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"Hacker's Disease" or "A Little Bit Autistic" as Legal Defense?

Brit judgeManaging Editor's Note: Last week we ran a post from a police officer who is also an autism Dad on autism and police interaction with those on the spectrum. Here's a pressing question asked by a blog site called Naked Security: Should having autism be a legal defence to hacking charges?


Last summer, Julian Assange was quoted in an unauthorised autobiography saying, "I am - like all hackers - a little bit autistic".

He coined the term "Hackers Disease" meaning a "bottomless curiosity, single-mindedness, and an obsession with precision" and notes its similarities with autistic spectrum disorders.

And a recent news broadcast from Channel 4 also raised the issue, asking whether autism be a defence for hacking?

While Assange made a sweeping generalisation about a sensitive issue, there are nevertheless UK examples of indicted hackers having autism, particularly Asperger syndrome. Gary McKinnon and Ryan Cleary have also been reported to have this condition.

The National Autistic Society (NAS) defines autism as a spectrum condition with common characteristics including difficulty with social communication, interaction and imagination. It impacts each person differently and other conditions can exacerbate effects.

gary-mikinnon x170The NAS states that those on the spectrum with high-functioning autism, and Asperger syndrome, will have above average intelligence and an obsessive interest in a hobby as a common trait.

Hacker Gary McKinnon, wanting to prove the existence of UFOs, hacked into NASA and Pentagon databases and allegedly caused $700,000 of damage.

According to Wikipedia, Gary McKinnon "was diagnosed by three of the world's leading experts...as suffering from an autism spectrum disorder compounded with clinical depression."

The unfairness of his potential US extradition has aroused public anger. However, the lack of judicial sympathy to his Asperger syndrome has compounded these claims.

Director of the Autism Research Centre at Cambridge University, Professor Simon Baron-Cohen, was an expert witness during Gary McKinnon's trial and claimed that he suffers from his theory of "mind-blindness", meaning that Gary McKinnon was so focused on finding the truth, he lost sight of the consequences of his actions.

In another UK case last summer, alleged LulzSec hacker Ryan Cleary was diagnosed with Asperger syndrome.

Mr Cleary was charged with five counts under the Computer Misuse Act 1990, including a Distributed Denial-of-Service (DDoS) attack on the UK Serious Organised Crime Agency (SOCA).

Looking at this from a legal perspective, should a defendant's autism have an effect on the charges? There are convincing arguments on both sides. Read more at Should having autism be a legal defence to hacking charges?

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"The NAS states that those on the spectrum with high-functioning autism, and Asperger syndrome, will have above average intelligence..."

Who did Lachlan Urquhart get this misinformation from? He obviously didn't actually look at the NAS website:

http://www.autism.org.uk/asperger

"While there are similarities with autism, people with Asperger syndrome have fewer problems with speaking and are often of average, or above average, intelligence."

Average IQs range from 84 to 116, and above average, over 116. For the media to keep associating above average IQs with Aspergers is very wrong and incredibly damaging to others who carry the same AS label.

Gary McKinnon has Aspergers, not autism, so the question should be: "Should having Asperger's Syndrome be a legal defence to hacking charges?" No, because it would allow any hacker or other criminal to get an AS diagnosis to use in their defense, claiming that having a different neurology allows them to see things differently from ordinary people, and in their eyes whatever they did was the right thing to do.

I can't believe that McKinnon didn't know that hacking into 97 United States military and NASA computers, deleting files, weapons logs, copying data, account files and passwords, disabling 300 computers, and leaving an anti-American threat on one computer was not wrong. If he is guilty of deleting files, he wasn't simply "wanting to prove the existence of UFOs".

Gary McKinnon will be locked away for the remainder of his shortened life--without proper medical treatment--in solitary confinement (medical observation) because he will not be able to adjust to prison. I believe that autism is a rational defense when I see what happens to other autistic victims in prison.

