Bad news for WannaCry slayer Marcus Hutchins: Judge rules being young, hungover, and in a strange land doesn't obviate evidence

Marcus Hutchins, the Brit white-hat hacker who halted 2017's WannaCry ransomware outbreak, has failed to stop the American legal system using statements he made while recovering from the effects of holidaying in Las Vegas. Hutchins, aka MalwareTechBlog, faces a criminal trial in the US over allegations he wrote parts of the …

[Dr Scrum Master]

The Brit was also said to be "alert, engaged, coordinated and coherent."

Isn't that part of what it means to be British?

[Anonymous Coward]

Isn't that part of what it means to be British?

Is that another dig at Boris - oh, um, er, um, - Johnson?

[Anonymous Coward]

Re: Isn't that part of what it means to be British?

Bojo is an American citizen, born in New York. Maybe he will stand for US president when he gets bored with UK politics.

[Sequin]

Re: Isn't that part of what it means to be British?

Much as I would love him to f*** off to the good ole US of A, he renounced his American citizenship a couple of years ago as he didn't like having to pay US income tax on all of his earnings (US law says that any citizen's income, wherever earnt, is subject to US taxes)

[Roland6]

Re: Isn't that part of what it means to be British?

>he renounced his American citizenship a couple of years ago

I was under the impression that if you were born an American you were always an American, thus Bo'jo could at some future date decide to take up his American citizenship...

[Anonymous Coward]

Re: Isn't that part of what it means to be British?

Not how it works.

[M.V. Lipvig]

Re: Isn't that part of what it means to be British?

Nah, you have to go through the process as though you were born in another nation. Once naturalized you are a citizen again, unless you did something stupid and became a citizen of a nation the US doesn't allow in. Interesting fact for military members, renounce your citizenship, military retirement goes bye-bye forever.

[Pat Att]

Re: Isn't that part of what it means to be British?

He thought about renouncing it, but paid up in the end. He's still a yank.

[Richard 12]

Indeed

In the US, that phrase means "Has a British accent"

[Sgt_Oddball]

Re: Indeed

No, it means have a southern accent. I get blank stares and mild confusion when over there owing to a North Yorkshire accent that gets steadily stronger the more drunk I am.

[harmjschoonhoven]

Isn't that part of what it means to be British?

When in Rome, do like the Romans do.

[Pascal Monett]

"while talking to an unnamed associate over a recorded prison telephone line"

Holy shit man, how stupid do you have to be to go and say things like that on a prison line ?

Haven't you seen any one of the innumerable Columbo, CSI ad nauseam to remember the "Anything you say can and will be used against you" line ?

Well you're going to remember that now, I'd wager. Too bad it's too late.

[Killing Time]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

Schoolboy error....

Well the hangover defence failed, Aspergers diagnosis next?

[Captain Boing]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

why al the down-votes? It's fucking true!

[Anonymous Coward]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

"why al the down-votes? It's fucking true!"

Amongst other things, aspergers really can prevent you from having the innate sense of something being a really stupid thing to do. Whether that should be a legal defense is somewhat debatable, because there are plenty of people out there who don't have a diagnosis and still don't seem to be able to see that certain things are really stupid things to do. I leave it as an exercise for the reader to come up with a few trivial examples of this.

Dislosure, I have offspring with a diagnosis of high functioning autism, (it doesn't get called aspergers round here) and it can sometimes be a struggle trying to understand the reasoning behind the offspring's actions. When the offspring does communicate clearly about the thing that has been done, there is usually a completely logical explanation, which usually results from the offspring having no concept that other people see things somewhat differently.

[DontFeedTheTrolls]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

A medical condition is not a defence. It might be a mitigation when sentencing.

[Anonymous Coward]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

'Amongst other things, aspergers really can prevent you from having the innate sense of something being a really stupid thing to do.'

Which, you must admit is a vague enough symptom for the disingenuous to hide behind.

In fact any forced or unforced error can be dismissed in this way, especially if you are desperate.

Secure an 'opinion' from a shrink and put it up as a defence.

[Anonymous Coward]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

What, like building an X-ray generator in their spare time?

Disclaimer: very low power and only hacked my *own* stuff with it. And I am not sure hacking at the subatomic level counts under the "Computer Misuse Act", at least not yet though did manage to wipe out a phone and a memory card while experimenting.

