Can hackers have a disease and be absolved from a crime? Maybe...

Can hackers have a disease and be absolved from a crime? Maybe...

Summary: The Home Ministers of various departments in the U.K. are practically falling over themselves in the Gary McKinnon extradition case. More troubling is that it appears that the basic issue of a crime being committed is now completely overshadowed by the actual events that have taken place since the U.S. Department of Justice issued a request for extradition.

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TOPICS: CXO, Security
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The Home Ministers of various departments in the U.K. are practically falling over themselves in the Gary McKinnon extradition case. More troubling is that it appears that the basic issue of a crime being committed is now completely overshadowed by the actual events that have taken place since the U.S. Department of Justice issued a request for extradition.

Further compounding the issue is the legal team that McKinnon has put forward along with other supporting experts are using arguments that are far off the legal framework it is almost stunning that the justice system even works in the U.K.

In 2001 the U.S. military networks were hacked into. The hack was discovered and the prime suspect, Gary McKinnon (43) who now lives in London, was charged in 2002 by the U.S. government and an extradition request was made. From there it's been all downhill when viewed from a justice perspective.

Lawyers, Judges and Ministers have tried six different methods of having his extradition stopped. And to make matters worse, Gary McKinnon admitted hacking into the U.S. military networks and has yet to go to any kind of trial. His innocence presumed or not is now compromised and potentially wrecks his opportunity to get a fair trial in the United States.

Three different levels of courts have all denied his requests to turn down his extradition to the United States, among them the European Court of Human Rights, the High Court of the U.K. and High Court of the House of Lords. Now the politicians have entered the fray and nobody appears to even want to recognize that a trial has yet to even occur. Negotiations have already occurred to ensure Mr. McKinnon has certain outcomes if found guilty;

The UK wanted to be sure that Mr McKinnon would not face a military tribunal, will be eligible for parole and that he would not serve his sentence at Guantanamo Bay.

Mr. McKinnon also appears to be making his own original mistakes even worse by changing his story on why he broke into the networks in the first place and claiming he's a bumbling hacker, despite fact that he's a former system analyst with extensive IT experience and actually wrote his own perl scripts. Clearly he understands and knows how to hack into networks and knows the difference between legal and illegal access.

Then a new defense approach was taken this year with a medical strategy which suggests that McKinnon, who has Asperger's syndrome and therefore should avoid such an extradition. McKinnon was diagnosed this year, eight years after the initial hack was carried out. This 'new' medical evidence is why the case is being reviewed yet again by the Minister Alan Johnson.

The other angle that the defense team is using is that the trial should be held in the U.K. and not the U.S. This opens up new problems that the courts will have to be wary of in the future. So far in this particular case, none have accepted that argument.  The defense has already suggested the primary reason for trying this tactic - less jail time.  Mr. McKinnon has publicly said he's terrified of being sent to the United States. In an interview with the BBC, his emotional state seemed very coherent and professional.  His willingness to attempt his own defense during a TV interview is not going to help his legal team or his own outcome. Today the extradition appeal was turned down by the minister but still has another 7 days to file yet another appeal.

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Topics: CXO, Security

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  • Aserger's has shades of gray

    More than likely if he was compelled to try breaking into US systems, it was the technical challenge and machinations in his mind of what it would take. Asperger's is a form of mild autism and if you're more on the impacted side, I can readily see this happening.

    But on the other hand, if his situation is a milder form of Asperger's, he was probably well aware that what he was doing was illegal.

    The problem is, the law likes to live in black & white and life seldom operates as such.

    I don't have enough information about his Asperger's case to make an informed decision but if he's done nothing wrong since then... it would seem the US Justice system is out for revenge at this point. But I'm sure behind the scenes they want to make an example of him so as to dissuade anyone else from even thinking about similar actions.

