Freedom Hosting Case Update and Thoughts

Freedom Hosting Case Update and Thoughts
by Susan Basko, esq.

Update July 18, 2017:  Here is a link to an excellent article about the case, written by Caroline O'Doherty of the Irish Examiner.

Freedom Hosting was a service that made it very easy for anyone to start a website on the so-called Dark Web or onion Tor. Freedom Hosting was developed and owned by Eric Eoin Marques. (Eoin is pronounced like Owen.) He also invented Tormail, the first anonymous email of the dark web.  Mr. Marques was arrested in August 2013 in Dublin, Ireland, by An Garda Síochána, the Irish National Police. His computers and other equipment were seized.  He has been in custody since that time. News stories have reported that Mr. Marques ran or runs Freedom Hosting 2, a carryover of Freedom Hosting, but this is not possible since he has been in custody. Although this has not been stated by any government source, I believe Freedom Hosting 2 is being run by the U.S. government as a means to locate and arrest those using the services.  There have been many reports of such arrests.

Shortly after Mr. Marques was arrested, the FBI labelled him the largest facilitator of child porn.  He was charged with distributing and advertising child porn.  Being labeled in this way made it easy to sway Irish officials against him and made it difficult for him to gain any support base, or even interest, in his case.  What Mr. Marques was actually doing was running a website hosting company and some of his customers ran child porn websites.  All types of child porn websites are horrible, but some are worse than others, and according to FBI affidavits, some of the very worst kind were hosted on Freedom Hosting.  These included sites involving rape and torture of small children, which are called "hurtcore" sites. Other sites, according to an FBI affidavit, required the viewers to contribute new or never seen child porn of their own in order to be allowed to view and remain on the site.  Thus, the viewers of those sites became producers of child porn, and for each image, there was a child, or several children, being sexually abused.

 Legally, there are several important and groundbreaking things going on in this case.  The first is that a website host is being held criminally responsible for the content of the websites that were on his server.  Freedom Hosting was a friendly-appearing service website that had written Terms of Service stating that the websites being hosted could contain nothing illegal at all.  This was in writing.  The Terms of Service also included wording that stated there was a privacy policy, where the web host did not look at the websites.

This is huge and important in criminal law, that the FBI is saying the website host company is responsible for the contents of all the websites hosted on its service.  That means Amazon Web Services (AWS) is responsible for all the websites it hosts, although AWS specifically denies it is responsible and refuses to remove any offending websites absent a court order.  The FBI never went to Eric Eoin Marques with a court order to remove websites off his server; they simply arrested him and put him in jail.  Does the FBI intend to prosecute the big corporate website hosts for the content of all the offensive sites on their servers?  If the FBI and DOJ can prosecute Eric Eoin Marques for the contents of websites hosted on Freedom Hosting, then they can also prosecute all the other website hosts.  And therefore, all those website hosting companies should be paying attention to this case and even speaking up.   There is plenty of shocking obscenity - even on Twitter -- and do the website servers plan to be criminally responsible for it?  If not, the time is now to speak up.

The second interesting legal thing going on in this case is that the U.S. is seeking to extradite Mr. Marques from Ireland to the U.S., and Ireland is refusing to prosecute the crimes in Ireland, even if Mr. Marques agrees to plead guilty.  Further, Irish law apparently does not require the judges to give any reason for refusing to prosecute the crimes in Ireland.

Since his arrest in 2013, Mr. Marques has been fighting extradition to the U.S.  The first extradition order was given in 2015, and it spurred a series of appeals.  A new fresh set of legalities has been brought before the Court and is scheduled to be heard June 30, 2017.  This hearing is with regards to the Irish official not using her discretion in allowing the case to be heard in Ireland. As a rough equivalent in U.S. law, this is something like a writ of mandamus, where a petitioner asks a court to issue an order to a  government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.  It is my understanding that if the Irish court on June 30 refuses to issue such an order, that this can also be appealed to a higher court.

The reasons for Mr. Marques putting up such a fight against extradition are that U.S. federal law and courts overcharge crimes and impose draconian punishment and that Ireland is his home.  In the U.S., Mr. Marques will likely face life in prison.  In Ireland, he would face a maximum of 14 years.  The other reason is that his father lives in Ireland and is his main family contact.  He has no one in the U.S. For his father to travel to and stay in the U.S. for even the trial would be prohibitively expensive.  Visits in prison would be nearly impossible.

Thus, the second big legal question is whether the U.S. should be able to impose its law on other nations and demand extraditions.  If you are in the U.S. and you answer "yes," then you should also ask whether you want to be subject to the laws of other nations and extradited to those nations if they think you have broken their laws.  Do you even know the laws of other nations, and if not, how do you know you are not breaking those laws?  Should you be required to know the laws of all the nations and to follow them -- and what if those laws are very different from those of your own nation and have draconian punishments -- as the U.S. does for all computer crimes?   Are you willing to be sent away from your family, friends and home to a distant land, to be placed in a jail and face charges in a strange legal system?  If not, why exactly do you think people worldwide should be extradited to the U.S.? To me, this is an imperialistic notion that the people of other nations should be subject to the U.S. laws and courts.  The implication is that Irish laws and Irish courts are not good enough, not capable of dealing with this issue.  If the Irish official believes this to be the case, why not give this as the reason?  Thus far, no reason has been given and the courts state that Mr. Marques is not entitled to be told any reason.

This is the big question in this case on June 30: Did the Irish official abuse her discretionary powers in ordering Eric Eoin Marques to be extradited to the U.S. and not allowing his case to be handled in the Irish courts?

Note: There is a discovery hearing in Dublin on June 26, followed by the main hearing on June 30, 2017.   

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