Also built a miniature enrichment plant albeit not 235U and experimenting with time-gravity displacement of radio signals.

AC because somehow Homeland Security found out and "nuked" eBay account.

Also the current term according to DSM-5 is "high functioning autism" as Hans Asperger may have committed war crimes so his research is highly suspect to say the least.

https://www.nature.com/articles/d41586-018-05112-1

[Robert Helpmann??]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

it doesn't get called aspergers round here

It was removed from the latest version of the DSM, so it doesn't get called that by mental health professionals either, at least not in providing a diagnosis that may have bearing in court.

[Anonymous Coward]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

>Whether that should be a legal defense is somewhat debatable

Dangerous choice at best - may slightly improve the support and choice of establishment, but may also influence the parole board when they are deciding if you're likely to re-offend......particularly if you invoke Asperger who viewed autistic people as amoral psychopaths

[wayward4now]

amoral psychopath

"...particularly if you invoke Asperger who viewed autistic people as amoral psychopaths"

Damn, I was just getting used to being codified as having "Asperger". Do I have to be an amoral psychopath AGAIN??

[Anonymous Coward]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

Already tried that one. That's the first one they use.

[Anonymous Coward]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

I have to imagine either there's a sign by the phone that it is recorded, or there's a recording that plays before your call starts. Anyone done time who can confirm if that's the case?

If not, I suppose he can claim he was under the impression his calls were private, but if there is notification there they have him dead to rights by his own admission.

[Anonymous Coward]

Re: "while talking to an unnamed associate over a recorded prison telephone line"

Obviously thinking like a Brit..

Here for your pleasure are the Miranda rights. Emphasis is mine:

"You have the right to remain silent; ANYTHING you SAY CAN and WILL be used against you in a court of law".

Trying to claim calls are private while under arrest in America, lol.

American law is thus - "Arrest them, they will eventually say something to someone, and then we have them"

[alain williams]

18 months he has been held ...

Guilty or not - it is a long time to wait. For those prosecuting him it is just another case in their boring job. For him it is 18 months where is life is on hold.

Why do these people take so long ?

[Stratman]

Re: 18 months he has been held ...

Because they're paid per hour, not per job?

[Michael Wojcik]

Re: 18 months he has been held ...

Because taking a long time works in the prosecution's favor. It makes the defendant much more likely to agree to a plea bargain, which is how most successful prosecutions end. It makes it less likely the defendant will gain sympathetic mention in the press by the time the case goes to trial, if it ever does. It saps the defendant's resources.

Under the US adversarial system, the prosecution's job is not to seek the truth or achieve justice; it's to secure a conviction or a guilty plea. I've known some prosecutors, in various positions, who were actively concerned with justice - but it's not a job requirement.

[M.V. Lipvig]

Re: 18 months he has been held ...

Fail to get enough prosecutions and you can lose your job as a prosecutor. Under the US legal system, only a win counts and those that win the most, earn the most. Justice is considered "nice to have, but hardly necessary."

Explosion, because it should not be win or lose, it should not be money talks, it should be justice prevails.

[Anonymous Coward]

Even if you're innocent

Especially if you're innocent.

[Bloodbeastterror]

Why in the name of god...

...would any sane person go to the US these days? Every day it gets closer to a banana republic, particularly in the legal field.

I was there 15 years ago and loved it. The people were lovely, driving was a pleasure (people in Las Vegas in the late evening allowed me to cross five lanes of traffic without a beep), but over the past few (two?) years it's just become a hellhole, the laughing stock of the civilised world of which it's no longer a part.

[Anonymous Coward]

Re: Why in the name of god...

Nah, 25 years ago it was already like this. I mean, once you get there it's fine, pretty nice even. But the ruling castes and their henchmen are horrible stuff.

And that's why I haven't been there in the last 25 years.

[whitepines]

Re: Why in the name of god...

You do realize good ol' Blighty has some fun laws now including 15 years in prison for thought crime. Maybe we should fix things at home before blasting our cousins across the pond?

[Intractable Potsherd]

Re: Why in the name of god...

The difference is, we have choice about going to "The Land of the Free", but many (most) people born in the UK have no choice about staying here (and the choices are reducing thanks to the utter selfishness of a few).

