The last hope of hacker McKinnon vanished today. The ECtHR rejected his emergency appeal from the House of Lords’ decision on his extradition case. Obliged to be tried now in the US, Mr McKinnon faces an unenvious position in a country where plea bargaining is rife. Having refused the plea made to him, the sentence is likely to be less lenient, especially if the prosecution is exasperated by the litigation process.
Three things here interest me:
- First, Mr McKinnon’s admission that he hacked but to find documents on UFOs. In strict terms of criminal law, his motive (UFOs, pure fun, or terrorism) bears no influence on the existing offence. Mens rea, the mental component of an offence, discards motives which cannot be its component. Motives may come into play later, as an excuse (insanity for example) or justification. This is why the Asperger’s syndrome argument becomes important as a ground for an excuse (constraint? barely insanity in today’s understanding of the defence)
- Second, the procedural aspect of the case. 95% of criminal cases end up in a plea; plea bargaining is supposed to be a transaction between two parties and a minimum of fairness is supposed to exist, rules of the Supreme Court. But the conception of fairness is relative, especially in the eyes of Europeans: American fairness in relation to plea bargaining is not often perceived, rightly or wrongly, as fairness in the sense of ENglish law or European Human Rights. Pressures are great to accept the plea and not to do so is taking a huge risk.
- It is unclear what has been the attitude of the authorities. Pressure was claimed to have been exercised. Mistatements were supposedly made about the extent of the hack and its threat…
Overall, let’s hope one thing: that Mr McKinnon’s misapprehensions of his original actions does not cost him more than it is necessary. He should not be sanctioned for the symbol that some may want to see of him in the fight against cybercrime; he should be sanctioned for his actions only, not for political or policies reasons. He hacked into the computers; this is an offence. If hacking into governmental networks is an aggravating circomstance, fine; it is not, then he should be left alone.
“US: tackling cyber-crime” (22 August 2008)
http://news.zdnet.co.uk/security/0,1000000189,39475039,00.htm (28 August 2008)
http://www.crime-research.org/news/29.08.2008/3542/ (29 August 2008)
Earlier, “Nasa hacker to fight US extradition on Monday” (ZDNet.uk, 13 June 2008)