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Sklyarov Denied Visa to Return to U.S. for Trial 383

Posted by michael from the before-the-law dept.
Kurt Foss writes "Visa applications for Alexander Katalov and Dmitry Sklyarov of ElcomSoft were recently denied by the American Embassy in Moscow, jeopardizing their return to the U.S. in time for the company to face criminal charges for allegedly violating the Digital Millennium Copyright Act (DMCA) last year. The already rescheduled trial is presently set to begin in the U.S. District Court of Northern California on October 21."
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Sklyarov Denied Visa to Return to U.S. for Trial More

Sklyarov Denied Visa to Return to U.S. for Trial

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  • Interesting (Score:3, Interesting)

    by Darein ( 249382 ) on Tuesday October 15, 2002 @04:59PM (#4456947)
    So it appears the US has the ability to get them into even more trouble now? Does Russia extradite crimals to America?

    • Re:Interesting (Score:5, Informative)

      by badvictor ( 113234 ) on Tuesday October 15, 2002 @05:11PM (#4457042)
      Extradition is usually done for certain types of crimes, like murder for example. As far as I know Russia and the USA have not signed any extradition treaties for DMCA violations.

      • turn about is fair play? (Score:5, Insightful)

        by loners ( 561941 ) on Tuesday October 15, 2002 @05:59PM (#4457387)
        Russia wont hand them over until the USA hands over FBI Agent Michael Schuler [slashdot.org] who was indicted for hacking into russian computers. After the US judge basically ruled that it is not a crime for US agents to commit a crime somewhere else, dont count on russia or the USA ever "swapping prisoners".
        • Mod this guy up. Boy George has decided its ok to have your cake and eat it too. Everyone in the world is held to US laws, EXCEPT US Law Enforcement Officials.

          • Re:turn about is fair play? (Score:5, Informative)

            by Planesdragon ( 210349 ) <slashdot&castlesteelstone,us> on Tuesday October 15, 2002 @06:57PM (#4457783) Homepage Journal
            Everyone in the world is held to US laws, EXCEPT US Law Enforcement Officials.

            If those said US law enforcemnet officals ever go to Russia, they can expect to be captured, tried (if they're lucky), and jailed.

            We've got a good 15-50 years of "supernationalism" until some agreed-upon mechanism for punnishing extra-national criminals is agreed upon. Probably by an extension of the UN War Crimes court into a body to deal with inter-country legal affairs that aren't War Crimes.

            To whit; I can get on a boat chartered in China from California, hook up to an international communications system not owned by the USA, hack a server in Japan, go back to the USA, and ignore any legal threats on the basis that no applicable law makes what I did illegal. If I'm out of the country ANYWAY and I've got a good reason, I've got an even better situation.

            Until I go to Japan, of course.

            (IANAL; if you, knowing that I am not qualified to dispense legal advice, decide to act upon my suggestion, you should also jump into the ocean while you're out there and save the gene pool.)

            • Re:turn about is fair play? (Score:4, Informative)

              by g4dget ( 579145 ) on Wednesday October 16, 2002 @12:40AM (#4459626)
              We've got a good 15-50 years of "supernationalism" until some agreed-upon mechanism for punnishing extra-national criminals is agreed upon. Probably by an extension of the UN War Crimes court into a body to deal with inter-country legal affairs that aren't War Crimes.

              The US has refused to ratify the treaty on the international criminal court because of the completely hypothetical possibility that US citizens might be tried elsewhere. I don't believe the US is going to subject its citizens to any form of foreign jurisdiction if it can help it.

          • "Boy George has decided its ok to have your cake and eat it too." Umm...how exactly is the Executive Branch responsible for the actions of the Judicial Branch carrying out the laws written by the Legislative Branch. You may or may not have just cause to hate Bush, but is it really necessary to blame everything that goes screwy in this country on him?

    • Re:Interesting (Score:3, Informative)

      by intermodal ( 534361 )
      i seriously doubt they'd extradite Dmitry for this. For one, it was not illegal in russia, for another, it was not for a crime committed outside of russia where it was not a criminal act. So regardless of whether Russia extradites foreigners to the US, I don't see any reason why they would hand him over.

    • Re:Interesting (Score:5, Funny)

      by coupland ( 160334 ) <dchase@ho[ ]il.com ['tma' in gap]> on Tuesday October 15, 2002 @05:47PM (#4457301) Journal
      I don't know about America, they do to Canada but here we call it "immigration". ;-)

    • Re:Interesting (Score:4, Insightful)

      by digerata ( 516939 ) on Tuesday October 15, 2002 @06:10PM (#4457460) Homepage
      Maybe the US wanted to 'avoid' the international backlash that would have happened had they shown up?

      Not granting them visas is an easy way to push confrontation off for awhile.

  • Tried in absentia? (Score:5, Insightful)

    by InterruptDescriptorT ( 531083 ) on Tuesday October 15, 2002 @05:00PM (#4456957) Homepage
    What would happen if they aren't able to be issued visas in time? Would it be constitutionally valid to try someone in absentia? The case going on in Philadelphia right now (can't remember his name right now, sorry) is interesting in that French authorities refused to extradite the defendant to the US because his original trial was held, and he was convicted, in absentia. This apparently contravened the European Convention of Human Rights, and the US had to agree to retry him before France would agree to the extradition. I wonder if there are any UN treaties that both Russia and the US would be a party of that might prevent poor Skylarov from more machinations of the US justice system.

    Anyway, it's not like the US would ever send people into another country to kidnap someone whom they wanted to put on trial... Nah, that would never happen. </sarcasm>
    • Ira Einhorn, or something around that spelling.

    • Re:Tried in absentia? (Score:5, Informative)

      by XorNand ( 517466 ) on Tuesday October 15, 2002 @05:06PM (#4457004)

      The guy your're talking bout is Ira Einhorn. France refused to extradite him because he could possibly face the death penalty in America. The circumstances are quite different than Skylarov's.
      • My understanding, when the US agreed to a re-trial without the death sentance, france deported him. (true?)

