Evil mastermind or innocent dupe caught up in intricate web?

ERIC Eoin Marques was sure he knew his way around the law and he ignored warnings that his activities could attract FBI attention, dismissing them with a grinning emoji.

“I think the feds have better things to do,” he wrote in an online chatroom for web-technology enthusiasts, before signing off with the smiley face.

That was in early 2012, after Marques, sitting in his bedroom in a flat in Dublin’s north inner-city, took to the forum to complain that his German internet service provider, Hetzner, had disconnected one of his servers, over what he called a “fake child-porn complaint”.

His gripe was essentially about Hetzner’s customer service — he claimed he got less than an hour’s notice that he was to be cut off and, when he contacted the company, the person dealing with the matter had gone home and would not be available until the following day.

“The site in question contains no child porn. It is a site with Japanese cartoons, and has been on the server since 2006,” he added, almost incidentally.

But others in the chatroom were quick to spot the bigger issue. “You do realise that in many countries, even imagery (real or not) depicting underage sex can be cause for legal recourse?” wrote one American contributor.

“Your page has countless things written on it that could get you in trouble here in the USA,” the contributor continued. “You need to talk to a lawyer, or something, to make sure what you’re doing is legal”.

Marques remained untroubled. “It’s not actually my site. It’s a free hosting customer,” he replied.

“Before the complaint today, I did not even know this site existed. There are 30k+ accounts on that one server alone. I do not live in the US and the server is in Germany.”

Hell on Earth

Another forum member tried to push the point. “You could just kick them off. What’s the point in hosting lolicon for someone who pays nothing,” he wrote of the doe-eyed, prepubescent cartoon girls, in sexually suggestive poses, which originated in Japan, but which have an international following.

Another went so far as to cite the section of German law under which the content fell, defending Hetzner for acting so quickly, or else the company would face “hell on earth with German law enforcement”.

Marques just went on complaining about how he much he’d been inconvenienced, prompting the first contributor, and two newcomers to the conversation, to step up their warnings.

The first noted that Marques had advertised his company as US-based. “If certain federal agencies here in the US were to be tipped off about this, you’d have some knocks on your door and be in some serious trouble,” he wrote.

“I would strongly suggest finding a way to audit these 30,000 free accounts you have hosted, before you end up finding yourself in jail over kiddie porn.”

Marques remained unconcerned. “I think the feds have better things to do then [sic] go after cartoons,” he replied.

Naive

The smiley face that followed was as naive as it was nonchalant. Less than 18 months later, the FBI had secured an extradition warrant for Marques and had requested that gardaí arrest him.

For the four years since then, this young Irishman has been in prison fighting extradition to the United States, where he is wanted to stand trial on offences that could have him in jail for the rest of his life.

It’s a case that has thrown a spotlight on the delicacies of inter-country extradition arrangements, the secret workings of the Office of the Director of Public Prosecutions, the scant provisions within criminal justice systems for accused persons with mental health or intellectual difficulties, and the complexities for police forces investigating international, web-based crime.

And if it ever does result in a criminal trial, then added to the mix will be the evil at the heart of the whole saga — the sickening industry of child sexual abuse.

It was a case, and a defendant, that came out of nowhere. Before Thursday, August 1, 2013, few gardaí had heard of Eric Eoin Marques, and then only because their counterparts in the FBI had him under investigation, and had sought discreet assistance in monitoring his movements over the previous year.

When they felt ready to move on him, the FBI secured an extradition warrant from a court in Maryland, on July 29, and contacted the Irish authorities, requesting his arrest.

Anonymous

He had no previous convictions and had never come to the attention of the authorities. The FBI special agent who pursued him described him as “anonymous”.

Now, he was standing before a High Court judge, being described by that same agent as “the largest facilitator of child porn on the planet”.

The Irish courts don’t usually hear language like that. Had it been a detective garda giving evidence, convention has it that a more restrained description would have been used.

He would have been a significant facilitator of child porn, maybe even very significant. Just how significant would have been left up to the trial to reveal.

