On Asperger's, Extradition, and National Security

October 18, 2011 11:04 PM

Gary McKinnon is a Briton whom the US is trying to extradite to face charges that he hacked into a number of US Government networks, mostly NASA and military, to search for evidence of extra-terrestrial life and leave threatening messages. His efforts took 2,000 Government computers out of service for three days. McKinnon admits guilt and wishes to be tried in the UK. His case has drawn international media attention on two fronts: 1. Should Asperger's be considered a mitigating circumstance in determining guilt, a la the insanity defense? 2. Is the UK-US extradition treated lopsided in favor of the US? A judge-led UK panel says no.

Previously.

posted by mreleganza (70 comments total)

He knew what he was doing was wrong. Is being an asshole a legit defense?
posted by Ideefixe at 11:10 PM on October 18, 2011 [6 favorites]

ary McKinnon is a Briton whom the US is trying to extradite to face charges that he hacked into a number of US Government networks, mostly NASA and military, to search for evidence of extra-terrestrial life and leave threatening messages.

ah yes, acquittal via the "being awesome" defence
posted by This, of course, alludes to you at 11:23 PM on October 18, 2011 [4 favorites]

He claimed he had found a list of the U.S. Navy's "nonterrestrial officers," as well as a photo of a cigar-shaped UFO studded with geodesic domes (a photo he couldn't save, he said, because it was in Java script).

Psst! There is a key you can press that can take screen caps.
posted by Sys Rq at 11:28 PM on October 18, 2011 [16 favorites]

Fool as he is, and by his own admission guilty, I wouldn't extradite him because the potential penalties he faces in a US court are excessive (if the 70 years is true) and shit as our prisons are, those in the US are far worse. By the looks of things, our courts eventually will, as I'm not sure that can be taken into account.
Given that he apparently did no more harm than leaving a stupid message (and no doubt flagged up some security holes that could have been exploited by more malicious intruders), all I can think is poor silly sod.
posted by Abiezer at 11:53 PM on October 18, 2011 [9 favorites]

Gary MacKinnon is one of the interesting hot button topics amongst geeks (like Hans Reiser), especially on sites like Slashdot; it's also a reminder to not get emotionally invested in arguments on the Internet because you never know what premises are lurking just below the surface, waiting to make the whole exercise pointless after days of typing. A long dialogue I had about MacKinnon and whether or not he should be extradited ended with my opponent saying "Well, I don't believe in national sovereignty, so ipso facto, extradition is right out."

Okay then.

The insanity defense doesn't hinge on whether or not someone has a psychiatrically defined condition, it depends upon whether their insanity impairs their moral judgement. How is a claim of Aspergers anything but special pleading?
posted by fatbird at 11:54 PM on October 18, 2011 [1 favorite]

As I understood, it was Asperger syndrome coupled with severe depression. Wouldn't the severity of both (clinically depressed people are more prone to taking risks they wouldn't take while healthy) make a reasonable case for mitigation?
posted by Pope Xanax IV at 12:02 AM on October 19, 2011 [1 favorite]

It sounds like he might have more crazy going on than just Asperger's. The obsession with UFOs and the claims of finding wild things that couldn't possibly exist point to some kind of delusions, and trying to hack into the government suggests paranoia. Considering that he used to be employed, you have to wonder if maybe he had a psychotic break somewhere down the line and is exhibiting a mild case of paranoid schizophrenia.

As far as using Asperger's as a legal defense, you might pull it off in some cases, but it'd be hard to argue here. The guy used to be a system administrator; there's no conceivable way he didn't know that what he was doing was illegal.
posted by Mitrovarr at 12:02 AM on October 19, 2011 [3 favorites]

I'm guessing that in the Navy, "nonterrestrial" does not nean "intergalactic."
posted by longsleeves at 12:03 AM on October 19, 2011 [12 favorites]

I had some knowledge of the US-UK Extradition Treaty of 86. it is not biased in favor of the US. It was basically an 'anti-terrorism' treaty.
It's probably more favorable to the UK than the US.
posted by Katjusa Roquette at 12:04 AM on October 19, 2011

It sounds like he might have more crazy going on than just Asperger's. The obsession with UFOs and the claims of finding wild things that couldn't possibly exist point to some kind of delusions

This would give pretty much every member of the Tea Party a get-out-of-jail-free card.
posted by PeterMcDermott at 12:09 AM on October 19, 2011 [6 favorites]

The trouble with mitigation is that it applies after someone has been found guilty. I presume that Gary's lawyers are desperately trying to keep him from being tried in the USA. They need an actual reason why he shouldn't be extradited - some reason why he couldn't be found guilty or why extradition would violate his rights or something of a similar nature.
posted by Joe in Australia at 12:13 AM on October 19, 2011

I may be going off outdated information, but the last time I paid attention to his case it seemed the real root of the issue was the difference between the US and UK legal culture; over here plea bargains and agreements to reduce sentences are pretty common, but over there they aren't. And when McKinnon and/or his lawyers went full asshole over an offered deal the results were pretty predictable: US officials suddenly started tossing around the possibility of 70-year prison sentences, and he and his representatives started playing the Aspie card and tossing around the threat that he'd commit suicide if extradited.