Regarding the $600K damage--that was essentially the value of the software that he downloaded and obviously could not benefit from--when software is downloaded, it is not destroyed--if anything was destroyed, it is because they had insufficient back-up.

Obviously, the issue of "diminished responsibility" or someone's understanding of their actions might be an issue in a legal case whether the accused was diagnosed autistic or not. I can sort of imagine how someone might think it was a laugh to crash the Pentagon's computers, and not really consider the consequences - well they will be less inclined to do so after McKinnon even if full retribution is never exercised against him. It would certainly be appalling if autistic people, capable of understanding, were told that their autism was an excuse for breaking the law.

The above article goes on to say, "The condition affects everyone differently, so an absolute defence will be difficult to justify. However, if a defendant's diagnosed condition results in obsessive behaviour, limited awareness of consequences, and an alternative perception of right and wrong, then perhaps there could be a case for a partial defense."
In the course of a trial, various questions would need to be answered including: whether the accused actually did the action, whether s/he did it intentionally, whether s/he was capable of understanding the consequences etc. Autism is a spectrum, and Asperger is a spectrum too. There is disagreement on diagnosis, and even when there is agreement there is such wide variety in the degree that people are affected, and the traits that they have. So, I think each person must be looked at as an individual, but information about Asperger syndrome is relevant to issues such as intentionality and, if convicted, to appropriate sentencing.

Sorry for the spelling ...I meant in the newborn.

Jen,yes there are many causes.It is a Viamin K deficiency that is able to cause the Hemorrhagic disease if the newborn.They usually offer Vitamin K after delivery to the newborn.Early clamping is also a contributing factor as these babies have low blood volume.SIDs is a big and complex issue that we will have to cover one day.

You dont need Autism to HACK, Absurd that Gary is being held up as a lamb to the slaughter when the UK is rotten with hackers including Rupert Murdochs THE SUN...now then thats a suprise ..so WhoT.F. is Gary..if Murdoch is OK??

http://www.guardian.co.uk/media/2012/feb/11/sun-journalists-arrested

"Senior Sun journalists arrested in police payments probe

Rupert Murdoch is flying to London after five of tabloid's most senior staff are arrested in ongoing inquiry into alleged bribery"

Angus

article in the daily mail about Shaken baby syndrome in Health section. The article makes it sound like a baby's hemorrhage is always due to shaking -when there are so many more medical causes, inlcluding vit d deficiency, resuscitated SIDS, second impact syndrome, aneurism rupture, chronic subdural hemorrhages, accidental falls, cortical vein and sinus thrombosis etc. I just don't like the disingenuousness I see in that in light of new bio-mechanical studies and medical advances. I realize the poor little guy who died had something happen but I just think it's important to keep the truth alive. I know there's a doc in Britain who they are trying to discredit ( a pathologist). Pop over if interested. Sorry, didn't know where else to put this.

adult inmates who have led violent lives and may have been using street drugs being stretched into an ASD diagnosis in order to make the case for no epidemic. Gatogorra, that just gave me the chills.

Good luck Gary we know where you come from,..

Angus

"Should having autism be a legal defence to hacking charges?"

Um...no.


Only for the protocol: The original citation is:
"Later, when I became well known, people would enjoy pointing out that I had Asperger´s or else that I was dangeling somewhere on the autistic spectrum. I don´t want to spoil anyone´s fun, so let´s just say I am - all hackers are, and I would argue all men are, a little bit autistic." Julian Assange - the unauthorised Autobiography

Maybe people with autism and Asperger's cannot be blinded by society rules - and are not feared into compliance like the rest of us. Maybe if we all were open to all possibilities and sought the truth above all else - politicians would not be able to be corrupt. Maybe those with autism are leading the way to a new tomorrow -and an example for all of us.

I feel for these men and the issues it raises for all families. And at the same time, they are heroes in my book. Seek the truth. Publish the truth. Stand up for our fellow man. It's the right thing for society.

It's when they get diagnosed as adults after a long stint on brain-frying psych drugs-- or get diagnosed after being arrested-- which I find really questionable.