But Special Agent Brooke Donahue wasn’t holding back. He made it very clear the US authorities regarded Marques as a key target and wanted him on US soil to face prosecution as soon as possible.

FBI Special Agent Brooke Donahue at the Court of Criminal Justice in Dublin. He made it very clear the US authorities regarded Marques as a key target and wanted him on US soil to face prosecution.

And he wasn’t embellishing. If his investigation proved correct, Marques was the technological lynchpin for a global darknet enterprise engaged in the buying, selling, and distributing of child pornography on a vast scale.

Torture

Pornography is the sanitised way to describe it. What the FBI investigation had found was a large number of websites depicting extremely violent and graphic child sex abuse, including rape and torture. Some of the victims were babies.

Four charges awaited Marques — distributing child pornography, conspiring to distribute, advertising child pornography, and conspiring to advertise.

The exact details of the charges were not revealed. Possibly, given the gravity of what the FBI outlined in court, the Japanese cartoons didn’t even feature in the

indictment.

These are charges that carry prison terms of up to 30 years apiece and, in aggravating circumstances, life imprisonment.

Also, because consecutive sentences are more common in the US than in Ireland, where multiple sentences usually run concurrently, even a series of convictions with lower sentences could put Marques behind bars for life.

The decision to turn an Irish citizen over to another country for trial under a foreign criminal justice system is never one taken lightly, so, despite notional deadlines of 90 days for a decision, extradition cases can, in reality, be protracted, complex affairs.

Marques was briefed on how things would play out, now that the US had hit the extradition button, and, on that first day, when he was brought before the High Court, in Dublin, he sought to be released on bail until the Irish authorities’ response to the US request had been determined.

Escape plan

Both the gardaí and FBI objected to the bail application, citing Marques’s frequent travel and the fear he would try to leave the country, if freed from custody.

Checks on his computer revealed he had recently made online searches for information on how to get a visa for Russia.

Large sums of money were on the move through his bank accounts and, given his technological expertise, it was feared that, if freed, he would try to tamper with evidence, by accessing the internet systems he worked in and deleting or corrupting content.

Marques didn’t look like a man of travel, of money, of highly valued IT prowess — or of links to the lowest form of humanity.

He had an unremarkable appearance and a slightly gormless demeanour. He lacked both swagger and nerves.

But he was also less than convincing.

He told the court his research into Russian visas was sparked by curiosity about Edward Snowden, the computer programmer and CIA contractor who leaked information about US mass surveillance operations and who fled to Russia to avoid espionage charges.

In other circumstances, it might have been credible that one computer nerd was simply following the travails of another, out of professional inquisitiveness, but Mr Justice Paul Gilligan was inclined towards the FBI theory that Marques was checking out his options for fleeing the jurisdiction.

Marques’ barrister stressed that his client had surrendered both his Irish and US passports to gardaí and would abide by any terms and conditions laid down, if he got bail.

Girlfriend

But the court also heard that he had been travelling regularly to Romania, where he was also routing large sums of money. Marques claimed he had an ex-girlfriend there, who he was helping out financially, as well as a friend who needed money to set up a business.

Again, the explanation was hard to swallow and, passport or no passport, Romania didn’t seem like too big a leap for a man with international contacts, and large sums of cash at his disposal.

Mr Justice Gilligan denied bail and ordered Marques back to prison for a week.

It was to be the first of many adjournments over the next four years, as Marques dug in, using every legal avenue open to him to try to avoid extradition.

Yet despite the length of time he has been in detention, and his numerous court appearances, little enough has emerged publicly about him.

New York

Eric Marques was born to an Irish mother and Portuguese father in New York on April 28, 1985, making him 28 years old at the time of his arrest.

His father, Antonio Marques, studied architecture at University College Dublin in the late 1970s and early 1980s, and left almost immediately after graduation, to work in New York for a company specialising in designing and refurbishing high-end homes for the city’s rich.

The family, including Eric’s sister, returned to Ireland in 1991 and Marques senior went to work for Dublin architectural practice, O’Dea & Moore, but he left there several years later to join Irish Rail as an in-house architect, working on the design and planning of railway buildings, facilities, and infrastructure.