In other words, the kind of thing that makes me think of New Yorker cartoons, because I want to get everyone involved in this case into one panel and caption it "Christ, what an asshole".
posted by ubernostrum at 12:14 AM on October 19, 2011 [1 favorite]

If you're not even clear on the difference between reality and your malfunctioning impression of reality, it seems like your perception of right and wrong is also shot. Unless you're living in some kind of Hieronymus Bosch hellscape and doing things you know to be wrong anyway but that doesn't seem to be the case.
posted by bleep at 12:17 AM on October 19, 2011

I may be going off outdated information, but the last time I paid attention to his case it seemed the real root of the issue was the difference between the US and UK legal culture; over here plea bargains and agreements to reduce sentences are pretty common, but over there they aren't.

Actually, over 90% of US cases are plea-bargained, although I suspect that this case would have less of a chance of ending that way were he to be tried in the US.
posted by mreleganza at 12:28 AM on October 19, 2011 [1 favorite]

Hey, I have ADHD! Does that mean I can get to break into secure servers too? I've got a friend with OCD- can he come too?
posted by happyroach at 12:30 AM on October 19, 2011 [4 favorites]

"it's ok to break into US government computers as long as you aren't physically in the US" seems like a pretty bad road to start down. sucks that this guy will be an example for what is pretty much digital graffiti, but aspergers seems like a really weak defense.

i'd be pretty shocked if he was sentenced to 70 years. i can't think of a single hacker with a sentence that long.
posted by nadawi at 12:38 AM on October 19, 2011

This would give pretty much every member of the Tea Party a get-out-of-jail-free card.

Ssssssh! Don't tell them!
posted by erniepan at 12:45 AM on October 19, 2011 [1 favorite]

How could he be tried in a British court for a criminal offense which took place in the US? The British courts wouldn't have jurisdiction. (Actually, it's an interesting question where it took place. He was in the UK, and used the internet to access computers in the US. So where was the crime?)
posted by Chocolate Pickle at 1:21 AM on October 19, 2011

it's an interesting question where it took place. He was in the UK, and used the internet to access computers in the US. So where was the crime?

On average...Avast! Add piracy to the charges. He illegally copied files in international waters.
posted by justsomebodythatyouusedtoknow at 1:29 AM on October 19, 2011 [2 favorites]

Should Asperger's be considered a mitigating circumstance in determining guilt, a la the insanity defense?

Barring the rest of this very interesting post, I have to say:

"No. It should be considered a mitigating circumstance during sentencing ONLY".
posted by hal_c_on at 1:48 AM on October 19, 2011

Hey, I have ADHD! Does that mean I can get to break into secure servers too? I've got a friend with OCD- can he come too?

You could have...before you posted that comment. Now the feds have you in their sights.
posted by hal_c_on at 1:51 AM on October 19, 2011

A different slant on the McKinnon case from the usual, from "Jack of Kent" (David Allen Green, an experienced lawyer with a good track record on free speech - certainly not a stooge of the military-industrial complex).

Part One
Part Two
Part Three
Part Four
Part Five
Conclusion

(tl;dr: the "Aspie looking for UFOs" claim was not mentioned as a defence in the extradition hearing, only in the campaign to prevent extradition, and the case for extradition is a strong one - but D.A.G. still doesn't think he should be extradited).
posted by nja at 2:01 AM on October 19, 2011 [5 favorites]

ah yes, acquittal via the "being awesome" defence

Well, the first part I might buy; the "leaving threatening messages," not so much.

Also, I am a tad nervous with an "insanity defense," which tends towards incarceration in a treatment facility rather than incarceration in a penal facility. Opening other people with Asperger syndrome and/or depression to protective incarceration wouldn't do them much good, in my opinion.
posted by GenjiandProust at 2:48 AM on October 19, 2011

I had some knowledge of the US-UK Extradition Treaty of 86. it is not biased in favor of the US. It was basically an 'anti-terrorism' treaty.
It's probably more favorable to the UK than the US.

Is that still the case? This is the Extradition Act of 2003.

I personally feel strongly that nobody with a condition like Asperger's should be extradited to the US if they face a custodial sentence. At very least only on the condition that they serve that sentence in the UK.
posted by Jehan at 3:22 AM on October 19, 2011

Chocolate Pickle: How could he be tried in a British court for a criminal offense which took place in the US?

Hacking case law is interesting, because the alleged criminal was not in the same country as the computers he allegedly broke into.

In this case, the UK clearly has jurisdiction because (a) McKinnon was in the UK at the time, and (b) the Computer Misuse Act (1990) makes it an offense to gain unauthorized access to computing resources even if they're in another country. Indeed, McKinnon's lawyers have indicated his willingness to enter a guilty plea if prosecuted in an English court. Note that the maximum sentence he'd be liable for is five years' imprisonment, less a discount for entering a guilty plea. (Compare to the 70 years on offer from the US federal prosecutors, who seem to be determined to nail a UFO freak under terrorism charges.)

