McKinnon wants hackers' rights

PENTAGON HACKER Gary McKinnon has accused the UK public prosecutor of applying one rule for him and another rule for other hackers when it brings them to justice for computer crimes.

Karen Todner, Gary's solicitor, accused the Crown Prosecution Service of being inconsistent in the way it handled the cases of people caught hacking into US computer systems. In a letter she sent to the CPS on 23 December, published in full today, she called the public prosecutor to treat Gary in the same way it had treated other hackers who breached strategic US computer systems: which was to prosecute them in the UK.

"A refusal to prosecute Mr McKinnon here would contrast uneasily with the consistent approach taken by the CPS in choosing to prosecute Aaron Caffrey, Matthew Bevan, Jordan Bradley and Andrew Harvey domestically, despite the involvement of US investigators in pursuing evidence for prosecution of these men in the US," said Todner.

Why, for example, was Aaron Caffrey, who was arrested for hacking into strategic US computer systems in January 2002 only two months before Gary's own arrest, prosecuted in the UK, while Gary is being sent to face prison in the US?

The INQ spent a month pursuing this very question with the CPS. Only last week, it gave an answer - the same answer it gave to the press when asked about Gary in late 2002:

"The McKinnon case was an American-led investigation into offences committed on the US mainland. 99 per cent of the witnesses were based in the US. The technical evidence needed to bring the case was in the US. Although its fair to say that the UK would have jurisdiction to prosecute McKinnon, the most practical solution was for the US authorities to pursue a conviction."

But this did not answer the question. Caffrey's alleged hacks were made into US computer systems, so in his case the evidence and witnesses were also based in the US. Why then had the CPS sought to prosecute Caffrey in the UK but not Gary? What was the principle on which it was determined whether a hacker be prosecuted in his home country or forced, like Gary, to face the music thousands of miles away from his family?

The CPS spent a month deliberating and still failed to answer, telling the INQ only that it judged "each case on its merits". On the basis of its 2002 statement, the CPS decision was merited entirely on which was the cheapest way to prosecute a hacker.

Gary's legal team is now asking the CPS to consider that there might be humane reasons to prosecute a hacker at home that cannot be decided in any cosy transatlantic coterie. Todner's letter gave a host of reasons why Gary should be tried in the UK.

Of particular relevance to hackers among these reasons is the one that caused one prominent British extradition lawyer to scold the Extradition Act 2003 for "subcontracting our justice system" to the US along with foreign policy. That reason is the way legal jurisdiction is divided between the two countries. In the case of cross-border hackers, the crime is committed both at home and abroad at the same time. The UK in such cases is required to prosecute the accused in the UK rather than extradite them "when this is possible and in accordance with the law of public interest".

British courts have been told to interpret jurisdiction under the Extradition Act "in a way that should be seen to be fair and objective". We have had no such assurance about the CPS decision to extradite Gary when other cross-border hackers have been prosecuted at home. This is especially true since the decision to extradite Gary, as the CPS spokesman told the INQ, was taken in meetings with US prosecutors in 2002, the details of which it refuses to disclose.

In Gary's case, a written confession he made in December may give the CPS another reason to prosecute him in the UK. Having previously admitted hacking but denying the US accusation of criminal damage, Gary has now admitted to the "unauthorized modification of computer material" under the UK Computer Misuse Act (1990). Admitting his guilt left no reason for Gary to be brought to trial, Todner told the CPS.

The confession might be enough of a compromise to allow the UK and US governments to call off their long-running pursuit of Gary gracefully. But it should not let them off the hook for neglecting to take proper consideration of his recent diagnosis with Asperger's Syndrome, a form of autism, another of the humane reasons why Todner told the CPS that it should prosecute Gary in the UK, instead of throwing him to the US, and one which we shall return to shortly. µ