Lauri Love using illness as a shield against extradition, claims prosecution

Love denies he is emulating Gary McKinnon

Love denied suggestions he was attempting to put himself “in the imprint” of hacker Gary McKinnon, who was allowed to remain in the UK on humanitarian grounds after a 10-year battle against extradition charges.

“It sounds like you are asking me if I am dissembling or trying to appear more like him than I am,” he told Caldwell.

The prosecution service counsel questioned whether Love had taken real steps to address his depression after professional diagnosis six months earlier. “It is very likely that you could find an anti-depressant that could alleviate your anxiety,” he said.

But Love told the court that anti-depressants were not recommended for people with Asperger’s Syndrome. He asked Caldwell what his medical advice was: “Are you suggesting I follow up with Professor Baron-Cohen or with you?”

“I have experienced loved ones on anti-depression who have committed suicide, and the counter-effectiveness of certain anti-depressants,” said Love.

“I find it hard to follow on with your rhetorical thrust that I should have got on the Valium now and I am neglecting self-care.”

Love is offering security advice to companies and law enforcement

The court heard that after spending a year living with his parents, and with their support, Love had been able to complete the first year of his electrical engineering degree and was teaching younger students.

“I am studying. I voluntarily help out with lower level engineering students, explaining stuff – I understand the youth a bit. I find that very rewarding,” he said.

Love said he is working several days a week for an organisation called My Hacker House, which brings former hackers and activists together to work with Law Enforcement and businesses to improve computer security.

“I am now working as one of the good guys and I help people fix security problems – people that run high street bookmakers or, in the future, challenger banks or universities,” Love told the court.

He said the world was facing a greater threat from hacking as devices became more inter-connected. “All it requires for someone to take control over the internet is to think about it long and hard,” he said.

Love became an activist at university

Love told the court he became involved in political activism at the University of Glasgow, where he took part in organising anti-fascist actions against the BNP and English National Party (ENP).

In 2011, he became involved in campus politics, protesting against the introduction of tuition fees and the devaluation of humanities subjects in universities, and later took part in a seven-month occupation protest.

Love told the court he was particularly affected by the death of Aaron Swartz, an internet pioneer who committed suicide after being arrested for downloading academic articles.

“The only thing he did naughty was download too much. MIT [Massachusetts Institute of Technology] did not want to press charges. The Department of Justice took the case, and careerists in the DoJ decided to make a name for themselves,” he told the court.

“They gave him the option of more than 30 years in prison and unlimited fines, not being able to vote, not being able to hold certain offices,” said Love. “He took a very tragic way out. His death sent shockwaves around the internet community.”

Love fears coercive pressure in the US

Love told the court he feared he would be put under the same pressure to accept a plea bargain if he was extradited to the US.

“Where I to be principled, which sadly I find it hard not to be, I would not accept a guilty plea, because I would like to test an argument that there is a need to intervene to prevent a tragedy [such as Aaron Swartz],” he said.

Love feared he would not receive fair treatment in the US. He risked being dragged through three different jurisdictions, and did not have the funds to pay for a legal defence.

“I don’t really have any money, and my earning expectations are not huge, especially if I am going to be in prison for the rest of my life,” he said.

“Because of my activism and need to read about news and current events, I am particularly afraid of what happens in the US prison system.”

He referred to journalist Barrett Brown, who was sentenced to 63 months in prison after accepting a plea bargain over hacking charges.

Brown initially faced 105 years in prison for charges that included copying a publicly available hyperlink from one internet site to another, in a case described by Reporters without Borders as prosecuting Brown for his work as a journalist.

“The prosecution unleashed gigabytes of evidence, knowing prospects of the defence being able to analyse them were minimal,” he said.

Concerns over US sentencing

Naomi Colvin, campaigner at the Courage Foundation, which represents whistle-blowers and activists facing US hacking charges, told the court that Lauri was likely to receive a disproportionate sentence if he was tried in the US.

Referring to the case of Jeremy Hammond, an activist who hacked into the global intelligence company Stratfor, she said his sentence in the US was disproportionate.

“Jeremy Hammond’s sentence was four-times as long as the longest sentence compared with any of the defendants prosecuted in UK. The Irish defendants did not receive any custodial sentence,” she said.

Colvin told the court that the Courage Foundation, which represented Edward Snowden and internet activists, has seen the US courts apply coercive pressure on suspects in hacking cases to plead guilty in return for a lighter sentence.

“It’s our concern because Lauri is facing prosecution in different US court districts. The time he will spend in pre-trail detention and cost of those cases is excessive, it raises the question of whether a guilty plea could be truly voluntary,” she said.

Love ‘should be tried in the UK’

Love’s defence team argued that because of his history of depression, Asperger’s Syndrome and severe eczema, as well as risk of suicide, Love should be tried in the UK.

