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British Hacker Loses Review of Asperger's Defense 278

Posted by kdawson
from the one-more-chance dept.
Barence writes "Gary McKinnon has lost the judicial review of his case, dealing a potentially fatal blow to his hopes of avoiding extradition to the US. Lord Justice Stanley Burnton and Mr. Justice Wilkie dismissed the review at the Royal Courts of Justice. The review had been assembled to determine whether the diagnosis of McKinnon's Asperger's Syndrome had any bearing on the Home Office's original decision to extradite him to the US. Asperger's sufferers often exhibit obsessive behavior and social naivety, which McKinnon's lawyers have long offered as mitigation. His legal team now has 28 days to appeal the verdict, and his lawyer, Karen Todners, has indicated they may consider taking his case before the US Supreme Court. Last year we discussed a full profile of the hacker published by the BBC." Sophos's survey of 550 IT professionals found that 71% believe McKinnon should not be extradited.
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British Hacker Loses Review of Asperger's Defense

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  • Wrong court (Score:5, Informative)

    by jonbryce (703250) on Friday July 31, 2009 @09:55AM (#28895509) Homepage

    It is the new English supreme court the case is going to, the one that replaces the Judicial Committee of the House of Lords.

  • Extradition Act 2003 (Score:5, Informative)

    by expat.iain (1337021) on Friday July 31, 2009 @10:02AM (#28895593)

    What is really pissing the British off is that the American government is trying to extradite McKinnon using a law that was passed under the shadow of 9/11 for the purposes of anti-terrorism.

    Granted, McKinnon was foolish to enter the US government computers, although perhaps he should be given a consultant's fee for highlighting such lax security. If they're going to prosecute him for being an idiot, then certainly they could look closer to home.

    And the tactics employed by the American Justice Department have been more than questionable under various EU laws, let alone the English legal system.

    Perhaps the biggest disappointment is to see the politicians rolling over for the American government instead of standing up for their own citizens.

    Did McKinnon break into the systems? Yes, and he has admitted such. Surely as a British citizen having commited a crime in England he should be tried under English law.

    Iain

    • Re: (Score:3, Insightful)

      I strongly disagree. If McKinnon admittedly broke into U.S. government systems, on U.S. soil, then the entire act occurred in the United States, making McKinnon subject to U.S. law and court jurisdiction. If the reverse had been true and McKinnon were in the United States breaking into MI5 computers, you better believe that the Crown would be looking to extradite him to the U.K..

      • by Hognoxious (631665) on Friday July 31, 2009 @11:03AM (#28896395) Homepage Journal

        If the reverse had been true and McKinnon were in the United States breaking into MI5 computers, you better believe that the Crown would be looking to extradite him to the U.K.

        The constitution makes it all but impossible to extradite someone from the US, since "probable cause" is required and interpreted very strictly[1]. Numerous members of the IRA took advantage of this.

        [1] effectively proof beyond reasonable doubt, which you can't get without a trial.

      • by Shin-LaC (1333529)
        If one party is in the United States, and the other party is in the United Kingdom, how can you say that "the entire act occurred in the United States"? It'd make as much sense to say that the entire act occurred in the United Kingdom.

        Tell you what, let's split the difference and say that the act occurred midway between the two countries, right in the middle of the Atlantic Ocean. The "entire act" occurred in international waters, so neither country has any jurisdiction to prosecute him!
    • Did McKinnon break into the systems? Yes, and he has admitted such. Surely as a British citizen having commited a crime in England he should be tried under English law.

      Bad idea. This would set a precedent that all cyber crimes are to be tried under local law, thus hackers originating from countries that don't give a damn about computer crimes against the united states would have a blank legal check to keep on attacking the military networks.

      • by Bakkster (1529253) <.moc.liamg. .ta. .nam.retskkaB.> on Friday July 31, 2009 @10:23AM (#28895831)

        It should be both, shouldn't it? You're hacking from your own jurisdiction, as well as trespassing on property in another jurisdiction.

        But, if a country doesn't care about prosecuting hackers targeting American systems, we probably don't have an extradition treaty with them either. In that case it becomes something for our diplomats to duke out.

      • Re: (Score:3, Informative)

        by Anonymous Coward
        Good idea, Cos the US military will then have an incentive to proactively protect it's systems. Instead of just randomly lashing out at the softest target they can find. cowardly fucks.
    • by Alioth (221270)

      His case quite clearly met the requirements for extradition - even in Britain, what he did carries a potential jail sentence of more than one year.

      If I were in his shoes, I'd have been on my way to Venezuela within minutes of getting discovered. Even that country has to be better than US federal prison.

