McKinnon (left) and Assange (right) face disparate action by US authorities
The disparate approach to Gary McKinnon and Julian Assange demonstrate the serious confusion over cyber crime and cyber malefactors.
Originally, hacker was a recognition of computer excellence. From the earliest days of electronic computers, there has always been a small band of extreme specialists who have sought to understand every detail of the technology in an attempt to improve cyber productivity, safety and security. These specialists are the unsung heroes of computer development. Many of the greatest stages of computer enhancement have been inspired, assisted, and/or built on the efforts of these largely invisible benefactors. Over the years they have come in many shapes and sizes. Some have been employed by computer companies, some have worked as a hobby, some have been trained to investigate vulnerabilities and computer attacks.
Journalists hijacked the term hacker to describe what hackers thought of as crackers. The cracker was someone who attempted to gain unauthorized access to computer systems. While hackers and ethical hackers were regarded as White Hats, the cracker was regarded as a Black Hat, whatever his or her motivation. It is easy to see why journalists became confused because the fraternity of computer specialists never developed a series of clear terms for skills, actions and motivation.
Generally, a White Hat has been someone who operated under some level of authority or only worked with equipment that he or she owned. Interestingly, the information and communications industries have always employed a high percentage of female workers but the White Hat and Black Hat fraternities have been a largely male preserve and within that largely male fraternity, many have been what would be regarded as social misfits and educational drop outs. This has never been researched adequately even though there could be some very important lessons to be learned in understanding how these people are motivated, what turns some to various forms of cyber crime, and what makes others valuable contributors to the development of information and communications systems.
A White Hat may be authorized in some form but actions are often very similar to those of Black Hats. The reality is that there are several shades of each colour. As soldiers and police are employed as public servants and authorized to take appropriate action to protect civilians, some authorized actions are indistinguishable from criminal acts and some individuals will stray outside the guidelines established for their activities. In much the same way, Black Hats may operate without authorization, but their motivations may vary considerably. This has presented a challenge within the information industry because the consensus has been that unauthorized access to systems should always be regarded as a hostile action and never be excused in any way. However, some Black Hats regard themselves as the good guys, often adopt the description ethical hacker, and are surprised that anyone should consider their actions reprehensible. It is certainly true that some of these individuals have been motivated by a desire to help others protect themselves, or by a deep conviction that all information should be public. It is also true that some very serious flaws in products have been corrected because someone tried to make unauthorized accesses and discovered the flaws, reporting them to the producer of the product, and so enabling the producer to correct faults that were placing millions at risk.
It is against this confused background that we view two Black Hats. Gary McKinnon has admitted to charges that he made many unauthorized accesses into many information systems operated by military, intelligence and advanced technology organizations, including NASA, in the US. These systems held classified information and Americans should question why their Federal Government chose to place such sensitive information on systems that were penetrated by McKinnon with relative ease.
After the experiences of penetration by McKinnon and others, it is surprising that the US Federal Government failed to act to better protect its classified data. However, the case of Assange and WikiLeaks demonstrated that they either learned nothing or deliberately chose not to take action to reduce risk.
The most surprising factor has been the disparate approach to two Black Hats. It would have been understandable to see a Black Hat who has caused no real damage and published nothing to be treated more leniently than one who has deliberately caused considerable damage, probably for political reasons. In these two cases, the reverse has been the case and this is illogical.
Gary McKinnon has been pursued with ruthless tenacity by the US State. Every attempt is being made, using the unequal treaty signed by the Blair Brown Regime that gives the US almost sovereign right over Britons to force their extradition on grounds that would be immediately rejected by US judges should another nation attempt to extradite a US citizen and make a show trial example of them.
In contrast, the US Federal Government is taking a very soft approach to Assange to the point of suggesting that he may not have broken any US laws.
If the acts of the two men are examined and compared, the US approach to them borders on the mentally unstable.
There are some limited similarities. Both men could be described as social misfits and both have been members of a fraternity of hackers and phreakers, phreakers being Black Hats who are more interested in communications systems than general and scientific computer systems. From there, they are different in motivation and action.
