Gary McKinnon's fight with U.S. extradition #freegary

Gary McKinnon (http://en.wikipedia.org/wiki/User:Wilsha)

Gary McKinnon continues his appeal against extradition to America. He's sought by U.S. authorities to answer charges of hacking into computers at NASA and the DoD, causing $800,000 damage. McKinnon has many vocal supporters in the UK; read on to find out why feelings run so strongly for this admitted lawbreaker. Let's take The Long View...

First, I should declare an interest. As a fellow Brit, I have obvious sympathies for McKinnon. However, I hope you'll agree that my UK residency also brings insight into the situation. But I write this as much for a British audience as an American one: there are misunderstandings on both sides of the Atlantic.

Also, please don't read too much into the name of the so-called 'Free Gary' movement: McKinnon's supporters don't necessarily want him acquitted, but they're vehemently against his extradition from the UK. Without question, he's admitted hacking crimes.

Here's some background: McKinnon is accused of breaking into NASA and U.S. military computers, during 2001/02. He admits to searching for PCs with no passwords and then misusing them, via remote-control software, to look for information about UFOs and other alien technology.

So he admits he's guilty of an offense under UK law. However, in 2005, U.S. authorities started extradition proceedings, so that he could be tried in Federal court.

A UK/U.S. extradition treaty has been in place since the 19th century; but in 2003, the UK agreed to emasculate the evidence requirements for extradition. Previously, the bar was set at the prima facie level -- that is, the same burden of proof required to bring a criminal prosecution. The new extradition treaty simply requires U.S. authorities to demonstrate "reasonable suspicion".

However, the treaty still requires the UK to show "probable cause" to extradite in the other direction -- a significantly higher standard of proof. The lopsided nature of the treaty has caused loud criticism in the UK; for example, British law journalist Michael Binyon recently opined:

Few treaties have sparked such an anti-American furore ... as the “one-way” extradition treaty signed by the Blair Government and the Bush Administration. ... Negotiated in the wake of the 9/11 atrocities ... [it's] entirely one-sided ... an example of the US Administration’s ... refusal to give Mr Blair any reward for his political support.

(As an aside: Binyon demonstrates a fundamental difference between British and American culture -- a difference I see often in business. British culture emphasises 'fair play' and keeping track of favors owed. American culture is more about negotiating whatever can be achieved, with no reference to previous situations. I'm not suggesting one culture is 'better' than the other; simply that the stereotypes often hold true.)

McKinnon's British supporters simply cannot conceive why their government would permit extradition for an offense that McKinnon himself admits was committed on UK soil. Their feelings are further enraged by the realization that the standards of proof were reduced to streamline the extradition of terrorists, not hackers. Especially not UFO-obsessed bedroom hackers.

This all comes about in the context of British citizens' mounting dissatisfaction with its lapdog politicians kowtowing to the U.S. -- it seems like just another example of a one-way "special relationship".

Extradition requires a serious allegation: usually one that would deserve a prison sentence of at least a year. Many observers doubt that hacking into barely-protected computers would be punished this harshly. However, U.S. authorities are alleging that McKinnon caused $800,000 of damage, which would conveniently tip the scales.

Those who believe McKinnon's story of bypassing laughable security to view UFO information cannot conceive that he caused any damage -- let alone $800,000 worth. Their suspicion is that U.S. authorities conveniently invented this figure, simply to justify the extradition.

If the figure reflects any kind of reality, it may possibly represent the cost of securing the networks in question, but it would be a ridiculous untruth to describe that as the cost of damage repair. Not to mention the fact that the networks should have been secure in the first place (your tax dollars at work, and all that).

Is it possible that Gary McKinnon uncovered gross negligence at U.S. IT departments? Is it possible that the department leaders conspired to 'make an example of him' to cover up their incompetence? 

May 2010 brought a new British government. While in opposition, both parties in the new coalition government had consistently criticized the treaty in general and the extradition of McKinnon in particular. Unsurprisingly, McKinnon's supporters have been clear that they expect the government to be consistent and keep him in the UK.

Reading between the lines, it seems there are serious discussions going on behind closed doors in London to ensure that McKinnon doesn't get extradited. Recent public statements by Deputy Prime Minister Nick Clegg seem to contain politically-encoded statements to this effect -- but so far, nothing concrete.

McKinnon was recently diagnosed with Asperger's Syndrome and clinical depression. The current legal fight aims to overturn the extradition on the grounds that his medical condition would make him a suicide risk.

I must say, this isn't exactly the most compelling argument for keeping him in the UK. Much as I sympathize, the real reason that the UK should refuse to extradite is the fact that the crimes were committed in the UK.

Yes, the computers McKinnon hacked into were situated in the U.S., but the criminal act and the intent to commit it were sited in the UK and broke UK law -- specifically, section 1 2 of the Computer Misuse Act 1990.

Also, the asymmetric nature of the extradition treaty makes a mockery of trans-Atlantic justice. It's reasonable that any treaty should have equal standards of proof in each direction. It's also reasonable that the standards should at least be similar to those required for a prosecution.

 
In my humble opinion, McKinnon needs to be given the opportunity to be tried, by a jury of his peers, in the United Kingdom. What do you think?

 
For more on the Gary McKinnon story, check out IT Blogwatch:
Gary McKinnon to avoid U.S. extradition? #freegary

Richi Jennings, blogger at large
  Richi Jennings is an independent analyst/consultant, specializing in blogging, email, and security. A cross-functional IT geek since 1985, you can follow him as @richi on Twitter, pretend to be richij's friend on Facebook, or just use good old email: TLV@richij.com.

You can also read Richi's full profile and disclosure of his industry affiliations.

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