[Anonymous Coward]

Re: Why in the name of god...

"and the choices are reducing thanks to the utter selfishness of a few"

It's not selfishness - they're Russian agents.

[Anonymous Coward]

Re: Why in the name of god...

and the choices are reducing thanks to the utter selfishness of a few

17m people and over half that could be arsed voting. Not really "a few".

[DontFeedTheTrolls]

Re: Why in the name of god...

Yeah, but at least we have the protection of the European Convention on Human Rights

Oh, wait...

[Len]

Re: Why in the name of god...

Fortunately the European Convention on Human Rights and its court, the European Court of Human Rights in Strasbourg, are not EU institutions and so leaving the EU will not affect the Convention. Ironically, I can see the amount of cases against the UK government using the Convention increase as that will now become the main way to curtail the UK government's inclination for authoritarianism.

Of course, there are quite a few far right elements in the Conservative Party that wish to abolish the UK's human rights act and the country's ties with the Convention. I doubt they are going to successful though, especially since what Brexit is going to do to the Conservative Party makes what invading Iraq did to the Labour Party look like a small scratch.

[C-L]

Re: Why in the name of god...

> ...but over the past few (two?) years it's just

> become a hellhole, the laughing stock of the

> civilised world of which it's no longer a part.

I wonder how that happened! [Plants tongue firmly in cheek!]

BTW, the correct term to describe the place is no longer "hellhole" but instead "s**thole" ☺️

[A. Coatsworth]

Re: Why in the name of god...

@Bloodbeastterror

I resent that comment!!

I have lived my whole life in one of the _original_ Banana Republics, and things here have never, ever, gotten to the levels of idiocy that we are seeing in the "Land of the Free"

[TomG]

Re: Why in the name of god...

Finally, someone said something that could be blamed on the Democrats.

[M.V. Lipvig]

Re: Why in the name of god...

Ehh, it's still nice here. I can go whole hours outside my house without ever appearing on GovTV, which is not something your average Brit can do. The way you guys are going, in another 20 years you're going to have mandatory toilet cams that make sure you wipe in the legally prescribed way, and that you don't use more that the legally defined amount of paper. I mean, isn't that the true goal of IoT?

[Jamie Jones]

Re: Why in the name of god...

Leave the fox bullshit at home please. This is the register, not 'youtube comments'.

If you disagree with the original poster, do so (but note his followup also implied it's the same deal in the UK - "well, most in the UK live here, and don't have a choice in leaving")

Now, if you have an issue with CCTV cameras, then talk about it rationally, don't use fox headlines. There are no CCTV cameras where I live - the only cameras are on some of the more major dual-carriageways.

Incidentally, we don't have death-panels, Sharia Law, or non-Muslim no-go areas. We also don't all have afternoon tea with the Queen every day (although admittedly, it's my turn next Friday!)

But if you want to turn this into a childish game of "whataboutism", I could mention how in your nanny state, you don't have the legal "freedom" to cross a road by using your own judgment.

In 5 US states, rain water is owned by the water company - if you collect rainwater, you can be charged with theft.

Protest against anything involving big-money, and expect the cops with the help of private armies to legally beat the shit out of you (Standing Rock)

Don't fall asleep in your car - a cop might shoot you dead (happened this month)

Realise that the most important thing USA 5 year old learn in school, is what to do if a shooter storms the building...

Pointless this, isn't it? I could go on, and no doubt could you , but if you want to do so, take it elsewhere.

[M.V. Lipvig]

Re: Why in the name of god...

I assume this was directed to me. You can do the same, leave your MSNBC parroting elsewhere. See how that works? I don't even watch Fox anything other than The Simpsons. YOU are a huge part of the problem, getting mad at anyone expressing a different opinion than yours, attempting to shut other people up if theu don't agree with you and claiming that "you must be letting Fox do your thinking for you." As a Conservative minded person, I can allow for others to have different opinons than mine no matter how ignorant I consider them to be, because in my mind everyone is entitled to have and express thrir own opinions on any topic. It's a shame that Liberal minded folks are unable to do the same.

[John Stirling]

Re: Why in the name of god...

As a liberal minded chap - I'm with you. Which is a bit of an odd position to be - but you appear rather less reactionary than my liberal colleague who reacted so strongly.

