Last August, the Department of Justice arrested and indicted Marcus Hutchins, the security researcher who accidentally discovered the “kill switch” that stopped the “WannaCry” malware attack.  Hutchins was not charged for anything to do with WannaCry, but rather for creating and conspiring to sell a different piece of malware, the “Kronos Banking trojan.”  Apart from the dramatic circumstances surrounding his arrest, Hutchins’ indictment was notable for its lack of allegations connecting him to the United States.  As previously discussed on this blog, the indictment raised the question whether it would violate Hutchins’ constitutional rights to charge him in this country.

Last week, Hutchins’ legal team filed a motion formally challenging the constitutionality of the indictment.  The motion relies on the “sufficient nexus” doctrine — the principle that there must be a meaningful connection between a foreign defendant and the United States to satisfy due process.  Since the government has not alleged that Hutchins aimed his conduct at the United States, he argues, no “sufficient nexus” has been shown.

The government has until April 18 to respond to Hutchins’ motion.  Now that the sufficient nexus issue has been raised, one option for them would be to file a superseding indictment with additional allegations connecting Hutchins to the United States.  Indeed, Hutchins has also filed a motion for a bill of particulars — a request for additional information on the government’s charges — which might invite the government to supplement its charges.

If the government does not address the motion factually, they will likely need to join issue legally.  In that circumstance, the government is likely to argue that the alleged effects of Hutchins’ conduct on the United States satisfy the “sufficient nexus” test.  This argument has some issues and remains largely untested.  Most fundamentally, it requires the court to disregard caselaw from the analogous context of civil personal jurisdiction, where diffuse effects of conduct aimed “worldwide” are insufficient to satisfy due process.  The government will be hardpressed to explain why the due process standard in the criminal context should be any less demanding.

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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).