[free-sklyarov] RE: International law and U.S. v. Sklyarov

[Chris Savage]

> -----Original Message-----
> From: Declan McCullagh [mailto:declan at well.com]
> Sent: Friday, July 20, 2001 2:52 PM
> To: Chris Savage; Tim Neu
> Cc: free-sklyarov at zork.net
> Subject: International law and U.S. v. Sklyarov
> 
> 
> Chris is an unusually smart fellow, and I have no quibble 
> with what he says.

<blush>

>But in thinking through this myself, it seems like these are 
>reasonable questions:
> 
> 1. Is it reasonable for one country's law to apply 
> to those people who committed "crimes" while outside
> that country? Personally, I'm inclined to say no, but
> I recognize that the weight of legal opinion is likely 
> against me.

We really need an international jurisdiction expert here, but I think the
key test is "effects."  Suppose I get into a brawl with someone in a bar in
Country X and kill them.  Under the laws of Country X it is justifiable
homicide.  Under US law it would be (say) manslaughter.  The normal rule is
that the US can't prosecute me for manslaughter in country X.

OTOH consider GE buying Honeywell.  GE and Honeywell are both US
corporations, but they both have major activities in the EU.  So when the EU
said that it would violate their laws for GE to buy Honeywell, the deal was
dead.  The logic is the even if GE and Honeywell are US corporations and the
literal merger would be a US act, the effects in the EU justify EU
jurisdiction.

> 2. Does writing the code for Elcomsoft's product 
> violate the DMCA? (let's ignore the jurisdictional
> question for the moment) The problem here is that
> the DMCA was intentionally written terribly broadly. 
> It says: "No person shall manufacture, import, offer
> to the public, provide, or otherwise traffic in any
> technology, product, service, device, component, 
> or part thereof, that (circumvents, etc.)" It's true the 
> prosecution has just lodged the trafficking charge, but
> I can see them amending their charges to include
> "manufacturing" if necessary.

Assuming that writing code is manufacturing it, then writing code that
violates the DMCA would (under this broad interpretation, and putting aside
either possible judicial narrowing (e.g., limit "manufacture" to not apply
to software) or constitutional issues) be illegal.  But the mere writing of
code in Moscow has no effects in the US.  Hence no US jurisdiction over the
writing.  The US jurisdiction (to the extent it exists, and, again
IANA-international-L) arises from the trafficking (or maybe importing),
neither of which Sklarov did, AFAI can tell.  If this is basically right,
then the "manufacturing" charge wouldn't lie.

> This is a real danger, and this is why y'all should be 
> agitating to repeal or amend the DMCA as well as freeing
> Sklyarov, since for all you know there 
> could be 10 more arrests that are scheduled to take place in 
> the next hour.

This is one of the many things wrong with the DMCA.

> Does anyone have any cites to how broadly "traffic in" has 
> been interpreted by U.S. courts?

Beats me.  The issue isn't "trafficking in" within the US, though; it seems
to me it's international "trafficking."

Chris S.


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