[Anonymous Coward]

Hutchins received notice of his Miranda rights?

"Hutchins argues that there is insufficient evidence that he received notice of his Miranda rights. This argument is a non-starter, in part because Hutchins acknowledges that he was read his rights."

I distinctly recall reading that he wasn't read his Miranda rights before making any allegedly incriminating statements.

[Justin S.]

Re: Hutchins received notice of his Miranda rights?

Fun fact about Miranda: law enforcement only need to Mirandize you once you've been arrested. Technically, he was not under arrest for the first part of his interview-- even though they had a warrant to arrest him. It's a technicality-- and a crappy one at that-- but it follows the letter of the law and has been allowed by the courts.

Edit to add: I should also clarify that-- contrary to television and the movies-- the police don't even have to Mirandize you at arrest; it's only necessary if they ask you questions. So if you're nicked for public drunkenness and start blabbing on the way to the local jail, that's on you. If, however, the police ask you questions-- where were you, who were you with, whose drugs are these-- without Mirandizing you, your attorney has a good chance of having your statements excluded from evidence.

So, when someone from law enforcement starts asking you questions: shut up. Don't try to be helpful, because you don't know if you are-- or will become-- a target of their inquiries. And for God's sake, don't discuss anything you know or suspect might be illegal with *anyone*, whether they've identified themselves as law enforcement or not.

[kain preacher]

Re: Hutchins received notice of his Miranda rights?

Actually you are wrong. Miranda plies any time you are in a custodial siltation. If the police stop you and you are not free to leave or a reasonable person believes you are not free to leave Miranda applies is not free .

"So if you're nicked for public drunkenness and start blabbing on the way to the local jail, that's on you" Police will still read you your rights .

I worked a store security guard were we caught a shop lifter . They guy kept on blabbing so the police read him his rights. To my surprise the cop actually told him to shut him and said since you keep on talking I'm going to read you your rights. Moat cops will read your rights just to insure you do not get off on a technicality

[MiguelC]

Re: Hutchins received notice of his Miranda rights?

I though moat cops only existed in Blighty.... Don't think there are many jobs for a moat cop across the pond

[phuzz]

Re: Hutchins received notice of his Miranda rights?

"So, when someone from law enforcement starts asking you questions: shut up"

In the US. As noted in TFA, in the UK it's a bit different.

[Anonymous Coward]

Re: Hutchins received notice of his Miranda rights?

Shut up in the UK when law enforcement start asking questions and you will end in Jail for obstructing justice.

[Justin S.]

Re: Hutchins received notice of his Miranda rights?

"In the US. As noted in TFA, in the UK it's a bit different."

Also as noted in TFA, he was arrested in the US.

[Michael Wojcik]

Re: Hutchins received notice of his Miranda rights?

when someone from law enforcement starts asking you questions: shut up

Good lord, yes. Any defense lawyer will tell you this. So will many prosecutors - Kevin Smith says it routinely on Popehat, and he's a former prosecutor. So will plenty of law-enforcement officers, who readily admit that they get a lot of convictions and plea bargains based on unfair interrogation tactics.

James Duane has a great lecture on this topic, in which after giving his opinion (never, ever, ever talk to the police without representation), he turns the mic over to a career law-enforcement officer, George Bruch, who proceeds to tell the audience the same damn thing. Bruch points out that, for example, the police are quite happy to interrogate someone for several hours, because they're getting paid to do it.

That video should be required viewing for anyone in the US. They should show it in public schools and on international flights entering the country.

[Time Waster]

What was he thinking

"I wrote code for a guy a while back who then incorporated it into a banking malware." - This could be true of just about anyone contributing to open-source libraries.

“I used to write malware“ - maybe not so smart...

Anyway, how long does it take to actually get to court in the US?! He was arrested 18 months ago for a crime he apparently carried out in 2014. Also, does this time forced to stay in the States (away from friends, family and job) against his will count against any potential sentence?

[Justin S.]

Re: What was he thinking

If he's being held without bail, then yes, his jail time will count against any time imposed at sentencing.

[kain preacher]

Re: What was he thinking

any time in jail will count towards his sentence even if has a bail amount set

[Sgt_Oddball]

Re: What was he thinking

Not so smart but writing the stuff doesn't show intent.

