Owen Walker, the 18-year-old alleged ring-leader of an international botnet coding group, could face extradition to the US if he is accused or convicted of committing an offence against US law, says barrister Jonathan Krebs, who is the convener of the NZ Law Society’s Criminal Law Committee.
In that case, US authorities will make an application under the Extradition Act to have him extradited to the US for a hearing of the charges.
“If they do, I can’t see anything to stop it,” says Krebs.
There has to be a hearing and the judge may order the surrender of the person to the US authorities, he says.
To Krebs’ knowledge, there are no age limits for an extraditable person under the Extradition Act. If Walker is competent to be tried on the offence in New Zealand, and he is competent to be tried on the offence in the US, there is no impediment to him being extradited, says Krebs.
Walker appeared in Thames District Court earlier this month and was remanded on bail after an international investigation by New Zealand Police in collaboration with the FBI and Dutch authorities. It was part of a bigger FBI investigation, dubbed Operation Bot Roast. Computerworld New Zealand reported the first hints of the investigation last September.
The US Attorney’s office in Philadelphia is handling the Operation Bot Roast case. Spokeswoman Patty Hartman told Computerworld the US Attorney’s office could not comment on a potential extradition of Walker.
However, another barrister, Clive Elliott, who specialises in IT law, says it seems unlikely that Walker could be extradited to the US.
The alleged offences happened in New Zealand and are therefore a breach of New Zealand law, he says. The two “hacking-type” offences Walker has been charged with, accessing a computer system for dishonest purpose under section 249 of the Crimes Act; and damaging and interfering with a computer system under section 250, do not take into consideration where the offences happened, he says.
“The internet doesn’t recognise boundaries,” he says.
Walker was also charged with possessing software for committing crime; and two counts of accessing a computer system without authorisation.
The fact that the offences had ramifications offshore does not make it appropriate that Walker be dealt with under another country’s law, says Elliott.
His view is that he should be prosecuted under New Zealand law.
Detective Inspector Peter Devoy of the Waikato Police told Computerworld earlier this month there had been “no recent discussions” about extradition.
However, one of Akill’s alleged associates, Ryan Goldstein, earlier this month pleaded guilty to charges of assisting in a coordinated attack on the University of Philadelphia’s computer network. That attack, allegedly using software developed by Akill, led to a server crash in 2006.
The US has pursued extradition of cyber-criminals before.
British hacker Gary McKinnon is facing extradition to the US after hacking into NASA websites in 2001, where he says he found images of what looked like extraterrestrial spaceships. McKinnon has been fighting the extradition since 2005. His House of Lords appeal hearing date is set for June 2008, according to the Free Gary McKinnon blog.
US investigators have also requested the extradition of four Nigerians accused of running “419” scams in the Netherlands in 2006.
Based on the fact that Walker has charges against him for the first time, Elliott suspects the sentence will be at the low end. Ten years in prison is the maximum under section 250, and seven years is the maximum under section 249. But to receive the maximum sentence, the offence has to involve danger to life, for example hacking into a defence system, says Elliott.
Whether Walker was in fact the ring leader, as some media reports have claimed, or just part of a wider network, will also be a factor that will affect the verdict.
Police have stressed that the outcome of this case will have huge implications internationally.
“It is important that we get this case right,” says Elliott.
It is highly desirable to the public and the police that the judge fully understands the internet and the alleged crimes committed, he says.
This is not about some kids playing a prank, says Elliott. It seems clear that the motive of the highly organised operation was to generate revenue, he says.