        • Re:Tried in absentia? (Score:5, Informative)

          by darien ( 180561 ) <(moc.liamg) (ta) (neirad)> on Tuesday October 15, 2002 @06:31PM (#4457608)
          All EU member states are signatories to the European Convention on Human Rights [coe.int]), which prohibits the death penalty, and forbids acts which might expose individuals to it (such as extraditing them to countries that still practise it). As I understand it, the convention is enforced in the European Court of Human Rights, but many nations have also passed local laws formalising this commitment. I'm afraid I can't find a reference for France, but the situation in the UK is:
          The United Kingdom is a signatory to the Sixth Protocol to the European Convention on Human Rights which outlaws the application of the death penalty. Consistent with the convention, the Extradition Act 1989 provides that extradition may be refused if the fugitive stands accused or convicted of an offence for which he could be or has been sentenced to death. The United Kingdom/United States Extradition Treaty also provides that extradition may be refused unless the requesting party gives satisfactory assurances that the death penalty will not be carried out. In practice, US extradition requests involving capital crimes are very rare. Not all US states continue to apply the death penalty. Those which do stand ready in extradition cases to provide assurances that the death penalty will not be carried out.
      • The guy your're talking bout is Ira Einhorn. France refused to extradite him because he could possibly face the death penalty in America. The circumstances are quite different than Skylarov's.
        Wait... I thought the DMCA did carry the death penalty. Is Eisner losing his iron grip on congress?

    • Re:Tried in absentia? (Score:5, Informative)

      by Zeinfeld ( 263942 ) on Tuesday October 15, 2002 @05:46PM (#4457299) Homepage
      What would happen if they aren't able to be issued visas in time? Would it be constitutionally valid to try someone in absentia?

      Not in this case. In the case you cite the defendant absconded during the trial. Under English common law it is only necessary for the defendant to be present in court to actually enter the plea. Once the plea is entered and the trial has begun the trial can complete whether or not the defendant absconds.

      This case is very different, the government is preventing the defendants from attending. They are clearly being denied due process and the government is not entitled to prosecute the case in their absence.

      While the article is correct that the consular officials have autonomy I very much doubt that this is an accidental occurrence. There is no way the DoJ wants this trial to take place. The FBI would look like complete idiots, particularly when it becomes obvious that Freeh and Ashcroft were more concerned about copyright than terrorism. The whole point of the scheme was to make the incomming AG look like a tough crime fighter aggressively going after the threats to society that Clinton ignored. Thats why the arrest took place July 2001. I predicted that this would happen when the plea agreement was entered.

      Stopping the defendants from appearing for the trial is the easiest way to get the case to fade from view with the least possible amount of fuss. Someone from the DoJ will have had lunch with someone from DoS.

      The judge may throw the charges out or leave them on file until the statute of limitations expires. I don't know the federal proceedure. It is possible that the charges will be thrown out on other grounds, the jurisdicition claim looks somewhat dubious to say the least. While the US courts does allow for extra-jurisdicitional charges the courts tend to only do so when the act in question explicitly states that it claims to be applicable in foreign jurisdictions.

      What might be interesting is if a civil lawsuit was filed against Ascroft as AG claiming that the case was brought to violate Skylarof's civil rights.

  • Your tax dollars at work (Score:5, Funny)

    by Audacious ( 611811 ) on Tuesday October 15, 2002 @05:01PM (#4456965) Homepage
    The left hand doesn't know what the right hand is doing. Reminds me of the IRS. :-)
    • this is modded funny at the moment. It's not funny, it's Alanis Morisette (sp?) IRONIC.

      Taco, how about a moderation for Ironic? H hit it right on the head.

      • OT: Irony (Score:3, Informative)

        by flossie ( 135232 )
        The most ironic thing about that song is the fact that there are very few examples of actual irony in it. Most of the complaints are things that are generally considered to be just plain old bad luck.

        True irony [dictionary.com] is perhaps the highest form of humour.

        • Re:OT: Irony (Score:5, Insightful)

          by VValdo ( 10446 ) on Tuesday October 15, 2002 @07:40PM (#4458030)
          True irony [dictionary.com] is perhaps the highest form of humour.

          Since fifth grade I've been hearing this bizarre heirarchy of humor, with puns and/or slapstick most frequently cited as the LOWEST forms.

          What the hell? Are people so insecure/arrogant about their sense of what's funny that they have to actually rank them? To what authority does this appeal? Is there some consortium of comedians or something that releases a yearly report on the latest comedic standings?

          (funny answers are appreciated)

          W

    • Re:Your tax dollars at work (Score:5, Insightful)

      by hazem ( 472289 ) on Tuesday October 15, 2002 @05:17PM (#4457088) Journal
      It's probably better to have the different parts of the government working at odds. Sure, it's not very efficient, but do you really want a government that has the IRS, the DMCA, and Ashcroft working really efficiently?

      We'd have no rights in no time!

      No - I'd rather pay for less efficient government.

  • Makes perfect sense. (Score:2, Informative)

    by Dr Caleb ( 121505 )
    If he can't get back to the US, he won't be able to defend himself, and will be considered guilty (plus charges for not appearing). Then he won't be able to overturn the RIAA...er...DMCA.

    • Re:Makes perfect sense. (Score:4, Interesting)

      by zebs ( 105927 ) on Tuesday October 15, 2002 @05:10PM (#4457029) Homepage
      If he can't get back to the US, he won't be able to defend himself, and will be considered guilty

      What?? If he's not present then how does that show his guilt?

      Ok, the prosecution can make there case but he's entitled to a defence.

      Whats to stop him just never going to the US anyway? So he'll get fined, wow big deal, how would they get the money off him if hes not even in the country.
      • What?? If he's not present then how does that show his guilt?