He left Irish Rail in December, 2010, at the age of 58, but returned to the workplace in January, 2012, this time in the United Arab Emirates, where he worked for Etihad Rail. He left there in August, 2013, around the time his son was arrested.

Somewhere along the way, the marriage had broken up and Eric Marques, who did not finish school or go to third-level, moved in, with his father, to an apartment complex at 33 Mountjoy Square, a 25-year-old private development in Dublin’s north inner-city that, from a distance, retains the shape and style of the original Georgian buildings that still feature in this historic neighbourhood.

From what we know of Marques, he didn’t care much for the aesthetics or history of the area. His world was online.

Teen whizz

He was in the business of web-hosting, a legitimate enterprise that provides an essential service to individuals and small companies who need to maintain a website on the internet, but who have neither the budget nor expertise to own and run their own server.

Web-hosts own and maintain servers and use them to publish clients’ websites to the world wide web, or to a members-only corner of the internet, for a fee. Marques formally registered his company under the name, Host Ultra, in March, 2005, just before his 20th birthday.

But writing a few months afterwards, on the same online chatroom where he would later cause a stir in 2012, he said he had been in operation for three years, meaning he would have started when he was just 16 or 17 years old.

“I started Host Ultra with absolutely nothing. I could hardly afford my dial-up internet connection,” he wrote.

“It was just something to do for fun. I did not expect to make any money from it. I learned a lot by offering free hosting, before I started doing paid. Now, it’s running for three years and making more money then [sic] I could have ever imagined possible. A complete success.”

He didn’t give any indication of what type of clients he was attracting, but while web-hosting is above board, anyone entering the business quickly learns that some customers are not just looking for expertise and server space.

They also want anonymity, or, at least, a convoluted trail that makes it difficult to track them as originators of the material they put online.

They want the underground version of the internet — the darknet.

The onion router

Many of those who want to hide their tracks are engaged in copyright infringement — providing footage of sports or entertainment events, copied from subscription services and streamed or shared for a cheaper fee.

Some are plotting revolutions — in their imaginations, if not in reality. Some are paranoid about sharing information and some are justifiably worried. Others are buying and selling everything from illegal drugs to weapons. And some are in the business of child sexual abuse.

The darknet works using Tor, an acronym for The Onion Router, a software that anonymises communications by routing them through a complex international computer network likened to the layers of an onion.

Originally designed to protect communications within the intelligence community in the US, the technology had entered the mainstream in the noughties, championed by diverse communities of online users, from academics to activists.

The potential for abuse was always acknowledged, but, for many, that was a small price to pay to advance the cause of cyberlibertarianism — the use of the internet to enhance the power of the individual free from state interference or oppression.

Marques became one of the biggest providers of Tor-protected services, but not through Host Ultra. Despite using that name to promote his business, and despite having his father on board as a director and submitting annual, audited accounts to the Companies Registration Office, the company never actually traded, never recorded any income, and never paid any taxes.

Marques became better known as the mastermind behind Freedom Hosting, which he established in 2008, but which was not a registered company.

Another company by that name, based in the US and welcoming adult content,

appears to have predated Marques’s arrival on the scene and a new one — offering rural dwellers a cheaper alternative to the big internet providers — has since been set up in Australia.

But, generally, when the name Freedom Hosting cropped up in conversation about the web, the operation referred to belonged to Marques and was fast-becoming the largest Tor-based service provider in the world.

Millions

At his second appearance in the High Court, after a week remanded in custody, it was heard that the charges against him related to more than 130 child-abuse websites, each with thousands of members who had posted millions of images of child-sex abuse.

The offences were alleged to have been committed between July, 2008 — the year he established Freedom Hosting — and July 29, 2013.

It was alleged he had deliberately sought to obscure his identity, basing himself in Dublin, using servers based in France, but renting a private mailbox facility on the outskirts of Las Vegas as his billing address, and paying for the use of the server by debit card from a US bank account.

Las Vegas was unlikely to have been an accidental choice — the city is in the state of Nevada, where residents pay no income tax.

