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Gary McKinnon: Britain's hacking hero?

Posted on 15 May 2009 at 16:31

Alerted to his presence the US authorities began to track his hacks, ultimately tracing him through the RemotelyAnywhere software, which was registered with his own email address. Hardly the behaviour of a mastermind. When Britain's now defunct Hi-Tech Crime Unit came knocking on his door in 2002, McKinnon claims he was almost grateful: "I think I wanted to be caught, because it was ruining me," he told the BBC.

Initially, it even seemed he might get off lightly. The hacker claims British investigators told him he'd probably have to do community service, although this hope was dashed later that year when the US authorities indicted him on seven counts of hacking, with each count worth a maximum sentence of ten years' imprisonment and a $250,000 fine.

Why the delay?

The indictment would prove something of a false dawn, with prosecutors taking more than two years to begin extradition proceedings. The delay has never been officially explained, but the year after McKinnon's indictment Britain passed the controversial Extradition Act 2003, allowing US authorities to demand a Briton's extradition without having to provide evidence. "The refusal to prosecute Gary here was clearly done to allow the Americans to arrest him two-and-a-half years later, once the one-sided extradition treaty was introduced and then made retrospective," claimed his mother.

It's a theory rebuffed by extradition lawyer Douglas McNab, who simply notes: "It could conceivably have taken that amount of time to complete the investigation."

Whatever the cause of the delay, it was the Extradition Act that finally brought Gary McKinnon to the attention of the politicians. The act had already become a hot topic in the Commons, with the Tories and Liberal Democrats using it as evidence that our "special relationship" with the Americans was now the international equivalent of spousal abuse. McKinnon presented them with a sympathetic face to back up their argument.

McKinnon was suddenly national news, and the image of the crusading hacker being pursued by the US was skilfully propagated by his legal team

"I haven't actually got such a problem with America wanting Gary to see justice, my problem is with this Government and with us signing away due process with regards to extradition arrangements," admitted David Burrowes, Shadow Minister for Justice, who brought McKinnon's case before the Commons. "The US authorities are just doing what they signed up to in the agreement, and they can't, in some ways, be criticised for exercising to the full their imbalanced rights. The problem is that this Government has left the country short, and Gary."

As a political entity McKinnon was suddenly national news, and the image of the crusading hacker being pursued by the US was skilfully propagated by his legal team, led by Karen Todner. Riding this wave of support, they began to appeal the extradition. The goal was simple: to convince the courts that US prosecutors had derailed British legal procedures in their attempts to strong-arm McKinnon into pleading guilty in return for a lenient sentence.

At the heart of this argument was an offer made in 2001 by Ed Gibson, then US special attaché to the embassy in London and now chief security advisor at Microsoft UK. He allegedly offered to reduce McKinnon's sentence to between 37 and 46 months in a low-security prison, with the chance of repatriation to the UK after 18 months, and probable release after serving half his sentence. In return, he need only appear and plead guilty in a US court. Failure to accept the offer meant, according to Todner's sworn affidavit, that "all bets were off" and that repatriation to the UK "would not occur". McKinnon claims he was ready to take the offer, but rejected it when the Americans refused to put anything in writing. Gibson declined to speak to PC Pro about the McKinnon case.