        Because otherwise there would be no incentive for people to show up to court.. They'd just be like 'ah screw it I know I'm innocent.. forget that..' so instead, if you don't show up, they just put in a verdict against you and then put out a warrent for your arrest.

        Anyway.. in this case, there is obviously some kind of paper work they can file or something do have the trial date reassigned until they can be present.

        • Re:Makes perfect sense. (Score:4, Insightful)

          by zebs ( 105927 ) on Tuesday October 15, 2002 @05:38PM (#4457229) Homepage
          Because otherwise there would be no incentive for people to show up to court..

          Effectivly they'd be assumed to be guilty then?

          If I'm not mistaken (and I'm not expert on legal things) if you're arrested and charged you're only allowed to go free before trial if bail is granted, and skipping bail is an offence?

          But of course bail is only granted if its deemed unlikely that the defendant will skip bail...?

          You have to wonder what was put on the visa application.

          "Reason for application: So I can defend myself against one of your crappy laws."
          • You have to wonder what was put on the visa application.

            Well, one of the questions on a visa application form asks if you have ever been engaged in terrorist activities. Given the rather broad definition of terrorism just at the moment ... one has to wonder if contravention of the DCMA would count.

            Answering yes to questions of that sort (there are others: are you a smuggler, are you a spy, etc.) generally leads to a pretty swift refusal.

          • "But of course bail is only granted if its deemed unlikely that the defendant will skip bail...?"

            IIRC the problem with skipping bail is that you don't get your money back (not showing up for trial is just an offence in and of their own right). That's the reason why bail bondsmen are so interested in getting their clients who skip bail: They can't get their money back without the perpetrator.

            Did Sklyarov get out on bail? What will happen now that he can't show up to reclaim it?
    • the elcomsoft trial has nothing to do with the RIAA, sklyarov and elcomsoft are in trouble because they wore some software that converted e-books to pdf files (e-book encryption was a code shift of like 8 characters or something a joke really), this conversion of legally purchesed e-books to anthoer format for fair use is a violation of the DMCA (when is the judicial bracnh gonna get off its ass and declare the DMCA, and the PATRIOT act for that matter, unconstitutional)
      • the elcomsoft trial has nothing to do with the RIAA

        First, that four letter acronym was on porpoise, merely to give a humourous light to the situation.

        Second, if you think the RIAA, MPAA, MS, etc have no stake in this trial, think again. Circumvention of digitally encrypted information is what this trial is about. Without DRM, copy protection, and protection under the law, the economic forecast for those organizations looks dim without the protection the DMCA gives them. Any encryption scheme where the key is given along with the data can be broken (CSS), and a simple substitution algorithm (Adobe) can be broken, so long as people are allowed to distribute the method.

        Third, it's not like I just crawled out of my cave after the Y2K 'incident'. Most people who have been reading /. for 4 or so years have heard far too much about this case.

    • Nothing stopping him from sending a letter to the court, delivered by a US Lawyer.

    • Not guilty necessarily (Score:5, Interesting)

      by aWalrus ( 239802 ) <sergio.overcaffeinated@net> on Tuesday October 15, 2002 @05:25PM (#4457141) Homepage Journal
      The article says that the agreement is to drop charges against Skylarov if he testifies in the trial against ElcomSoft. Thus, if he can't be there, he may be prosecuted.
      --

  • Why they don't want him back (Score:5, Interesting)

    by Pilferer ( 311795 ) on Tuesday October 15, 2002 @05:04PM (#4456983)
    "Judge Bates said there were ambiguities in the Digital Millennium Copyright Act."

    "Congress 'could have made this statute clearer,' he said."

     No wonder "they" don't want him to return for trial! He might actually win!
    But, if I were him, I wouldn't want to return to the US.

  • Yet another SNAFU (Score:5, Insightful)

    by jratcliffe ( 208809 ) on Tuesday October 15, 2002 @05:04PM (#4456987)
    I don't really see a vast conspiracy here, rather a case where State and Justice weren't communicating. No court would penalize someone for not appearing when the State department explicitly made it impossible for them to appear (unless they had consciously done something to cause the US Embassy to refuse the visa, i.e. put "to blow things up" as the reason for the trip). My guess, this'll get hashed out, the trial date will be put off a month or so (continuances are anything but rare), and they'll get their visas.

    • Re:Yet another SNAFU (Score:5, Informative)

      by schon ( 31600 ) on Tuesday October 15, 2002 @05:10PM (#4457031)
      I don't really see a vast conspiracy here, rather a case where State and Justice weren't communicating.

      Read the article. Dmitry's application specifically stated he need to come to appear at the trial.

      Are you suggesting that the embassy decided he was lying, and didn't bother to find out if there really was a trial?

      • Re:Yet another SNAFU (Score:5, Informative)

        by Malc ( 1751 ) on Tuesday October 15, 2002 @05:25PM (#4457137)
        I wouldn't be surprised. I've been called a liar to my face and refused entry to the US a couple of times by INS and border partrol officials. (As I've had explained to me more than once, I had no right to silence, no right to an appeal and no right to an attorney.) I think they see elaborate plots to make them look stupid everywhere. Claiming that's it's for a trial is just so obvious that it must be a lie! However, they seem completely unable to determine whether someone would actually *want* to come and visit the US illegally - why would Dmitry want to come back after what he's been through?

        There was an interesting episode of 60 Minutes last year about this part of the State Department. What a bunch of ignorant fools they really are. Bunch of real life criminals too. They have very little respect for other people, and are definitely the rudest and most power-crazed people I've ever met.

  • This sounds pretty unfair... (Score:5, Informative)

    by Bobulusman ( 467474 ) on Tuesday October 15, 2002 @05:05PM (#4456992)
    From the article:
    The Embassy Web site notes that the "U.S. visa process is relatively simple," adding that "most applicants who visit the Embassy are successful. We issue nonimmigrant visas to three people out of four of all of those who apply."


