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Monday, 14 June 2010

Gary McKinnon and Flat Earth News

My interest in the Gary McKinnon extradition case is based on a sense of mismatch.

The case as routinely portrayed in the media did not seem to relate to the case as set out in the relevant legal judgments.

Moreover, the discussion of the case in the media rarely, if ever, referred to the case as it would appear to someone who had read the judgments.

Indeed, the media presentation of the case was simply not recognisable.


The passionate support of the campaign against extradition is based on a sense that there is a miscarriage of justice, of a disproportionate relationship between what it is alleged Mr McKinnon had done with the cruel sentence which now faces him in a US jail.

However, the allegations against Mr McKinnon are actually very serious (see Part One of my survey here).

The allegations go substantially beyond unauthorised access and include deletion of significant operating files and unauthorised copying.

Mr McKinnon has admitted to the unauthorised access, and his legal team have indicated that he would also admit to causing damage as long as it meant he would be tried in the UK.

The US have also provided what appears to be evidence in support of the allegations which satisfied the High Court that even if the evidential standard had been for the US to show a prima facie case (and not just reasonable suspicion), then that higher standard would have been met (on the extradition treaties, see Part Four of my survey).

The CPS has also provided detailed reasoning as to why the allegations, especially of damage caused, require Mr McKinnon to stand trial in the US, where the alleged damage was caused (see Part Two of my survey).

The allegations also do not relate to a few isolated and chance examples of hacking, where Mr McKinnon perhaps opportunistically took advantage of lax US security, but instead to a sustained hacking exercise which took place over fourteen months and involving 96 computers in five US government departments, and which came to an end (it seems) only with his detection and arrest.


It should not thereby be underestimated how serious the allegation are.


And, as for the UFOs and similar points, they have actually played no part whatsoever in the litigation, and indeed Mr McKinnon's original case was that his motivations were to be taken as political: so political that he should not be extradited because of his political opinions (see the final paragraphs of Part Two here).

One would not gain any of this from media coverage of the case.


When one turns to what would happen to Mr McKinnon if extradited, one would also not gain from the media coverage of the case why the UK courts have seen Mr McKinnon's condition of Asperger's Syndrome as not going to why he should be excused extradition, but instead to how the extradition should be handled.

In particular, the Home Secretary and the UK courts have placed reliance on detailed reassurances from the US as to how Mr McKinnon will be treated.

The US have also confirmed that, in principle, they would not oppose any application by Mr McKinnon to serve any sentence back in the UK.

On these points, see Part Five of my survey.

Again, one would not get any of this from the media coverage of this case.


Indeed, the media coverage of this important extradition case has generally failed to explain why there has been the continued upholding of the decision to extradite by the Home Office and the UK court system.

In my opinion, the media coverage of the case is such that it warrants the label of "Flat Earth News" after the book by Nick Davies.

In effect, the case against extradition has been a media construct, unconnected to the legal materials which are essential for anyone seeking to understand why the extradition process is still proceeding notwithstanding the passionate campaign against it.


And on this point I make no fundamental criticism of the campaigners. In a free and liberal society, one should be able to campaign against any political or legal decision on whatever terms one thinks are appropriate, subject to very limited exceptions.

However, the uncritical adoption of the campaigners' approach in the media coverage of the case has severely limited the ability of those following the case to understand just why Mr McKinnon unfortunately still faces extradition and a sentence some eight or so years after the alleged offence was committed.


In hindsight, the refusal of Mr McKinnon to accept a plea bargain in 2003 seems a strategic and tactical mistake (see Part Three of my survey).

Had the terms of the plea bargain been adhered to (and the US had every reason to adhere to it lest they discredited any offered plea bargain in future), then Mr McKinnon may have been back in the UK by 2004 to serve the remainder of his sentence, and released in 2005 or 2006.

The last four years would thereby have been very different.

It was undoubtedly a difficult decision for him to reject the plea bargain and to keep fighting on instead; but when he made that decision he realised the risk he was adopting in doing so.


[15 October 2012 : the old conclusion has been deleted see my blogpost here.]



COMMENTS MODERATION

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50 comments:

vp said...

Isn't it always, by definition, "unmerciful" to punish a criminal, or to extradite an accused criminal like McKinnon?

Your excellent arguments seem all to point towards extraditing McKinnon, but at the last minute "mercy" appears as a deus ex machina to rescue him.

I am afraid this all looks rather unprincipled. Would you, for example, support Berlusconi, who has managed to run out the clock on many of the charges he faces?

twaza (@wassabeee on twitter) said...

JoK/DAG,

This latest series of posts is magisterial. Congratulations.

I have only one rather picky comment. You drew one conclusion Gary should be freed. There is a second conclusion, much less likely to get headlines, but just as important: law journalism should be improved.


BTW, will your book be about Bad Law or about Bad Law Journalism?

andyourelectronmicroscope said...

I concur with the Deus Ex Machina comment above I'm afraid:

For two reasons...

"First, as a very general point, I oppose any custodial sentences in principle, unless they are for the protection of the defendant or of the public."

Could a foriegn state really not apply to extradite and punish an individual who had essentially committed an act of espionage against them?

That may seem like a grand term when one looks at McKinnons actually activities but it is undoubtedly what he did:

"Espionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information."

Now it is true to say that punishing McKinnon would likely not deter individuals from hacking into such sensitive government systems. However is there a case whereby seeing a precedent that someone who does this will not be punished open the door for more organised and malficient crackers to crack with impunity?

Also I think it is important one does not mistake the argument that the severity of punishment is not nessecarily a deterrent with punishment itself not being a deterrent.

On point two: that is Mckinnons choice - does the justice system exist to save us from ourselves? Does it serve to have a justice system that assumes people who reject rational plea bargins etc (believe their own hype) deserve mercy instead of punitive measures?

The net effect of adopting such a system would be surely to extend as many criminal proceedings as it is possible to do so in the hope that the end product is mercy?

Jay said...

If your view is that he should be granted mercy because of a misconceived legal strategy which prolonged the case for many years, then surely the legal strategy is not misconceived.

