Courage our network

Love v USA is over. But what does it mean?

Tuesday’s decision by the High Court not to allow the US to appeal Lauri’s extradition victory means that the case Love v United States of America is over and that landmark judgment of 5 February 2018 will be allowed to stand in full. Now that victory is in the bank and the entire extradition case is over and done with, we can explain a little more about what it means.

Lauri will not be extradited

In fact we’ve known for a few weeks now that there was no longer the slightest chance of Lauri facing extradition. The appeal ruling of 5 February was so comprehensive that Britain’s Crown Prosecution Service, acting for the Americans, recognised that there was no point even trying to launch a substantive appeal of their own. On Tuesday 6 February, the CPS effectively threw in the towel, and Lauri has been released from his bail conditions ever since.

What made the ruling so strong?

The High Court accepted that Lauri should not be extradited for both of the reasons his legal team had argued. The first reason was based on the forum bar, the change of the law that resulted from the Gary McKinnon case, which had never helped anyone in any case before this one. The judges accepted that the strengths of Lauri’s links to the UK meant that it was not in the interests of justice for the Americans to take over the case when there was no real barrier to it being heard in the UK instead.

The second ground, which was also accepted by the High Court, was that it would simply be “oppressive” to send Lauri Love to an American prison because of what would be likely to happen to him there. The Lord Chief Justice is the most senior judge in England and Wales, and criticism of the conditions in allied countries’ prisons at this senior a level is rare. So Lauri’s victory speaks to just how bad things are in Brooklyn’s Metropolitan Detention Center and other jails like it. Those standards, which were the subject of some truly horrifying evidence brought forward by Lauri’s legal team, fall well short of the basic standards of decency expected by America’s closest international allies.

As Rebecca Shaeffer of Fair Trials wrote in the Washington Post, Britain’s High Court effectively ruled that the US Bureau of Prisons cannot be trusted to keep vulnerable defendants alive in their facilities. That’s quite the indictment.

So what were the Americans actually trying to appeal?

A good question – the CPS were trying to appeal on a technical point of the ruling concerning, well, the role of the CPS. It’s one of several aspects of Lauri’s victory that will have ramifications far beyond his own case and should help defendants in hacking and other cases in the UK and maybe further afield too.

What Lauri’s ruling means for future defendants in the UK

Lauri’s victory on forum bar grounds means that that future defendants can argue this defence with more confidence in any future cases.

In their ruling Lord Burnett and Mr Justice Ouseley made it clear that what constitutes a “link to the UK” for the purposes of the forum bar has to be something more than just the fact that someone is a UK citizen. In Lauri’s case, the determining factor was the need for him to maintain close links to his family to ensure his basic medical and psychological well-being. While some legal commentators have written that this limits the likelihood others will be able to demonstrate a forum bar link in future, we think it’s worth noting that Lauri is far from the only vulnerable defendant to be put in this position.

Research is underway in the UK to provide a reliable answer on the profile of computer crimes defendants and whether there is a larger proportion of neurodiverse people in this group than in the population as a whole. Anecdotal evidence would certainly suggest that this is the case.

Getting to the heart of the problem

In many ways, the key decision with extradition is the one that happens behind closed doors: when the CPS and US prosecutors decide whether an extradition request should go ahead, that’s something they do alone. There’s no judge and no-one representing the defendant in the room. As a result, prosecutors see no need for a defendant’s interest to be considered. Whether someone faces an extradition request is a suprisingly arbitrary process that turns largely on the issue of which arrangement is most convenient for prosecutors concerned.

Fundamentally, the key importance of Lauri’s victory is the difference it will make to these private discussions. The impact is twofold. Firstly, because the forum bar has been shown to be effective – and the ruling notes that Parliament surely expected it to help people when they passed it – the possibility of an extradition request failing on these grounds will have to factor into prosecutors’ calculations. It seems likely that prosecutors’ minds will be particularly focused on the impact of the forum bar in hacking cases involving neurodiverse defendants, but others may well benefit too.

More than that, the High Court ruling says that if the CPS want to allow an extradition to go ahead, they cannot pretend that they have no role in the process and stay silent, as they did in Lauri’s case, or restrict themselves to media statements as they have in others.

The ruling moves the CPS towards a position where, if they want an extradition to go ahead, they need to issue a formal certificate at an early stage, putting forward the reasons for their decisions in public. It was this introduction of an element of formality into extradition decisions that the CPS, acting on behalf of the Americans, really wanted to appeal. The High Court has now told them they won’t be able to.

Putting all this together, we think it is now very unlikely that a Gary McKinnon or Lauri Love-type situation can arise again. The overwhelming support Lauri received from the UK media, public and representatives in Parliament definitively puts to bed any suggestion that the campaign for Gary McKinnon was a one-off or that the British public has come around to the idea of extradition in these cases. There clearly remains a need to show that these changes can protect vulnerable defendants regardless of their background but the introduction of a degree of transparency in extradition decisions means that the injustice that started with the 2003 UK-US Extradition Treaty has been dealt a significant blow in 2018.

What Lauri’s ruling means for everyone else

Many British defendants extradited to the United States find themselves in one of two facilities in New York: the Metropolitan Correction Center (MCC) in Manhattan or the Metropolitan Detention Center (MDC) in Brooklyn. The evidence produced for Lauri’s appeal ruling, accepted by the judges, includes statements from judicial authorities and organisations in the United States that conditions in the MDC are “unconscionable” and have been so for a number of years. We believe this calls into question whether the UK should be extraditing anyone to face such conditions, which must surely be “oppressive” for just about everyone.

We hope that the High Court’s trenchant criticism of conditions in the federal prison system will also assist all those working for prison reform in the United States. We will certainly make use of these findings in advocating for our own beneficiaries who are either experiencing or at threat of being put in custody in the US.

Unfortunately, one thing we do not think Lauri’s victory will achieve – at least not immediately – is an end to unreasonable prosecutions of information activists, journalistic sources and computer security researchers under America’s draconian Computer Fraud and Abuse Act. Five years on from the prosecution – and persecution – of Aaron Swartz, none of the issues highlighted by his suicide have in any way been resolved.

In fact, in the short term a likely ramification of Lauri’s ruling is that, instead of risking a loss in extradition proceedings, US prosecutors will instead seek to arrest people when they travel, as happened in the case of WannaCry hero Marcus Hutchins. Hutchins is still stranded in the US awaiting trial after being arrested in Las Vegas in summer 2017. The progress of his case should be watched carefully.

What can we do about the CFAA?

The United States has particular problems with plea bargaining, sentencing and prison conditions, but the shortcomings of the CFAA as law are unfortunately mirrored in lots of countries, including the UK. Computer crimes laws in general are out of date, discriminatory and badly in need of change. Expect to hear more about this – and more about how travelers to the US can protect themselves – from Courage over the course of 2018.