    Except, such attempts are being made I assure you - just ask anyone with a network server facing the Internet. I used to have an SSH tunnel into my home network and I would get login attempts from the Asia/Pacific rim ALL THE TIME. In one case someone was trying for six hours to get into my server and I ultimately shut down SSH just to make them go away.

    -M
    betelgeuse68
  • This is the US....he'll get a fair trial...

    And as soon as he's found guilty, he should be strung up by the nads. :-)
    mgp3
    • This is the US....he'll get a fair trial...

      Hmm, you did see the bit about Guantanamo Bay in the article?

      The US are holding people without charge for years on end with no trial. Is that how you can be so sure if there is a trial it will be fair?

      Gary is guilty so tell him how much time he has to serve and let him do it here in the UK - at our cost.

      As for the notion that he did $700,000 worth of damage that's problably the amount of money spent to update the systems so they don't get hacked by another drive by hacker, not forgetting a few back pockets to fill or all the capiatl hill hangers on.
      rbillam
      • nahh..

        "Hmm, you did see the bit about Guantanamo Bay in the article? The US are holding people without charge for years on end with no trial. Is that how you can be so sure if there is a trial it will be fair?" They US is holding war criminals there, are you saying he is a war criminal?

        "Gary is guilty so tell him how much time he has to serve and let him do it here in the UK - at our cost." nahh, yall could easily just let him out, nothing the US could do then.

        "As for the notion that he did $700,000 worth of damage that's problably the amount of money spent to update the systems so they don't get hacked by another drive by hacker, not forgetting a few back pockets to fill or all the capiatl hill hangers on. " One report says he knew the location of the US Navy's 6th Fleet, could that be how much fuel it cost to move the fleet?
        NoThomas
      • McKinnon "terrified" of US prisons...

        "Gary is guilty so tell him how much time he has to serve and let him do it here in the UK - at our cost."

        Let's ignore his rather fallacious mention of Gitmo. Snowball's chance in Hades of his ever being sent there.

        But considering the descriptions of UK prisons I've seen (which are probably apocryphal, for the most part), he'd be far better off worrying about being incarcerated in the UK.

        Most US Federal prisons (medium or low security) provide far better living conditions.
        M.R. Kennedy
  • Does stupidity count as a disease? (nt)

    :)
    John Zern
    • Gods, I hope not

      You and I can't afford to subsidize the medical treatment for everybody else :D
      CharlieSpencer
  • RE: Can hackers have a disease and be absolved from a crime? Maybe...

    what a lot of rubbish!

    most of your facts are wrong!

    Gary McKinnon was born autistic and was officially diagnosed a year and a half ago, NOT this year - by a top specialist in the field no less and two others (for good measure, just as experienced autism specialists)

    and he 'admitted' to crime without a lawyer present and AFTER HOURS AND HOURS OF QUESTIONING and after being threatened that his girlfriend will be kept in the police cells UNTIL he 'confesses'

    Gary has also been diagnosed by top psychiatrists to have severe depression and paranoid delusion - THAT is not just autism, that's serious
    R3519
    • Serious it is...

      I don't believe Mr. McKinnon was threatened into doing the BBC interview, which I submitted as a link within the article. You can make your own mind up whether or not it was coerced or not.

      As to his form of Autism, Asperger's syndrome, I said in my story;

      [i]

      Then a new defense approach was taken this year with a medical strategy which suggests that McKinnon, who has Asperger?s syndrome and therefore should avoid such an extradition. McKinnon was diagnosed this year, eight years after the initial hack was carried out. [/i]

      I never disputed, suggested or implied whether or not he was born Asperger syndrome. Even if was 18 months ago instead of a year ago with respects to the diagnosis by medical professionals, it wasn't used as a part of his legal defence in his appeal to the European Court of Human Rights until this year.

      With respects to depression or paranoid delusions by medical professionals is not part of the article. The question remains; if you have such an illness, disease or lack certain functions, should that allow an individual to escape the law or punishment?

