back to article Lawyers for Marcus Hutchins: His 'I made malware' jail phone call isn't proper evidence

Malware reverse-engineer Marcus Hutchins has tried to throw out phone transcripts and legal documents used against him by US prosecutors, who have accused him of computer crimes and fraud. Lawyers for Hutchins, a British citizen facing trial in America, has asked an east Wisconsin district court to dismiss the Brits' Waiver of …

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  1. EJ

    I'm embarrassed my government is holding this guy.

    1. Anonymous Coward
      Anonymous Coward

      "I'm embarrassed my government is holding this guy.

      "I'm embarrassed by my government."

      FTFY

    2. Anonymous Coward
      Anonymous Coward

      He admitted to committing a crime after being read his rights. You should feel embarrassed for defending him.

      1. Walter Bishop Silver badge
        Terminator

        Signed a Miranda waiver form after being read his rights

        @anon: "He admitted to committing a crime after being read his rights. You should feel embarrassed for defending him."

        the agents did not record the part of the interview in which they purportedly advised of him of his Miranda rights, answered any questions he might have had, and had him sign a Miranda waiver form.” ref

        1. Gotno iShit Wantno iShit
          Pint

          Re: Signed a Miranda waiver form after being read his rights

          Thanks for the link Walter, interesting reading.

          ---->

          It is good to see that US law makes the distinction between writing malware (legal) and deploying it (illegal). Without that most security researchers would be inside by now.

          Based on the evidence disclosed so far there's nothing to suggest Hutchins was involved in packaging and deploying Kronos. It seems he wrote some of the code in it but then so probably did hundreds of others if you look at all the dependencies and libraries down to the core. So looking good for Hutchins. Except of course that he'll be a Brit in front of 12 Trumpistani jurors and as any follower of Hollywood movies knows the Brit is always evil.

          1. Joe Gurman

            Re: Signed a Miranda waiver form after being read his rights

            Well, not Harry Potter.

          2. JohnG Silver badge

            Re: Signed a Miranda waiver form after being read his rights

            "Based on the evidence disclosed so far there's nothing to suggest Hutchins was involved in packaging and deploying Kronos."

            If I understood it correctly, Hutchins was arrested on the word of someone who was caught with some of the money but got a plea deal i.e. the individual actually responsible for the theft/fraud will get less punishment than someone who at best, had mininal involvment.

        2. Joe Gurman

          Re: Signed a Miranda waiver form after being read his rights

          That’s because in the US law enforcement has no right to record discussions with a person of interest before they sign a waiver.

          1. Anonymous Coward
            Anonymous Coward

            Re: Signed a Miranda waiver form after being read his rights

            "That’s because in the US law enforcement has no right to record discussions with a person of interest before they sign a waiver."

            LOL they record everyone, especially international calls, and double on all calls from jails where there is no privacy under normal circumstances. The notion of Legality with governments spying is pretty mute.

            1. DougS Silver badge

              Re: Signed a Miranda waiver form after being read his rights

              They record people before they have been advised of their Miranda rights all the time - just look at all the dashcam video you see these days. The law doesn't say they can't record stuff they say after arrest and before they've been read their rights, only that it can't be used against them in court. There's certainly nothing stopping them from recording the part where they read his rights, and I have to agree with those who think it looks odd they don't appear to have done so.

              1. a_yank_lurker Silver badge

                Re: Signed a Miranda waiver form after being read his rights

                @DougS - Third party videos can be used as evidence such as dash cam videos without reading the Miranda rights. Miranda explicitly refers to interviewing the accused and nothing else. Most local Stasis over here record all interviews as a matter of policy to provide an accurate record of what was said. However, the ferals generally do not.

                1. DougS Silver badge

                  Re: Signed a Miranda waiver form after being read his rights

                  Dash cam videos can be used because they are prior to arrest. If the guy is placed under arrest and not Mirandized, anything he says that the dashcam or bodycam hears can't be used against him.

                  It has nothing to do with "interviewing", you get Mirandized after arrest even if you will never be interviewed - like if you were caught breaking into a house. They aren't going to sit you down and try to get a confession, because they caught you red handed. But if they don't read you your rights and you say "I had a partner named DougS but he fled before you guys got here" they can't use your statement in court if they later arrested me.

                2. Tom Paine Silver badge

                  Re: Signed a Miranda waiver form after being read his rights

                  If you mean the UK police, they all video record all interviews. PACE was 1984 IIRC and it's been updated several times since then.

                  And the UK police are NOTHING like the Stasi. I have a family member who grew up in the DDR. Please go read up before saying silly things that make you sound like Dave Spart.

