The United States can request an extradition for crimes committed by an individual(as argued under the US law). However this does not mean that the Netherlands has to comply. If a Dutch person committed a crime in the Netherlands according to the US, but its legal here, he/she will NOT be extradited. The same is true if the punishment is unreasonably severe according to Dutch law (death penalty.). For the latter there is a clause in our Dutch-US extradition agreements however you can still argue against this in court. (trias politica). It also stated in the treaty that the Dutch convicted can serve their jail time in the Netherlands. The punishment is then even converted to Dutch punishment standards.

There have been cases where it was argued that US electronic law (hacking and piracy cases) is not fair to the accused. This however does not always help.

This will however not help if you refuse a hearing on this. The article states: "Nomm agreed to waive his extradition hearing in the Netherlands"

The Netherlands doesn't has to comply and she might offer special protection to her citizens. But as soon as the person leaves the Netherlands the protection is gone. E.g., making a shopping trip to Belgium or Germany and suddenly getting arrested there.

However, Belgium and Germany offer similar protection, not just to their own citizens but also to those visiting from Netherlands (and from other EU/EEA countries). As do other EU/EEA countries.

I think this protection may even go too far, as in the case of Roman Polanski who continues to evade a quite reasonable-looking extradition request on a child rape conviction.

Not completely. For example, the Dutch government will often bargain for the freedom/extradition of their citizens if they are arrested in a foreign country for breaking their law, and the punishment is considered excessive/immoral. E.g. the Death penalty for drug trafficking.

Of course, they won't send in the fleet to come and free you, so their bargaining power is limited but it has had its successes in the past.

why would anyone waive the hearing (presumably, where you would argue that you shouldn't be extradited)?

Plea bargains. A promise of 1 year in low sec prison vs the risk of getting a life sentence in solitary.

It's similar to what was done to witches in medieval times: "Confess, and we will kill you gently, or be sentenced and be burned alive."

Plea bargains is such an odd and dangerous concept. It can be misused heavily. "This petty crime has a max sentence of 10 years, if you confess we will give you 2" may trick even innocent people into confessing.

That's what I don't get. If you threaten someone with 10 or 20 or 50 years in prison, then why the hell would you allow that person to only serve 2 years? If you thought about giving him that much, then clearly he must be a very dangerous person to society. I probably wouldn't want such a person to get out after only 2 years. If the prosecutors are charging such a person with 10x less than what he should be getting then maybe those prosecutors should be investigated for corruption. For instance, like how it happens when the prosecutors are always somehow much more lenient against cops.

But of course it has nothing to do with how dangerous he is in most cases. They're just selectively enforcing vague laws just to pile them up and force him to accept at least some prison time, even if he considers himself innocent.

That should be illegal and considered against human rights, especially since usually I believe the judges have no say in it, as the charges happen before the accused is brought in front of a judge. Without a judge you can't have "justice" either. You just have government bullies using the government's might to put someone - anyone - in prison, even if he's innocent or only guilty of minor offences. This is exactly why such abuses of power should be illegal.

There is an interesting asymmetry between the two parties.

To the prosecutor it is just a day job, whether the guy spends 1 or 10 years in prison won't really change anything to his holiday plans. To the defendant, he is playing with his own life. He will have to be locked in a room with thugs for many years, away from his family or any prospect of a normal life.

So both parties have a very different risk aversion in that game. So the prosecution plays with that.

Now if you inflicted a significant pain (career progression, financial penalty) on the prosecutor every time he sent someone to court that turned out to be judged innocent, then you would even this "game" and would probably end up with a more fair bargain.

I also think that systems that have plea bargains, also have a tendency towards longer sentences for petty crimes. Just so discourage people fighting long, expensive trials.

That's what lawyers are for, I hope he had a good one.

Actually, the fairness of the trial should be a given, and the lawyers should be merely additional parties whose role is to assist the defendant's handicap of lacking the needed professional law knowledge. Lawyers are not something that one must employ in a dog fight against abusive prosecutors.

In the US Prosecutors are given impunity to do just about anything to get a conviction. The only recourse for a defendant is to get their conviction overturned but that does not give them the years of their life back while waiting for an appeal.

As to fairness it’s considered completely reasonable for an innocent person who is a possible flight risk to spend a year in jail awaiting trial.