The DPP has declined to bring a case, citing the extradition proceedings.
posted by cstross at 3:27 AM on October 19, 2011

My teen with Aspergers knows right from wrong. He may not always understand why some things are right and some things aren't, but he follows the rules.
If he started having paranoid delusions about spaceships I would suspect schizophrenia or bipolar and get him to his psychiatrist pronto.

Just my .02.
posted by Biblio at 3:36 AM on October 19, 2011 [4 favorites]

Does anybody doubt that he will be extradited? The UK government values its relationship with the US too much to allow citizens' rights to stand in the way. The government will find a way to give the US what it wants. It's a very sad situation that we won't be protected fully from them.
posted by Jehan at 3:50 AM on October 19, 2011 [4 favorites]

Just want to raise the case of Hew Griffiths, extradited, convicted and jailed in the USA for pirating US software at home in AU. Australia and the UK are fundamentally vassal states of the USA when it comes to IT crime. Just disgusting for those of us that feel their is still some element of national sovereignty left.
And for the avoidance of doubt, no, I don't think the USA should be able to extradite other states citizens guilty of crimes committed in those individual's home countries, even (especially) if they are guilty.
posted by bystander at 4:00 AM on October 19, 2011 [3 favorites]

/and just for a bit more clarity.
As a very amateur software pirate from the 1980s (monkey island, I beat your cheat wheel) the idea that the US with its ridiculous IP laws should be able to cast its thrall over other nations is problematic. There is a bunch of reasons why international IP laws should be diverse (e.g. delays in delivering DVD versions of old movies, or just flat out unavailability of some media with a US licence - if you don't choose to sell to me in Oz, is it really your call if I buy a US copy and bring it home - yes, this does happen).
US media law is broken, and exporting it is helping nobody.
posted by bystander at 4:09 AM on October 19, 2011 [1 favorite]

A long dialogue I had about MacKinnon and whether or not he should be extradited ended with my opponent saying "Well, I don't believe in national sovereignty, so ipso facto, extradition is right out."

What if it ended "I don't believe anyone should be tried and sentenced under the US legal system."?

For these reasons: 1) They still have the death penalty in several states. 2) In Britain we've seen a slew of documentaries and films about how fucking nasty the prisons are over there. 3) (And I know this is technically irrelevant as its a military issue but it hardly gives us faith in the fairness of the US judicial system) but how long has Bradley Manning been held without trial?
posted by pmcp at 4:15 AM on October 19, 2011 [4 favorites]

And for the avoidance of doubt, no, I don't think the USA should be able to extradite other states citizens guilty of crimes committed in those individual's home countries, even (especially) if they are guilty.

Can you elaborate on this opinion? In this particular case, if the UK does not agree to extradite him, then at least the US can rest assured that he will be tried in the UK. They may not be happy about it, or the results of the trial and its sentencing. But I think we can agree that taking a big chunk of the US Army offline for three days is a pretty serious offense.

But what if McKinnon lived in a country that refused to even try McKinnon? Do you mean to say that extradition should not exist, period? (BritishFilter: ...should not exist, full stop?)
posted by mreleganza at 4:40 AM on October 19, 2011 [1 favorite]

What if it ended "I don't believe anyone should be tried and sentenced under the US legal system."?

I think you're missing the point. It isn't the content of the ultimate objection, it's that it was raised only at the end of a long discussion as a means to invalidate all that came before it. If you have an objection that obviates all other arguments, state it up front so it can either be discussed, or the discussion avoided if persuasion was the aim.
posted by OmieWise at 4:49 AM on October 19, 2011 [1 favorite]

Mrreleganza,
I read bystander as referring only to those crimes which are not commited on US soil. That is when the defendant was sitting in another country and broke US law, they should not be suddenly subject to US law.
Extradition was originally set up to prevent guilty parties from committing a crime and then fleeing home to avoid prosecution.
I do not see bystander suggesting we get rid of the original type of extradition.
I have to agree. If a US citizen was prosecuted for breaking another country's law whilst never leaving US soil, all hell would break loose. I get tired of my country being so hypocritical. Either everyone has sovereignty or no one does. We shouldn't get one set of standards for the US and another for everyone else.
If you break a country's laws while you are in their country, it would be a violation of their sovereignty to allow your citizens to hide from prosecution. You would, in essence, be saying that your laws are all that apply to your citizens, no matter where they are are located.
OTOH, this case seems to want to put everyone under US laws no matter where they are located.

What this guy did was wrong, full stop. But 70 years? WTF US? We already have overcrowding and you want to pack another country's citizen into the jails for a clearly non violent offense.

I'd love to know what those threats were and if the US military ever saw them as credible. I think that the UK's 5 years makes the point "do not do this" without being beyond the pale.
posted by Librarygeek at 5:20 AM on October 19, 2011

OmieWise: Yeah, I do see your point but I think there is a reason why people get frustrated with arguing out the finer points of extradition laws (that they probably don't understand fully, I know I don't) when what people really want to say is: "Fuck off America, stop bullying us. We know how you treat your own citizens."