The wider lesson would be: draw out a case as long as possible, in the hope your client will be granted mercy eventually due to your "misconceived" strategy.

The trouble with Mr McKinnon is that he has managed to create a fait accompli for the American government. He played the dangerous strategy of trying to win in the court of public opinion rather than in the court of law and it doesn't seem to have paid off.

Anonymous said...

"the fundamental failure of the UK/US extradition process to have worked by now, and to have had the prospect of extradition (and then sentencing) hanging over Mr McKinnon's head for eight years"

If the blame is not the misconceived strategy McKinnon and his supporters have adopted, and instead the fault of "the legal system", then one would might wish to make changes to the legal system to prevent this situation arising again.

However, wouldn't those changes be attacked as illiberal?

While McKinnon could, as you set-out, already be out of the other end of this process, it is surely liberal to allow him the personal autonomy to screw up his defense in this way. After all, he and his supporters chose to do so, and would have raised hell if they had been denied this opportunity.

As a side issue, I wonder if some (but not all) of his supporters might have been motivated by political considerations about the US, rather than the best interests of McKinnon.

Thanks for this series of posts, really enjoyed them.

Richard

Dr. Brian Blood said...

A very surprising outcome!

There were several possible areas of mismatch in this case.

1. that between the determination by the US to seek extradition and the seriousness (?) of the alleged offence(s) (was extradition a necessary response?)

2. that between the defence strategy and the realities of McKinnon's position (did the lawyers give and client take good advice?)

3. that between the assertions made about the case by McKinnon's well-meaning but singularly ill-informed supporters (viz. their contributions to blogs like this) and the 'facts' of the case as elicited by JoK's masterful analysis (the 'orchestrated' (?) campaign of disinformation that appeared both in the press and in the blogosphere)

4. the purpose of the law in cases like this and JoK's surprising conclusion 'Free Gary McKinnon' (is computer-crime not to be taken seriously)

JoK and I agree about the seriousness of the crimes alleged. There are few crimes in the UK that could lead potentially to a life sentence.

If countrys are unable to pursue successfully extradition requests even for serious crimes is there not a danger that 'regulated' extradition will wither away?

To be replaced with what?

In 2005, under the EAW (European arrest warrant) procedure, the UK extradited 77 people to other EU member states and had 66 people returned to this country. Under part 2 of the 2003 Act, the UK extradited 62 people last year and had 11 people returned to this country.

ref: http://www.theyworkforyou.com/wrans/?id=2006-07-19c.83822.h

And yet, very few cases find themselves in the headlines.

So far as the McKinnon case is concerned, are we happy to encourage a 'Wild West' mentality where anyone can 'rob the bank' knowing that with a smart lawyer and sufficient financial support the law can be kept at bay?

It is said that 'justice delayed is justice denied' and that is as true for the prosecuting authorities as for the defendent.

I think a more sober analysis recognises that both parties in this affair have rights and duties and what delay there has been (the combined result of a system overwhelmed by the possibility of review and a period of extended negotiation) has been adjudged modest.

It has not been the fault of the US authorities who have had to wait for legal process to wind its weary way through interminable argument some of it characterised as 'feeble' by eminent judges.

Who pays for all that?

In my view there is no good reason for the case not to come to its natural conclusion in recognition of the 'facts', of the 'choices' made and of the 'strategies' relied upon in court.

The defendent lost because his position was indefensible not because of the overbearing, illegitimate nature of the prosecution.

In other words, without open, comprehensible justice through the courts there is no justice at all.

The boy done wrong!

Dan said...

While I would agree that in many cases custodial sentences are inappropriate and indeed counter-productive, I believe that in exactly such cases as this, i.e. pre-meditated "white-collar" crime they do indeed serve to protect the public, as they are an effective deterrent against offenders.

It should be clear to anyone considering hacking into our government/police/armed forces networks that they are not just risking a slap on the wrist. They can decide upfront if they can "do the time" should they "do the crime".

The real tragedy here appears to me to be the kind of martyrdom and fame that McKinnon has been given by his "supporters" which has probably resulted in the poor decision not to just do the time when the plea bargain was offered. Having seen the examples of poor thinking in the comments here, such as
- the victim was to blame for not protecting themself enough
- you can just press a button and restore your backup if you discover someone has been hacking into your systems, costs nothing

maybe McKinnon became convinced he was some kind of hero who had done nothing wrong?

So, "supporters" - you have your martyr. It must feel great to be able to fight against oppression in this way.

Bit of a shame for the martyr though.

Don Trustem said...

All of you very conveniently miss the fact that what McKinnon did was not, I repeat, not extraditable.
To make it extraditable there had to be an element of financial damage with a threshold of $5000. The US conveniently claimed exactly $5000 of damage in each system he accessed including several Universities who later publicly denied any damage. Those Universities were quietly dropped from the superseding indictment which also conveniently allowed them to justify the delay of over three years for the one-sided, non evidential treaty to be used by the UK.
The Judge you quote, Nicolas Evans, had not seen the 2009 disclosure from the CPS that there was no evidence only hearsay and therefore inadmissible, neither was he privy to the plea bargain and threats nor was he shown any actual tangible evidence.
The whole point of this is, had they tried to extradite McKinnon in 2002 as they should have by rights, there would have been a UK hearing and the evidence would have been contested and since according to the CPS not only was it inadmissible but they expressed grave doubt that proper protocol had in fact been followed when McKinnon's own computers had been examined, it is seriously doubtful that the US would have succeeded.
Justice Stanley Burnton declared in court that McKinnon’s offences were far less serious than previous similar cases (Bevan and Caffrey) and they were both tried here and acquitted. The CPS and The High Tech Crime Unit who first arrested McKinnon both wanted to prosecute McKinnon here. Marc Kirby the officer in charge of the arresting unit recently stated that Mckinnon could have and should have been tried here. Russell Tyner from the CPS told McKinnon's lawyers that the CPS were told from the very top not to pursue the prosecution. A political decision not a legal one.
Lets get this clear the effect of the Treaty was not only to remove any evidence from the proceedings but to also remove any judicial scrutiny of any allegations so to quote outdated judgements from those who were not even privy to the CPS disclosure is disingenuous and deliberately misleading.
No lawyer writes six consecutive and extensive blog posts regurgitating allegations and trying desperately hard to represent them as fact when you have had years in which to do that and to do it now, at a time when crucial decisions are being made, both about the treaty and about McKinnon's future seems somewhat sinister and makes me question your agenda and possible ulterior motives. Riding on the back of McKinnon’s misfortune is distasteful in the extreme.
No British person in their right mind would defend this traitorous Extradition Treaty.