        3. Aodhhan Bronze badge

          Re: Signed a Miranda waiver form after being read his rights

          BTW...

          They don't have to record the signing of Miranda.

          Apparently he was coherent enough to remember someone's phone number, use a pay phone and conduct a collect call; yet too incoherent to understand Miranda... right--get real.

          I'm sure if you were one of the individuals who lost their life savings because of malware he assisted in creating, you'd look at this a bit differently. Hopefully, you never have to find out.

          1. Jamie Jones Silver badge

            Re: Signed a Miranda waiver form after being read his rights

            Apparently he was coherent enough to remember someone's phone number, use a pay phone and conduct a collect call; yet too incoherent to understand Miranda... right--get real.

            Hey, I'm currently more coherent and cleverer than that!

            I can currently remember someones phone number, and use a pay phone, and am clever enough to know that when you say "collect call" you mean "reverse charge", and even conduct said reverse-charge call.

            There are even more things, ... I can probably remember 2 peoples phone number to be honest, and know how to work a mobile phone as well as a pay phone!

            But, I digress, the reason for my reply: "Who's Miranda?"

      2. steviebuk Silver badge

        Are you one of the FBI agents?

        1. LucreLout Silver badge
          Joke

          Are you one of the FBI agents?

          He wasn't pretending to be a child, so probably not.

    3. Anonymous Coward
      Anonymous Coward

      I'm convinced more and more that he is the creator of or minimum a contributor of Wannacry and panicked when it took down the NHS and carried on destroying everything Windows in its wake. He then pretended to be the hero that saved the day by "discovering" the kill switch..

      Munchausen By Proxy of the tech variety.

      Time will tell I guessif I'm right. However this new revelation just bolters my theory,a "researcher" (self proclaimed) that has written banking malware and sold it on... Hmmmm...

      1. steviebuk Silver badge

        Is that just because he's a minor person on his own? If he was working for a big security company would you then believe he didn't do it?

        On that note Mark Russinovich must be the creator or helped create the Sony rootkit that he found years ago on a CD he purchased when he was running 2 man only company. But we clearly know he wasn't.

        Some people are just good at finding and fixing shit like this.

        1. Anonymous Coward
          Anonymous Coward

          No, Mark Russinovich worked for Microsoft, and had an agenda to brainwash as many internet idiots as possible with his overhyped sensational spew against Sony...

          If you think he was acting out of his own beliefs, and not on the payroll of one of the biggest American companies, looking to launch their first games console against the Japanese giant, then frankly, you are a fool.

      2. J__M__M

        He then pretended to be the hero that saved the day by "discovering" the kill switch?

        Stop being a jerk. First, he tried to remain anonymous until somebody outed him. Second, if you're going to set yourself to be the nerd hero, you don't code a kill switch that any jerk with a godaddy account and a hex editor can activate. He fully admits he stumbled into it.

        But hey, if you need to dump on him to make you feel better about yourself, I guess that's what you're gonna do.

      3. Anonymous Coward
        Anonymous Coward

        36 people could be bothered to come here from 4Chan and downvote....

        Back in the real world, where grownups live, and everyone is accountable for their actions, things are VERY different...

      4. K Silver badge
        Devil

        @AC - "he is the creator"

        "Watson, I'd hypothesise that this AC is in fact the mysterious author, he's trying the common tactic of shifting the focus and blame.." - Sherlock Groans

    4. Dodgy Geezer Silver badge

      I'm sure...

      ..that if we had a similar Yank over here, charged in the same circumstances, we'd be just as embarrassed as our government tried to make out that he was a terrorist/child murderer/litter lout/anything that would stick...

      1. Voyna i Mor Silver badge

        Re: I'm sure...

        You're wrong. With the frantic desire of the current British government to give oral pleasure to the US President in the hope of avoiding tariffs post-Brexit, any US citizen in such circumstances would be deported very quickly.

        If he was a member of their armed forces, he'd simply go home without any comment from the British government.

    5. Anonymous Coward
      Anonymous Coward

      Reading the call transcript...Is missing phrase - CV?

      Had Marcus Hutchins applied to work or actually worked for GCHQ, whether as a contractor or on their payroll? Seems so.

      In the transcript...

      <Redacted Name> Did GCHQ know about this, is had you told them about this stuff?

      HUTCHINS: Yeah

      <Redacted Name> OK, and the NCSC as well?