I think if you argue it out long enough people will stop using the logic of the argument and start just saying what they think on a less rational level. Personally I don't think McKinnon should be extradited but it has very little to do with his plea, his guilt or his intentions which I could argue around the houses about and try to rationalise but if I'm honest it's to do with a more gut feeling of "let's not stick this guy into an episode of Oz" - despite the fact that I know that I have an extremely mediated opinion of the US and it's prison system, through dramas and Louis Theroux. And if I thought about it for a bit longer I'd probably be a bit confused about the concept of the nation state too...
posted by pmcp at 5:26 AM on October 19, 2011

"OTOH, this case seems to want to put everyone under US laws no matter where they are located."

Extradition and trial is better than extraordinary rendition and indefinite detention.

Or a Hellfire missile fired from a drone.

Making formal extradition harder will only result in the US taking "the law" into its own hands and acting unilaterally without the benefit of any judicial oversight.
posted by three blind mice at 5:32 AM on October 19, 2011 [1 favorite]

Librarygeek, I understand and agree with all of that. My question is more towards, "if the US should not be allowed to prosecute attacks on their systems if the perpetrator is sitting in another country, how can they protect themselves (besides the obvious "increase your security"/preventive measures....let's say we are dealing with most sinister utter genius hacker of all time) or mete out justice if the country the guy is sitting in will not make a good-faith effort to go after and punish the guy on their own terms?

But the more I think about it, I guess that would only apply to countries (say, North Korea) actively trying to send a big F-U to the US, so no extradition policy would stop them anyway, or likely even be in place, so perhaps it's a moot point.

US prisons are clusterfucks (although I think that's a bit overblown in the media and as a white collar non-violent criminal, McKinnon would not be placed in an Oz-type situation anyway), and 70 years is ghastly and too long. I'm just sort of trying to look at it from a US perspective at large. I think they have a right to expect better than a simple, "We'll deal with this massive breach of your national security systems as we see fit, thank you very much assholes," no matter how much the US has and does play world bully/police.
posted by mreleganza at 5:41 AM on October 19, 2011

I was going to put together a comment about the insanity defense, about knowing what you were doing being wrong but believing that by doing it you were preventing a greater wrong (e.g. going back in time and assassinating Hitler for crimes against humanity he had yet to commit.) Because in this guy's world view, he probably sees what he's doing as stealing money from the register at the 7-11 to buy the parts he needs to build a time machine in his garage.

Then I saw Fatbird's comment: "Well, I don't believe in national sovereignty, so ipso facto, extradition is right out."

So somewhere there is a guy who thinks extradition is out, but, would be fundamentally OK if with a bunch of guys from NASA going over to the UK and randomly beating people to death with baseball bats, to teach them all a lesson.

The real problem with an insanity defence is that, in light of that kind of crazy, the suggestion that members of an advanced starfareing civilization have showed up on the earth and the United States has covered it all up and is pinning Junior Pilot wings on them and letting them ride on their boats and you have to hack some computers so the rest of humanity can know falls right into the baseline.
posted by Kid Charlemagne at 5:43 AM on October 19, 2011

I could have sworn the issue is not whether McKinnon having Asperger's is grounds for an insanity defense or some other kind of 'not able to distinguish right from wrong' defense, but whether subjecting an arguably vulnerable person such as McKinnon to the US prison system (via extradition) is conscionable.
posted by hoyland at 5:44 AM on October 19, 2011

Compare to the 70 years on offer from the US federal prosecutors

What McKinnon was actually offered way back in 2003 was a plea-bargain leading to a sentence of 3-4 years. Have a look at the House of Lords decision here.

who seem to be determined to nail a UFO freak under terrorism charges.

The "UFO freak" tag is less viable than mainstream reporting suggests. McKinnon admits to leaving this note on a US Army computer:

"US foreign policy is akin to Government-sponsored terrorism these days … It was not a mistake that there was a huge security stand down on September 11 last year … I am SOLO. I will continue to disrupt at the highest levels … "

See paragraph 8 of this High Court decision.

I feel hugely sorry for Gary McKinnon. He has made some very poor tactical decisions, egged on by "supporters" more interested in axe-grinding than the welfare of a vulnerable man. Had this not happened, McKinnon would almost certainly have been free 5 years ago. As it is, nearly a decade of his life has been blighted, with no end in sight.

I'm sure all his "defenders" are very proud of themselves. Personally, I don't know how people like that sleep.
posted by howfar at 6:01 AM on October 19, 2011 [3 favorites]

How could he be tried in a British court for a criminal offense which took place in the US? The British courts wouldn't have jurisdiction. (Actually, it's an interesting question where it took place. He was in the UK, and used the internet to access computers in the US. So where was the crime?

This was at the heart of a lot of the earlier media coverage over here in the UK, if not his lawyer's actual arguments.

Someone who commits a crime in the US should be tried in the US courts. And someone who commits a crime in the UK should be tried in UK courts. The computers he broke into were US owned and on US soil, but he and his computer were sitting in his bedroom in the UK. So where was the crime committed: was he breaking laws in the UK, or are the metaphors of "visiting" a website and "trespassing" into US computer systems strong enough to claim that his crimes were committed over there?
posted by metaBugs at 6:26 AM on October 19, 2011

I could have sworn the issue is not whether McKinnon having Asperger's is grounds for an insanity defense or some other kind of 'not able to distinguish right from wrong' defense, but whether subjecting an arguably vulnerable person such as McKinnon to the US prison system (via extradition) is conscionable.

