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back to article McKinnon case is NOT a precedent – says his own lawyer

Solicitors representing Gary McKinnon said that his victory in being saved from extradition does not set a precedent in other cases. Home Secretary Teresa May withdrew an extradition order against McKinnon on Tuesday, marking the successful end to a eight-year campaign to resist his extraction to the US to answer to charges …

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Megaphone

There has never been a better time to sort this cluster-f*ck of a system out.

I don't think the Government are at all in touch with the strength of feeling around these issues.

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Anonymous Coward

Err...

The vast majority of people I know have no idea about these cases, particularly the hacking only not terrorism cases.

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Re: Err...

I completely agree. I feel strongly about this situation, but most people don't even know these cases exist.

The McKinnon case highlighted this to me. When I said to my girlfriend that I thought it was completely wrong to extradite him, she told me she though he should be, and laid out the case as brought by the US. She was then shocked when I highlighted details about what he had done, the lack of security on the US systems etc.

The vast majority of the population do not have the technological understanding of these cases, or the interest to learn. I have a feeling the politicians are the same. Those of us with the knowledge to understand them are a minority, and even then not all who do understand share the same viewpoint.

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Anonymous Coward

Re: Err...

"She was then shocked when I highlighted details about what he had done, the lack of security on the US systems etc"

Why do people keep going on about the security, or lack of it? He went into systems he wasn't supposed to. Let's say you were stupid enough to go out and leave your house unlocked. I walk in and have a good old rummage through your smalls drawer...no crime there the? After all, it's your own stupid fault for leaving the door open.

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Big Brother

@ Nuked...

"I don't think the Government are at all in touch with the strength of feeling around these issues."

Too many words.

"I don't think the Government are at all in touch."

There. That's better

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@AC 13:34

You're trying to compare an average person's house to the US military's computer system which anyone with even half a working braincell would know that it would be under attack from intruders wishing to steal information/cause a disruption.

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Re: Err...

"Let's say you were stupid enough to go out and leave your house unlocked. I walk in and have a good old rummage through your smalls drawer...no crime there the? After all, it's your own stupid fault for leaving the door open."

That's what she said, too. I have to agree in part: I would feel violated, as well as embarrassed. However, I can't see that the cops would do much about it unless damage was done or something was stolen. It is a violation of your privacy, and invasion of your home, but not a "serious crime".

In McKinnons case, the analogy should be extended to include him putting some post-it notes around the house telling you to remember to lock your door in future.

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Anonymous Coward

Re: Err...

@Dr Moose: We don't really know anything for certain about the case as it's what each side say, until such time as it comes to court.

On the one hand we have the McKinnon side saying "he just had a look around, anyway the passwords were left blank"

One the other hand we have the US Military/NASA saying "he left messages on systems and issued recursive deletes on fileservers costing thousands to put right"

There is too far between these two stances for either to be correct, in my opinion, I just don't buy what either side has to say.

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Boffin

@AC Re: Err...

"Let's say you were stupid enough to go out and leave your house unlocked. I walk in and have a good old rummage through your smalls drawer...no crime there then?"

No, actually there is no crime. There is a civil offence of trespass, but that is *not* a criminal offence!

And were you to claim (as the US did) that adding extra locks on each of your doors would cost $5000 per lock (or whatever their made-up figure was) simply to get the offence to be serious enough to warrant extradition, you'd be laughed out of court.

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Not a precedent, but at least it's a start

This was always a special case - a cause celebre, even. However it does mark the point where one Home Secetary stopped fiddling while Rome burned, got off its arse and actually did something.

All of the "Homies" since McKinnon was arrested have had the ability to intervene, but they've all callously turned away and if not actively aided in outsourcing the british judicial system, at least been complicit in extending the anxiety and suffering of the guy and his loved ones.

Although the intervention here shows no sign of being a principled stance, just of the H.S. gauging the extent of public opinion and doing what politicians always do in the face of vociferous opposition. We can at least hope that at least some of the future, inevitable extreme extradition demands from our transatlantic overlords will be met with a "No!" even if that's followed by a "if you don't mind, sorrreeee!" sent quietly through the diplomatic channels.

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Anonymous Coward

Re: Not a precedent, but at least it's a start

Sorry, I don't buy it. On the one hand we have a series of home secretaries saying that they've looked at the evidence and he should be extradited, which is unpopular with their electorate. On the other hand we've got a home secretary who wants to scrap the human rights act saying that it's against the human rights of the white guy on the autistic spectrum to extradite him. This is just after sending some similarly diagnosed people who's names make them sound like immigrants (boo, hiss) to the USA, where this is somehow not against their human rights.

I hoped that the Tories in this government would be different, but this is clearly the return of the nasty party. They're just playing for the sympathies of Daily Mail and Torygraph readers.

