McKinnon the scapegoat

Gary McKinnon’s fate is now bound up in cyberwar and matters of espionage as governments try and fai

After all the coalition posturing for the cause of Gary McKinnon, it looks like the government will not stop the autistic hacker's extradition after all.

The Prime Minister was applauded for discussing McKinnon with President Barack Obama in Washington on 20 July and later suggesting that the US might allow the hacker to serve any prison sentence in the UK. But this was a hollow victory. McKinnon's campaign was always about his extradition to the US, not whether he might serve time there, as David Cameron and other coalition MPs well knew when they made political capital from it before the election that brought them to power. The last government promised repatriation. Cameron has done nothing more.

The apparent injustice of this is greater than mere hypocrisy. To understand why, we must return to November 2000, barely three months before McKinnon was detected hacking US computers, when FBI agents performed an audacious hack of their own -- to collect evidence from computers in Russia.

The FBI hack has haunted US attempts to legitimise the cross-border collection of electronic evidence (known as trans-border access) ever since. Its illegitimacy was established in 2004 by the Budapest Convention on Cyber Crime, a US-backed cyberlaw treaty.

This was no surprise. The US helped design the treaty. The first draft was published six months before the FBI hack; the US signed it a year later, within weeks of convicting Vasili Gorchkov, one of the Russian extortionists.

In 2002, three months after a US court indicted McKinnon for hacking into US computers, the FBI hackers were decorated. Moscow reportedly responded by filing charges against the FBI agents in retaliation for their infringement of Russia's national sovereignty.

The evolving legal context was not overlooked in McKinnon's case. By the time the US requested his extradition in October 2004, the US/UK Extradition Act 2003 had entered into force. It allowed the US to order his extradition on less evidence than would normally be required to put someone before a British court. It promptly did so, citing evidence that, the high court heard last year, was insufficient to support its allegations.

Rough justice

Both cases illuminate the reasons why the progress of international cyberlaw, though slow in comparison with growing computer crime, has been plagued by concerns that it encroaches on established ideas of sovereignty, jurisdiction and human rights.

The problem is one of balance. On one side, a desire for justice to operate effectively in the computer age, when networks permeate our borders and so much of life transcends sovereign boundaries. On the other side, a desire for sovereign responsibilities and human rights not to be bowled aside in the rush for justice to operate at this height and at digital speeds.

These concerns were significant enough to trigger treaty reviews at both the United Nations and the Council of Europe, after 80 per cent of votes supported Russia's opposition to trans-border access at a UN meeting in April.

Hence also the proposed review of UK extradition law, under which prosecutors have justified the extradition of numerous people on flimsy evidence.

It all helps show how McKinnon's extradition rests on weak moral ground. Yet still the law leaves the government little choice but to let it proceed. A UK trial is permissible, if the US would agree to it. But even if the US evidence was good enough to stand up in a British court, neither government wants to stop the extradition.

Cyberwar

This is because the inherent insecurity of computer networks has now become a matter of national security. Computer breaches are a serious crime, Obama told Cameron, because they would increasingly leak valuable information. Within a week of that conversation, WikiLeaks had exposed 92,201 classified computer files with damning details of the US-led invasion of Afghanistan.

Nine and a half years after McKinnon was caught hacking, the threat of cyberwar and espionage makes his crime seem far graver than it ever was. The military can't secure its networks. It can't even tell the difference between organised hoodlums, foreign military agents and hobby hackers. As a result, all states can do is use punishment as a deterrent.

McKinnon will be strung up, metaphorically speaking, to demonstrate just how serious the US and UK are about protecting their networks. Computer systems won't be any more secure. Serious criminals and foreign states won't be deterred. But a semblance of justice will have been seen to be done.

As for actual justice, McKinnon's lawyers still have some appeals up their sleeves. The hacker's Asperger's syndrome may lead yet to his extradition being halted. That will be good enough for Cameron, so long as he can continue to give the impression he's working for McKinnon's cause.

Mark Ballard is a freelance journalist who writes about computer policy, crime, security, law and systems.

Read the full archive of the New Statesman's coverage of Gary McKinnon's case, in particular Sophie Elmhirst's exclusive interview.

Photo: André Spicer
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“It’s scary to do it again”: the five-year-old fined £150 for running a lemonade stand

Enforcement officers penalised a child selling home-made lemonade in the street. Her father tells the full story. 

It was a lively Saturday afternoon in east London’s Mile End. Groups of people streamed through residential streets on their way to a music festival in the local park; booming bass could be heard from the surrounding houses.

One five-year-old girl who lived in the area had an idea. She had been to her school’s summer fête recently and looked longingly at the stalls. She loved the idea of setting up her own stall, and today was a good day for it.

“She eventually came round to the idea of selling lemonade,” her father André Spicer tells me. So he and his daughter went to their local shop to buy some lemons. They mixed a few jugs of lemonade, the girl made a fetching A4 sign with some lemons drawn on it – 50p for a small cup, £1 for a large – and they carried a table from home to the end of their road. 

“People suddenly started coming up and buying stuff, pretty quickly, and they were very happy,” Spicer recalls. “People looked overjoyed at this cute little girl on the side of the road – community feel and all that sort of stuff.”

But the heart-warming scene was soon interrupted. After about half an hour of what Spicer describes as “brisk” trade – his daughter’s recipe secret was some mint and a little bit of cucumber, for a “bit of a British touch” – four enforcement officers came striding up to the stand.

Three were in uniform, and one was in plain clothes. One uniformed officer turned the camera on his vest on, and began reciting a legal script at the weeping five-year-old.

“You’re trading without a licence, pursuant to x, y, z act and blah dah dah dah, really going through a script,” Spicer tells me, saying they showed no compassion for his daughter. “This is my job, I’m doing it and that’s it, basically.”

The girl burst into tears the moment they arrived.

“Officials have some degree of intimidation. I’m a grown adult, so I wasn’t super intimidated, but I was a bit shocked,” says Spicer. “But my daughter was intimidated. She started crying straight away.”

As they continued to recite their legalese, her father picked her up to try to comfort her – but that didn’t stop the officers giving her stall a £150 fine and handing them a penalty notice. “TRADING WITHOUT LICENCE,” it screamed.


Picture: André Spicer

“She was crying and repeating, ‘I’ve done a bad thing’,” says Spicer. “As we walked home, I had to try and convince her that it wasn’t her, it wasn’t her fault. It wasn’t her who had done something bad.”

She cried all the way home, and it wasn’t until she watched her favourite film, Brave, that she calmed down. It was then that Spicer suggested next time they would “do it all correctly”, get a permit, and set up another stand.

“No, I don’t want to, it’s a bit scary to do it again,” she replied. Her father hopes that “she’ll be able to get over it”, and that her enterprising spirit will return.

The Council has since apologised and cancelled the fine, and called on its officials to “show common sense and to use their powers sensibly”.

But Spicer felt “there’s a bigger principle here”, and wrote a piece for the Telegraph arguing that children in modern Britain are too restricted.

He would “absolutely” encourage his daughter to set up another stall, and “I’d encourage other people to go and do it as well. It’s a great way to spend a bit of time with the kids in the holidays, and they might learn something.”

A fitting reminder of the great life lesson: when life gives you a fixed penalty notice, make lemonade.

Anoosh Chakelian is senior writer at the New Statesman.