Simon Baron-Cohen, industry and health authorities have an agenda to "prove" that an equivalent rate of adults are affected. Troops of psychiatrists are reportedly going through prisons and freshly diagnosing adult inmates- who may have brain injuries from street drugs, closed head injuries and seizures from blows to the head in the course of violent street life, or display traits which on shallow comparison could be stretched into an ASD diagnosis- in order to make the case for "no epidemic/autism has always been with us."

As new diagnostic criteria in the DSM-5 threatens to kick a huge number of children out of the dx and out of services, I've wondered what will be done with this group of strategically diagnosed adults. Will they be allowed to keep their diagnoses by some bizarre loophole to give rates throughout age groups a more "even steven" appearance?

Though McKinnon's case may be genuine, I don't appreciate remarks by people like Julian Assange or David Byrne of the Talking Heads making autism into a contracted manner of describing complicated personalities-- that happen to fit into airtime seconds. Let them add their names to the roster of old fashioned eccentrics if they want to honor any group with their divine membership. In the age of psychiatric inquisition where every minor human difference is suddenly a disease, refusing to be labeled is a more meaningful and far braver statement and it keeps a clearer demarcation around the various iatrogenic epidemics (brain injuries from prescription drugs and vaccines).

Also, as far as Assange and others making light references to autism, let them take some responsibility for what they're doing if they truly believe in it, not chalk it up to compulsion. I personally don't trust compulsion-- and claiming it doesn't win my vote. If something is right, it doesn't need an excuse. Art never needs an excuse. What's next? Cheating spouses all claim to be "a little autistic"?

All told I think it's important that the justice system remain skeptical of autism-as-defense, but not callous. Anything that isn't the truth is callous one way or another. Disregarding genuine disability is cruel, but so is widening the berth and letting anyone use the defense because it risks falsely associating autism with criminality in the public eye, which will only serve to reduce public empathy.

Autism as a defense for hacking would mean autism could become a defense for any crime that involves obsessive behavior. I think that is a very slippery slope. It would not serve our children well in the work force for them to be viewed as potential felons due to their obsessive ways. Furthermore, it sends out the message that people on the spectrum don't know right from wrong.

I happen to disagree with Baron-Cohen that this kind of activity is inherently autistic. People on the spectrum are rule-followers. This is a well-established trait. My son would never try hacking due to his need to adhere to rules, fear of consequences (anxiety is also a well-established trait)) and his knowledge of right from wrong.

Perhaps the real problem is that hacking is not viewed by the public as a serious crime. Instead of defending hacking as an autistic trait, why don't we push for educating all computer users about the consequences of hacking? Every brand new computer, when turned on, should display a warning that hackers can be caught, potentially extradited to another country and jailed. Cigarettes come with warnings to protect us, why not computers?

I'm sympathetic with McKinnon if he is indeed autistic, but I'm not convinced that his autism made him do it. If leniency should be shown to him, it should be because his disability would make serving jail time an extreme hardship for him (cruel and unusual punishment for someone on the spectrum), and an alternate form of punishment should be sought.

Well I am sure glad it was him that hacked and not the Iranians, or the Chinese (again) or the Soviets (again).

By a remarkable coincidence Mr Justice Mitting, who presides over the John Walker-Smith hearing on Monday prevented the extradition of McKinnon a couple of years ago.

I don't in principle like hackers but thought that the proposed retribution against McKinnon was excessive and I have also been horrified at reports of the treatment of Bradley Manning. I find it harder to care about the self-regarding Assange, whose "leaks" seem to be happening under the dubious auspices of the New York Times and the Guardian.

Gary McKinnon's warrier mother says her son will commit suicide if extradited to the US and the near certainly of a long jail sentence away from his family.

Some of us in the UK think Gary did the Pentagon a favour by hacking into their computer files to look for 'Little Green Men'. If their computer files were not safe from Gary, then they were NOT safe-period!!

Gary's mother says Gary is willing to stand trial in the UK, where the offences occurred.

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