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Re: Not a precedent, but at least it's a start

"it's against the human rights of the white guy on the autistic spectrum to extradite him. This is just after sending some similarly diagnosed people who's names make them sound like immigrants (boo, hiss) to the USA, where this is somehow not against their human rights."

They were two very different cases.

I do not necessarily agree with the decision to extradite the other two (I don't know enough about their specific case) but you cannot say the 2 cases were the same!

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Thinking of the copyright case...is there even a need for extradition? There's copyright legislation on the right hand side of the ocean too, why not bring the guy before a British court?

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Black Helicopters

But it's not 'Merkin' justice!!!

As was said, it would be nice (if perhaps unrealistic) if the US showed the courtesy to respect the judicial system in other countries

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Joke

You used the wrong icon

I think you meant to use 'Joke Alert?'

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Mushroom

Correct - This is NOT a US case

The O'Dwyer case sets yet another dangerous precedent. Regardless of whether O'Dwyer is guilty of copyright infringement, everything he did was outside the US. He used non-US servers, and controlled them from the UK. There is existing civil legislation that the companies or quangos who believe that they have had their products infringed by his site can take legal action in the UK.

But by doing so, they accept that this is under UK law. That means it is a civil action. The burden of proof rest with them. As he did not store or forward any actual content, only links to content, and as he had a note on the sites front page that accessing the content he linked to may be illegal in your jurisdiction, he has some defence.

It is not my argument whether he is guilty or innocent. My position is that as he is a UK Citizen, living in the UK, with servers housed outside the US, he should be tried in the UK.

The extradition laws are there to ensure the repatriation of citizens who have broken the law of their home country back to their own country to face justice there. It is not there for sending your citizens to a foreign country to face justice there, when you have not actually committed a crime within that country. That is called rendition.

What we are seeing is an American justice system that is attempting to impose itself on foreign nationals living in their who country. The implications of this is that we are all now subject to US law, and the courts are interpreting this as superseding UK law.

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Re: Correct - This is NOT a US case

"My position is that as he is a UK Citizen, living in the UK, with servers housed outside the US, he should be tried in the UK... What we are seeing is an American justice system that is attempting to impose itself on foreign nationals living in their who country. The implications of this is that we are all now subject to US law, and the courts are interpreting this as superseding UK law."

My position exactly. The O'Dwyer case is an even more extreme example of this than the McKinnon case.

O'Dwyer didn't even touch US servers, so how they can claim jurisdiction is beyond me! There are only 2 links to the US in his case: US citizens used content linked to by his site to break the law (not O'Dwyers fault) and some of the content he linked to broke copyright held by US corps (which should not be his problem, IMHO).

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Joke

Re: You used the wrong icon

I expect to hear black choppers in the distance when mocking certain governments

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Megaphone

This is my question as well - why are we approving an extradition if he can be tried here? Also, I thought the alleged crime had to be criminal in both countries - what he has done is against the law over here as far as I know.

This case is wrong from so many angles its untrue. If I were the HS I would politely tell the US to fuck off - just as they did when we tried to extradite those soldiers over here to here charges against them ( I forget the case).

The US seems hell bent on protecting its own - its high time our country did the same.

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Stop

"why are we approving an extradition if he can be tried here?"

Because he can only be tried here for the lesser offence of computer misuse, rather than the biggie of trying him for breach of US national security. As much as people whine about us being US minions, there's nothing on our legislature about breaching officia secrets acts of other nations.

"Also, I thought the alleged crime had to be criminal in both countries"

I imagine that they were extraditing based on the computer misuse, and then levying additional charges.

"I do not believe that this case sets any precedents. The medical evidence in Mr McKinnon’s case was, in my view, unique."

In other words: "No, having Aspergers or becoming depressed about the prospect of going to jail for being caught for something you did is not a legal defence". Which is a good thing.

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Black Helicopters

Re: Correct - This is NOT a US case

The implications of this is that we are all now subject to US law, and the courts are interpreting this as superseding UK law.

But that is exactly what Blair & Co generously gave our US masters when selling our sovereignty down the river. You can't criticise the courts or judges when the government enacts law which tells them that's how it will be.

I'd love to hear what HMQ thinks of it all. It seems to me she's not even protecting her own subjects and I expect more from a Monarch I am paying for.

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Re: Correct - This is NOT a US case

"I expect more from a Monarch I am paying for."

She's costing you a few pence a year, so I wouldn't expect tooooooo much.

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Anonymous Coward

Re: Correct - This is NOT a US case

The other problem was how the US investigators who interviewed went straight for "Plea bargain" which on this side of the pond looks very much like trying to unfairly intimidate someone, that and a lead US prosecution team member saying he wanted to see McKinnon "fry" was not the best choice of words to use in a country with no death penalty whether intended or not!