      As I said in my blog, every court in England and Europe has declined to agree with Mr. McKinnon's legal team and now it's before the Ministers, which would be making a political decision and not one based on the statues currently in force throughout the United Kingdom.

      It should be noted that other attempts to use a disease or illness as a defence all over the world. With the exception of capital murder crimes, in a search of the internet, I can not find a single case that has had success. I did a search on Autism and Aspergers Syndrome to determine if such conditions had been used as a component in a legal defence and could find none until Mr. McKinnon's case showed up.

      Doug

      doug.hanchard@...
  • I have made the same arguments...

    at zdnet uk. Do a search for my username and you will find my postings.

    Would he get a fair trial in the US?
    Yes, there has been very little news coverage here. It should be easy to find a Jury that has never heard of him. Would he get a fair trial in the UK? Probably not, it would be slanted towards him with all the public outcry and news coverage.

    As for aspergers interesting enough there is another case in which it was taken into consideration for sentencing "A Los Angeles hacker received a slightly reduced sentence Monday of 55 months in prison for participating in a multimillion-dollar computer-fraud scheme, after a federal judge took into account the man?s diagnosis with Asperger?s Syndrome." http://www.wired.com/threatlevel/2009/08/truckers/

    For some Aspergers is the main argument, here is my point. Where was the public outcry when "In the United Kingdom, a 21-year-old student with Asperger's was given only four months of jail time for possession of 922 pornographic images of children." According to Garys defense team that 21 year old student should not of gone to jail, nor should the case of a "22-year-old woman with Asperger's who was sentenced to life in prison for beating her mother to death, saying her lack of empathy didn't reduce the gravity of the crime." http://www.slate.com/id/2233313/pagenum/all/

    Gary's main defense seems to be damages, he admits to the hacking but deny's causing any damage. (according to the extradition treaty he had to of cause a certain amount of damages to be extradited, I think its about $700,000 but I might be wrong) Like that should make it ok.

    he did not just accidently stumble onto the militaries network, He created the perl scripts to find computers with weakened security, he then used that to compromise the computers. It is like me walking down a block of houses and going to each door to see if its unlocked, according to his defense team its ok for me to enter those houses as long as I do not cause any damage to them. How does that make sense?

    Are these the actions of someone looking for ET?





    NoThomas
    • Good points

      Thank you for submitting your comments.

      Doug
      doug.hanchard@...
  • Its not right

    The Asperger?s defence is the last roll of the dice for Gary's defence team. Personally I think the US should not be extraditing and should be thankful that it was Gary's activities that alerted them to the security holes instead of suffering a cyber attack from a hostile regime/group. If the US government are looking for a whipping boy for the security breaches then I believe they should be looking inwards at the persons incharge of the facilities in the first place for having such lax security.
    Ray Harding
    • huh...

      So if someone was walking down your street, found your garage open or door unlocked and let themselves in your house and sat down on your couch and look thru your personal stuff, then you would thank them for alerting you to the fact that you left your door unlocked or garage door open? Would it not be better for them not to enter your house at all? Is it ok for me to hack your PC as long as I just look thru your personal files, You would thank me for that?
      NoThomas
  • Someone explain why Asperger's should prevent extradition.

    What's the connection? What are the medical repercussions of putting McKinnon on a cruise ship to NYC? We transport critically wounded military personnel halfway across the world on a daily basis. If he actually has Asperger's, why would it prevent him traveling? If it plays any part in the legal process, it's a factor to be introduced in sentencing. It's not a reason for him not to stand trial, or for him to avoid extradition.
    CharlieSpencer
    • The logic is...

      Its like an obsession, he was almost forced to do it, atleast that is what his defence team is saying.

      They are also saying he is scared to death, and because of that he is under a severe depression and might be suicidal, which the EU could then block extradition under the Human Rights Clause. That is what his defence team is arguing.
      NoThomas
      • Funny how he gets more scared the longer he delays.

        As the original post noted, he's coherent enough to participate in his defense.