Gary McKinnon suffers from a mental condition that has been assessed. This condition affects his behaviour and makes him a high suicide risk if imprisoned. He combined a strong interest in information systems and in UFOs. These interests motivated him to break into US Government computers in the search for evidence that the US Federal Government was operating a cover up to conceal knowledge of extraterrestrial activity. According to released information, the US Federal Government acknowledges that McKinnon did not attempt to damage the computer systems and has not shared or in any way published any information gained during his unauthorized tour through the computers. In the words of one US official, “its humiliating that this wack job was able to walk around our most sensitive computers”. That probably explains the significant efforts being made by the US Federal Government to drag McKinnon through the US justice system and see him die in jail. Its simply anger at being made to look stupid and criminally negligent.
Assange may suffer from a mental condition but if so it has not been diagnosed. From the charges laid against him by Swedish authorities he is at best a careless sexual predator. He has been charged with sexual offences, including rape, against two women in Sweden. He has been attempting to evade those charges by claiming that they have been trumped up by the US intelligence services. The reality may prove to be different. There is some evidence that the women may have brought claims of sexual abuse because they discovered he was engaged in relations at the same time with both of them and been casual in his attitude to sexually transmitted diseases. If that is what is eventually proven, he would be a sexual bore and an unpleasant ignorant character rather than a sex criminal. OTOH the Swedish case takes precedence over any prosecutions initiated by US authorities and delays the start of any action for possible criminal acts in respect of the WikiLeaks activities. In that case, far from being smeared by US authorities, Assange is being temporarily shielded from US prosecution by the rape charges in Sweden.
The US Federal Government could therefore claim that it is holding back from consideration of criminal charges until the Swedish rape charges have been considered in Britain before granting extradition to Sweden and then until the Swedish trial has concluded and the accused sentenced. It is possible that the Swedish trial will end in a guilty verdict and a prison sentence in Sweden. After sentencing, Swedish authorities might allow access to the prisoner by US officials preparing for eventual trial in the US, but any US prosecution may have to wait until any Swedish sentence has been fully served.
In the meantime, it would seem logical for the US authorities to be preparing to treat Assange at least as ruthlessly as they have been treating McKinnon. It would also seem logical for the US to hope that British judges reject the Swedish demand for extradition so that the US can demand and ensure his extradition from Britain to the US. Once Assange leaves for Sweden, the US will face a far more demanding task in persuading Swedish authorities to extradite him to the US because there would no longer be the one-sided Anglo US extradition treaty available to them and Sweden is most likely to regard Assange as politically motivated, deserving protection from extradition.
There is some debate about what charges the US could level against Assange. From available information, he has obtained highly sensitive US Government information, published it on the Internet, and made it available to a number of newspapers and news media. In the process, he has caused damage to the US even if there is debate as to how much damage has been suffered. As the information was passed to Assange by a US citizen, the criminal offence may be in procuring a criminal offence. It may be possible to treat Assange as a spy.
Two things may be holding back US prosecution, in addition to the complication of the European Arrest Warrant served by Sweden. One factor may prove to be a protracted preparation as US prosecutors attempt to strike a deal with the person being interrogated for passing the information to Assange. The second factor may be a fear of further revelations by Assange or his collaborators. US investigators may covertly be attempting to locate further material and prevent its publication before attention turns to prosecution.
Whatever happens eventually in respect of McKinnon and Assange, the US Federal Government would be advised to pay close and urgent attention to protecting its sensitive information. Under Clinton, Bush and Obama, information security has been seriously neglected. That neglect has caused far more damage to US interests than any Black Hats already identified. Many of the leaks of sensitive material have been a result of the failure to pay attention to internal risk. Serious security incidents have resulted from US personnel being able to access data they have no need to access and being indiscrete in the extreme in posting the information to social networking sites and to friends and relatives by email and mobile phone. To these leaks, there will undoubtedly be a series of unpublished and probably undetected incidents that may yet to have damaged US interests but are scandals yet to come.