Charles Barry said...

A surprising volte face based upon principles entirely exogenous to the case.

I think your stance on custodial sentences is principled but eccentric. Retribution (ie punishment) is an essential part of sentencing.

Furthermore, for McKinnon to recieve "mercy" (ie the charges be dropped) would be farcical. It would provide an incentive for anyone to appeal for as much as possible so that they can claim they were badly advised and in need of mercy.

There is sufficient evidence to bring him to trial in the US, on both the new and old extradition treaties.

The evidence is mostly in the US, hence why the extradition is occuring in the first place.

The threshold for extradition is that the sentence in both countries exceeds 12 months imprisonment. If the trial were in the UK, the maximum sentence would be life imprisonment.

There will always be nutjobs (see Don Trustem above) who think that there is some sort of conspiracy at work, and attempt to prove it so by focussing on the most insignificant and trivial of details.

But the big picture is that Gary McKinnon has either admitted his crimes, or there is substantial evidence to prove it. He therefore should face extradition to be tried and if found guilty, punished by the people who he hurt.

Dr. Brian Blood said...

Just a few points following Don Trustem's contribution.

I have been unable to find anything about and 'element of financial damage' being necessary to a request for extradition.

I have found that an offence is an extradition offence within the meaning of the relevant convention or treaty:

"... [if] the offence concerned [is] to be punishable by at least 12 months imprisonment ..."

Can anyone provide a reference for the oft-made assertion about damages?

The Courts have already decided that the evidence supplied by the US to support the extradition request meet the pre-2003 test.

The assertion about protocol and the examination of McKinnon's computer(s) should form part of McKinnon's defence when and if he is tried in the US courts. We have not been able to read the so-called Review Note 3 and as skeptics we could be forgiven not wishing to form a judgment on it until we have.

Much is said of Lord Justice Stanley Burnton's purported remarks in court about evidence, etc.

Could someone point to a verbatim report of the proceedings - the judgment, itself, makes no reference to this opinion.

McKinnon's lawyers and US officials were engaged in plea bargaining between shortly after McKinnon's arrest in November 2002 and April 2003. Once the plea bargaining had collapsed, the US had its extradition request. One can assume it made sense for the CPS and others not to proceed through the UK courts before April 2003 and thereafter once the request had been made. The reasons for this were set out clearly by the CPS. Of course, the National High Tech Crime UNit would not have taken a decision whether or not to prosecute; that decision lies with the CPS.

The Guardian article of 9 July 2005 gives the name of the arresting officer as Jeff Donson of the NHTCU. Who then is Marc Kirby?

The suggestion that JoK is part of some so-called' conspiracy against Gary McKinnon (as, assumedly, are those of us who contribute to this blog) is a measure of the paranoia gripping the 'Free Gary McKinnon' claque.

Surely, a more obviously intelligent response would be to sign JoK up as a high-profile supporter of the 'Free Gary McKinnon' campaign!

Dan said...

CALL INTERCEPT: U.S. Navy landline. Caller: Captain XXXXXXX

Hey buddy, how's it going'? You still in the IT business? OK! Well, I need a favour. Problem is, we've had a hacker in our network. He seems to have had access for a long time - maybe upwards of 6 months. And this is critical, we need to find out what he's been up to and repair all the damage he's done. You'll need to check every computer on the network - just a few hundred I think - and look for evidence of any attack. Have to find out dates and times too, and it's important you ascertain if any sensitive information has been uploaded from any of them, or if any files have been modified, or if any of the user accounts he got access to have been doing anything suspicious on the servers. Then once that's done, you'll need to restore from the backups, but you'll need to find out which dates to restore to, and make sure you don't lose any valid data that has been updated in the meantime. Then all the users (coupla thousand) will need to be issued with new accounts. That's all I can think of right now.

You can do that? That's great! Yeah, well you can start right away. My ass is on the line here! Oh, and just one thing: we're on a bit of a tight budget, so can you keep the costs down? We can't go over $4999 on this.

Hello? Hello?

Trinoc said...

We have now twice seen Don Trustem's argument that the offence was in fact not subject to extradition except for the (allegedly) ad hoc decision by the US authorities to place the cost of the damage at exactly $5000. This point does not seem to have been dealt with in any of the blog posts (correct me if I'm wrong: I read the earlier posts quite a long time ago).

Does the treaty, or US extradition rules, restrict extradition to damages of $5000 or greater, and if so, does it not seem contrived (to say the least) that the charges should quote exactly this figure in all cases (assuming this has been reported correctly)? How likely is it that the cost of damage to each system should be exactly this amount?

(I see some more substantial comments on this subject have been posted while I typed this, but I'll let this comment stand anyway.)

Jack of Kent said...

I usually do not comment on my own blogposts, as I usually have said everything I want to say in the blogpost itself, and it is really for others to comment and not me.

I also do not really want to get into comment exchanges so this is a one off.

I simply cringe when the coercive power of the state is involved in any given situation.

This should not affect one's legal and evidential ananlysis and that is why I seperated out my analysis from my perhaps (over) liberal conclusions.

I wrote the five substantive parts knowing that I would ultimately come down against extradition on the "deus ex machina" of mercy.

(And that is exactly how mercy should operate, in my opinion; else it should be factorerd in as part of the legal and justice system.)

And I am glad no-one detected my liberal bias. No-one accused me of allowing my liberalism to affect my legal and evidential analysis.

Indeed the opposite: I have had some fairly unpleasant attacks on Twitter over the last week.

