The McKinnon case has been dragging on through appeal after appeal since the Bush administration decided to make an example of him for his ill-advised post-911 demonstration of poor US military and government server security.
While there has always been a clear case for McKinnon to answer, the whole affair has been a massive over-reaction to an offence that became a pointless battle of wills between a hardline US administration and a UK government that decided to hide behind how lawyers and judges interpreted the one-sided 2003 UK Extradition Act.
That the many US states are notorious for punishing computer misuse with draconian jail terms that would probably be the envy of countries such as Iran never seemed to bother the British government, but then it was a uniquely schizophrenic administration, mixing illiberal technology policies with undoubtedly libertarian legislation in areas such as freedom of information.
The US administration eventually changed, but the ball was always sitting in the UK's court waiting to be batted back in some way. Now the UK too has changed its government, which makes the matter more interesting again because new Deputy Prime Minister, Nick Clegg, was a campaigner against McKinnon’s extradition and backed the idea that he be tried in the UK.
Incoming Home Secretary, Theresa May, has her hands full with the McKinnon case, aware that UK the government officials she inherits haven’t exactly been kind to McKinnon and there is potential for trouble with the US she could do without.
This is how ridiculous the case has become. The alleged crime is almost an afterthought in the face of a realpolitik that is more about who gets to blame whom for what and who has to climb down and on what terms.
I suspect that the ‘new politics’ rhetoric will win the day and McKinnon will be tried in the UK in the face of an Obama administration that in all truth probably couldn’t care less as long as McKinnon gets some form of punishment to spare its officials' blushes.
What are the lessons of the McKinnon case?
Extradition agreements should take account of the defendant’s motivation, mental state for sure. But also - and this matters as much - how one defines where long-distance computer crimes can actually be said to have happened.
I’ve always believed that in McKinnon’s case the alleged crimes happened in the UK. Supposing he had attacked servers in several countries would be therefore be made to stand trial in each country with which the UK happens to have an extradition agreement? Of course not, but hacking by its nature crosses national boundaries at will.
The most important lesson is that there is a heap of digital criminality out there but it will not be stemmed by spending time, and public money chasing the odd misguided lone hacker. It has gone way beyond that level and the authorities need to start targeting the hardcore criminals even when that is politically inconvenient.
Let's see if they have the courage to turn over that leaf.
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