Evidence supplied by the US authorities to the UK to
support legal proceedings against Pentagon Hacker, Gary McKinnon,
relies on hearsay and may be impossible to prove in court,
according to an internal Crown Prosecution Service
document.
The document obtained by Computer Weekly calls into question the
forensic evidence supplied by the US to link McKinnon to hacked US
military systems. It casts doubt on claims that McKinnon's
activities damaged thousands of US military computers.
The document, Review Note 3 - 26 February 2009, was complied by
Russell Tyner, lawyer for the CPS's Organised Crime division for
the Department of Public Prosectutions.
The DPP used the review to support its decision of 26 February
not to prosecute McKinnon in the UK. It concluded that there was
not enough evidence.
The document highlights a series of gaps in the evidence
supplied by the US to the UK, to support McKinnon's
prosecution.
The gaps include:
- Proof identifying each of the computers hacked
- An image of each computer
- A forensic report of each computer, linking access and file
modifications to McKinnon
- Evidence to prove that accusations made against McKinnon were
not merely hearsay,
- Evidence that McKinnon's activities caused impairment of US
systems
- Evidence that his activities left computers vulnerable to
intrusion.
When considering "McKinnon's alleged criminality", the DPP
reported a "disparity" between "that which it would be possible to
prove" and the allegations against him.
There was also a disparity between the allegations against
Mckinnon and that which "the American authorities would appear to
be able [to] adduce in evidence in the United States."
Edward Fitzgerald QC told the High Court yesterday that the DPP
document demonstrated that the US allegations were "inflated",
"extravagant" and "not justified".
A US Navy special agent had supplied a statement to support an
allegation that McKinnon had "rendered some 300 computers
inoperable immediately following September 11th" in a cyber attack
on US Weapons Station Earle.
McKinnon's actions "prevented access to some 2000+ computers
belonging to the US Army for 24 hours causing significant
disruption," it was claimed.
The DPP said of the US evidence: "All of this is hearsay with
insufficient information to seek to adduce it evidentially".
Of this and other witness statements supplied by US special
agents in 2002, shortly after McKinnon's arrest, the DPP said:
"They all tend to refer to reports concerning the examination of
machines by others and their statements contain a lot of hearsay…
it is not necessarily possible to ascertain how much of this
material may be admissible."
These statements were the basis on which the US had justified
its allegations that
McKinnon's hacking "amounted to an attack on the critical
infrastructure of the USA" which was "intentional and calculated to
influence the US government by intimidation and coercion."
The DPP provided a long list of areas where the US evidence was
inadequate. Computer forensics would be required to link McKinnon
to the computers he is said to have hacked, and to the damage he is
accused of causing, it said.
The DPP said US evidence also lacked: "some evidence of
compliance with ACPO standards concerning the examination of
digital material or sufficient to prove the integrity of the
forensic image."
There was no evidence that the computers McKinnon hacked were
high security military systems housing sensitive information and
not merely low-security administrative PC nodes on the edge of the
vast US military-industrial network, the report said.
McKinnon's application in the High Court for a judicial review
of the DPP's decision not to prosecute him in the UK continues.
US allegations against UFO hacker Gary McKinnon were 'over
baked'
McKinnon - hacking hero?