However, I stand by my conclusion.

The alleged offences occured in 2001/2 and were evidenced and documented at the time. There appears to have been no further evidence since then.

For me, the subsequent eight year delay indicates a significant failure by the extradition system to properly deal with this case.

So on this limited point (as well as because of my general dislke of custodial sentences other than for the protection of the prisoner and others), I believe mercy should be shown in this case.

However, if you are not with me on this, then I concur fully there is nothing either illegal or unjust about Mr McKinnon's extradition.

Dr. Brian Blood said...

Dear JoK,

You wrote

"I simply cringe when the coercive power of the state is involved in any given situation."

I think most of us would share this sentiment.

But, you appear to miss an important point.

The story begins not with an act of coercion but with an act of free will.

Gary was not refusing to pay taxes demanded of him by the authorities because, for example, he disagreed with part of those taxes being used to pay for what he considered an immoral war.

Gary was not prosecuted because he had chosen to exercise what he saw as his right to free speech by reading out, without prior permission, the names of soldiers killed in what he held to be an illegal war.

Gary was not prosecuted for taking pictures of his children in a state of undress cavorting in the privacy of a paddling pool.

There was no coercion at all in what he did which was to break into properly private networks, copy private files and damage system integrity.

There was no principled stand, no political sub-text (despited his lawyer's futile attempts to invent one), nothing where the legal response was either illiberal, unjust or oppressive.

I can see no difference between a private company or a government going to law, so long as that law has a justifiable purpose.

Freedom of information requests in the US have been used successfully to 'explore' what data, if any, might be held within Government departments on UFOs.

We entrust information to governments but we ask them to ensure that information is accurate, relevant and, most of all, secure.

McKinnon's behaviour is inimical to regulations designed to ensure data security and our demand that it be so.

In that sense, we are all McKinnon's victims.

Elaine said...

"private networks"??

So private that they weren't protected with passwords or firewalls? Come on! That's not going to wash, BB, and you know it.

Still wondering if JoK will publish this link?

http://www.computerweekly.com/Articles/2010/06/14/241578/McKinnon-charges-exaggerated-by-government.htm

Or Review Note 3?
Or the Peter Sommer report?

Come on, JoK, get it together!

krelnik said...

I have to agree with @andyourelectronmicroscope, @Jay and @CharlesBarry in commenting that your proposal of mercy over the delays is sure to result in more delays in other cases, in the hope of invoking the "mercy clause". This is not good policy.

Yes, incarcerating Gary McKinnon at this point is not going to change him. But perhaps his incarceration might dissuade some other script kiddie like him from attacking a computer in the future. (A computer, I might point out, that might have YOUR credit card number or private information on it).

Ian Grant said...

Not all madia have covered the McKinnon case in the same way. Computer Weekly has consistently questioned the strength of the state's case against extradition, most recently today. http://bit.ly/bBUjRM.

Elaine said...

And I understand that Mark Ballard at Computer Weekly was at all the court hearings. Unlike some :-)

So let's hear no more of your outrageous and unsubstantiated claims, JoK about the FreeGary 'campaign' 'spoonfeeding' the media. That kind of behaviour does your reputation no good at all.

Lloyd Jenkins said...

I'm not sure I can agree with @krelnik, @charlesbarry @jay etc about a 'mercy clause' that would incentivise drawn-out procedures. If a minister thinks that procedures are deliberately drawn out she could refuse to grant mercy.

More important is the point that @anonymous makes: if you want to blame the system for taking too much time then you have to a) suggest how it could work faster (most likely by narrowing the scope for appeal) or b) reject the concept of extradition in complex areas of the law. If there is a liberal a) then I'm all for it, but I doubt there is.

Finally, I cannot follow JoK on the custodial argument. The people of the US -through their democratic representatives- made decisions about the ability of individuals to access and alter computers. By disregarding their wishes McKinnon did a serious political and moral harm to those people. He can't undo what he did but he can -via a custodial sentence- suffer for his sin and so act as a disincentive to future criminals. In doing this he can square his account with US society. If he walks free he remains in their debt.

Bl**dy fantastic series of posts, though.

Lloyd Jenkins said...

*by "I cannot follow" I meant "I can't agree with" rather than "I can't understand".

Elaine said...

"He remains in their debt"??

You've got that the wrong way round, haven't you, Lloyd?

He has suffered years of trauma, from which psychological injury he may not recover. And they have had their security flaws highlighted, with no damage done. You do the math.

The people of the US through their representatives made decisions (contrary to the military's legal obligations) not to protect their networks with basic computer security measures such as firewalls or passwords, so that hundreds of thousands of foreign nationals could (and still do) access their systems daily:

http://www.presstv.ir/detail.aspx?id=129399&sectionid=3510203

In addition to which, the only evidence or admission is for a non-extraditable, non-violent Summary Offence, now long since out of time. If the CPS had been allowed to do their job at the time, Gary would have indeed paid for what he did as per the law dictates. Instead, he's paid for it ten-fold without even being tried.

Mark dj A said...

http://www.computerweekly.com/Articles/2010/06/14/241578/McKinnon-charges-exaggerated-by-government.htm

Lloyd Jenkins said...

@Elaine: Dan makes the point quite clearly that there is certainly financial damage, but I was discussing political harm. By denying the right of the American people to make decisions about their country McKinnon has done them a political injury. Unless he repays that he remains in their debt.

I can't accept that the trials and tribulations of extradition are sufficient harm, as you suggest. Those proceedings wouldn't have any meaning -or have caused any suffering- without the eventual threat of prison behind them.

The idea that the US is to blame because of their lack of security has been heavily discussed on these reports: all I'd add is that the harm done to the US people by McKinnon breaking the law isn't changed by the need for firewalls et al on government computers. The government might also have breached it's legal obligations, but that doesn't change the fact that McKinnon ignored the will of the US people.


Obviously, if he's innocent then the above doesn't apply. I must reiterate that if McKinnon is innocent, trial in the US won't harm him at all.

Elaine said...