Actually, prosecutors are governed by many rules from constitutional and statutory law as well as canons of ethics that apply to their special position. They have an obligation to promptly disclose any and all evidence they encounter favorable to the defendant. They have an obligation to drop charges at any point that it is apparent that there is no probable cause that the defendant is guilty of a crime, and not to prosecute when it is clear that the state cannot meet its burden of proof (in a criminal matter, beyond a reasonable doubt) by admissible evidence.

That being said, prosecutors are humans, and often-times egotistical, political, cynical, and more than occasionally vindictive humans with all that entails. So, it is hardly uncommon to see rules already stacked in the state's favor bent or broken.

Trials are virtually extinct in the USA. With few exceptions, if you find yourself going to trial, you are not in a good place. While good lawyers should be trial lawyers and unafraid of trying any triable case, the vast majority of the time if you are getting off, you are getting off pretrial with a dismissal or deferred prosecution agreement. If you lose on pretrial motions and the state is intent on prosecuting, then most of the time if your attorney can get you a deal and recommends that you take it, then it's a choice between pride/"truth" and rolling dice loaded against you and paying for it big time.

While in principle as a defendant you are not supposed to be punished for taking your right to go to trial, the plea system punishes you heavily, and if you refuse to "take responsibility" by admitting guilty (the earlier the better) and expressing remorse, then you get punished even more post-conviction, with a heavier sentence, and then certainly being denied parole if that is available in the state system.

In theory all of what you said is true, in practice a prosecutors 'absolute immunity' is a rather hard hurdle to overcome.

http://www.washingtonpost.com/news/opinions/wp/2014/01/30/7t...

PS: Absolute immunity protects from both criminal prosecution and lawsuits, so in general they can at worst be fired possibly disbarred. http://en.wikipedia.org/wiki/Absolute_immunity

Absolute immunity is mostly a protection from civil lawsuits in personal capacity. When there is prosecutorial misconduct in a criminal case, defendants can get sanctions ranging to from dismissal with prejudice, mistrial, exclusion of evidence, to post-conviction relief depending on the severity of the misconduct. The biggest barriers are often either that the misconduct is hidden and difficult or impossible for the defendant (or really, his attorney) to discover, or that judges may decide that the misconduct was "harmless" and the defendant was not prejudiced, even in the face of blatant misconduct, when there is otherwise strong evidence.

As for the prosecutor themselves, defendants or judges can and do refer misconduct to bar associations which can and do disbar prosecutors. Judges can directly hold prosecutors in contempt and fine or jail them in extreme cases, or refer them for criminal prosecution on charges ranging from perjury, obstruction of justice, official misconduct, and criminal contempt and so on. As with any criminal cases involving criminal justice professionals, this is quite rare, but it does happen, and absolute immunity is no barrier to it.

I would like to go a little off-topic and explain a common misconception about the medieval times: it was usually "confess and you will get a light punishment, or otherwise we will do something really bad to you, and if you're innocent the lord will save you". This is actually a fairly interesting game theory: people that truely believed they were innocent, believed the lord would save them.

As such, it was usually only the innocent people that went through the trial-by-god process, and very often the priest conducting the trial rigged the process, and very few people were actually killed in the process.

Are plea bargains allowed in the Dutch justice system? I know they're not in at least two neighbouring countries.

No, but confession is often seen as a 'softening' factor in the weighing of the punishment by the judge

This. I'm having a hard time to understand why he waived that hearing. Pleading guilty (basically renouncing to a fair trial to determine if he's guilty or not) is something he could have done in the Netherlands as well. Arguably, copyright laws in the Netherlands (and in the EU as a whole) are fairer to the defendant than their US counterparts.

He would not be allowed to plead guilty in The Netherlands, as The Netherlands is not charging him. The extradition hearing is about whether he will be extradited after being sentenced. So it would go like this: US says you are guilty, 25 years in jail for computer hacking and mass copyright infringement. US sends warrant for your extradition to The Netherlands. The Netherlands arrests you but allows you to go to explain why you should not be extradited. You cry and say it's unfair. The Netherlands grants the extradition anyway(why not?). You'll be in an American prison for most of your life.

See how bargaining can make your life a bit easier?

No, why wouldn't they at least give it a shot? Is there collusion between NL hearing courts & US prosecution?

They wouldn't give it a shot because they've bargained it for a less risky lower jail time option.

