“Don’t crucify our geeks.”—Janis Sharp, mother of Gary McKinnon

In a break with a precedent that had been established in 2012, British District Judge Nina Tempia earlier today rejected British student and activist Lauri Love‘s appeal to deny the United States of America’s request to extradite Love to the U.S., where he faces charges. He has the right to appeal the ruling, and Love and all the members of his legal team pledged today that he will appeal. He was allowed to remain free on bond.

A case very similar to Love’s set the precedent that judge Tempia chose to ignore: Gary McKinnon’s. Like Love, McKinnon is a British computer programmer and hacker who has Asperger’s syndrome and who in 2002 was discovered to have hacked into many American military computers over the course of the previous year. (McKinnon was searching for evidence of a vast UFO cover-up, and as someone with Asperger’s, he was profoundly diligent about his research: he broke into almost 100 computers.)

Charges were filed against McKinnon in 2002 in the U.S. and an indictment was handed down. The U.S. and its allies have extradition treaties, and in 2003, Britain passed into law a new extradition agreement in which American authorities do not need to provide contestable evidence in support of an extradition request.

It took a full decade, but in 2012, Britain’s Home Secretary at the time, Theresa May (who is now the U.K. Prime Minister) blocked the extradition request and said, “Mr. McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr. McKinnon’s human rights.” He was not extradited, and, soon after, the case against him was dropped, because the evidence against him was not available in Britain.

The McKinnon case set a precedent over what is called the “forum bar,” by which British judges can decide which nation’s judicial system (which forum) can oversee a case. When more than one country has jurisdiction over a requested person, and one nation has requested extradition, a court is allowed “to bar an extradition where a substantial measure of the requested person’s conduct was performed in the U.K. and where it is in the interests of justice to do so.” (Under the 2003 Extradition Act, the U.S. has requested the extradition of many British subjects who are defendants in cases in America, and Britain has complied with most of the requests; Britain has requested a total of zero extraditions in the other direction.)

In her decision today, judge Tempia expressly rejected the arguments made that the Lauri Love case falls fully under the protections offered by the forum bar. His case is an update, as it were, of the McKinnon case.

In the decision, the judge accepts his status as a person with Asperger’s syndrome, his diagnosed clinical depression, his suicidal thoughts, the fact that he has only resided in the U.K. and that the entirety of his support network (he lives with his parents) is in Britain: each of these are accepted as facts and she offers as argument what can only be called a conjecture: that the U.S. prison system authorities, who will be in charge of Love’s well-being at the moment the British Secretary of State decides to extradite him, will do a good job attending to his needs while his trial(s) proceed. (Three jurisdictions have indicted him in the U.S.) The judge’s decision concludes:

I accept Mr. Love’s connections to the United Kingdom include his own personal circumstances, his health and his support network, and not merely his connection to the State, as submitted by Mr. Caldwell. Some of the evidence in this case is transportable but, in my assessment, those factors do not outweigh the facts that the conduct occurred in the United States, all the victims are in the United States, their interests are best served with the case being heard in the United States and any delay is not known because I do not have any evidence as to how far any investigation has taken in the United Kingdom. What I do know is that evidence has been produced by the United States resulting in three Indictments (sic) being issued by three Grand Juries.
 
It is the interests of justice for the case to be tired in the United States and for this reason the forum bar fails.

The judge adds: “There are over twenty witnesses, all of whom are in the United States. The digital evidence could be given in the United Kingdom but the witnesses reside in the United States and as a matter of desirability and practicality it is easier for them to give evidence in the United States.” This despite the fact that the judge accepted testimony from many witnesses on Love’s behalf who spoke from America via video link.

Sarah Harrison, director of the Courage Foundation, which is helping fund Love’s defense, said about the ruling: “This is a very disappointing ruling, not just for Lauri and his family but for everyone who was angry about what happened to Gary McKinnon. Clear assurances were given that legal changes would prevent the McKinnon situation from happening again and frankly, if the forum bar can’t help Lauri Love, it’s very difficult to understand how it could ever help anyone.”

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Background about the Lauri Love case, from my June column:

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Lauri Love has not yet set foot in the United States. Certain parties in America—the NSA and the U.S. Justice Department—want to change this for the 31-year-old Briton. They want to extradite him to the U.S. to face an as-yet unknown number of charges, which have been filed in three districts.

It is a complicated legal case that involves different laws in two different countries, the United Kingdom and the U.S.

Lauri Love is a hacker who in the late fall of 2012, according to the U.S. Justice Department, “hacked into thousands of networks, including many belonging to the United States military and other government agencies … [and] stole military data and personal identifying information belonging to servicemen and women.”

He was arrested in October 2013 by the U.K.’s National Crime Agency (NCA), which seized 31 digital media items from his home, where he lives with his parents. (Lauri has Asperger’s syndrome and does not live on his own.) Among the items were computers and external hard drives and SD cards, on which the NCA found … files that were password-protected and otherwise encrypted.

Because Love may have been a part of the hacks against the U.S., which led the U.S. to charge Love with “stealing confidential data,” and because he had files that were password-protected, the authorities assume that the protected files have something to do with the hack. Britain’s NCA served him with an order to compel him to turn over his encryption keys. Love ignored the order. The NCA also sent screenshots of the encrypted files to the United States, which led to the extradition request. In 2015, the authorities returned materials to Love but held six: a desktop computer, two laptops, two external hard drives, and a SD card.

One of the many ironies in this case is that Love and his representatives have not been shown the evidence against him, because that so-called evidence is password-protected and no one has seen it. If Love were to give the authorities the encryption keys and passwords, and the files turn out to be photos of rainbows and puppy dogs and nothing more, he might free himself but he will have injured the centuries-long fight against self-incrimination. As things stand, he is facing charges that can only be given legal merit through self-incrimination.

In a brilliant move, Love filed a civil suit to get his property returned to him. The NCA took this as an opportunity to compel him to give them the encryption keys. In essence, their court filing read that they would be happy to supply him with his property but the only way they could be really, really certain it was his property was if he would be kind enough to supply the passwords and encryption keys that they needed to coincidentally use to charge him with other crimes.

On May 10, the judge, Nina Tempia, rejected the NCA’s arguments. She wrote that the NCA was officially requesting “the applicant [Love] to explain his interest in the property. The NCA submits this ‘lends some support to its submission that Mr. Love should in this case be required to provide the encryption key or password as only thus will the court be able to adjudicate fairly upon the complete contents of the devices.’ I am not persuaded by this argument.”

Love’s suit to force the NCA to show its hand was a brave stand on behalf of privacy and against self-incrimination. Judge Tempia declined to set the precedent that would have established self-incrimination is the legal means to prosecuting whistle-blowers, journalists, and reporters’ sources.

The extradiction request from the United States remains, and tomorrow the same judge, Nina Tempia, will hear arguments. A ruling is expected this week. The ruling came on September 16, 2016. See above.

The Courage Foundation, which has been aiding Love in his legal fight for his life, estimates that if Love is sent to the U.S. to face the charges (the number of which remains unknown), and if he is “convicted of all charges and the sentences are served consecutively, he faces a maximum sentence of 99 years in jail in the United States.” An argument against sending him here on humanitarian grounds is being filed.

The Courage Foundation also put together this poster, which explains things quite well:

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