@Lloyd Jenkins - Yeah. Except that there isn't any damage. When JoK publishes the forensic report, (I can't understand why he hasn't done this already, in the interests of completeness, skepticism and balance) perhaps Dan will reconsider his view.

As for the harm done by the extradition proceedings, it doesn't really matter whether you accept it or not - it's documented by the medical reports! Doh! If driving someone to be near-pscyhotic and suicidal isn't a harm, then I don't know what is.

No-one is saying that the US is "to blame", just pointing out that the US military had a legal obligation to secure their systems, and they demonstrably didn't. This doesn't make what Gary did ok, but it does put a slightly different flavour on things, and on the US and UK government's claims that Gary did such a dreadful and terrible crime. There is a reason why "unauthorised access" is a CMA Level 1, then a Summary Offence. Think it through. Seriously.

As for a US trial not harming him at all, I think you've got the wrong end of the stick. The man has a phobia of travelling. And he hasn't done an extraditable offence, and the evidence shows that. What planet are you on, exactly?

English Pensioner said...

I tend not to be interested in the rights and wrongs of what he has done but I am interested in the computer aspects and security.
The obvious question is, if someone suffering from Asperger's Syndrome and having quite limited computing facilities can hack into the U.S. military systems, how many other people might have done the same thing?
On the basis of what was done, presumably GCHQ, along with its Russian, Chinese, French, German and Israeli equivalents could have done the same, but with somewhat greater skill and leaving no traces.
If I were a U.S. citizen, I would be worrying far more about such possibilities than worrying about a loner hacking into the systems for his own personal gratification. Indeed, I would be inclined to thank him for having shown up the weaknesses and be writing to my Congressman demanding that security should be tightened up and that heads should roll!

Lloyd Jenkins said...

Elaine: I'd like some confirmation that I understand what you're claiming:
a)There was no damage. This can only be the case if there was no hacking: checking systems for damage takes time and checking data on those systems to see if it's been edited takes time. Time is money.
b) The absolute lack of evidence of damage has been ignored by several senior members of the judiciary, who've been quite clear that there is a case to answer.

In short, McKinnon didn't hack, but the judiciary are conspiring with the US government to imprison him anyway.

Is that your honest belief?

Dr. Brian Blood said...

The role of PR in litigation is rather unusual - after all, who but the richest of us could afford it - but there is clear evidence that The NatWest Three and Gary McKinnon share a PR firm, Bell Yard.

ref: http://www.techradar.com/news/internet/bob-geldof-records-song-for-gary-mckinnon-622897

What exactly would we expect the role of a PR firm to be?

Adam Hartley, writing in techradar.com (4 August 2009 - reference above) suggests that they are "stage managing a veritable welter of high-profile campaigning celebrities has taken the 'justice for McKinnon' campaign to a totally different level."

And for those of us who find this hard to believe see

http://www.bell-yard.com/mckinnon.php

There you will find a (misson?) statement setting out the case in terms very similar to even if less decorated than those promoted on this blog and elsewhere by the more ill-informed and discredited members of the 'Free Gary McKinnon' claque.

What understanding is ever there to be gained in reciting only the case for the prosecution (which by its very nature will be partial) and to the exclusion of any available evidence or information to the contrary (which even if partial at least tends towards providing some kind of balance).

Where bloggers have provided documented corrections to false assertions (whether about the law, about procedure, about the 'facts' of the case, or whatever) it should be reasonable to expect these to be taken on board; where references have been asked for to assertions for which no evidence has been provided it is good manners to provide them (Elaine still has not provided referneces requested); where references have been provided it is assumed they will be read and later responses will reflect that.

Blogging should be a process in which there is a steady transition from mutual ignorance to mutual enlightenment.

Anonymous said...

Apparently, according to some, it is OK to steal a car if someone leaves it unlocked or if the latest alarm system is not fitted.

Richard.

Dr. Brian Blood said...

A correction and some additional information regarding an earlier posting by me:

I quoted the arresting officer as being Jeff Donson (the name given in Jon Ronson's 9 July 2005).

'Jeff' is actually Geoff Donson who, by 2008, had left National Hi-Tech Crime Unit to become Group Security Manager, Telecity Group. In addition to working with Telecity Group, Donson was then a part-time lecturer on the MSc Information Security and MSc Computer Forensics at Westminster University. He was also a member of the Royal Signals Reserve specialising in Information Assurance.

http://www.fstech.co.uk/datacentres/4/speakers.htm

Marc Kirby is described in October 2008 as a former head of forensics at NHTCU and now a department head at Cranfield University, where he teaches computer forensics.

http://searchsecurity.techtarget.co.uk/news/article/0,289142,sid180_gci1333021,00.html

see also:

http://www.cranfield.ac.uk/cds/staff/kirbymarc.html

The NHTCU was shut down in 2006. About two years later the Police Central e-crime Unit (PCeU) was created with the intension of plugging the gap left by the loss of the National Hi-Tech Crime Unit (NHTCU), and to provide businesses and the public with a more effective means of reporting e-crime.

http://searchsecurity.techtarget.co.uk/news/article/0,289142,sid180_gci1333021,00.html

says:

"It will come into operation in spring 2009 alongside a new National Fraud Reporting Centre (NFRC), and National Fraud Intelligence Bureau (NFIB), which will come under the control of the City of London police."

Nick Sharratt said...

My view if these blog posts is that they form a good analysis and summary of McKinnon case based on what the law is and documented events.

However, My issue has always been with what the law SHOULD be and should work.

I still have reservations with virtual crimes being prosecuted in the jurisdiction of the effect rather than where the act was committed.

From your summary looking at the extradition points, I'm less concerned by this due to now appreciating the difficulty of producing evidence elsewhere to the effect, but it is a can of worms that still concerns me.

I do also struggle with your liberal conclusion that the system has failed to reach a timely conclusion and hence should effectively forego any "punishment" role. While I can understand the logic, I worry that such an approach to "justice" would unavoidably have an impact on future behaviour of defence council which would be detrimental to the system of justice and society as a whole.