A collusion insinuates secrecy or illegality. There's a plain treaty about extraditions. If you get prosecuted in the US the default mode is that you get extradited.

In practice extraditions are almost never blocked, you would have to be in very special circumstances, like if you'd be at risk of being put to death in the US. Or have some illness that's not treated properly in the US. Maybe a very big public outcry in The Netherlands could work in your favor.

In this case it's very plain. There's no public outcry, he's viewed as a common criminal in The NL. His actions are most likely illegal here as well and it doesn't seem like a very good moment to go discussing the US' extreme penalties for intellectual crime.

Basically, in order to make a case against being extradited, you'd have to convince the court that you wouldn't be given a fair trial in the country making the request.

His problem wasn't that he wouldn't receive a fair trial, his problem was that the laws themselves are silly (but not obviously immoral or excessive). If he had faced a corporeal punishment (death penalty or mutilation), he might have had a case.

Of course the ideal path would have been facing the hearing and then pleading guilty when he was extradited, but the plea bargain likely required him not to challenging the extradition and his chances for successfully doing so were likely far too low to take the gamble.

NL is a big US fan...

Imagine if it worked the other way around.....if one day a US court got a request from Saudi Arabia asking to jail one of US citizens because they broke Saudi law on the internet(even though they have never been to Saudi Arabia). US would politely tell them to fuck off. Yet, when US does this to another country,they comply? It's disgusting.

I wish more countries had the balls to tell the US to fuck off. I wish MY country did; then we wouldn't have had the Pirate Bay Gate, where Swedish constitution was stepped all over.

Frankly, I was pretty appalled how the European countries reacted during the Snowden affair. Not just interfering with the travel of a diplomatic plane he was suspected to be on (just imagine someone did that with the Air Force One), but also keeping mum and looking the other way when he was requesting asylum after telling everyone what the US had done to their citizens (and governments).

That was the saddest display of spinelessness I've ever seen, to be honest. I never felt that ashamed of my country and the EU.

The excuses about him having to be on German soil to request asylum were especially infuriating. Considering the government's reaction thus far, it is painfully obvious Germany would receive and grant an extradition request faster than you can see "Volkssouveränität".

the US spends the most resources on military every year.

"I wish my neighbors would tell the bully to fuck off when he demands their lunch money"

Here's what happens to countries who tell the USA to fuck off (spoilers: they get economically and militarily invaded):

http://www.amazon.com/Game-As-Old-Empire-Corruption/dp/15767... https://en.wikipedia.org/wiki/Confessions_of_an_Economic_Hit...

Also imprisoning people who are not a danger to society in any way shape or form is very modern American. And socially destructive.

http://fivethirtyeight.com/features/the-imprisoners-dilemma/ has this creepy chart https://espnfivethirtyeight.files.wordpress.com/2015/02/roed...

I think this is because of "war on drugs." Officials decides that drug sellers and drug users are danger to the society, and therefore locked away (i will not argue about dangers, just stating what Nixon and most of officials did)

Three strike laws, zero tolerance, the War on Drugs and prison profiteering have resulted in a generations of poor or black males who will spend the majority of their adult lives in prison.

That's absolutely shocking.

It started to go up right after the dollar being unpegged from gold. Crime going up could be related, in this case, to jobs being lost as the currency goes haywire everywhere. See this very convincing chart for instance, where it is clear job reallocation was going on full-force: http://www.edmundconway.com/2015/02/the-worst-goods-trade-ba...

I could argue (though don't really agree) that Andrus Nomm was a threat in the same way as Bernie Madoff. Neither was running around shooting people or starting fires. The same could be said for elderly war criminals.

There are situations in which it is right to send people to prison without them posing an active and dangerous threat. Whether this in one of those situations is more arguable.

It would be really hard to argue that. Bernie Madoff was more like someone who robs banks, or e.g. ATMs (i.e. no danger to human lives, but money stolen). Megaupload didn't steal anyone's money, and while people did get content without paying for it, it's not very clear that they would pay for it if it wasn't available for free.

One undermined the public's confidence in the strength, fairness and security of financial institutions, the other made some rich people not any richer.

Megaupload was not your plausible deniability-sort of file upload service.

There is loads of evidence of the Megaupload team getting a bunch of copyrighted content and putting it up there. The team themselves. Can't really hide behind safe harbor with that.