The real criminals here were the sysadmins who left id's around with no passwords, completely unforgivable on even low level Government servers, and rather than going after one loner with a psychological illnesses they should be more worried about Chinese and Russian hacking operations, with gross incompetence like this they probably have root access to all the US militaries systems

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Anonymous Coward

Re: Correct - This is NOT a US case

"...The real criminals here were the sysadmins who left id's around with no passwords..."

No, stupid and deserving of dismissal, yes, but not criminal. This seems to be something which is coming up on the Reg a lot recently, victims of crime being blamed for their own stupidity as a way of justifying the actions of a wrong doer. Even McKinnon accepts that what he did was a criminal act.

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Anonymous Coward

Re: Correct - This is NOT a US case

'No, stupid and deserving of dismissal, yes, but not criminal.'

Yes it is, it's called 'Gross Incompetence'

Which in the US as I recall is a criminal offence

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FAIL

Re: Correct - This is NOT a US case :: Britain should protect its own

"The implications of this is that we are all now subject to US law, and the courts are interpreting this as superseding UK law."

This is very worrying. The sole purpose of a government should be to protect its people from harm. If it cannot be relied upon to do that then it is worse than useless. A government should itself deal with those who transgress, not throw them to slavering political dogs abroad. Extradition should only be for foreigners hiding from their own governments. And even then ...?

I used to live in a place dubbed The Sanctuary, where at one time anyone in trouble with the authorities could take shelter and protection provided by the Church, for whom people were more important than earthly laws. Within the sanctuary all efforts were directed towards helping them onto the right path. Perhaps it needs to be resurrected. It is hard to believe that Mankind will be bettered by folk such as these being thrown to the venal, vindictive, sadistic politician/media-baron dogs in America.

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Re: Correct - This is NOT a US case :: Britain should protect its own

"Extradition should only be for foreigners hiding from their own governments."

IANAL so I don't know the if the legal wording of what I am about to say is correct (in fact I am almost certain it will be wrong).

The principal of extradition is sound. If you, for example, go to a foreign country, kill someone, and come back home before the cops catch you, then I agree that you should be extradited. It's not just "for foreigners hiding from their own governments".

The problem is that, with advances in technology, there are situations where you may be bound by foreign law even though you have never been there. In regulated industries, e.g. finance, this has been the case for a while. AFAIK, people in our finance dept could be prosecuted in the US for certain things, as our parent co is US, and we must abide by certain US financial rules.

The McKinnon case can be seen like this, as he was (if you take the US govt's stance) effectively attacking the US military. However, we have laws in our own country to cover this, and IMHO he should be protected by his government, not thrown into the clutches of a foreign power known throughout the world for their twisted view of "justice" for foreigners.

In the O'Dwyer case, I can see no justification whatsoever for extradition. Nothing he did "touched" the US: He was never in the US, he didn't use US servers. Then only contact with the US was US citizens using his site. This is more akin to them coming to this country, O'Dwyer telling them about a market stall selling counterfeit DVDs, them buying one and taking it back to the US. The jurisdiction in this case is clearly with the UK.

What needs to be clarified, worldwide, is jurisdiction for internet-based cases. Maybe an international court with technically-literate judges to decide purely the matter of jurisdiction. At the moment, it is a mess.

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Defaults

The default option when receiving any extradition request should be no. It should then be up to the authority requesting the extradition to prove why this specific case should be treated differently.

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@ Jason Bloomberg

You have a naively touching conception of how being the subject of a monarch works.

IE you work for them, never the other way around!

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Anonymous Coward

Of the recent extradition controversies, O'Dwyer was the one I felt most sympathetic towards: the argument for his case being heard in the US was extremely flimsy. (I tried digging in to see how .gov got in at all: it looked like the advertising revenue, which wasn't trivial, routed through the US and involved US people helping, which gives them at least a tenuous foothold on it.)

I've always wondered about the rules: if I, in Scotland, contact a hitman in Ireland then give him money in Switzerland to kill my (hypothetical) ex-wife in Spain - am I breaking Spanish law, without ever setting foot in the country? Swiss law? Scottish? Irish? The last attempt I saw at answering a simpler version of that, from the CPS, amounted to "um ... it depends". The money transfer seems to be the key bit there, though, so it could well be Swiss law as first choice. (The CPS also said they'd base the decision on where the witnesses/evidence were.)

If it were up to me, I'd have extradited the terrorist-related ones in a heartbeat (the Asperger's being absolutely no excuse in itself) and McKinnon (I don't see threats of suicide as reason to block a trial - that would set an appalling precedent, not in the legal sense of binding courts in future, but encouraging the same tactic), but blocked O'Dwyer's because the US involvement is so tenuous.

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