I suspect that many more vulnerable people than McKinnon are subjected to the US prison system every day, but they do not make the news, in Britain or elsewhere.
posted by Skeptic at 6:51 AM on October 19, 2011 [2 favorites]

Aspergers isn't crazy. Other stuff like the extra-terrestrial stuff is another matter. Could be some crazy delusional stuff going on there.
posted by Katjusa Roquette at 7:02 AM on October 19, 2011

Please do follow and read the links in nja's excellent comment above, which list UK legal blogger Jack of Kent's comprehensive overview of the actual case, as opposed to the quite different case-as-portrayed-in-the-media.

On the specific point of the relevance of Asperger's to the case, read this part, where JoK makes it clear that 'it has never been the case of Mr McKinnon that the diagnosis of his condition excused him criminal liability in the first place; only that it excused him from extradition'.

There is something fascinating and foul in the way that the bulk of the dicussion of this case appears to be centered around the entirely fictional narrative of 'innocent aspie looking for UFOs'.

The actual details of the case seem to show that McKinnon has admitted guilt on at least some of the charges and indicated that he might plead guilty to others, that the 'UFO' thing has played no major role in any of it, and that the fact of his Asperger's diagnosis has only come into play with regard to the extradition process and nothing else.
posted by motty at 7:11 AM on October 19, 2011

Blush. I should also point out that Jack of Kent subsequently changed his mind to support extradition, with the diagnosis of Asperger's being brought in as mitigation at the full trial. As howfar says, some of McKinnon's "supporters" need to take a good look at the results of their "support", and read the substantial quantities of legal documents available online, rather than jumping to conclusions based on inaccurate newspaper reports.
posted by nja at 7:55 AM on October 19, 2011 [1 favorite]

are the metaphors of "visiting" a website and "trespassing" into US computer systems strong enough to claim that his crimes were committed over there?

In some ways I think this is misleading. If I somehow posted a letter-bomb to the US, and it killed someone there, I would have, without leaving UK soil, clearly committed a crime for which it may be appropriate to prosecute me in the US. The fact that I would also have committed crimes in the UK in order to facilitate the commission of my murder does not seem a particularly strong argument against extradition. The real question would be whether it would serve the interests of justice to prosecute me in the US.

We don't need to rely on metaphors of "visiting" or "trespassing". Mr McKinnon is accused of, and in part admits to, doing real harm to real US computer systems. If an American citizen had done the same while on holiday in Britain, it would hardly be reasonable for him to call to be extradited back here if he were arrested on his return home.
posted by howfar at 11:40 AM on October 19, 2011

A person doesn't have to be seeing pink elephants to qualify for a mental disorder defense.

My teen with Aspergers knows right from wrong. He may not always understand why some things are right and some things aren't, but he follows the rules.

Suppose you were an evil parent who raised him to believe that left handed redheads are inhuman monsters who should be killed on sight. If he is incapable of understanding for himself that your rules are bad rules, then he would not be criminally responsible for lashing out.


I don't think the USA should be able to extradite other states citizens guilty of crimes committed in those individual's home countries, even (especially) if they are guilty.

Suppose I weld myself a Scud missile. While remaining on Canadian soil, I launch it over the border at Seattle. I would be guilty of a lot more than failing to file a flight plan with NAV Canada.

How about this: extradition to country X for (crimes committed while in country Y against victims located in X) is procedurally unjustified if what was done is not against the law in country Y. Under no circumstances should I be extradited to Greece for blasphemy.
posted by justsomebodythatyouusedtoknow at 11:47 AM on October 19, 2011

Where are Mulder & Scully when you need them?
posted by jonmc at 11:57 AM on October 19, 2011

I think the Asperger's plead is a pretty poor excuse. People with the syndrome may have out there ideas, but so do many neurotypical people. People with Asperger's may have trouble with social skills and empathy, but they still have the capacity to learn, know and understand society's rules.

Besides, I think it would be a major setback for the Asperger's community if there were a legal precedent claiming that they were too far removed from conventional thinking to behave morally.
posted by mccarty.tim at 12:17 PM on October 19, 2011

1. Should Asperger's be considered a mitigating circumstance in determining guilt, a la the insanity defense?

Special pleading. An insane person has a defense because they could not develop the necessary mens rea or state of mind required to have been found to commit the crime. A person with Aspergers knows they are doing wrong and can be found guilty.
posted by Ironmouth at 12:44 PM on October 19, 2011

Where are Mulder & Scully when you need them?

They're not needed. The UFO experts here have solved the UFO question once and for all. Boy, I wish I could be that certain about anything.
posted by panboi at 12:59 PM on October 19, 2011 [1 favorite]

My goodness this is an ugly thread - by which I mean the sentiment contained within it. It reads like a baying mob crossed with a lot of self righteousness. Not trying to derail and surely just coincidence but I read today that 55% of americans consider religion very important to them. Reminds me of what Russell said about the desire for punishment for punishments sake as opposed to the commendable punishment that is deterrent or reformatory not when it is considered a good thing on its own account that the 'wicked' should suffer.