    Also explained on the Web site are "common reasons for visa refusals," none that would seem to obviously apply in the ElcomSoft case.

    and:
    [T]he situation might seem especially troublesome for Sklyarov, since the charges against him personally following his July 16, 2001 arrest by the FBI in Las Vegas will be officially dropped *if* he testifies.

    Seems a little unfair to me. I don't have a very strong grasp of all the legalities of this, but it seems like a perfect way for the U.S. government to have the trial without clearing Sklyarov.

    • That's rediculous. (Score:2, Insightful)

      by mindstrm ( 20013 )
      They could also just refuse to let him testify; these kinds of theatrics are not necessary.

    • Re:This sounds pretty unfair... (Score:5, Insightful)

      by Zeinfeld ( 263942 ) on Tuesday October 15, 2002 @06:05PM (#4457428) Homepage
      Seems a little unfair to me. I don't have a very strong grasp of all the legalities of this, but it seems like a perfect way for the U.S. government to have the trial without clearing Sklyarov.

      Not going to happen. Sklyarov has discharged his undertaking by applying for the Visa. It is no fault of his that he is unable to comply with the plea bargain undertakings.

      The administration on the other hand is the cause of his ability to comply. The law does not care about the DoJ/DoS division in this case. The administration that made the plea agreement has prevented the defendant from complying with it in good faith.

      The idea that the visa denial is accidental or routine is pure fantasy. It would imply that the US embassy in Moscow whose principal purpose is gathering information on the USSR was unaware of a criminal case involving a Russian defendant that had recieved major press coverage in both the US and Russia.

      The US state department is nowhere near that incompetent. This is absolutely not an accident.

      • "The US state department is nowhere near that incompetent."

        Yeah... that's why they had no idea where some Arabs with expired student visas were until they crashed planes into buildings. Try again.

        Try to remember that the US government is the world's single largest bureocratic entity by design. Probably more so than even the PRC.

        Come on, we live in a country where you can't even move prisoners within the country without going through extradition paperwork. Do you really think that two independent government entities (both of whom are fighting over a finite "homeland defense" budget) are really going to cooperate on such a low-profile example as this? I'd sooner believe that the Department of State denied the visa to make the DoJ look bad ("See what you get for letting suspects leave the country?"), not to help them.

  • In Russia... (Score:5, Funny)

    by Marijuana al-Shehi ( 609113 ) on Tuesday October 15, 2002 @05:05PM (#4456993)

    In Russia they tell jokes about the insane bureaucracy in America.

    • In Soviet America... (Score:5, Funny)

      by Anonymous Coward on Tuesday October 15, 2002 @05:13PM (#4457056)
      The insane bureaucracy tells jokes about YOU!

    • Re:In Russia... (Score:3, Insightful)

      by swb ( 14022 )
      This guy and I used to have conversations about the USSR during the early 80s, wondering if we could ever tell if the picture we were given of the US/USSR situation wasn't actually the reverse of what most USians believed; USSR being "free" and the US being the tyrannical dicatatorship.

      It creeped me out a little thinking that maybe it was all a vast conspiracy.

      • Re:In Russia... (Score:3, Insightful)

        by f97tosc ( 578893 )
        This guy and I used to have conversations about the USSR during the early 80s, wondering if we could ever tell if the picture we were given of the US/USSR situation wasn't actually the reverse of what most USians believed; USSR being "free" and the US being the tyrannical dicatatorship.

        I visited the USSR in the early 80s and I can assure you that your speculations were quite unfounded.

        If you are not convinced, I suggest a trip to North Korea before it falls apart.

        Tor

        • Re:In Russia... (Score:5, Insightful)

          by goga ( 8143 ) on Tuesday October 15, 2002 @06:40PM (#4457677)
          > I visited the USSR in the early 80s and I can assure you that your
          > speculations were quite unfounded.
          > If you are not convinced, I suggest a trip to North Korea before it
          > falls apart.

          Sorry man. I didn't VISIT the USSR in the early 80s -- i lived there. I still live in Russia.
          I have lived a year in America, too, so I am able to compare.

          The USSR in the 80s, while not a democracy by any means,
          was _very_ far from the insanity that was and is North Korea. You know, we used to make jokes about Kim Il Sung and the "Free Korea" magazine
          back in 1983.

          Life in Russia in the 70s and 80s was probably closer to life in
          America than in North Korea. That still does not mean it was "normal" by Western
          standards, of course.

  • This has never happened before? (Score:5, Interesting)

    by Anonymous Coward on Tuesday October 15, 2002 @05:05PM (#4456994)
    Huh? This is just wierd. It seems absolutely baffling that the visa office wouldn't have a specific procedure for letting in and out people who wish to defend themselves in a lawsuit in the united states.

    I find it just about impossible to believe that this has never happened before. If there's no procedure to ensure that those who wish to enter the U.S. because of a U.S. court summons actually are allowed to enter, then surely at some point this problem has come up in a previous court case. Isn't there any precedent for this? How as this handled in previous cases? Surely someone somewhere must know.
    • Really, why should they go out of there way to help someone enter the country? He could have stayed here, hell he could have stayed here in a nice cozy little jail for free. He decided to post bail and leave the country. With that, it becomes his responsibility to get back. Otherwise people who want to make the trip often would run up parking tickets just so they could speed up there visa process. I know, that's a stretch, but it states my point.

      He chose to leave, the day he got back he should have started the process to ensure that it gets done on time. If my kid gets home after curfue I don't care that he got held up at the train tracks and I sure don't expect the train conductor to do his job any differently because of him.

  • Let me guess... (Score:5, Funny)

    by javahacker ( 469605 ) on Tuesday October 15, 2002 @05:08PM (#4457017)
    Let me guess, they can't can't get a Visa to enter the country for their trial, because they are charged with crimes in the US?

