Last summer, Marcus Hutchins, the security researcher who stopped the “WannaCry” malware attack, was arrested and charged for his role in allegedly creating and conspiring to sell a different piece of malware, known as Kronos.  As we have previously discussed on this blog, however, the indictment was notable for its lack of allegations connecting Hutchins to the United States, which raises constitutional due process issues, and Hutchins subsequently moved to dismiss the indictment on this basis.

The government has now responded to Hutchins’ motion.  It makes two main arguments.  First, the government maintains—as a factual matter—that the allegations in the indictment do allege a sufficient nexus between Hutchins and the United States.  Second, the government argues, as a legal matter, that if Hutchins’ indictment is defective because it fails to allege conduct specifically directed at the United States, then there is no country on Earth where Hutchins could be prosecuted.  Both arguments appear to fall short.

With respect to the government’s factual argument, it references allegations that “Hutchins and his codefendant posted a promotional video for Kronos on Youtube, and they sold and transmitted Kronos to an individual located in the Eastern District of Washington.”  But these allegations in the indictment pertain to Hutchins’ co-defendant, not to Hutchins himself.  And as previously discussed, since due process is a standard specific to the individual, it is problematic for the government to bootstrap one co-defendant’s contacts with the United States to establish a nexus for another co-defendant.

As for its legal argument, the government criticizes Hutchins’ position that foreign defendants do not establish a sufficient nexus with the United States based on the effects of their foreign conduct when it is directed at the world as a whole, rather than the United States.  Notwithstanding that this principle is black-letter law in the context of civil personal jurisdiction, the government argues that “Hutchins’ theory of jurisdiction and venue would make him immune from prosecution everywhere.”  Yet the government disregards the fact that the effects of a defendant’s transnational conduct is just one of several bases for jurisdiction over that defendant.  Under general jurisdictional principles (both in the United States and in other countries), defendants may also be subject to jurisdiction in a range of other circumstances, including based on the country in which their conduct occurs.  On this basis, Hutchins could likely be subject to jurisdiction in the U.K., where he apparently lived during the time period at issue.  Thus, contrary to the government’s argument, accepting Hutchins’ due process claim would not make him immune from prosecution worldwide.

 

 

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Photo of Alexander Berengaut Alexander Berengaut

Alex Berengaut is a nationally recognized litigator and co-chair of Covington’s Government Litigation practice group. He has served as lead counsel in a range of commercial disputes and government enforcement proceedings, and currently represents several leading technology companies in litigation and compliance matters…

Alex Berengaut is a nationally recognized litigator and co-chair of Covington’s Government Litigation practice group. He has served as lead counsel in a range of commercial disputes and government enforcement proceedings, and currently represents several leading technology companies in litigation and compliance matters relating to data privacy, platform liability, artificial intelligence, and cybersecurity.

In recent years, Alex obtained a series of landmark victories against the federal government in bet-the-company disputes for technology clients. Alex represented TikTok in challenging the Trump Administration’s efforts to ban the app, delivering the winning argument that led the court to enjoin the ban hours before it was set to take effect. He also represented Xiaomi Corporation in challenging the Department of Defense designation that would have blacklisted the company from U.S. financial markets, delivering the winning argument that led the court to enjoin the designation, restoring $10 billion to Xiaomi’s market capitalization.

At the state level, Alex has successfully challenged unconstitutional state legislation and defended against state consumer protection actions. He obtained an injunction blocking Montana’s law banning the TikTok platform, and he secured the outright dismissal of multiple State AG consumer protection lawsuits relating to data privacy and security—a string of victories which resulted in Alex being recognized as Litigator of the Week

Alex has served as counsel to Microsoft Corporation in precedent-setting cases involving government surveillance issues, including Microsoft’s landmark challenge to the government’s attempt to compel disclosure of customer emails stored in Ireland using a search warrant; Microsoft’s First Amendment challenge in the Foreign Intelligence Surveillance Court to restrictions on disclosures about government surveillance; and Microsoft’s constitutional challenge to the statute that allows courts to impose gag orders on technology companies, resulting in nationwide reform of the government’s practices under the statute. 

 Alex maintains an active pro bono practice, focusing on trial-level indigent criminal defense and youth immigration matters. From 2017 to 2020, Alex represented the University of California in challenging the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program, ultimately resulting in a 5-4 victory in the U.S. Supreme Court. See Department of Homeland Security, et al. v. Regents of the University of California et al., 140 S. Ct. 1891 (2020).