It is not about Gary McKinnon suffering from Asperger's Syndrome - it is the kneeling down to the baying mob attitude of the US Justice system that is so concerning. What did Mr McKinnon actually do other than satiate intellectual curiosity? The reality is the authorities are acting out of spite because they are embarrassed that a so called world superpower who spends countless billions on defense and security can have it's systems hacked into by a guy sitting in a caravan half way round the world. Just imagine a world where the authorities tracked back the individual - realized he was harmless but with unique grey matter that could be utilized and actually engaged with him to understand the flaws and vulnerabilities in the systems. Instead the vindictive spitefulness rears its ugly head that ensures this individual has put up with years of sustained insecurity in not knowing his fate. Whether conscious or unconscious I consider that living in a legal grey land to be a form of physchological torture. Landing us squarely back at the baseness of the mob justice that has to be 'seen' to be done.
posted by numberstation at 1:18 PM on October 19, 2011 [2 favorites]

numberstation, aside from your brain-dead little swipe against religion, I pretty much agree with you.
posted by Crabby Appleton at 2:30 PM on October 19, 2011

I could have sworn the issue is not whether McKinnon having Asperger's is grounds for an insanity defense or some other kind of 'not able to distinguish right from wrong' defense, but whether subjecting an arguably vulnerable person such as McKinnon to the US prison system (via extradition) is conscionable.

That makes no sense. Get out of jail free because it will make me feel bad?

Nuh-uh.
posted by Ironmouth at 2:32 PM on October 19, 2011

What did Mr McKinnon actually do other than satiate intellectual curiosity? The reality is the authorities are acting out of spite because they are embarrassed that a so called world superpower who spends countless billions on defense and security can have it's systems hacked into by a guy sitting in a caravan half way round the world

He gained illegal entry into a US computer system and shut down a lot of computers.
posted by Ironmouth at 2:34 PM on October 19, 2011

If you just have a computer system, then physical security should be sufficient (unless you use removable media that were written by another computer). If you have a computer system and you connect it to an open network, then other computers on that network may send it messages via that network. What your computer system does in response to those messages is your problem. It could ignore the messages. Or it could take its knickers off and dance around in front of an open window. If it does the latter, how can you blame that on anyone else?

That is, of course, how things should be. The fact is that idiotic laws were passed against "unauthorized access blah blah blah". BS. You authorized access when you plugged in the ethernet cable. But corporations own the government, and they don't want to have to spend the money to hire the programmers to build secure systems, so they induced their hirelings to pass these laws. And, of course, I know about these laws and obey them, because I'm pretty sure I wouldn't live very long in prison. But I know that they are wrong.
posted by Crabby Appleton at 2:55 PM on October 19, 2011

numberstation:

surely just coincidence but I read today that 55% of americans consider religion very important to them

I'm neither American nor religious, but that's about the ugliest thing I've seen expressed so far in this thread.

it is the kneeling down to the baying mob attitude of the US Justice system

Baying mob attitude? It is a matter of public record that McKinnon was offered what appears a very reasonable sentence in return for a guilty plea. He refused this, as he was fully entitled to, but there were inevitably going to be consequences.

What did Mr McKinnon actually do other than satiate intellectual curiosity?

Well, he certainly illegally accessed and modified data on Army computers. But you may be missing the point, we have trials in order to ascertain whether people are guilty of crimes, we don't generally leave it to the wisdom of the Daily Mail.

realized he was harmless but with unique grey matter that could be utilized and actually engaged with him to understand the flaws and vulnerabilities in the systems

This is actually rather ugly too. There is no evidence that McKinnon did anything suggestive of "unique grey matter". I presume your assumption that he has such grey matter is based upon careful study of the documentary Rain Man.

Instead the vindictive spitefulness rears its ugly head that ensures this individual has put up with years of sustained insecurity in not knowing his fate.

It is not spite, but rather Mr McKinnon's own legal strategy, that has led to these years of uncertainty. He has (perfectly legitimately) used every delaying tactic available to him. Presumably you believe it is spiteful of the US not to just give up and leave him alone. I believe it to be due process of law.

Landing us squarely back at the baseness of the mob justice that has to be 'seen' to be done.

"Justice" is not the same thing as punishment. When we say that justice must not only be done but must be seen to be done, we mean that there must be a fair, open and transparent process of justice. It's that process that keeps the mob at bay. You and many like you are calling for McKinnon to be freed not as the result of a process of justice, but because you don't like where that process leads. That seems to me the very essence of mob justice, not opposition to it.

I'm going to state again that I feel deeply sorry for Gary McKinnon. I hope that this can be sorted out as soon as possible. I just don't think that intemperate calls for the subversion of due process are either justified or helpful.

Crabby Appleton:

The fact is that idiotic laws were passed against "unauthorized access blah blah blah". BS. You authorized access when you plugged in the ethernet cable.

