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McKinnon
By Jamie Thunder
August 2009
In Britain, but perhaps not for very much longer, lives a man named Gary McKinnon. He is 43 and currently unemployed, although he used to work as a hairdresser. He is also at the centre of one of the UK’s most controversial stories of the year.
Gary McKinnon is a British man facing extradition to the USA on hacking charges. This summer a judicial review upheld his extradition, and it looks like only a matter of time before he’s sent off to Virginia for trial.
The media campaign to ‘rescue’ Gary has been massive in the UK – it’s been spearheaded by the Daily Mail, a very influential and very conservative newspaper. It’s not just them, however; I did a quick trawl of national newspapers and didn’t find a single opinion piece supporting the decision to extradite, but at least one in every national paper attacking the decision. That’s some serious shaping of public opinion there.
Anyone who has followed the media campaign will know a few things about poor Gary: he has Asperger’s; he’s being extradited under a highly imbalanced treaty; and he’ll spend 70 years in a vicious US jail.
Obviously it’s not that simple. First of all, there’s been surprisingly little mention of the fact that Gary has confessed to accessing over 90 US military/NASA computers in 2001-2002 via administrator accounts with blank passwords. He’s also admitted to leaving a slightly childish anti-US foreign policy rant on at least one, as well as messages saying ‘your security sucks’.
(He claims that these last messages were actually to warn the US authorities. Uh huh. That’s definitely the way to do it.)
He denies the US claims that he caused $700,000 of damage by deleting files, but that’s about it. In an attempt to have his trial held in the UK, he told the Director of Public Prosecutions that he’d done the rest.
In the letter, Gary admitted to offences under section 2 of the Misuse of Computers Act, offences which carry a maximum sentence of five years. This section covers ‘unauthorised access with intent to commit or facilitate commission of further offences’. Given his repeated denial of any damage done to US systems, this seems a little strange – especially when you consider that section 1 covers ‘unauthorised access to computer material’ without the ‘further offences’ bit.
Gary actually claims that he accessed the computers looking for evidence of UFOs. In a neat twist that keeps any interviewer nicely off any nasty questions, he also says he found some. Deliberately or not, this creates an image of an eccentric Brit who shouldn’t be removed from the country.
There are a few arguments for Gary to be tried in the UK. One is that he was physically in the UK at the time. This one’s a little nonsensical, because all of the computers accessed and allegedly damaged are in the US and are US property. It seems reasonable that the US authorities want to be the ones to try him.
Another is his Asperger’s Syndrome. This only became an issue in August 2008, when he was diagnosed. Conveniently, he was diagnosed three days before the European Court of Human Rights was due to issue its judgement on whether to prevent his extradition pending an appeal (Gary still lost), but we won’t stoop to such innuendo here.
Gary’s diagnosis has meant that a main focus of his story has become ‘Mentally ill man to be sent to US’, with the implication that he wasn’t really at fault. Asperger’s can cause obsessive behaviour and may well account for his obsession with UFOs and even his obsession with hacking. That doesn’t mean what he did is somehow irrelevant.
Asperger’s doesn’t stop people distinguishing between right and wrong, and even if Gary did only do the things he’s admitted to, they were still wrong. A stalker with Asperger’s has still done something wrong, and so too has a hacker.
Some of the sillier suggestions that have come in defence of Gary – albeit mostly from bloggers rather than newspaper writers – have been that he should be employed by the US to strengthen their security, and that the US IT people should be the ones on trial. The second one is obviously stupid, because he still shouldn’t have accessed the computers; someone who walked into an unlocked house would still be trespassing. But at first glance Gary being employed by the US seems to make sense.
However, the hacking took place 8 years ago, so Gary’s knowledge is likely to be a little out of date. Also, it wasn’t really hacking – just opportunism and knowing how to write a simple program. So he’d hardly be a great asset.
Another line of defence for Gary is the US-UK extradition treaty signed in 2003. Its critics say it’s imbalanced because the UK has to ‘provide a reasonable basis to believe that the person sought committed the offense’, whereas this doesn’t apply for requests from the US to the UK.
This does look imbalanced, and although I suspect that both countries would have a reasonable basis to believe that the extraditee had committed the offence, the treaty needs to be balanced. Incidentally, Britain has the same extradition arrangement with 24 other countries and there’s no outcry over that. I guess anti-Norwayism hasn’t really taken off yet. But the treaty’s fairness or unfairness isn’t the issue in this case anyway; the government couldn’t just overrule it, so protesting it won’t save Gary.
The last complaint made is about the sentencing. In the UK, Gary would be prosecuted under the Misuse of Computers Act and would face a maximum of 5 years in prison. In the US, each charge against him carries a maximum sentence of 10 years – he has seven charges against him from the Virginian court, so it could be up to 70. (These differences in sentences possibly have something to do with Gary’s reticence to be extradited.)
But let’s be realistic; he won’t go to prison for 70 years. For a start, even if he were convicted of all seven offences and given 10 years for each, it’s likely that they’d run concurrently.
Gary was actually offered a plea bargain that would’ve meant he’d have served 6-12 months in a US jail and 6-12 in the UK, but he rejected it. This was a bit silly.
Whatever your thoughts on the US-UK extradition rules, it’s pretty clear that Gary McKinnon has been a naughty boy. He’s not some pitiful waif; he’s a 43-year-old man, and if 43-year-old men deliberately access government computers, they’ll be punished.