  • This is just too funny... (Score:5, Funny)

    by Xeriar ( 456730 ) on Tuesday October 15, 2002 @05:10PM (#4457034) Homepage
    The Department of Justice demands their presence in the U.S., but the Department of State denies it. Neither organization is accountable to the other. It's not like the DoJ can say 'well they didn't show up, it's their fault...'

    This is too amusing to NOT be picked up by the media again. I don't think it will result in protests so much as the DoJ and DoS being the butt of jokes for a few weeks, but still.

    • Re:This is just too funny... (Score:4, Funny)

      by Tackhead ( 54550 ) on Tuesday October 15, 2002 @05:27PM (#4457158)
      > The Department of Justice demands their presence in the U.S., but the Department of State denies it. Neither organization is accountable to the other. It's not like the DoJ can say 'well they didn't show up, it's their fault...'
      >
      >This is too amusing to NOT be picked up by the media again. I don't think it will result in protests so much as the DoJ and DoS being the butt of jokes for a few weeks, but still.

      And then the INS wakes up and says "Hey, he's got a criminal record? C'mon in! Oh, wait, he hasn't been convicted yet. Can't let him in. But since he's here (we didn't find out about his charges until six months after he got here, y'know?), and since he got convicted after arriving, we'll deport him, but we can't do that until after he's served his sentence. After his time's served, we'll just keep him in, uh, "custody" until we can figure out how to deport him. That shouldn't take more than, oh, hell, how am I supposed to know, these forms are hard, maybe, another 4-5 years after his release from custody for us to deport him. If we can't deport him, 'cuz, like, his country won't take him back, well, then we'll just keep him in custody until they change their minds. Can't have folks like that walkin' the street. Oh, wow, is it, like 3:00 already? (*stamps "Approved" on the next two sheets on the pile, some bearded guy named O. B. Larden, and another guy named "Atta" who wants to go to flight school, hey, gotta meet my quota*) Time to go home. Another hard day's work at the INS!"

  • So what? (Score:5, Insightful)

    by boola-boola ( 586978 ) on Tuesday October 15, 2002 @05:11PM (#4457041)
    Correct me if I'm wrong, but does it really matter? He doesn't live in the US (nor is he a citizen, IIRC), and even if he's found guilty, can we even do anything about it? I doubt anyone will make any significant effort to bring him to the US for punishment. Plus, I would hope his country would back him up and give him some sort of protection.

    (I'm sick of this DMCA nonsense. Can't we get that sh*t revised? Oh wait, the general public can't afford lobbyists so therefore our opinion doesn't count.)

    • Re:So what? (Score:3, Insightful)

      by chris_mahan ( 256577 )
      I think maybe that they have the cojones to do the "Right Thing", knowing full well that they could rock the boat on a silly law that many americans dislike intensely yet cannot do anything about because of the Ascroft Posse.

      If he manages to come here, and manages to win, then I will personally be grateful for his act of courage in the face of adversity.

      Because, of course, he doesn't have to come here. There is absolutely nothing the US can do to make him come here. (Russian Army, Nukes, UN Security Council, War on Terror, etc)

    • Re:So what? (Score:3, Insightful)

      by kcbrown ( 7426 )
      Correct me if I'm wrong, but does it really matter? He doesn't live in the US (nor is he a citizen, IIRC), and even if he's found guilty, can we even do anything about it? I doubt anyone will make any significant effort to bring him to the US for punishment.

      Oh, I'd be willing to bet they will make the effort in this case.

      See, this is the DMCA we're talking about here. The media conglomerates want this law enforced throughout the world, because otherwise it doesn't have the kind of teeth it needs to be truly effective (if circumvention devices can be distributed from outside the U.S. then, as with encryption, they can be used by people within the U.S.).

      If Sklyarov is detained and brought to the U.S. for punishment after being found guilty in his (in absentia) trial, that will make it clear to people throughout the world that they are not safe from the U.S. even if they live in another country entirely. More importantly, it will make it clear that the DMCA is a law that the U.S. is willing to enforce on the world through any means at its disposal.

      Plus, I would hope his country would back him up and give him some sort of protection.

      You can hope that all you want, but the reality is that no country will protect an individual citizen if given sufficient incentive not to. I strongly suspect the U.S. has ways of giving Russia the incentive it needs to hand Sklyarov over.

  • Transport Dmitry (Score:5, Funny)

    by jhouserizer ( 616566 ) on Tuesday October 15, 2002 @05:14PM (#4457061) Homepage

    Sounds like it's time for a new campaign...

    • Free Dmitry Campaign (succeeded, more-or-less)
    • Bring Back Dmitry Campaign
    • Re-start at campaign 1 if necessary

    Or maybe we can start a campaign to bring Dmitry here "virtually" via web-conferencing or something... he deserves the right to defend himself!

    ..On the other hand, maybe we should ask him first... maybe he's happy to have a legitimate excuse not to come...

  • Oh lovely Visas (Score:5, Interesting)

    by T-Kir ( 597145 ) on Tuesday October 15, 2002 @05:14PM (#4457063) Homepage

    Visa processing time are notoriously long, I've been back in the UK for about 7 weeks trying to get a visitors visa.. both applications were refused under section 221(g) - or providing inadequate proof that you are to return to your native country (even though I have proof of a full time job that I have to return to). No I'm going back again next week under the waiver program, but you can't do diddly on that program (i.e. extending your stay, etc).

    I also doubt that Russia would be on the Visa Waiver scheme (I haven't checked the list)... maybe when they filled out their forms, did they tick (YES) to one of the silliest questions on the US Visa form (silly because I'd assume you wouldn't admit to it!)->

    Do you seek to enter the United States to engage in export control violations, subversive or terrorist activities, or any other unlawful purpose?

    Are you a member or representative of a terrorist organization as currently designated by the U.S. Secretary of State?

    Have you ever participated in persecutions directed by the Nazi government of Germany; or have you ever participated in genocide?

    (YES) (NO)

    Anyhow, lets hope they can get something sorted quickly... the US doesn't want to look like it is deliberately denying them entry into the US so that they lose the 'charges will be dropped if you testify', but the case pretty much requires them to be there.