While a custodial sentence would be a difficult thing for an individual to feel comfortable imposing, society/system sometimes needs to "suffer" on our collective conscience imposing such penalties - but we should never do so easily.

On that basis, I think it entirely reasonable that complex legal cases with many threads and points to be clarified should require significant time to be processed as I feel justice would be worse served by rushing judgement. That this has a negative impact in the individuals affected is regrettable, but preferable for the greater good. (I really don't like that view, but the alternative logically leads to the collapse of any justice system and eventually anarchy logically, which is worse?)

-composed on a mobile device so likely to include grammatical and spelling errors - sorry

Dr. Brian Blood said...

Further to the likely sentence McKinnon would face if tried in the US, readers might like to review:

http://www.justice.gov/criminal/cybercrime/cccases.html

This is a survey of numerous cases involving cybercrime wich tend to confirm the scale of sentence to which McKinnon, if found guilty, might be exposed.

To this we can note further the undertaking aready given that most of that sentence could be served in the UK.

Mike from Ottawa said...

Elaine,

You challenge JoK to post certain materials you purport to rely on in support of McKinnon. However, the burden is generally on the proponent of a claim to supply the evidence to back it up. You also refer to alleged statements of Burnton, LJ, that nobody can find? Stop playing silly buggers and provide links to the 'Review Note 3' and 'the Peter Sommer report' yourself and point out where Burnton made the statements you claim.

If you don't, we're entitled to conclude your claims purportedly based on those documents are bollocks.

Afterall, if we are to insinuate conspiracy, as you do serially in resepct of JoK, why would you not post links to those documents if they support your position as you claim?

Produce your evidence please if you would have any credibility. As far as I'm concerned, you have none at this point.

RichieRich said...

@ Mike from Ottawa

I think bollocks about covers it. How difficult is it to either (a) provide web links to these much vaunted documents or (b) explain why such links don't exist (e.g. the documents exist only in hard copy).

To do neither is just game playing.

First High Warlord of Didcot said...

I haven't had time to read it, but this appears to be (at least a summary of) "review note 3"
http://www.computerweekly.com/DowntimePDF/pdf/mckinnon.pdf
Hope this helps.

Before I read the blogs, I was staunchly "Free Gary" I am less so now because of this series of blogs. They have been truly enlightening, and have helped me understand a legal process that has been subject to poor and usually biased reporting.
Sadly this last piece has left me cold.Charles Barry called this post "a surprising Volte Face based on principles entirely exogenous to this case" and he's absolutely right. It just doesn't fit with the rest of the discourse.

Also, some issues remain that have been really bugging me.

If the US had enough evidence to show a prima facie case leading to a pre 2003 extradition, then why didn't they proceed on that basis and present their best case?

Regarding the plea bargain. It was rejected because the prosecutors refused to confirm the deal. That seems fair reason to me not to take it. Was the plea bargain a genuine offer or not? If the offer was rejected because of a misunderstanding, then for justice to be served, the offer needs to be revisited, surely?

My own gut feeling is still that there should be no extradition, but I think it's down to my own feelings about the last government's use of the "war on terror" to dismantle civil liberties in the UK. This treaty was brought in under the auspices of anti terror legislation. Exactly how many suspected terrorists have been extradited so far?

My Twitter feed has a large Jack shaped hole in it at the moment, which is a great shame. Thanks for donning the tin hat and taking this subject on!

Dr. Brian Blood said...

I would welcome any comment on the work undertaken on McKinnon's behlf by Bell Yard who described themselves as practioners of Litigation PR.

While their work may not be accurately respresented by the wikipedia article on this subject

ref: http://en.wikipedia.org/wiki/Litigation_Public_Relations

I am surprised to read in the wikipedia piece that

"Basic Concepts of Litigation Public Relations is to influence the outcome of the court case by encouraging early or favorable settlement or by pressuring the prosecution into bringing lesser or no charges"

Any comment from the lawyers among us?

vic said...

Mercy may be appropriate, but isn't the appropriate time for mercy at sentencing? For all we know, Mr McKinnon might be found not guilty and the question of custodial sentences moot.

Alex said...

"And on this point I make no fundamental criticism of the campaigners. In a free and liberal society, one should be able to campaign against any political or legal decision on whatever terms one thinks are appropriate, subject to very limited exceptions."

That doesn't make sense. Yes in a free and liberal society "ne should be able to campaign against any political or legal decision on whatever terms one thinks are appropriate, subject to very limited exceptions", but that doesn't mean they shouldn't be criticized. There is a difference between the law and morality. People should be legally free to do those things, but that doesn't mean that morally they shouldn't be criticized. People should be free to deny the Holocaust, but I will use my empiricism and morality to condemn them at every step.

vp said...

Your mention of Flat Earth News reminds me once again of the NatWest Three. It must be said that the Gary McKinnon case seems almost like an action replay of the NatWest Three, even to the extent of having the same PR firms involved. Flat Earth News mentions the publicity campaign on behalf of the Three:

According to some of those involved, when Bell Yard took on the case of the three bankers, its founder, Melanie Riley, rapidly saw the story she wanted. Fleet Street must stop talking about the alleged guilt and extravagance of these three men and must focus instead on one single aspect of their case, the new Extradition Act under whose terms the three men now faced trial in Texas

Taken from the NatWest Three Wikipedia page

Dr. Brian Blood said...

replying to First High Warlord of Didcot:

a. "If the US had enough evidence to show a prima facie case leading to a pre 2003 extradition, then why didn't they proceed on that basis and present their best case?"

By the time the extradition request reached the UK courts the Extradition Act 2003 was the law. The earlier Acts has been superceded by the new one. This was a fact of life - it was entirely proper and correct to work under the Act in force at the time of the application rather than under previous and therefore redundant Acts.

"Regarding the plea bargain. It was rejected because the prosecutors refused to confirm the deal. That seems fair reason to me not to take it. Was the plea bargain a genuine offer or not? If the offer was rejected because of a misunderstanding, then for justice to be served, the offer needs to be revisited, surely?"