Ben Emmerson, representing Love, earlier told the court there was no reason why digital evidence in the case could not be sent to a UK court, and that US witnesses could give testimony over video link.

The court has been presented with examples of a long list of hackers that have been successfully tried in the UK after attacking US computer systems.

“I don’t want to be rich or famous, but for the talents that I have to be usefully applied”

Lauri Love, activist

..

Although Love has been accused of stealing personal information, including credit card details, he is not accused of profiting from the information or putting people's personal data at risk.

Witnesses cast doubt on the costs cited in US indictments for fixing known vulnerabilities in US government computer systems, following alleged hacking attacks by Love, arguing that the vulnerabilities would have to be fixed anyway.

Love told the court that his aspiration was to leave the world a better place than he found it. “I don’t want to be rich or famous, but for the talents that I have to be usefully applied,” he said.

The US government and the Crown Prosecution Service have not put forward any witnesses in the two-day hearing.

Draconian treatment meted out to activists in US jails, say witnesses

The court heard evidence from expert witnesses about the harsh treatment of people accused or convicted of hacking in the US, and the effect it could have on Lauri Love. The court heard that:

• Love was unlikely to receive the medication he needed, and that US prisons were ill-equipped to help people with mental health conditions or were at risk of suicide.
• By facing prosecution in 3 jurisdictions, Love was at risk of receiving a much longer jail sentence than if the charges were heard together.
• Prosecutors in the US routinely exaggerate claims of financial damage caused by hackers to secure longer prison sentences.
• Love will be denied bail if he is extradited to the US, and judges are unlikely to take Love’s history of depression, Asperger’s Syndrome and severe eczema into account in sentencing.
• Any assurances given by the US that Love could serve his prison time in the UK once extradited were “worthless”.

Arbitrary sentencing in the US could have detrimental effect on Love

Zachary Katznelson, an expert witness on the US legal system, told the court via videolink that American judges have a great deal of personal discretion as to length of a prisoner’s sentence. 

Although there are sentencing guidelines available, only in a tiny fraction of cases have judges been known to go for a lower sentence than suggested, he said. “In less than 1% of cases do judges depart down based on mental health.”

Different judicial districts have different guidelines, so the same crime could attract a range of different suggested sentences, depending on the district in which the trial is held.

This would be a problem for Love, said Katznelson, as he has been charged in three districts and it depends on which district goes first.

The arbitrary nature of sentencing based on personal discretion would be an issue because the second judge would be unable to reduce the sentence, but would be able to increase it by making the second sentence run consecutively, rather than concurrently, with the first.

The third judge would have a still greater effect. By charging in three different districts, the government is maximising the chance of a very long sentence.

Another expert witness on the US legal system, Joshua L. Dratel, expressed further concerns over the effect of the US sentencing process on Love.

Dratel was the defence lawyer for Ross Ulbricht, who was prosecuted for running the dark web market Silk Road. He said it was unusual for the government to bring three separate prosecutions, although it was legal.

“There is a single sovereign, the federal government of the US. Very often it brings multi-district conduct into one district because of elasticity in the federal system. It is unusual for these cases to be trifurcated in this way,” said Dratel. 

Caldwell suggested that Love could apply for them to be joined, but Dratel said there is no guarantee of the outcome. “He can try, it doesn’t have to be granted. If the government objects, the judge would have to make a decision. It is discretionary.”

Financial impact claims exaggerated in US hacking cases

Tor Ekeland, Love’s US attorney, was present in court. He raised the problem of how loss to the victims is quantified. He said in the US courts, sentencing is proportionate to the loss experienced by the victim of the crime.

Under cross-examination, he said this is a big problem for defendants because the prosecution can claim exorbitant losses once a conviction has been achieved. This is so they can secure the maximum possible sentence.

“At sentencing, they bring in numbers you’ve never seen before. They no longer have to prove beyond reasonable doubt,” said Ekland.

Dratel said there is insufficient information to determine the gravity of the offence. “All we have is a set of allegations – we have no discovery yet,” he said.

He pointed out there has been no suggestion so far that there has been any loss arising from Love’s alleged actions. 

“We don’t know whether there was any harm, any loss or any economic loss to anyone whose information was allegedly hacked, that anything malicious was done with any of the information.”
 
It may have been a case of “climbing the Everest of hacking just for the satisfaction of reaching the summit,” he said.

Why Love won’t receive bail in the US

Dratel made clear that Love has no realistic prospect of being granted bail: “It is not a risk of him being denied bail, it is a certainty.”

“He is not a US citizen, he has no status in the US. He is coming by extradition, which he has contested, so he has contested the jurisdiction of the US, where he has no roots,” said Dratel.

“The notion of him returning to the UK on bail is nearly unheard of, particularly without the posting of some considerable assets that would not even be considered.”