    • (The nice green little postcard you fill in on entry to the US)

      Are you a member or representative of a terrorist organization as currently designated by the U.S. Secretary of State? (YES) (NO)

      Have you ever participated in persecutions directed by the Nazi government of Germany; or have you ever participated in genocide? (YES) (NO)

      (and so on and so forth, with "Are you seeking entry to overthrow the government?" especially notable)

      Actually, my favorite is not the questions themselves, but two remarks at the bottom.

      "WARNING: If you answered YES to any of these questions, you may not be permitted to enter the United States." (Like, why don't they add an eighth question, "Did you lie on any of the above questions?".)

      and better yet, at the bottom there is a note saying "If you find a way to make this process less cumbersome, write to The Paperwork Reduction Project..." with a two-mile-long address. Yeah, duh! I'm sure terrorists will declare themselves as terrorists at the border. What did people smoke when they invented this, anyway? :-)

  • Slick Rick (Score:3, Interesting)

    by dnoyeb ( 547705 ) on Tuesday October 15, 2002 @05:14PM (#4457067) Homepage Journal
    They pulled this trick on Slick Rick the rapper who happened to be born in England. They secretly appealed and won a decision on his deportation.
    Then when he tried to return they surprised him with this order. Essentially saying he self deported and as such has no right to appeal...
  • Since the US Government is violating Dimitry and Elcomsoft's rights, I can't imagine many judges not dismissing the case if the visas remain ungranted:

    Amendment VI

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

  • constitutional issues (Score:5, Insightful)

    by JDizzy ( 85499 ) on Tuesday October 15, 2002 @05:15PM (#4457076) Homepage Journal
    I wonder what leagal ramifications this means to Sklyarov? IT is said that if he testifies i the case, his charges will be dropped! So if this is a tactic to force him NOT to testify, then the charges will be reinstated in full, and with extra penalties.

    "If, however, Alexander and Dmitry are unable to come to trial at all, we are likely to face a host of legal issues, including constitutional issues," says Serebryanaya. She deferred further speculation, citing a preference to "cross that bridge if we come to it."


    It is also said that the US State Dept. has no legal recource for refusing a visa, as in the Justice dept has no leverage with them to do anything. So thins might be Powell's way of asserting a forced verdict in this case. This might also set a precendence in the world-wide court, if we USA folks can procescute outsiders, yet we refuse these bad folks entry, what is the point? Guilty without trial?

    Doesn't seem fair to me!

  • No reason a defendant needs to be in court. (Score:3, Informative)

    by ccady ( 569355 ) on Tuesday October 15, 2002 @05:18PM (#4457092) Journal
    If trial law is the same as in New York City, there is no reaon Sklyarov needs to be in court for the trial to proceed (unless they need him on the stand.)

    I was on a jury trial where the defendant was there on the first day, and on all succeeding days, he was not there. The judge instructed us that there is no legal reason that the defendant had to be in the courtroom.

    Of course, it later turned out that he had fled the country.

  • letter from DOJ (Score:5, Funny)

    by chimpo13 ( 471212 ) <slashdot@nokilli.com> on Tuesday October 15, 2002 @05:18PM (#4457094) Homepage Journal
    Dear Mr. Sklyavov,

    You didn't break any Russian laws. In fact, the FBI broke Russian laws to hunt you down. To speed things up, we're trying you, but we won't let you into the country. Since you are now avoiding the trial, we found you guilty because otherwise you would have been at the trial. Please report to Folsom State Prison for the next 10 years.

    Sincerely,

    Dept. of Justice

    Cc: George Bush

  • The cold war pissing match continues (Score:4, Interesting)

    by _Sambo ( 153114 ) on Tuesday October 15, 2002 @05:20PM (#4457105)
    I don't know what it is with the US and Russia. I lived in Russia for two years after High School and became fluent in Russian. I remember all the problems that each city's local Visa office (The dreaded OVIR) gave me in each city. I had to leave the country half way through my time there to get a new Visa. I felt that the officials there were difficult to deal with because it was an untrusted American they were dealing with.

    It's kind of nice to know that it's a two way street in regards to Visas.

    Good luck to Sklyarov.

  • They don't give the reason... (Score:5, Interesting)

    by Alioth ( 221270 ) <no@spam> on Tuesday October 15, 2002 @05:20PM (#4457109) Journal
    The article says no reason was given. I doubt that's the case (they probably wouldn't tell journalists though).

    Having been through the US visa process, I know how officious that lot can be. I have been refused a US visa twice (the visas were subsequently granted). To give you an insight to how assinine the US embassies can be, the first time was because they couldn't determine exactly how long I had worked for my company (I think it was refused under '221 (g)' (iirc)). Now they could have just phoned either myself up or the company up and asked.

    Instead, I had to go to London, waste 4 hours sitting in the US Embassy in their "delicatessen" (they have this big square room, with about five subway-station-style windows at one end. First you line up to get a number. Then you wait for up to five hours until they call your number. There are newspapers in this room - these papers are all about moving to the US. The first half goes on about how terrible your country is and how wonderful the United States is, and the latter half is devoted to how they aren't going to give you a visa anyway. I kid you not!) Finally, my number is called. The officer asked one question. "How long have you worked for your company in the last five years?". I told them. >stamp stamp approved. A whole day wasted on a question that could have been answered by fax or phone without having to see me in person.

    The second time I was refused was for a visa *that had already been approved* by the INS in the USA. We sent the forms into the US Embassy when I was back home. They refused it because one of the forms "was out of date". I downloaded the 'current form'. It was IDENTICAL IN EVERY RESPECT to the one they objected to apart from the date in the bottom. ABSOLUTELY IDENTICAL in all the boxes, the layout, the information, everything but the blasted date on the bottom! It delayed me for a week and my company not only lost a week of my time, they also had to pay extra as I had to change my airline ticket. It's only the INS that do this - I've had quite a few dealings with another US govt. agency - the FAA. They haven't minded about different versions of the same form which differ only in date.

