime took place.

In the Hew Griffiths case, the U.S. said the crime actually occurred in the U.S. because it was U.S. companies that had their copyright stolen. So the fact that Hew Griffiths was sitting with his computer on the Central Coast of Australia was not relevant to them.

The U.S. is where the crime takes effect, and that was the way he was charged. It's important also to recognize that what he did was actually contrary to Australian copyright law.

If Hew Griffiths was living in the Philippines for example, the question would be: do the Filipino laws say that what he was doing was a crime? If there is a criminal statute in relation to that, there would be the required dual criminality for the crime, in the Philippines and the U.S., so the Filipino government would hand him over.

However, if it is not a crime to do what he has done, say with the "I Love You" virus, where the statute had not caught up with the technology, the "I Love You" guy was not extradited. It all depends on what is the extent of criminality for IP theft in each relevant country. And most developed countries are now heading towards having these sorts of criminal statute.