Is The Hutchins Indictment Over Malware Unconstitutional?

Alex Berengaut of Covington & Burling analyzes some of the legal issues raised by the indictment of Marcus Hutchins (@malwaretechblog) for allegedly creating and conspiring to sell malware known as the Kronos banking trojan. He writes, in part:

Since Hutchins’ indictment, commentators have questioned whether the creation and selling of malware—without actually using the malware—violates the two statutes under which Hutchins was charged: the Computer Fraud and Abuse Act and the Wiretap Act.[1] It is likely that these issues will be litigated as the case unfolds.

But there is another question raised by the indictment: whether it violates Hutchins’ constitutional rights to charge him for his alleged conduct under any statute in this country. Several circuits—including the Seventh Circuit, where Hutchins’ case will be heard—have recognized that the federal government cannot charge anyone, anywhere in the world irrespective of their connections to the United States.[2] As the Second Circuit has put it, “[i]n order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States so that such application would not be arbitrary and fundamentally unfair.”[3]

Read more on Covington & Burling Inside Privacy.


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