Original URL: http://www.theregister.co.uk/2007/04/13/mckinnon_extradition_appeal_analysis/

Accused Pentagon hacker prosecution could backfire

US military security still poor after 'biggest' hack

By John Leyden

Posted in Security, 13th April 2007 10:06 GMT

Analysis Accused Pentagon hacker Gary McKinnon is continuing to fight against extradition to the US after losing an appeal last week.

Only the Law Lords now stand between the Scot and a US trial for allegedly breaking into and damaging 97 US government computers between 2001 and 2002 and causing $700,000 worth of damage, in what US authorities have described as the "biggest military" computer hack ever. He allegedly infiltrated networks run by the US Army, US Navy, US Air Force, Department of Defense and NASA. US authorities described McKinnon as an uber-hacker who posed a threat to national security in the aftermath of the 9/11 attack.

McKinnon (AKA Solo) admits he infiltrated computer systems without permission. The 41-year-old former sysadmin said he gained access to military networks - using a Perl script to search for default passwords - but describes himself as a bumbling amateur motivated by curiosity about evidence of UFOs. He said numerous other hackers had access to the resources he was using and questions why the US authorities have singled him out for extradition.

Any damage he did was purely accidental, McKinnon claims. If convicted, following extradition and a US trial, McKinnon faces a jail term of up to 45 years' imprisonment.

Scapegoat

According to a reformed computer hacker accused of similar crimes 10 years ago, McKinnon is been made a scapegoat for the shortcomings of US military security.

Mathew Bevan, whose hacker handle is Kuji, was accused of breaking into US military computer systems but his 1997 case at Woolwich Crown Court was dropped after a legal battle lasting around 18 months. No attempt was made to extradite Bevan. After the case, Bevan became an ethical hacker and security consultant, first with Tiger Computer Security, and later on a freelance basis with his firm the Kuji Media Corporation.

"Both Gary and I were accused of similar offences. The difference is his alleged crimes were committed in a different political climate, post 9-11. The decision to push extradition in Gary's case is political," Bevan told El Reg.

Bevan, like McKinnon, has an interest in free energy and evidence of UFOs. The similarities in the case go further. The crimes Bevan is alleged to have committed were cited as evidence of cyberterrorism in US senate hearings in 1996. "They haven't found a cyberterrorist or 'bad boy' for a while and it looks like they are trying to make an example in Gary's case," he said.

McKinnon should have been allowed to plead guilty in his own country and not be faced with the prospect of a long prison term in a US prison with "inhumane" conditions, Bevan argues.

He says the military systems McKinnon is accused of hacking remain vulnerable to attack. "I'm sure there are a lot of people on these machines, some of who the US authorities allow to get in."

"The prosecution against Gary is about saving face for security lapses by the US military that remain as bad as they were 10 years ago," Bevan said. "If this had happened with a corporation someone would have been sacked."

He added that US authorities are keen to talk up the cyberterrorism threat in order to protect information security budgets.

McKinnon, unlike a US citizen who faced similar charges, is in a particularly bad situation. "The authorities are trying to rip him away from his family and ruin his life. Gary committed his alleged offences in the UK, and according to the Computer Misuse Act, jurisdiction lies here.

"Gary has suffered trial by media over the last five years, with everything weighed against him," Bevan added.

Despite everything that's happened to McKinnon, he reckons the case will fail to act as much of a deterrent to other would-be hackers. "Has it scared anyone? I shouldn't think so," Bevan said.

Final appeal

Lawyers for McKinnon are petitioning for leave to appeal to the House of Lords on grounds including the use of "deliberately coercive plea bargaining" tactics by US authorities during the course of the long running case. His lawyers argued that he had been subjected to "improper threats" that he would receive a much harsher sentence and be denied the opportunity to serve out the back-end of his jail term in the UK unless he played ball.

Appeal court judges Lord Justice Maurice Kay and Mr Justice Goldring criticised US prosecution tactics but said these didn't offer enough grounds for appeal against the Home Secretary's decision to confirm a 2006 ruling that McKinnon ought to be extradited to the US.

The unemployed sysadmin has had these charges over his head since March 2002 when he was arrested by officers from the UK's National High Tech Crime Unit. The case against him lay dormant until July 2005 when extradition proceedings commenced. McKinnon has suffered ill health over recent months as a result of the stress caused by the case, according to his lawyers.

McKinnon's supporters argue the case has wider political implications. "It is not just about Gary McKinnon, there are lots of other people, from computer hackers to legitimate businessmen, who will continue to fall foul of this sort of surrender of British sovereignty and obeisance before the extra- territorial demands of the US legal bureaucracy," Mark, a member of London 2600 who runs the Free Gary blog, told us. "However the same lack of a requirement to show prima facie evidence also applies to European Union countries under the European Arrest Warrant," he adds.

McKinnon's lawyers chose not argue about whether he might be put on trial before a military tribunal but that this may well be argued in the House of Lords if leave to appeal (which is by no means guaranteed) is granted.

"Basically the judges have said 'we have to trust the USA Government to act in good faith', until they show that they have broken their promises - which will by then, of course, be too late for Gary McKinnon. Unlike Babar Ahmad or even any of the British citizens who were held without trial at Guantanamo Bay, Gary is actually accused of directly 'attacking the US military' systems," Mark notes.

"Even if Gary faces a civilian court in the USA, his chances of being found not guilty or of getting a lenient sentence appear to be slim, given the prosecutions recommendations as to length of sentence."

But the whole effort to try McKinnon in the US might backfire on the US military by putting its security shortcomings under the spotlight.

"If there is an actual trial in the USA, rather than a coerced or otherwise 'plea bargain', there are a large number of senior US military officers and civilian IT managers and auditors who are going to have to explain the incompetence or possible corruption or perhaps treason, which went on for years and months under their command, both before and after September 11," Mark claims.

"Even if this is suppressed in court, it might lead to Congressional Committee hearings," he adds. ®