UK refuses to charge McKinnon – NASA hacker one step closer to extradition

by Steve Ragan - Feb 26 2009, 17:00

A decision by the British Crown Prosecution Service (CPS) moves Gary McKinnon one step closer to facing trial in the United States by order of extradition. McKinnon has been fighting extradition using various arguments, but it appears the time for arguments is over based on this latest ruling.

McKinnon, who faces up to 70 years and fines of up to $1.75 million USD if convicted in the states, signed a statement with the hope of avoiding extradition, admitting that his hacking was a violation of the UK’s Computer Misuse Act of 1990.

In a statement, the CPS said that, while what McKinnon admits to is a violation of the act, “the evidence we have does not come near,” that alleged by U.S. authorities.

“We identified nine occasions where Mr. McKinnon has admitted to activity which would amount to an offence under Section 2 of the Computer Misuse Act (unauthorized access with intent),” said Alison Saunders, head of the CPS Organized Crime Division. “Although there is sufficient evidence to prosecute Mr. McKinnon for these offences, the evidence we have does not come near to reflecting the criminality that is alleged by the American authorities.”

“These were not random experiments in computer hacking, but a deliberate effort to breach US defense systems at a critical time which caused well documented damage. They may have been conducted from Mr. McKinnon's home computer -- and in that sense there is a UK link -- but the target and the damage were transatlantic,” she added.

“Having reached our conclusions on these matters, as is our wider duty in accordance with the Attorney General's guidance for handling criminal cases in the USA, we also reconsidered in which jurisdiction the case is best prosecuted -- and that remains the United States.

“The facts have remained the same. The bulk of the evidence is located in the United States, the activity was directed against the military infrastructure of the United States, the investigation commenced in the United States and was ongoing, and there are a large number of witnesses, most of whom are located in the United States.”

The CPS said it did not consider McKinnon’s diagnosis of Asperger’s Syndrome, which is another argument made by McKinnon’s defense as to why he should face trial in the UK. The CPS said this was because the second of the Code tests -- whether it is in the public interest to prosecute -- was never reached.

The charges against McKinnon stem from hacking sessions that deleted or accessed critical systems and files between February of 2001 and March of 2002. Among the systems accessed were computers owned by NASA, the U.S. Army, the U.S. Navy, the U.S. Department of Defense, and the U.S. Air Force.

McKinnon's reasoning for the hacks was to uncover confidential information related to anti-gravity propulsion systems and extraterrestrial technology, which he believed the authorities were hiding from the public.

McKinnon does not deny the charges that he gained administrator rights and accessed the listed systems, even saying he used a program called 'Remotely Anywhere', which is similar to 'PC Anywhere' in terms of scope and functionality.

“I got caught because I was using a graphical remote control tool and I forgot what time zone I was in,” McKinnon said shortly after his arrest. “Somebody was in the office when I was moving the mouse around.”

This latest chapter in the legal saga is surely something of a disappointment for McKinnon, who had hoped his admissions to crimes under the Computer Misuse Act would help him remain in Britain.

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