Another adjournment, and remand in custody, followed to allow for preparation for the full extradition hearing, but, this time, Marques’ legal team warned they would be making a fresh application for bail, when next in court.

Visited sites

Back in court on September 12, 2013, FBI Special Agent Donahue vigorously opposed bail, standing over his earlier description of Marques as the largest facilitator of child porn in the world, only this time going further to allege that Marques was no absentee landlord type of host, but had direct knowledge of what kind of sites he was hosting.

From his home computer, seized by gardaí, he had been tracked visiting sites, had administrator access to at least one of them, and had “some element of control over it”.

Court documents are more specific, detailing that Marques had “personally visited a particular site, dedicated to the exploitation of child pornography, some 412 times, that he had accessed a second, hidden service hosted on his server, which he could only have done if distributing child pornography, and that he had also accessed another service (not on Freedom Hosting), called the Onion Pedo Video Archive, and that he had visited this service some 1,534 times.”

Fake passport

That home computer also revealed Marques had been searching for US passport templates and had saved reproductions of passport pages and images of holograms and security features, and that he had researched routes for driving a rental car from Budapest to Romania.

Special Agent Donahue could only draw one conclusion — that Marques was looking for a place to reside to make extradition to the US most difficult. Russia was one such place.

The court heard Marques described as the owner and administrator of Freedom Hosting, a “sophisticated, huge, transnational operation”, and that he had “substantial financial resources”, with $1.5m passing through one bank account and €72,000 being transferred to a person in Romania.

Detective Inspector Declan Daly, now a superintendent and head of the Garda National Protective Services Bureau, told the court he was concerned that, if released on bail, Marques could access and destroy websites that might form part of the evidence against him.

It was believed that even after FBI computer experts had accessed the Freedom Hosting server and changed passwords, Marques had made his way into it and locked them out again.

Bail was refused and the case adjourned to October for hearing, but things took an unexpected turn then, with Marques’ legal team informing the court they would be mounting a legal challenge to have him tried in Ireland.

Plea offer

Following an adjournment to December, 2013, the High Court heard even bigger news — that Marques was offering to plead guilty to the offences, if he was prosecuted in Ireland.

Similar charges here carry a maximum penalty of 14 years in jail. Even if he got the maximum, with standard remission he would be out in just over 10 years. Best-case scenario in the US was estimated to be 25 years with no parole — and the threat of life behind bars remained.

The court heard that the Director of Public Prosecutions had been informed of this development, but had replied that the decision had been taken not to bring proceedings here. No reason was given for the decision.

These were to become the issues that dominated legal proceedings throughout 2014.

The Criminal Court of Justice, Dublin, where Eric Eoin Marquez has battled against extradition to the US. He offered to plead guilty to the offences if tried in Ireland but the DPP refused.

Romania

In January, 2014, Marques indicated that he would be applying for a judicial review of the DPP’s decision not to prosecute him here. The question of legal aid also arose. For the previous five months, Marques had solicitors and a barrister representing him and the bills were mounting.

Hearings to decide his application for legal aid took place in March, when details of Marques’ lifestyle emerged. The court heard he had earned €1.15m between 2007 and 2013, raking in €250,000 in his last year in business, and that he had made cash withdrawals of €307,000,

suggesting he had the means to pay his own legal costs.

But Marques gave evidence that his father had been paying legal fees on his behalf, because any money in his accounts was frozen by the FBI. He also said he gave €250,000 to his Romanian girlfriend to build a house in Romania, where they had planned to live together, but a friend of hers told him the house was being built on land belonging to her other boyfriend. Marques told the court he still loved his now ex-girlfriend and wasn’t seeking the money back.

He had bought a BMW jeep in February, 2013, for €21,000, but told the court he had transferred ownership of it to his sister, who subsequently sold it to pay off legal debts to their father.

Escorts

Apart from those few, strange transactions, Marques could give little detail about where his money went.

He said he spent €5,000 on a computer, €1,000 on a television, and €700 on a phone, but had no other assets. He ate in McDonald’s every day, using a credit card to pay for his meals and other daily expenses, such as petrol, but his only other major outgoing was the

several hundred euro he spent each week on escorts. As to what happened the rest of his money, he said he couldn’t help the court.