From my reading of the evidence, the bargain was rejected because McKinnon was not prepared to travel to the US for trial. In the early April 2003 meeting between his lawyers and US officials (after almost 6 months of negotiation) McKinnon's lawyers were still trying to get the US authorities to agree to a prosecution in the UK.

I think the US officials sensed that McKinnon's team were 'digging in' for a fight through the UK courts, hence the comment about 'see him fry', and indeed within weeks the deal appears to have been formally rejected.

The demand for a written undertaking regarding the plea bargain was probably something the US side were unable to give - not because they intended to renege on it (after all its terms were set out later in evidence to the Courts) but because the US courts retained the right and duty to examine the 'deal' and could, if thought necessary, modify it.

From enotes.com on plea bargaining:

"One important point is a prosecuting attorney has no authority to force a court to accept a plea agreement entered into by the parties. Prosecutors may only "recommend" to the court the acceptance of a plea arrangement. The court will usually take proofs to ensure that the above three components are satisfied and will then generally accept the recommendation of the prosecution."

see: http://www.enotes.com/everyday-law-encyclopedia/plea-bargaining

As far as I understand it, under extradition law, McKinnon could only face the charges set out in the extradition request and the scale of sentencing in cases like this is clear from

http://www.justice.gov/criminal/cybercrime/cccases.html

I think McKinnon was not prepared to go to the US under any deal, guaranteed or not, and that although his lawyers tried to convince him of the benefit to him of voluntary surrender to the US authorities, it was McKinnon who resisted taking that path.

JoK has already pointed out that even if McKinnon is finally extradited, brought to trial and found guilty of these charges, he will spend most of his sentence in the UK.

Which is also why I favour the current extradition process moving to its natural conclusion through the Courts and with the Home Secretary playing her proper role under the Act.

raincoatoptimism said...

"Indeed, the media presentation of the case was simply not recognisable."

I know what you mean, you just can't find the law hacks anymore heh!!

Bravo for the posts - a tremendous success.

Dr. Brian Blood said...

For those still trying to come to terms with JoK 'bolt from the blue' I would recommend this piece on 'mercy vs. justice'.

http://atheism.about.com/library/FAQs/phil/blphil_eth_mercyjustice.htm

It has the merits of being concise, clear, interesting and thought-provoking and might suggest why JoK has taken the position that he has.

Jack of Kent said...

I didn't expect to post another comment...

But yes Brian, that piece is spot on.


I am also so sorry that so many of you find my final view misconceived.

Yes, the rigorous legal and evidential analysis points only to the extradition of Mr McKinnon.

I do not think it would be either unjust or illegal to extradite him.

But mercy is a different and sometimes conflicting virtue to justice, and can step in even when the mistakes are self-inflicted.

I did not enjoy undermining almost all of the central elements of the "Free Gary" campaign, especially as the extradition of a person is a central issue.

But the Free Gary campaign has really caused such a complete "Flat Earth News" story to develop, it was now beyond the MSM to challenge.

It could only be challanged by source-based blogging, and (perhaps wrongly) I thought I was the best position to do it, as someone with an established reputation for liberal and source-based blogging on other legal matters, and also as someone with no axe to grind.

But the trolling/abuse from Free Gary supporters has not been pleasant.


However, I plan now to put all five substantive parts together into a single blogpost as a point of reference.

And as for the various contributions of Elaine and others, I do wonder if it is significant that they seem far more concerned with defending their now discredited campaign rather receiving me as a fellow opponent of the extradition (albeit on narrower terms).

It is almost as if "Free Gary" has become more than a campaign, where the "truths" of the campaign have become so important that they cannot be allowed to be doubted, even by fellow opponents of extradition; that promoting and defending these "truths" have strangely become the end of the campaign itself.

I simply cannot see how this campaign is practically helping Mr McKinnon.

I feel desperately sorry for Mr McKinnon. I hope he is not extradited. Eight years is an awfully long time to have extradition hanging over you to then face trial and sentence, even if the delays are mainly self-inflicted.

I wonder if it is a legitimate question as to whether he needs freeing as much from his own misconceived campaign and legal strategy, as much as from the threat of extradition.

Is it perhaps time in that respect as well to "free Gary"?

I just do not know.


For completeness, the various documents and reports mentioned by Elaine have been considered (as far as I am able to source them). I just thought they had little or no evidential or legal weight compared to the sources to which did referMy reasoning on these is much the same as that of Dr. Brian Blood, whose contributions to this series of blogposts have been more than exemplary.

Ciaran said...

Don Trustem, Brian Blood and Trinoc raised questions about the relevance of the various references to $5,000 worth of damage.

These references come not from any provision of the extradition laws but instead come from the US criminal statute that McKinnon allegedly contravened.

The relevant details are set out in one of the indictments which JoK linked to in the first part of his review. The relevant indictment is the one issued in November 2002 in the District Court for the Eastern District of Virginia. The indictment alleges that McKinnon’s actions were in violation of Title 18 of the United States Code, Sections 1030(a)(5)(A)(i) and 1030(a)(5)(B)(i). These provisions deal with “Fraud and related activity in connection with computers”.

The text of these provisions can be found here-

http://www.justice.gov/criminal/cybercrime/1030NEW.htm

In short, these provisions state that hacking into computers without authorisation is a criminal offence under Title 18 of the US Code if its causes-

“loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value”

So, the issue of $5,000 worth of damage is a necessary element of the alleged offences which the prosecuting authority must prove in order to establish McKinnon’s guilt under the charges they have brought against him. If they cannot prove that he caused at least $5,000 worth of damage then presumably he is not guilty of the alleged offences.

If found guilty of the alleged charges, then Section 1030(c)(4)(A) provides for the penalty. It is a fine or imprisonment for not more than 10 years, or both.

This would seem to adequately satisfy the extradition criterion mentioned by Brian Blood that to be extraditable the offence must be one that is punishable by at least 12 months imprisonment.

So, the objection raised by Don Trustem does not appear to invalidate the extradition proceedings as the prosecutors do not have to prove the offences at this stage. That can only come later after the full trial in the US court begins.