If so that would mean every gun maker who's weapons have killed people would be culpable as well surely?

[TomG]

Re: What was he thinking

No, unless the Judge says it does.

[ds6]

Please someone tell me a country with a sane, non-clogged legal system. I will move there ASAP.

[John McCallum]

A sane non cloged legal system? Try Andorra at a guess.

[deive]

The moon? That has no legal system, although if enough people move there you will soon want for one...

[DontFeedTheTrolls]

Yeah, but the Moon is a really dull place. No atmosphere whatsoever.

[John Brown (no body)]

That's a bit harsh!

[Anonymous Coward]

Well, the moon *is* a harsh mistress...

[Anonymous Coward]

Germany? Partly because the people who got to work out the German legal system wanted to make sure there wouldn't be another Hitler, so they kept things simple and logical.

[Anonymous Coward]

Asgardia?

Because space law resembles maritime law at least in some respects.

Also as it turns out building a very small craft that can (a) reach orbit and (b) then slingshot around the Moon and out of the Solar System at 0.04C may be interesting but you might find that the radiation is a problem as is powering the "Puddle Jumper" unless you have a ZPM or a small nuclear reactor not to mention the whole life support thing. Space is *hard*.

Apollo 13 was only in space for almost 6 days and it still picked up a considerable chunk of lifetime exposure, if a big solar flare had hit it would likely have resulted in fatalities if Earth directed. Even a M-class would have been bad.

Shielding might help but its all added weight, in places the LM was thinner than tinfoil.

[Anonymous Coward]

Transdniester, another libertarian paradise on earth.

If the seriousness of your crime exceeds your means to bribe the officers with, they will take you to a ditch and shoot you in the back of the head right there, NKVD-style, no courts, no jails, no clogging.

[Anonymous Coward]

Sounds killer.

[PhilipN]

Doesn’t Work

“I never said a word.”

“Yes, he did, Your Honour. He admitted .....”

“Where is the bodycam record, Officer?”

“He snatched it, Your Honour, threw it on the ground and stamped on it. Hence the additional charge of criminal damage.”

Maybe I’m biased from (professional) experience with our wonderful London policemen some time ago but, put it this way, a Defendant with front teeth broken would have been charged with trying to bite the cop’s kneecap.

[kain preacher]

Re: Doesn’t Work

Here in the good ole US of A most cops have the ability to start and stop the bod cam. Then there is the excuse the cam malfunction. Oh and Philp N you excuse of him grabbing the cam would only fly in the US would only fly if he was tazed and pepper sprayed to the point were had a stroke/heart attack or beaten to the point were he now craps in a bag and slurs his speech possible with a spine broken in 3 pieces .

[Anonymous Coward]

Re: Doesn’t Work

"a Defendant with front teeth broken would have been charged with trying to bite the cop’s kneecap"

A similar experience. Back in the 80's I was a Hunt Sab and we managed to persuade the Grove and Rufford hounds over to be fed and dosed with Antimate. One of the dicks on horseback came across and kicked me in the face upon which I reported the assault one of Nottinghamshire's "finest" who promptly arrested me for assault.

Once in Retford nick, I refused to speak apart from the basic requirements of PACE, I demanded legal representation and the very first thing I said at interview was that I wanted a senior officer to attend as I wished to make a formal complaint. It didn't help them that I knew the plod who arrested me was the brother in law of the owner of the boot and that the boot had left a very photogenic imprint of the sole on the side of my face.

End result, I wasn't charged but the plod got off with "words of advice".

[Anonymous Coward]

Re: Doesn’t Work

>> End result, I wasn't charged but the plod got off with "words of advice".

Ahh, I see that we here in the USA are still following British law -- police here can beat, taze, or even kill an innocent person and get off with at most a "reprimand".

[Anonymous Coward]

Even if you're innocent

Doesn't sound very innocent. It actually sounds like he has been writing viruses and malware, and then boasting about it. The wannacry hero thing sounds like a desperate attempt to put his own fire out when it got out of hsnd

[[e-mail]]

But writing code under contract is not criminal, even if the code could be used for malicious purposes later by that customer.

Nor is there any legal way to compel him to testify, even if he knows who did use his software illegally.