Presiding judge, Mr Justice John Edwards, was torn in his decision. “It is fair to say that Mr Marques is in deep trouble,” he said, with understatement, but he didn’t believe Marques was telling the truth about not knowing where his money went and nor could he fully accept the tale of the mysterious Romanian girlfriend.

But in refusing legal aid, the judge left the door open to a review of the issue, if there was expert testimony with regard to Marques’ emotional functioning or psychological state.

The suggestion did not slip by the defence, who set about having their client assessed. Meanwhile, Mr Justice Edwards had a change of mind. Even if it was found that Marques had money at his disposal, it would be regarded as the proceeds of crime and liable to seizure. Marques would be getting legal aid.

Things moved slowly over the following months, but, in September, 2014, after just over a year in custody, Marques learned he was being refused a judicial review of the DPP’s decision not to prosecute him in Ireland and was also being denied a judicial review of the DPP’s refusal to provide reasons for her decision.

The case was adjourned again to allow Marques to respond. In October, 2014, he did respond, indicating he was going to the Supreme Court to appeal the refusal to grant judicial review, but, in November, there was yet another turn of events, when the State informed the

Supreme Court that Marques would be granted judicial review after all.

The change of heart was due to a decision by the Supreme Court, in a separate, but similar, case, just days earlier — that of Ali Charaf Damache, an Algerian-born Irish citizen wanted by the US on terrorism charges.

Asperger’s

Progress was slow again and, during 2015, the main development was the revelation that Marques had been diagnosed with Asperger’s Syndrome.

The court heard that he had seen a psychiatrist in the Mater Hospital 15 years earlier, but no diagnosis was made. Now, psychiatrist, Dr Patricia Casey, had assessed him in prison and, in consultation with a neurologist, had prepared a report that said he had Asperger’s.

His defence team argued he would not get appropriate care in a US prison, if extradited, whereas, in Ireland, he would have care and the support of his family.

Shortly after his arrest, his father had defended him to the media, insisting all his son did was rent out server space and was no more responsible for what went on there than a landlord would be if he rented out a room to tenants who got up to no good. Dr Casey also spoke up for him, adding to the list of concerns the overcrowded conditions in US prisons and — with some irony — the risk of sexual violence.

The prosecution begged to differ, pointing out that Marques had already been in custody for almost two years and that there was no deterioration in his mental health. He had sought no treatment for his condition, and he wasn’t taking, or seeking to take, any medication.

His days were spent in apparent contentment, playing on his Playstation.

Besides, there was an affidavit from an official in the US Bureau of Prisons, who stated the prison system did provide appropriate care and treatment to inmates with conditions similar to the

accused’s.

Disproportionate

The defence argued that the offences had been committed in Ireland as much as anywhere else, and that the system of sentencing in the US was disproportionate and in breach of international standards. The prosecution countered that the investigation was US-based and the US sentencing system was just, if somewhat tougher than in Ireland.

Presiding judge, Ms Justice Aileen Donnelly, delivered her judgement ten days before Christmas, ordering Marques’ extradition to proceed, with 15 days’ postponement to allow time to lodge an appeal.

It was another six months before the appeal was heard, before the three-judge Court of Appeal, the defence again objecting to the sentencing system that awaited Marques in the US and also arguing that the DPP should be made explain her reasons for not prosecuting Marques — a point backed by the Irish Human Rights and Equality Commission, which made a submission to that effect.

Rejected

Once again, just days before Christmas, 2016, a decision came back and, once again, it did not go Marques’ way. But, once again, a stay was put on the extradition to enable Marques to take another appeal to the Supreme Court. In May this year, the Supreme Court turned down his request for an appeal hearing and the court also heard that an application to the European Court of Human Rights had been rejected.

Just when it seemed all avenues had been exhausted, Marques’ legal team said they would be seeking another judicial review. This time, it was on the question of why the Minister for Justice — Frances Fitzgerald at the time — had not used the ministerial discretion that was hers under the law to halt Marques’ extradition.