      • by Hognoxious (631665) on Friday July 31, 2009 @11:05AM (#28896431) Homepage Journal
        The prosecutor said he was going to fry him. That alone is grounds for refusing extradition.
        • And you know that this "fry" was spoken of literally as opposed to being a metaphor ... how?

          1) As problematic as the American justice system can sometimes be, we (thankfully) don't have a habit of frying people on giant skillets. So we can rule out death by frying pan.
          2) Despite the electric chair technically being an option in a few states, is almost never used. The prisoner would almost have to request it. Lethal injection is the preference.
          3) A common meaning of "fry" could be that he plans to give an

    • it's karma (Score:3, Informative)

      by YesIAmAScript (886271)

      You do realize the UK government used anti-terrorist laws against Iceland right? And I would mention those people never set foot in the UK either.

      What goes around comes around.

    • The British Government is dead set on getting him extradited. They are obsessed with being seen as being tough on "cybercrime" in case the US removes our already piddling access to their secret data. The US only wants McKinnon because they are more likely to get a conviction with a long sentence as he is not a US citizen.

      Really, it's the admins of those insecure computers who should be prosecuted. I thought it was a federal offense negligently to give access to secret data?

      • The British Government is dead set on getting him extradited. They are obsessed with being seen as being tough on "cybercrime" in case the US removes our already piddling access to their secret data.

        I always thought the British were our ally. Last time I checked, the British Army had 30,000 soldiers crossing the border into Iraq in March 2003 and they stayed for a pretty darned good time after the rest of Europe bailed.

        Seems to me that information sharing between the two countries should be more, not less.

      • Really, it's the admins of those insecure computers who should be prosecuted. I thought it was a federal offense negligently to give access to secret data?

        There is no way McKinnon got access to classified data from his house. All classified networks are air-gapped.

    • by sconeu (64226)

      Granted, McKinnon was foolish to enter the US government computers, although perhaps he should be given a consultant's fee for highlighting such lax security

      So I'll just break into your house, look around for evidence of UFO's and sned you a bill for the "consultant's fee for highlighting such lax security" on your home.

  • by lacoronus (1418813) on Friday July 31, 2009 @10:02AM (#28895595)

    I'm so sick of the aspie defense. Seems like every time a computer user is on trial (remember Reiser?), it gets rolled out. "My client is guilty as hell, but he's got Asperger's!" First, your mental handicap has to be to the point where you quite literally don't know what you're doing - so just give it up, having light Asperger's doesn't cut it. Second, it impacts the way people view us computer professionals - for example, when we try to argue for less copyright and more information freedom. The aspie defense does us about as much good as the "Your honor, this man did indeed kill his daughter, but he's Muslim, he can't help himself" defense does for the vast majority of Muslims.

    • Re: (Score:3, Interesting)

      by Jack Sombra (948340)

      Aye the Asperger defence is pretty lame but honestly he should not even have to use it, the extradition laws they are using to extradite him should not have been used it this case as not only were they intended only for suspected terrorists but to boot they are completely one sided, requireing no evidence of a crime to presented by the US for someone to be extradited from the UK while the same not being true in reverse

      Though wonder why they have not pursued this to the European court level as the extraditi

      • Re: (Score:3, Interesting)

        by lacoronus (1418813)

        they are completely one sided, requireing no evidence of a crime to presented by the US for someone to be extradited from the UK

        You know, I had to read the act twice to confirm that it really was so. That is just completely wrong. I really hope they take this to the Supreme Court - if nothing else, the publicity will perhaps help to overturn the law.

      • by oggiejnr (999258) on Friday July 31, 2009 @10:53AM (#28896237)
        This used to be true, however in the last couple of years the treaty has been fully ratified by the US such the the extradition conditions are now the same for both the US and the UK. See http://press.homeoffice.gov.uk/press-releases/UKUS-extradition-traety [homeoffice.gov.uk] for details
        • by EasyTarget (43516)
          So, if (with evidence) we demanded that some mediocre nonentitiy US citizen be extradited for placing our citizens in danger, the US courts will approve it and systematically reject all appeals saying tha tthe treaty overrides your constitution? Way to go! finally you guys are seeing sense.
    • Re: (Score:3, Insightful)

      I'm so sick of the aspie defense. Seems like every time a computer user is on trial (remember Reiser?), it gets rolled out. "My client is guilty as hell, but he's got Asperger's!"

      If this defense was accepted in court, the unforeseen consequence would be that eventually companies and governments would protect themselves from preventing those with Asperger's Syndrome (or borderline equivalent behavior). Imagine mandatory mental screening on a yearly basis to prevent anyone with "the wrong kind of thinking" from being able to have internet access because one guy set a landmark case and got away with being just nuts enough to escape prison.

