No more lines in the virtual sand - the Hew Griffiths case considered.

Hew Griffiths - Photo by Richard Gosling

Back in 1999, my law clerk, J. Eric Crupi and I considered the topic of personal jurisdiction as applied to the Internet. In the resulting Law on the Row article, entitled "Lines in the Virtual Sand." In the original article, Eric concluded that “the boundaries of personal jurisdiction in cyberspace have not been concretely defined, but rather represent unsettled lines drawn in the ‘virtual’ sand. . . .” In the intervening years, I would have to say that the lines in the virtual sand have been blown away by the winds of U.S. Court decisions, particularly after considering the three-year long case against Hew Griffiths from Australia.

The original article describe the process of personal jurisdiction as follows:

The traditional determination of whether a court has personal jurisdiction over a particular defendant involves a two-pronged analysis. The first prong of the analysis inquires into whether the state in which the lawsuit was filed (i.e. the “forum state”) has a “long-arm statute” permitting the assertion of personal jurisdiction. A long-arm statute is simply a legislative act that allows the courts of a state to assert jurisdiction over persons and corporations that, although not residents of that state, have voluntarily conducted some type of activity in that state. The second prong of the analysis, however, is more involved and inquires into whether the forum state’s assertion of personal jurisdiction complies with Constitutional due process standards. Due process requires that a non-resident defendant must have certain “minimum contacts” with the forum state such that maintaining the suit does not offend traditional notions of fair play and substantial justice. Essentially, this prong is satisfied if the defendant performs some act in the forum state through which it purposefully takes advantage of the benefits of doing business in that state and can thus reasonably anticipate being haled into that state’s courts.

It is the “minimum contacts” section of the long arm analysis that has received the most attention in the U.S. Department of Justice’s extradition of Australian Hew Raymond Griffiths. In one of the first ever extraditions for an intellectual property offense, Griffiths, 44, a British national living in Bateau Bay, Australia - a man who arguably had absolutely no physical contact with the United States - was extradited to the United States in February 2007 to face criminal charges in U.S. District Court in Alexandria, Va. On April 20, 2007, he pleaded guilty to one count of conspiracy to commit criminal copyright infringement and one count of criminal copyright infringement before U.S. District Court Judge Claude M. Hilton. He was sentenced to 51 months in prison and given credit for the three years he spent in Australian facilities awaiting extradition. He will serve out the remaining 15 months imprisonment in U.S. facilities.

Griffiths’ conviction was the latest action arising from the joint U.S. Customs/Department of Justice investigation known as Operation Buccaneer, the largest international online copyright piracy investigation ever conducted by federal law enforcement. To date, Operation Buccaneer has resulted in more than 30 felony convictions in the United States and 11 convictions of foreign nationals overseas.

In an article for the Australian Law Journal, NSW, Chief Judge in Equity, Peter Young summarized that “[Our] people are being extradited to the U.S. to face criminal charges when they have never been to the U.S. and the alleged act occurred wholly outside the US.” He concluded that while International copyright violations are a great and valid problem that must be remedied, “there is also the consideration that a country must protect its nationals from being removed from their homeland to a foreign country merely because the commercial interests of that foreign country are claimed to have been affected by the person’s behaviour in Australia and the foreign country can exercise influence over Australia.”

The DOJ Assistant Attorney General Alice S. Fisher of the Criminal Division stated the Department’s counter position, that “the Justice Department is committed to protecting intellectual property rights, and will pursue those who commit such crimes beyond the borders of the United States where necessary.” U.S. Attorney Chuck Rosenberg for the Eastern District of Virginia echoed her sentiment when he stated that “Whether committed with a gun or a keyboard -- theft is theft. And, for those inclined to steal intellectual property [in the United States], or from halfway around the world, they are on notice that we can and will reach them.”

So what did Griffiths do to raise the ire of the DOJ? Griffiths, known by the screen nickname "Bandido," was a longtime leader of an organized criminal group known as DrinkOrDie, which had a reputation as one of the oldest and most security-conscious piracy groups on the Internet. DrinkOrDie, an international organization founded in Russia in 1993 and known as the warez scene, was an underground Internet piracy community that specialized in cracking software codes and distributing the cracked versions over the Internet. Griffiths had boasted in interviews that even though he ran all of DrinkOrDie’s day-to-day operations and controlled access to more than 20 of the top warez servers worldwide, he would never be caught. Some of DOD’s most prominent victims were Microsoft, Adobe, Autodesk, Symantec and Novell, but they also affect smaller companies whose livelihood depended on the sales revenue generated by one or two products. Once cracked, these software versions could be copied, used and distributed without limitation. Members stockpiled the illegal software on huge Internet computer storage sites that were filled with tens of thousands of individual software, game, movie and music titles alleged to be worth over 50 millions dollars. The group used encryption and an array of other sophisticated technological security measures to hide their activities from law enforcement. Griffiths was certainly no farm boy and was well aware that his activities were criminal, even though many articles on the Internet about his activities point out that he allegedly made no profit from the pirated software.

Griffiths’ extradition was very controversial in Australia. The matter of U.S.A. v Griffiths has been cited as an example of how bilateral arrangements can lead to undesirable effects such as a loss of sovereignty and the introduction of draconian measures. On the other hand, increased enforcement internationally through heavy criminal sanctions is seen as an effective way of protecting legitimate distribution networks.

A common mistake made in many of the Internet discussions about the Griffiths case is that the extradition occurred pursuant to the Australia-United States Free Trade Agreement (“AUSFTA”). Griffiths’ indictment, however, occurred before amendments were enacted to harmonise the Australian Copyright Act with U.S. copyright laws, so AUSFTA had nothing to do with the extradition. There were multiple factors that motivated extradition, not the least of which was that the DOJ alleged conspiracy, claiming that most of the overt acts were based in the United States and that many DrinkorDie members were located in the U.S. This gives credence to the argument that, as the leader of DOD, Griffiths was subject to its jurisdiction. This analysis is no different than exercising jurisdiction over a criminal enterprise whose activities result in murder rather than theft - the analysis has nothing to do with the severity of the crime. That said, it is not wise to underestimate the impact that the lobbyist for the powerful technology industry may have had on the government’s interest in this case, nor the effect of the close relationship between Australia and the United States, both of which made extradition more likely.

The bottom line in all of this is that the traditional geographical boundaries which once severely restricted the reach of the long arm of the law are no longer an impediment. If a person’s criminal activities rise to a significant enough level as to garner the attention of a organization such as the DOJ, that person is going to find him or herself in unfamiliar territory being charged with violation of crimes in that territory. The lines in the virtual sand have disappeared.