    The INS is absolutely *abysmal*. It's even worse than the IRS because they have so little accountability. The people who vote don't care because they don't have to deal with them, and the people who have to deal with them aren't allowed to vote!

    Having said that, I greatly enjoyed my time in the USA and I think it's a great country - so please don't take my rant as a rant against the US - it is not. It's a rant about the INS. The INS are the worst kind of bureaucrats, and I wouldn't be surprised if Skylarov has been delayed by some petty bureaucrat playing his power-games over a form with the wrong frigging date in the bottom corner.

    • Re:They don't give the reason... (Score:5, Interesting)

      by doodleboy ( 263186 ) on Tuesday October 15, 2002 @06:21PM (#4457534)
      I have to say I agree with your assessment of the INS. I am a Canadian citizen with no criminal record ("Are you, or have you ever been, a prostitute or procurer of prostitutes?"), no medical problems, etc., and it took forever to get a simple K1 fiance visa to enter the US.

      I was told by the American consulate in Canada that my application should only take a couple of months to process if it was the slam-dunk it appeared to be. Instead it took over a year. And my plaintive phone calls trying to figure out what was going on were met with unhelpful statements like, "you will be contacted at the appropriate time," by obviously bored bureaucrats who refused to even look into the matter.

      The INS office here is even worse. I will spare everyone the gory details, but I will say that I was genuinely shocked at how rude consular employees are. It's the jail-guard syndrome, where jobs that give people power encourage the petty tyrant within.

      I've mentioned my experiences with the INS to a couple of Americans, and they both told me I should have just flown down here and gotten married, as it was highly unlikely I'd get tossed out. I knew people did such things, but I figured I have nothing to hide and I'll just play by the rules. And look where it got me!

      Obviously I have nothing against the United States, since I chose to move here (who knew winters could be so warm?). Seriously though, any system that keeps out the innocent while letting the criminals in must be in need of a serious overhaul.
  • When he wants out of America they detain him. When he wants back into America they refuse him. If he was smart he'd send them a note pleading with them to find him guilty.

  • Handshakes (Score:5, Funny)

    by Chas ( 5144 ) on Tuesday October 15, 2002 @05:55PM (#4457356) Homepage Journal

    [Right Hand] Hey Lefty!

    [Left Hand] Yeah?

    [Right Hand] What'cha doin'?

    [Left Hand] ......

    [Right Hand] Well?

    [Left Hand] Well, what?

    [Right Hand] What are you doing?

    [Left Hand] I do not know such information. Nor could I pass along said information if I did know such information.

  • visas and courts (Score:5, Interesting)

    by Anonymous Coward on Tuesday October 15, 2002 @05:59PM (#4457380)
    I once was a consular officer, albeit not in Russia. Russia is what's known as a "visa mill". That means that there are a lot of folks who want visas, and, as a result, long lines. Most applicants get about 60 seconds at the window, whereupon the consular officer must decide yea or nay. It isn't an exact science. One looks for discrepancies between what the applicant says, how they appear, and their papers. In Skylarov's case, I have no idea how he appeared, what he was asked, or what he said. However, his story may have sounded strange, or he may not have explained the circumstances well. Hence, no visa.

    The DOJ has nothing to do with visas, and the State Dept (NOT the INS) has nothing to do with the DOJ. Later, when I left the FOreign Service, I went to law school and clerked for a federal judge. We have several cases where defendants and/or witnesses couldn't get back in to the US. GUess what -- there's nothing the court or the DOJ can do to get anyone a visa. In one case, where an actual defendant couldn't appear, we continued the proceedings until such time that the government could produce the defendant. In another case, where a witness couldn't appear, we allowed a deposition transcript to be used ("declarant unavailable exception")

    Trials in absentia may be permissible under state law, but I've never seen such in federal court.

  • Visas in general (Score:3, Interesting)

    by mcelrath ( 8027 ) on Tuesday October 15, 2002 @06:06PM (#4457435) Homepage
    I understand that the state department has gone all Draconian with visas lately. I have a number of colleagues that have complained of not being able to get a visa (under circumstances where they could previously), and some stuck in China and Canada indefinitely...

    Does anyone know more?

    Glad I live in America, land of the free, where I am protected from these dangerous people.

    -- Bob

  • Why not use this to get the charges dropped? (Score:3, Interesting)

    by rbook ( 409739 ) on Tuesday October 15, 2002 @06:40PM (#4457676)
    The article says Sklyarov's lawyers are protesting the visa denial. Isn't that backwards? Why not go to the court and say, "Our client can't show up because the government -- which is prosecuting him -- is denying him a visa. Therefore, the government can't both prosecute charges and prevent him from answering them, so all charges must be dropped!"

    I am not a lawyer, but maybe someone who is could tell us if this argument is valid.

  • He should sneak in from Canada (Score:4, Funny)

    by Newer Guy ( 520108 ) on Tuesday October 15, 2002 @06:51PM (#4457743)
    He should sneak in from Canada and under the glare of TV lights show up in court at the appointed time. I can see the row that wouls happen in that court when the INS show up to deport him for being in the country illegally.

  • Never attribute to malice ... (Score:4, Insightful)

    by Charles Dodgeson ( 248492 ) <jeffrey@goldmark.org> on Tuesday October 15, 2002 @06:56PM (#4457775) Homepage Journal
    Never attribute to malice what can be explained by incompetence.

    Yes, this is paradoxical. Yes it is stupid, yes it (initially) puts him an (even more) difficult position. But it isn't some plan. It's just normal visa issuing stupidity.

    By way of anecdote. My wife ended up in a similarly nasty situation. Before we were married she could travel from her native Hungary to the US on visitor visa without a problem. But once we were married, the US embassy is Budapest was reluctant to give a visitor's visa to the wife of a US citizen since she could easy not return. The advised us for her to get a green card.