    • Okay, I agree Asperger's should be a valid legal defense for crimes. But at the same time, is justice really being dealt to Aspies? How many of them are convicted merely because juries think they "act weird", don't make eye contact, etc., and make an unjusitied inference that the defendant is guilty?

  • I call shenanigans (Score:5, Interesting)

    by dieselpawn (1302503) on Friday July 31, 2009 @10:11AM (#28895683)
    ""Despite his growing affinity for the machine, he left school at 17 to become a hairdresser, a career cut short by a friend's insistence that there was better money, and he was better suited, to a career in IT."" http://www.pcpro.co.uk/features/252972/gary-mckinnon-britains-hacking-hero.html [pcpro.co.uk] I find it highly unlikely that an Aspie would ever become a hair dresser, an incredibly social job. Anybody who has every had any kind of contact with a true Aspie knows they avoid social situations like the plague. I call shenanigans.
    • I've had my haircut before from people with social skills to rival a radiator before. It my not be the norm, but it does happen.
    • by composer777 (175489) * on Friday July 31, 2009 @01:01PM (#28898171)

      Not true. Many aspies will go through all sorts of contortions to fit in. I played football in high school and had a C- average until my senior year, when I decided to start studying again, and got a 4.7 my final year (4.5 scale, honors courses went to 5.5, so it pulled me above 4.5). I hated football, but I hated myself even more, and wanted desperately to fit in. Having horrible motor coordination meant I was stuck playing line, and socially I was as clumsy as I was physically. It was a massive failure in terms of fitting in, but I had Aspergers, and didn't really understand that there was more to fitting in than adopting a stereotype. Looking back on it, I wouldn't be surprised if there isn't a large number of bodybuilders (or athletes) who have some form of aspergers. It's the socially clumsy,"if I just get bigger biceps then everyone will love me" types that I'm thinking about.

      Some Aspies avoid social situations, others will make clumsy, awkward attempts to fit in. They'll rehearse everything they say, over-prepare for every social event, and still find ways to fuck it up. They'll go to great lengths to fit in whatever way they can.

  • AS is no excuse (Score:3, Insightful)

    by MikeRT (947531) on Friday July 31, 2009 @10:14AM (#28895711) Homepage

    Oh come on, stop making medical excuses for this guy. Most people with AS know that you cannot do something like this without breaking the law and getting punished.

    McKinnon is just another geek who thought that a lack of security implied that he could just walk right in through the door without punishment. Chances are, he's also one of those geeks who would hypocritically go postal if he left his door unlocked and a bunch of people walked in and refused to leave.

    "But it's a computer... it's **different** mmmmkay?"

  • "Sophos's survey of 550 IT professionals found that 71% believe McKinnon should not be extradited"

    What exactly was asked in this 'survey', how were the questions phrased, what questions were asked before the one on McKinnon, why would it matter that they were 'IT professionals' considering that the hack McKinnon did consisted of logging into passwordless Windows NT computers and typing rude msgs (in wordpad) to the administrator
  • by rs232 (849320) on Friday July 31, 2009 @10:31AM (#28895931)
    "Gary McKinnon has lost the judicial review of his case, dealing a potentially fatal blow to his hopes of avoiding extradition to the US" It's ironic that if the situation were reversed and under the 'evidence; presented in this case, the UK government would have no way of getting McKinnon extradited here. I guess we're not a real country ane'ways .. :)
  • by DarthVain (724186) on Friday July 31, 2009 @11:17AM (#28896619)

    ...used the wookie defence...

  • by peter303 (12292) on Friday July 31, 2009 @12:33PM (#28897673)
    We may socially subfunctional, but we can still tell right from wrong.
  • Asperger's == Nerd (Score:2, Insightful)

    by Comboman (895500)

    Asperger's sufferers often exhibit obsessive behavior and social naivety ... Sophos's survey of 550 IT professionals found that 71% believe McKinnon should not be extradited.

    Obsessive behavior and social naivety describes every IT professional I know (myself included). I'm amazed that only 71% don't think he should be extradited (the other 29% must be in denial).

  • i don't understand why this gets him off the hook

    if you kill 20 people and plead insanity, you still get a form of punishment: the insane asylum. regardless of WHY someone commits the crime, is the more important priority of society protecting itself from people who engage in criminal behavior. whether because of moral failure, psychological defect, or some other variation on the tired "the devil made me do it" defense

    you've been revealed as someone dangerous to society. therefore, some sort of restrictions

Byte your tongue.

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