Dr. Brian Blood said...

Ciaran, many thanks for clearly that up.

Might I comment on how I see 'mercy' having a role in this case.

The 'Free Gary McKinnon' campaign has been based primarily on two premises; that i. extradition (and the 2003 Act in particular) is in someway generally unfair, unreasonable or oppressive, and ii. the US authorities have exaggerated the allegations in order to pursue a vindictive campaign against McKinnon.

On the Free Gary McKinnon website

http://freegary.org.uk/

under 'Comments Policy' you can read:

"You are free to condemn Gary McKinnon's past stupidity, and to highlight the need for appropriate, proportionate criminal justice, all of which Gary accepts."

Quite apart from the disingenuous description of McKinnon's 'allegedly' prolonged and extensive criminality as mere 'stupidity', it is surely not unreasonable to consider what, in respect of further legal process, would now be appropriate and proportionate?

Not completing a process that would demonstrate that the original allegations are proved (or not) seems to me unsatisfactory.

McKinnon has to admit to all the charges brought, or contest them; otherwise, the impression left is that the prosecution has been disproportionate, vindictive and oppressive.

The 'statements' made to the US court by the NatWest Three,

see: http://en.wikipedia.org/wiki/NatWest_Three#Sentencing_and_prison

where they admitted their guilt, were important because they 'justified' the prosecution, laying to rest any lingering suggestion that it was inappropriate (viz. the PR campaign organised in their support by Bell Yard).

In my opinion, 'mercy' has no role to play in the extradition process. The UK freely entered into treaties with the US (as well as several other countries) and if McKinnon's case warrants extradition then the process should not be frustrated.

As regards McKinnon's medical state, assurances have been given which at least until now have been considered appropriate.

Once in the US, one would hope that McKinnon would be free of the, IMO, wholly misconceived, misdirected and ultimately ineffective PR campaign run by Bell Yard.

It would be open to McKinnon's US attorney to seek a plea bargain with the prosecuting authorities and once in court to seek that court's 'mercy' as regards the sentence (be it a fine, a period of imprisonment or both).

In my opinion, the potentially 'corrupting' effects of litigation PR should not be allowed to frustrate the proper rational outcome of open, justifiable legal process.

Once before the US courts, McKinnon should be supported in any pleading his lawyer might make for a merciful judgment.

supergoonybird said...

An enthralling series of blogs - and some very interesting comments. At the risk of stating the bleeding obvious, the poignant subtext to this whole sorry affair is the uncomfortable fact that it is very hard for people who see themselves as essentially harmless and law-abiding to accept that their legal infractions should incur the same penalties as those of "real" criminals (whatever they are).

I applaud the Free Gary campaigners for their unwavering support and efforts on his behalf and I am extremely sorry for him but that does not make what he did excusable. In a liberal society it is fundamental that we take responsibility for our actions and their consequences. Without this we open the door for repressive government of the worst kind - no mercy there.

Peter in Dundee said...

As I have pointed out before the US has form in grossly exaggerating financial losses in hacking cases to try and gain extradition. The hacker known as A-Kill who got in over his head with criminals since he was just a naive teenager in Christchurch, New Zealand was saved from extradition by a NZ judge who cast his eye over the claims made by the US and rubbished them comprehensively. A-Kill was instead sentenced to community service in NZ.

I have still not seen a good reason why McKinnon was not tried in this country which still stands as an option without invoking Jack's mercy plea. I would also have to disagree with him about incarceration per se, though home detention and electronic curfew would seem to be more humane methods of restricting liberty without all the downsides, and cost of prison.

I have as a juror been partly responsible for someone being imprisoned, we knew that was a consequence of finding him guilty. We also knew he was being made an example of by the prosecution. But he put people's lives in danger and for me that is the clincher.

You have to stretch things a lot to make the same claim of Gary McKinnon so in his case I do not see prison as a reasonable sanction. So ultimately I agree that he should not be extradited, though I think he should still be tried here and the longer he is not I'm afraid the more the suspicion that the lack of a trial here is a political decision. Meaning he is being judicially lynched.

Dr. Brian Blood said...

The AKill references that will be of interest are:

http://en.wikipedia.org/wiki/Owen_Walker

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10521614

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10521796

AKill (real name Owen Walker) pleaded guilty to six charges including accessing a computer for dishonest purpose, damaging or interfering with a computer system, possessing software for committing crime, and accessing a computer system without authorisation. The crimes carry maximum sentences of up to seven years' imprisonment.

Justice Potter ordered him to pay his share of the damage to Pennsylvania University's computer system of $9526, relinquish computer-related assets to the police and pay costs of $5000 at a minimum of $400 a month, and discharged him and wished him well.

The 1970 US - New Zealand Extradition treaty is available here:

http://newzealand.usembassy.gov/uploads/images/o16y8MOyHW2l-jJTxaMpeQ/ExtraditionUSNZ.pdf

Dr. Brian Blood said...

I should have mentioned also that Owen Walker was only 16 when the crimes were committed.

ref: http://www.mcbridelaw.co.nz/pdf/employment/article3.pdf

Dr. Brian Blood said...

I hope these links help put certain aspects of the AKill story into perspective.

1. The story and its worldwide ramification:

http://garwarner.blogspot.com/2008/04/akill-convicted-are-we-safer-now.html

2. What a discharge means in the New Zealand legal process:

"In New Zealand, offenders can be "convicted and discharged" (gets a criminal record, but no other punishment) or "discharged without conviction" (no punishment and no criminal record). Note that suspects can be discharged without conviction even if they plead guilty to the alleged crime. This is usually done in cases where the negative impact of a conviction far outweigh the crime committed. For example, if a high-end businessman is caught in possession of a small quantity of marijuana, due to the small nature of the crime compared to the effects a conviction (even without a sentence) would have, he may be discharged without conviction."

ref: http://en.wikipedia.org/wiki/Conditional_discharge#New_Zealand

Lloyd Jenkins said...

Brian Blood: you have been a troll-killer of the highest order on these posts. And you've added a lot of interesting information. Well done sir.