      HUTCHINS: No

      <Redacted Name> OK, um

      HUTCHINS: Because it came up in my vetting.

      https://www.gchq-careers.co.uk/recruitment-process.html

      "You'll go through a rigorous, but fair, vetting process that will look into your background, character, family history and personal circumstances. You must be over 18 to go through this process. Once this phase of your application begins, it normally takes around three months to complete – though this can vary depending on the complexities of each case."

      Later in transcript...

      HUTCHINS: No, it didn't come from GCHQ, I think because they had chat logs so they've got it from a different source, whereas GCHQ only had my <unintelligible>

      Is missing phrase - CV?

      1. collinsl

        Re: Reading the call transcript...Is missing phrase - CV?

        That sounds like Security Clearance to me, which is a common process for these kinds of roles.

        Info:

        https://en.wikipedia.org/wiki/Security_vetting_in_the_United_Kingdom#Security_Check_(SC)

        1. Jamie Jones Silver badge
          Thumb Up

          Re: Reading the call transcript...Is missing phrase - CV?

          That sounds like Security Clearance to me, which is a common process for these kinds of roles.

          Yeah, I went through the same process.

          (*) It shows the state of the UK where some Welsh twat like me was cleared.

          (**) It was ages ago - it expired over 15 years ago.

        2. Anonymous Coward
          Anonymous Coward

          Re: Reading the call transcript...Is missing phrase - CV?

          The reply regarding vetting is clearly in relation to GCHQ, not a normal security check.

  2. Tim Rustican

    If the purpose of putting a felon in a US prison is to rehabilitate them, then it's reasonable to argue that Marcus has already rehabilitated himself, before he travelled to the US and got arrested - he'd gone from being a 14 year old kid interested in malware to a responsible malware researcher interested in saving the NHS from meltdown. To me this is a lot like Alan Turing saving the UK from Hitler and then being prosecuted and persecuted for being an illegal homosexual in Wilmslow, UK in 1954.

    1. Malcolm Weir Silver badge

      No US prison has rehabilitation as a core purpose. Some people pay lip service to the idea of rehabilitation, but there is no funding for it.

      The parallel with Turing is good, but it would be closer if Turing had been prosecuted (in the 1950s) for homosexual acts in the 1930s.

      1. This post has been deleted by its author

        1. macjules Silver badge

          Unfortunately the UK abandoned rehabilitation of offenders some time ago, Probation units are not there to help offenders but only to supervise them now.

          1. Anonymous Coward
            Anonymous Coward

            "Probation units are not there to help offenders but only to supervise them now."

            The English probation service has been re-organised and cut many times in recent years.

            However there are still volunteers who help probationers with various tasks like filling in forms, job applications, and claiming benefits. A friend often is on the sidelines for months when the organisation of her voluntary work has been passed to yet another outsource. Each time she has to wait for the necessary clearances before she can continue to help probationers.

            She spoke of one habitual offender who had originally been imprisoned for a first-time accountancy fraud. He said that the first week in prison was hell - and if he had then been released he would have never broken the law again.

            After that first week he became used to the system and was taught by other inmates how to become a real criminal when he was released.

        2. rg287

          Okay, in the UK - where we don't fire guns for fun

          Err, yeah we do.

          1% of the population own licensable firearms and shotguns, there are ~10million airguns in circulation and clay-pigeon shooting is an extremely popular corporate-hospitality, stag-do and general leisure activity.

          Suggestions in his bail hearing that he committed a federal offence by going to a tourist shooting range in Las Vegas are so much bullshit. It's a cry of desperation from the prosecution because they don't have anything better (that they're willing to disclose yet anyway).

        3. sisk Silver badge

          The idea is they could get a job when they leave and become a useful member of society - often at Timpsons Shoe Repairs.

          That's another reason for our repeat offender rate. If you've done a stint in a US prison for a felony, good luck finding a job that doesn't involve the risk of going back. And even if you do the government might just screw you over. I know a guy who managed to get a - I think his parents put in a good word for him - job when he got out after going to prison for a couple years on a drug offense. 3 months later the state decided he need to go spend 6 months at a halfway house to "help him integrate back into society" - never mind that he had already done that with a little help from hi family. Most places would have fired him. Fortunately for him it was a small, local company that was willing to hold the job for him till the state decided to let him come back.

      2. Alan Brown Silver badge

        "No US prison has rehabilitation as a core purpose."

        The entire US legal system (and particularly the prisons) is geared around retribution and revenge, not around rebuilding, rehabilitation and reconciliation.