They wanted the documents the minister used to either refuse to consider the case or to consider it and then reject it — it wasn’t clear how she had acted, only that it wasn’t in Marques’ favour. Hearings took place in June and July and judgement was reserved. Marques did not appear in court. Maybe it was too stressful for him, maybe he didn’t see the point in attending, or maybe his beloved Playstation won out.

Marques’ legal team wanted explanation from DPP

The Office of the Director of Public Prosecutions has long had a strict ‘no questions, no answers’ policy in relation to why prosecutions are not taken or particular charges are not pressed, but this was relaxed somewhat in recent years to allow victims of crime and the families of homicide victims to request information.

The DPP is under no obligation to provide that information, however, or it may be very scant.

Marques’ legal team attempted to push the door open further, arguing that

the DPP should explain why their client was not being prosecuted in Ireland. They complained that the DPP had refused to even engage with their client despite US extradition documents referring to offences having been committed in Ireland.

They found this extraordinary, given that their client wanted to plead guilty to the charges if they were brought in Ireland and they questioned how this served the public interest.

After initially being refused a judicial review on this point, they were granted one, and the principle of openness was backed by a submission from the Irish Human Rights and Equality Commission.

While the commission did not take sides in the overall case, it argued, as it has done as a general principle in the past, that the blanket immunity from questions the DPP’s office enjoyed was incongruous in a State based on the rule of law.

It said transparency was essential, and public bodies must give reasons for the decisions they made or, alternatively, if it was in the public interest not to give reasons, they must state why.

They argued that it was in the public interest to see people who committed crimes face justice and Marques was before them, ready to accept justice, yet the DPP was not prosecuting him.

Marques was not the first to make this argument, nor was he the first to fail to convince the courts of its value.

Ali Charaf Damache, an Algerian-born Irish citizen wanted on terrorism charges in the US, had previously been granted a judicial review on the same point but did not succeed in getting the courts to direct the DPP to disclose its decision-making process.

Damache eventually was successful in his fight against extradition after the courts ruled his status as terror suspect put him at real risk of being subjected to inhuman and degrading treatment if surrendered to the US.

However, in December 2015, he was arrested while in Spain and fresh extradition proceedings issued.

Last month, the Spanish government approved his surrender to the United States.

Legal argument

Extradition is reasonably common among EU member states. In 2015, 176 warrants were received in Ireland from other EU countries, 146 were endorsed by the High Court and 77 arrests were made.

In the same year, Ireland issued 92 warrants and 24 people were surrendered from EU countries. Few generated headlines.

Things can get more complicated outside of the EU. Some issues are clear-cut — for example, we don’t extradite where the accused might get the death penalty.

But judges have to assess the proportionality of the charges and the penalties they carry, and whether they reasonably equate with how the alleged offences would be handled here.

The key arguments Marques’ legal team made included that he should have been prosecuted in Ireland as he was resident here, the offences were committed here, and a key piece of evidence — his home computer — was seized by gardaí in Ireland. He was also willing to plead guilty to the charges if tried here.

They also said US sentencing policy was disproportionate — he could get life in prison there, compared to a maximum of 14 years here. Even if he got the maximum here, standard remission would cut it to 10 and a half years and with four years already spent in detention, just six and a half would remain.

US federal law on child pornography has statutory minimum sentences ranging from five to 30 years, the lowest being for a first-time offender, guilty only of distributing pornography where the images are explicit but the child is not depicted engaging in sexual activity.

The US Justice Department states, where “aggravated situations” arise — such as where the images are “violent, sadistic or masochistic in nature” or where “the minor was sexually abused”, a convicted offender “may face up to life imprisonment”.

Marques’ team also took issue with the safety of US prisons, arguing he would be vulnerable to violence and sexual assault. They also raised his diagnosis with Asperger’s Syndrome during his detention and the fear that he would not get appropriate care and support in a US prison, while also being deprived of familial support.

Their last attempt to prevent the extradition going ahead raised the issue of whether the Minister for Justice — Frances Fitzgerald at the time — had used the discretion that comes with the job to decline to sign the surrender notice. If the case was considered by her, they wanted access to the documents on which she made her decision.