    But also, quite reasonably, the green card (immigration visa) is for people who actually immigrate to the US. That is, you should really reside in the US if you have an immigration visa.

    So two rules, each of which make some sort of sense (though not a whole lot) interact to put us in a nasty situation.

    This is clearly what is going on here. The US Embassy doesn't issue visas for people with criminal records (a rule that makes sense). Sklyorov is required (or at least requested) to testify.

    Now judges aren't stupid. If the visa problem can't be fixed, the judge will take that into account. And there's good news. It further paints Sklyorov as an innocent victim, serving to further ridicule the system that got him jailed in the first place.

    As a final note, having lived in a soviet block country and elsewhere in Europe. I can say that the US is by far the most bureaucratic country on the planet.

  • The US is contradicting its own policy? (Score:3, Interesting)

    by Ryu2 ( 89645 ) on Tuesday October 15, 2002 @06:57PM (#4457782) Homepage Journal
    From the Visa FAQ [state.gov] linked from the planetpdf.com site:

    * Q: How can an applicant learn why he/she was denied a visa at a post overseas?

    A: An applicant is always told the reason for denial, orally or in writing. If an applicant does not understand the reason for denial, or wishes to offer further evidence to overcome the denial, he/she should contact the post where the application was made to determine that post's reapplication policy.

    From the article:

    Nonetheless, visa applications for both ElcomSoft employees were recently denied, she said; no reasons were given.

    Is the US contradicting its own policy here?

  • Maybe "Somebody" doesn't want the DMCA tested (Score:3, Interesting)

    by Colonel Panic ( 15235 ) on Tuesday October 15, 2002 @07:15PM (#4457904)
    This would have been the first testcase that could overturn the DMCA. Don't allow them back in for the trial and there's no risk of the DMCA being overturned.

    Other than to potentially overturn the DMCA, I really see no reason why Sklyarov or Elcomsoft would even bother to come over here, they did nothing illegal under Russian Law. Sure, it means they'll never be able to travel to the US again, but as it stands now they apparently can't do that anyway. So what is their incentive to try to get a visa that's been denied? (and have to go through all the hassle of a trial, and money for lawyers).

  • embassy hell (Score:4, Insightful)

    by Atilla ( 64444 ) on Tuesday October 15, 2002 @08:13PM (#4458235) Homepage
    yeah, I've been there, when I applied for a student visa for my second trip to the US...

    I had paperwork in hand from the university that I was planning to attend.. It even stated that I was officially accepted. So, after all paperwork crap was filled out, the bitch at the embassy's visa counter denied me entry for a bullshit reason (I think she made it up on the fly) - my tuition was approx. $14,800 a year, so I had to show proof that I had $15,000 x 4 years (bachelors degree) = $60,000 in cash or in a bank account or whatever... I NEVER heard of such a rule. Who in the right mind would pay for 4 years of college up front unless they have nothing better to do with their money?

    They did eventually let me in... By a stroke of luck, the last immigration counselor I talked to, graduated from the same school that I was about to start at.

    So my point is... They could've denied these guys entry for any reason. Their default policy is to NOT LET ANYONE IN. I personally know of at least a dozen people that had similar problems in that same embassy...

  • Overstay. (if thrown in prison) (Score:3, Insightful)

    by anonymous cupboard ( 446159 ) on Tuesday October 15, 2002 @10:10PM (#4458926)
    The issue judged by State is whether the person is visiting for the purpose stated and whether or not the person is likely to become a burden on the public purse.

    There is a possibly that Dimitry finds himself in prison (a cost to the public purse). Under these grounds, State may refuse the visa.

    I don't work for the gov, but a friend works at a US consulate in the visa department.

    Ironically, unconvicted Russian Mafya goons, prostitutes and Islamic terrorists have no problems getting visas.

  • Visas and Russia (Score:3, Informative)

    by howiefl ( 231059 ) on Tuesday October 15, 2002 @10:52PM (#4459149)
    Just to let you all know that its not just Dmitry Sklyarov. Its ALL people trying to get a visa that are being delayed.

    "Russian scientist Vladimir Braginsky, who has visited the United States regularly over three decades, has been waiting since July for a visa to collaborate on a billion-dollar, taxpayer-financed project involving 13 nations to prove Einstein's general theory of relativity.

    Despite many calls to officials in Washington, Mr Braginsky ''has been left hanging for three months'' without any information on the status of his visa, said Mr Kip Thorne, a physicist at the California Institute of Technology."

  • This is what I think. (Score:4, Funny)

    by rice_burners_suck ( 243660 ) on Tuesday October 15, 2002 @11:39PM (#4459404)
    Sing to the tune of "We're Following the Leader" from Disney's Peter Pan:

    The government is stupid,
    is stupid,
    is stupid,
    the government is stupid,
    in everything they do.

    That's what happens when one part of the government doesn't allow another part of itself to get its job done. And you wonder why it takes years to get a stamp on a piece of paper or something stupid like that.

  • no trial, no overturn of the DMCA (Score:3, Insightful)

    by frovingslosh ( 582462 ) on Wednesday October 16, 2002 @04:19AM (#4460258)
    Looks like the gub'mint just does't want the DCMA to face a court test, at least not with a judge who has already expressed doubts of it's validity.

  • Ooh, I see (Score:3, Funny)

    by Rogerborg ( 306625 ) on Wednesday October 16, 2002 @08:00AM (#4460832) Homepage
    Purpose of visit
    • To sell cracking software illegal under the "Strictest standard applies" terms of the Berne Convetion, and instruct the peace loving workers and peasants of the Imperialist USA on how to overthrow their bosses, end artificial scarcity, and fulfil the historical dialectic: APPROVED
    • Summoned to appear by a federal US court: DENIED

    And yet the US is the world only military and economic superpower and - de facto - runs the United Nations, and the World Bank. I don't know whether to laugh or cry.

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