If I were handing out burned DVDs of movies to people, I'd probably get arrested too (even if selling DVD burning equipment would be fine).

I agree. There really is no question that the folks working on MegaUpload knew that it would be used predominantly for illegally sharing copyrighted material. The questions are whether that should be illegal, what it means to do something in one country that's accessible but illegal in another, and how it should be punishable.

As I see it, employees of Megaupload must have known the risks they were running, so we can't say it's unfair to punish them. We should be actively pushing for legal framework regarding the sharing of copyrighted material, instead of just whining about the punishment meted out to those who took advantage of the current chaos.

That has nothing to do with my post. I just said that the damage Madoff did was an order of magnitude worse than what Mega did.

And Madoff received a prison sentence that was greater by an order of magnitude. Nomm got 1 year, Madoff got 150.

That's revenge, not socially progressive justice. I'm sure there is something better that could have been done with BM to help society other than put him in prison. For instance serving elderly people tea and biscuits or such

Well, the type of punishment is also a question of policy - I guess jail is the most common one. Btw, would you trust him around your (grand-)parents after all the fraud he's committed?

> There are situations in which it is right to send people to prison without them posing an active and dangerous threat

Do these situations exist only when we consider punishment a valid reason for imprisonment? Don't get me wrong; Bernie Madoff being free and enjoying life wouldn't sit right with me, but you have to wonder if locking people away as retribution really benefits tax-paying, law-abiding citizens.

>but you have to wonder if locking people away as retribution really benefits tax-paying, law-abiding citizens

Well, we should also consider if it's benefiting or humane to the people we lock away.

It's not like "tax-paying, law-abiding citizens" are more human than those that end up in jail.

As I understood it from my very limited studies, there are five reasons for incarcerating somebody: retribution, deterrence, rehabilitation, incapacitation, and restorative justice.

If somebody is judged by their peers to have broken the laws approved by their peers, then they receive the punishment deemed suitable by their peers.

As I say, my knowledge of this comes from a brief college-level history about 20 years ago, so may be outdated, naive or just completely wrong.

But I think in the case of Bernie Madoff, incarcerating him was justified to deter similar financial frauds in the future. I suspect (and judging by some of the comments on this page, it might have worked) locking up Andrus Nomm is an attempt to discourage programmers from working for firms like MegaUpload.

Without a doubt, unless we're making the argument that punishment benefits the punished somehow. I should probably have made mention of rehabilitation to contrast.

You also have to consider the cost to society locking someone away incurs. You not only remove an able-bodied worker and offload his costs of living to society, you also have to factor in the overhead of maintaining and staffing the necessary facilities.

But sadly putting people behind bars is considered a solution in itself in the US, rather than a means to an end.

<conspiracy>

i wonder if the war on drugs is really orchestrated (either with intention, or manipulated by vested individuals) to make drugs more scarce, and more difficult to obtain, to justify their high price. By making it highly illegal, trafficking drugs has never been more profitable (for the drub lords - not for the peddlers nor the mules obviously).

You hardly see the real boss go to prison...

</conspiracy>

Have you followed what's going on with the Mexican border? I wonder how so many pounds of cocaine & marijuana makes its way through the border every year..

If the USG is sending guns to the gangs in Mexico to aid in their survival, why not help them profit by letting their merchandise into the USA?

Then it gives the USG a reason to wage a "war on drugs" and harden the military-industrial complex industry to fight ever growing "threats" of criminal power "at our borders".

The Netherlands has a criminal copyright infringement statute, and it appears to include --- in the criminal law part --- vicarious infringement.

> So downloading something from Megaupload was hardly a crime there...

The programmer in question wasn't arrested for downloading something from Megaupload, were they?

Selling and using weed is also illegal in the Netherlands, but if someone from the Netherlands does that activity in the US (either by going there or by for example sending it via the mail), that person is still breaking the law in the US. The US and the Netherlands have an extradition policy for those cases.

The other way around though, the US has already indicated that if ever an American citizen (like IDK, Bush or Cheney or whoever) is going to be tried for war crimes in The Hague, they'd send in their military to extract them. WW3 material right there.

As for the copyright laws, it depends. It was never allowed to upload music and the like - i.e. seeding if you talk about torrent clients. IIRC some leaked Megaupload emails / internal communications indicated that some of the staff was uploading material themselves (but I could mis-remember that)