        "An eye for an eye eventually puts everyone in the kingdom of the blind"

        The USA has prison populations per capita higher than _any_ other country in the world for a couple of reasons - firstly that it's a quick and dirty way of disenfranchising the poor (which is illegal under international law, but the USA does it anyway) and secondly that it allows legalised slavery - which contrary to popular belief isn't completely illegal in the USA - slavery of the incarcerated is explcitly still on the books and still practiced.

    2. Chris G Silver badge

      From what I read, the purpose of putting a felon or anyone else into a US prison is to provide sufficient manpower for the prison system's manufacturing businesses.

      Regardless, I don't think it has been about rehabilitation since the'70s.

      http://www.apa.org/monitor/julaug03/rehab.aspx

    3. sisk Silver badge

      If the purpose of putting a felon in a US prison is to rehabilitate them

      Let me stop you right there. It isn't. What, you think we get a 90% repeat offense rate by having rehabilitation anywhere on the list of priorities in our prison system? Nah man. US prisons are built and run around the idea of punishment, with a little though given to things like dignity but none at all given to the possibility of taking in a criminal and spitting out a rehabilitated, possibly productive, member of society. If anything our prisons do the exact opposite, taking in petty criminals and spitting out hardened ones.

      1. AZump

        ...wrong.

        Most prisons in the US are run by FOR PROFIT CORPORATIONS. It's not about punishment at all. It's about MONEY. Many inmates have come within days of release only to have some petty BS reason given which adds months onto their sentence.

        I doubt Jesus Christ himself would only serve his initial time.

        Seriously, petty reasons. You're due for release in 3 days? Guard pays inmate to punch you. 6 more months for fighting. Even though you went down and didnt instigate or fight back.

        Inmate == Income

        Period.

        1. Joe Gurman

          Re: ...wrong.

          I’m afraid it’s you who’s wrong. Fewer than 8% of the people incarcerated in the US are in prisons operated by private contractors. And whil Trumpista policy may reverse this, the trend has been down the last few years.

      2. This post has been deleted by its author

      3. Vinyl-Junkie
        Flame

        Re: US Prisons

        "If anything our prisons do the exact opposite, taking in petty criminals and spitting out hardened ones."

        Or dead ones. I came across this article when playing around with the Random Article button on Wikipedia, and couldn't believe what I was reading. This reads like something from a Japanese PoW camp in WW2, not a supposedly civilised country in 2009.

        Disgusting.

        1. FuzzyWuzzys Silver badge
          Unhappy

          Re: US Prisons

          And the sickening death of Darren Rainey, a mentally ill person who was scolded for 2 hours in an 82C shower room, 90% burns and his skin literally fell of his body.

          There is a minority of so called guards and careworkers in institutions who are basically worse than the guards at Nazi concentration camps. You could, at a pinch, say the Nazis had an ideal in mind and believed in their twisted idealogy, whereas a small minority of institutional workers are state sanctioned psychotic murders and sadists who enjoy inflicting pain on others for nothing more than pure pleasure it gives them.

  3. sisk Silver badge

    Erm....Ok....so you took a guy from another country who was drunk at the time. Then you let him waive his Miranda Rights while drunk and sleep deprived. On what grounds can you realistically say this person could possibly understand his rights?

    There are times, more and more of them lately, when I'm disgusted by my own government.

    1. Anonymous Coward
      Anonymous Coward

      If you read the transcript, it sure doesn't appear that he was drunk. He actually seems very coherent. Stupid? Yes, but not drunk.

      1. Gotno iShit Wantno iShit

        Whether he was drunk at the end of a shitty day making that call is not relevant. What matters is his state of mind much earlier in the day when his rights were allegedly explained to him.

      2. Anonymous Coward
        Anonymous Coward

        If you read the transcript, it sure doesn't appear that he was drunk

        ... but then, who did the transcription?

      3. E_Nigma

        Ugh

        @The AC that says that the guy didn't seem drunk, just dumb: And yet we know that this guy isn't dumb, therefore, apparently, he was somehow impaired.

        True, it can be argued that intelligent people can do dumb things, but it's usually out of hubris, or in the matters far outside their field. To that point, I don't see hubris anywhere in his behaviour and whether you wave your rights or not in his situation is simple math: those rights are there to protect you, the people who want you to wave them are those who want to convict you.

    2. LucreLout Silver badge

      Erm....Ok....so you took a guy from another country who was drunk at the time. Then you let him waive his Miranda Rights while drunk and sleep deprived.

      Not to piss on anyones chips here, but the only evidence I've seen for that position is his lawyers assertion. Given that lawyers lie for a living, and to a man freely chose their 'profession', then I think we should give zero consideration to that statement unless and until some evidence emerges.

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