So there is no moral wrong in you accessing my computer after I've taken steps to prevent you doing so, as long as I have not physically isolated it? That's certainly an interesting position. It's a bit like saying it's OK to enter someone's house, if they haven't taken the trouble to fit a lock you can't pick. Presumably if I give you access to my computer to check your email, you're entitled to look around as much as you like too? After all, you're only sending messages via an electronic input device, and it's just reacting however it reacts.
posted by howfar at 3:42 PM on October 19, 2011 [4 favorites]

That little word "access" hides a multitude of sinful assumptions. At a fundamental level, I can't "access" your computer. All I can do is send messages to it over a network. And I could send it a perfectly innocuous message, a "legal" message even, and it could (conceivable) delete all your files as a result. C'est la vie.

Your house analogy is deeply flawed. Computers are not analogous to houses. Houses exist in the physical world and there are literally thousands of years of legal precedent that apply to how they are treated in law. The aspect of computers we are considering here is their existence in "cyberspace", or, if you don't like that metaphor, in a universe that is most accurately described as a formal mathematical system, not as physical reality. It is possible to write secure code. It is possible to write code and prove, mathematically, that it is correct and secure. It is possible to develop secure systems this way. But it's not easy. Or particularly cheap.

If I can't pick your door lock, I can get a battering ram and break down your door. Or I can get a rocket launcher and blow up your house. There's nothing analogous to that in networked computer systems; there, all I can do is send you packets of bits. It's ridiculous to conflate the two.
posted by Crabby Appleton at 4:03 PM on October 19, 2011 [1 favorite]

I could have sworn the issue is not whether McKinnon having Asperger's is grounds for an insanity defense or some other kind of 'not able to distinguish right from wrong' defense, but whether subjecting an arguably vulnerable person such as McKinnon to the US prison system (via extradition) is conscionable.

That makes no sense. Get out of jail free because it will make me feel bad?

No. Just US jails. If the US is willing to agree upfront that he will be repatriated to Europe to serve his time, then I'll drop my objection to his extradition. I don't trust the US prison system to adequately care for vulnerable people. Less than a decade ago the US still executed mentally retarded people, which was eventually forbidden as "cruel and unusual punishment". It is fair to argue that certain prison regimes are effectively cruel and unusual punishment for people with Asperger's. McKinnon is more likely to have his rights respected in Europe, and so the UK government ought to fight to protect him from the US on these grounds.
posted by Jehan at 4:32 PM on October 19, 2011

That little word "access" hides a multitude of sinful assumptions. At a fundamental level, I can't "access" your computer.

At a fundamental level you can still (for example) read my private correspondence by "accessing" my computer. You presumably agree that it's not morally acceptable to do so. Given that you reject a criminal penalty, should I have a civil remedy against this moral wrong?

The aspect of computers we are considering here is their existence in "cyberspace", or, if you don't like that metaphor, in a universe that is most accurately described as a formal mathematical system, not as physical reality.

That's not really what I'm considering. What I'm trying to consider is the mischief that laws against interference with private property are trying to address. For your argument to hold up, it seems to me that the mischief would have to be physical interference. That seems unlikely to me. Certainly most British criminal statute is phrased in terms of the effect of an action, not its means. If you damage my property, intending or being reckless as to whether you damage property, you are guilty of an offence of criminal damage. That's in statute from 1971, and it seems to clearly cover those cases where the offence occurs only in "cyberspace".

The mischief aimed at by common law and statute seems to be the interference with property rights. I don't see that the means of interference, be it bits or bazookas, has very much to do with it. Extra statute made to prevent "unauthorised access" does not seem, to me, to deviate from the spirit of such laws.
posted by howfar at 4:35 PM on October 19, 2011

If I can't pick your door lock, I can get a battering ram and break down your door. Or I can get a rocket launcher and blow up your house. There's nothing analogous to that in networked computer systems; there, all I can do is send you packets of bits.

Or you can steal my passwords and drain my accounts leaving me destitute. Load my hard drive with child porn and then mail a few choice samples to the authorities. Threaten el presidente by email or start seeding Disney films from my IP address.

Computers are real. The things you do on them affect the real world.
posted by codswallop at 4:37 PM on October 19, 2011 [2 favorites]

At a fundamental level you can still (for example) read my private correspondence by "accessing" my computer.

There you go again. Using that word.

You presumably agree that it's not morally acceptable to do so.

Are you asking me whether it's morally acceptable for me to read your private correspondence? You might want to direct that question to the NSA. I'd have to say that it depends somewhat on the circumstances. Here's a question for you: is it morally acceptable for your computer to send your private correspondence to me?

Given that you reject a criminal penalty, should I have a civil remedy against this moral wrong?

Probably not. You (or your automated agent) sent it to me, after all.

What I'm trying to consider is the mischief that laws against interference with private property are trying to address.

Exactly how would I be interfering with your private property? Do you consider information to be property? Hey, you probably believe that copyright infringement is stealing. You do, don't you?
posted by Crabby Appleton at 4:54 PM on October 19, 2011 [1 favorite]

Or you can steal my passwords and drain my accounts leaving me destitute. Load my hard drive with child porn and then mail a few choice samples to the authorities. Threaten el presidente by email or start seeding Disney films from my IP address.