Both Caldwell and the judge acknowledged there was no chance of Love being granted bail if he were extradited.

Love would be denied access to medical care in the US

Dratel was uncompromising in his description of the paucity of medical help that would be available to Love in an American prison.

“There is an initial medical assessment. It is cursory and does not involve immediate continuity of care,” said Dratel.

He added that there is no automatic entitlement to access to prescribed drugs. “We have to get a court order to get medicine provided to defendants,” he said.

Even then, said Dratel, medicine still might not be forthcoming. “Certain medications that may be available to the general community in the world may not be available at the Metropolitan Correction Center or the Metropolitan Detention Centre [both in New York] at all,” he said.

“That is because it may not be available or it costs too much – they may substitute something which may not be generic but a different medication altogether.”

Dratel held that the prison system offers little therapeutic value for those who feel suicidal, with efforts made only to prevent suicide from taking place. “Suicide watch does not diminish the prospect of suicide, but makes it a physical impossibility.”

Dratel said he had witnessed the negative effects of such treatment on his clients. “I have visited them in the suicide area of the segregated area and they feel like they are in a zoo, being watched as a caged animal. It doesn’t do any good for their mental health.”

Assurances made by the US in advance of extradition are ‘worthless’

Dratel told the court that judges routinely ignore any promises made to the home country of a prisoner who has been successfully extradited.

“The assurances made by the US are worthless. Once someone is in custody in the US, judges have universally – routinely almost – deferred to the Bureau of Prisons to do whatever they want with people. This goes for mental health, physical health and disability,” said Dratel.

“Just in terms of how it is dishonoured, for example, a Colombian was extradited under condition he not be given a life sentence. He was 50-years-old. He was given a 65-year sentence. The appeal court said ‘that is OK, it is not a life sentence’.”

During cross-examination, Dratel added that it is hard to predict the behaviour of the Bureau of Prisons, which he described as “arbitrary and capricious”. Asked to elaborate, he said: “The Bureau of Prisons is obtuse as a matter of policy. That is how the Bureau of Prisons operates.”

Caldwell challenged Dratel on the case of his client Mustafa Kamel Mustafa, or Abu Hamza, who was extradited from Britain to America in 2012. Dratel spoke with disgust of the way a prisoner with both arms amputated to the elbow was being held in a high security unit for dangerous prisoners.

Caldwell suggested that while Mustafa’s disabilities may not lead him to pose a risk, his political views might, as Mustafa was “someone who may be a risk in terms of communicating at a political level to progress terrorist initiatives and someone who might be at risk of violence,” he said.

Dratel dismissed this as irrelevant to Mustafa’s human rights and to the level of information that should have been given prior to extradition.

“Even assuming the former, the notion that communications would be dangerous in this context has nothing to do with the lack of accommodation for his disabilities. It has nothing to do with the failure to provide for him an environment that is consistent with humane treatment. The US says he is dangerous because he can speak – they should have said so before he was extradited.”

The problem of coercive plea-bargaining

Kevin Gallagher, the founder of Barrett Brown’s support campaign, gave evidence by videolink from the US. Peter Caldwell, representing the US government, asked him if he had been surprised when Brown pleaded guilty.

Gallagher said he had not, and that Brown had simply been choosing the best alternative. “He took the option available to him – they originally charged him with charges that could land him up to 100 years in jail.”

Asked if Brown had admitted what he had done, Gallagher was dismissive of Caldwell’s line of questioning. “Yes, that is the nature of a guilty plea,” said Gallagher.

Hackers tried in the UK after attacking US Computer Systems

In October 2003, Aaron Caffery was prosecuted in the UK following allegations that he conducted a denial-of-service attack against computer systems at the Port of Houston in Texas responsible for helping ships navigate in and out of harbour. The investigation was initiated in the US.

Mathew Bevan and Richard Pryce were arrested in the UK in 1996 for hacking into US military computer systems, including Griffiss Air Force Base Research Laboratory in New York. An airforce special agent claimed that they had “nearly started a third world war”. They were prosecuted in the UK.

Andrew Harvey and Jordon Bradley were arrested in 2003 and prosecuted in the UK for hacking and creating a computer virus that infected thousands of computers worldwide. The prosecution followed a joint investigation by UK and US law enforcement.

Grant Manswer was given an 18-month suspended sentence and 100 hours of community service in 2016. He earned £50,0000 from selling hacking services in the US and other countries, and launched distributed denial-of-service attacks against 224,000 websites.

Seth Nolan-McDonough received a community service order after being accused of launching the “biggest cyber attack in history”. McDonough, who had a history of mental illness, was also accused of hacking on an industrial scale, and of fraud and money laundering. He received 240 hours of community service.

This story was updated with additional material on 30 June 2016.