        I'd be scared too if I was facing a trial. EVERYBODY is scared when they're the guest of honor at one. Find me someone who looks forward to the experience.
        CharlieSpencer
        • ohh I agree with you.

          I imagine I would go into a severe depression facing 6 years in the federal pokey. I do not like the precedent either. All a bad guy has to say is, oh hey yes I commited that crime but hey if you try to take me to court well I might commite suicide so...
          NoThomas
  • RE: Can hackers have a disease and be absolved from a crime? Maybe...

    If I leave my garage open with valuables inside I would expect it to get robbed. However, I am not talking about a garage I am talking about the US department of defence. They should not have left their doors open. And they are lucky it was a hacker from the UK that got in instead of a hardcore fanatical groups/regimes. When security is your business especially if your protecting a country then I think that you have to take a reasonable amount responsibility for leaving your doors open. Gary does deserve to be punished but punishment should fit crime and the crime originated in the UK so he should be sentanced in the UK.
    Ray Harding
    • They are lucky..

      "If I leave my garage open with valuables inside I would expect it to get robbed." Thats a sad world we live in where you would expect to be robbed.

      "However, I am not talking about a garage I am talking about the US department of defence. They should not have left their doors open. And they are lucky it was a hacker from the UK that got in instead of a ******** fanatical groups/regimes." They are lucky but still does not excuse him. They should not of left their doors open you are right but one does not preclude the other. If I accidently left my door open and someone robs me that is not ok, the defence should not be well he left his doors open so I robbed him.

      "Gary does deserve to be punished" You said earlier it was not right for him to be punished.

      "but punishment should fit crime and the crime originated in the UK so he should be sentanced in the UK." No he broke into the US goverments server's and systems, he commited a crime on US Soil the Millisecond he trespassed onto the US systems.

      As for the punishment fitting the crime, I would like to point out that he was offered a 18 month plea deal but he turned it down, which forced the US to charge him fully which is 6 years in the federal pokey for a felony.

      Yes now he wants to be charged in the UK, know why? All he can be charged for is a misdemenour and face community service. The UK government refused to charge him with even that which is why the US government did charge him.

      2 things I would like to point out, first if the UK goverment did charge him then one could make an argument of double jeopardy. Since the UK refused to charge him then they opened it up for the US government.
      Second he needs to come to the US to face trial for the simple point, if he was on trial in the UK his defence team could say that since the systems he broke into were on American soil, the UK courts have no jurisdiction so they do not have any standing to listen to the case.
      NoThomas
    • Place of judgement...

      Ray,

      You suggested;

      [i]
      Gary does deserve to be punished but punishment should fit crime and the crime originated in the UK so he should be sentenced in the UK. [/i]

      I recognize how you have come to this conclusion, but it's not how the law works for (almost) all crimes that are international in nature.

      Mr. McKinnon's break and enter started in the U.K. but broke into a U.S. physically located property and thus the laws and institutions that can represent prosecution are a U.S. [u]right[/u] of juridiction. This does not mean that the U.S. Attorney General Office exercises this priviledge and ability in all cases or circumstances. When it does, the grounds for extradition, as in this case, suggest they are valid.

      The extradition treaty has no bearing on who should be able to prosecute, and does not influence - as far as I know even the type of trial. As I noted in my post, the U.K. government did make a request of the U.S. Attorney ensuring that Mr. McKinnon would not wind up in Cuba.

      The United States made the request and both country's have a treaty, thus the actions requested if compliant (with U.K. law) will be adheared to. It's likely one of the reasons Mr. McKinnon's legal team has hit significant road blocks in getting it overturned by any Home Office Minister or MP.

      In an interesting parallel, the recent break up of an international fraud ring (U.S. Canada, U.K. etc.) stealing over $9M in a single day will likely have a blend of extraditions and local enforcement actions.

      Nobody knows exactly what outcomes of that incident will be until legal proceedings begin.

      Doug
      doug.hanchard@...