Wow. You have a morbid imagination. I'd never even consider doing those things.

But if some hypothetical evil person could do those things, then I would feel badly for you. I would consider that you had been sold a defective product and that someone exploited those defects to do you harm. That would be unfortunate, to say the least. Of course, it's well known that almost all commercially available computer operating systems and applications are defective in this way, and so you knew or should have known that by connecting your computer with defective software to the network you were making yourself vulnerable to such exploitation, and you decided those risks were acceptable to you and did it anyway. Still sucks, though.

Computers are real.

I never said they weren't.

The things you do on them affect the real world.

To the extent that they are set up that way, yes.
posted by Crabby Appleton at 5:02 PM on October 19, 2011

Here's a question for you: is it morally acceptable for your computer to send your private correspondence to me?

My computer is not a moral agent. You, at least potentially, are.

Do you consider information to be property? Hey, you probably believe that copyright infringement is stealing. You do, don't you?

It's clearly established that there are property rights in information. Copyright infringement is plainly not theft, as the owner is not deprived of their property. Nonetheless it is an interference in property rights for which we have fairly long-held civil remedies. If all you've got left is the rather meaningless insistence that "information isn't property", this discussion will quickly descend into the tedious.

Of course, it's well known that almost all commercially available computer operating systems and applications jackets are defective in this way, and so you knew or should have known that by connecting your computer with defective software to the network going out with your wallet in your pocket you were making yourself vulnerable to such exploitation, and you decided those risks were acceptable to you and did it anyway.

FTFY
posted by howfar at 5:26 PM on October 19, 2011

My computer is not a moral agent. You, at least potentially, are.

Yeah, I intended the question as a kind of koan. But it wasn't suitable to the purpose; the obvious comeback was obvious. My fault. No enlightenment for you.

It's clearly established that there are property rights in information.

I was never arguing about what the law is. I'm arguing about what it ought[n't] be. So we're already off-topic.

FTFY

Another flawed physical analogy. You should stay away from those; you're not very good at them.
posted by Crabby Appleton at 6:14 PM on October 19, 2011

Another flawed physical analogy. You should stay away from those; you're not very good at them.

In order for that to be biting you'd have to explain why the analogy fails. Repetition and superciliousness are no substitute for actually making some sort of argument.
posted by howfar at 6:57 PM on October 19, 2011

It's a perfectly cromulent analogy.

Making crime easy doesn't make it excusable.
posted by Sys Rq at 7:03 PM on October 19, 2011

Unless you put a zipper on the jacket pocket, it's not really possible to secure it from a skilled and determined pickpocket. (Actually, such a pickpocket could just slit the pocket open with a sharp blade.) If you insist on keeping your wallet in your jacket pocket and you frequent areas infested with pickpockets, then your pocket will probably get picked. But then again, that's a physical theft, which is a crime and has been for thousands of years.

You're positing something fundamental about a jacket that makes it "defective" in this way, but in general jackets actually aren't defective merely because their pockets can be picked. A jacket pocket is not really central to a jacket's functionality, which is primarily to keep the wearer warm. A computer system's primary functionality is to perform computations correctly; it can be made to do so, but typically isn't.

And Sys Rq, what constitutes a "crime" is precisely what is at issue here.
posted by Crabby Appleton at 7:46 PM on October 19, 2011

Repetition and superciliousness are no substitute for actually making some sort of argument.

Sorry, howfar. You're parroting conventional wisdom at me, and I'm doing original thinking on the fly. It's not exactly a symmetrical interaction. I don't think I need to refute every permutation you can come up with on a mistake that's already been pointed out.
posted by Crabby Appleton at 8:05 PM on October 19, 2011

in general jackets actually aren't defective merely because their pockets can be picked

And computers, analogously, are? I'm not sure where this gets us. As far as I can tell your arguments are:

- That IP law is only a few hundred years old, and so not really proper law yet.
- That property rights can't exist in information (without saying why, except that it's not been established for long enough).
- That because it is technically possible to provide perfect security for computers, there should be no laws against "accessing" them.
- That it is not technically possible to "access" a computer, or really do anything to it at all.
- That, when you induce my computer to send you my private information I have, in fact, sent it to you.

I don't really see how all this hangs together, and I'm sure you'll take that as evidence of my knuckle-dragging stupidity. What I think is that you either don't really understand the nature of any property, or are unwilling to face up to the consequences of acknowledging it. All property rights, like all laws, are expressions of coercive power. They aren't really there, except to the extent that they are enforceable. To pretend that one illusory "right" is especially illusory is pretty redundant, except to the extent that it enables your special pleading.

(preview)

Sorry, howfar. You're parroting conventional wisdom at me, and I'm doing original thinking on the fly. It's not exactly a symmetrical interaction. I don't think I need to refute every permutation you can come up with on a mistake that's already been pointed out.

I'm glad to know at least one person other than your mum thinks you're a genius. God bless.
posted by howfar at 8:16 PM on October 19, 2011

Likewise.
posted by Crabby Appleton at 8:25 AM on October 20, 2011