His own 5th amendment rights against self incrimination prevent him from being possible to punish for refusing to testify, unless they gave him full immunity, which they clearly have not.

Statement over a prison phone are not evidence in the least.

He could have been bragging, attempting to intimidate, or who knows.

That is not evidence of anything.

[Joe Gurman]

Sorry, but....

....this is a remarkably poorly informed set of statements about US criminal law.

Someone who exercises his or her 5th amendment right not to testify can certainly be convicted in a trial.

Statements over prison phones and even hearsay overheard by other prisoners is usually allowable as evidence. (In the latter case, it would be up to defense counsel to challenge the witness's trustworthiness.)

As for "bragging, attempting to intimidate, or who knows," of course its evidence.

The operative dictum here is that ignorance of the law is no excuse. That holds in the US for everything but tax law (which is considered too complex for there to be a reasonable expectation that humans who aren't tax attorneys can understand it). Yes, even citizens of other countries: they are treated exactly the same way residents of the country are. Well, as to opening their mouths. Immigration cases, as we all sadly know by now, are treated as though every immigrant coming across the southern border is a member of MS-13.

[M.V. Lipvig]

Re: Sorry, but....

Uh huh, try claiming you didn't understand a tax law as defense with an IRS agent. The only thing you'll get is "I'm sorry about that. Your tax bill, with penalties and interest, is..." The best you can hope for with that claim is that they won't file criminal charges, and that will only work one time in your life. You can also expect regular audits for the rest of your life too.

[bombastic bob]

No Good Deed Goes Unpunished

what it says in the title

[Joe Gurman]

Re: No Good Deed Goes Unpunished

What's the good deed?

[DavCrav]

Re: No Good Deed Goes Unpunished

"What's the good deed?"

Stopping a global computer virus. Are you new here?

[Aodhhan]

Re: No Good Deed Goes Unpunished

Stopping a computer virus you helped unleash isn't exactly a good deed. More like, a selfish need to get yourself into the spotlight.

[Anonymous Coward]

Re: No Good Deed Goes Unpunished

"Stopping a computer virus you helped unleash isn't exactly a good deed. More like, a selfish need to get yourself into the spotlight."

Your evidence for that is what exactly?

Sounds very much like toeing the party line.

[waldo kitty]

Re: No Good Deed Goes Unpunished

"Stopping a computer virus you helped unleash isn't exactly a good deed."

ummm... apparently you are not familiar with the case... marcus didn't help unleash WannaCry... he stopped it...

[DavCrav]

Re: No Good Deed Goes Unpunished

"Stopping a computer virus you helped unleash isn't exactly a good deed."

You should be careful posting that sort of thing. Libel can get expensive in the UK.

[CrashMarik]

Don't care what country it is

Keep your mouth shut and get a lawyer. Especially if you are innocent and don't know what's going on.

[DavCrav]

Re: Don't care what country it is

"Do that in the UK, I dare you..

You'll find yourself in jail for obstructing justice."

No you won't. Saying 'No comment' to every question is perfectly legal. Obstruction of justice isn't even a crime in the UK. If you mean perverting the course of justice, that is a crime. According to Wikipedia, that involves one of three things:

Fabricating or disposing of evidence

Intimidating or threatening a witness or juror

Intimidating or threatening a judge

Please don't make stuff up about the law. Some people might be wrongly induced into incriminating themselves.

[ckm5]

Re: Don't care what country it is

If saying anything might cause you harm, it is reasonable to keep quiet even if the law (unreasonably) punishes you for it. The basic rule of thumb anywhere on the planet (and I've lived in 7 different countries) is not to say a thing.

If they wind up beating the crap out of you, they you should tell them whatever they want to here, even if it is false. That's what they taught us in the kidnapping training I had years ago when I was an overseas gov't official.

[Stratman]

Re: Don't care what country it is

Part of the UK's police caution goes something like "It can harm your defence if you do not mention when questioned something you later rely on in court", although they don't spell out how keeping schtum can harm it.

[John Brown (no body)]

Re: Don't care what country it is

"Part of the UK's police caution goes something like "It can harm your defence if you do not mention when questioned something you later rely on in court", although they don't spell out how keeping schtum can harm it."

And that caution also doesn't specify that you should talk before your solicitor is present. Your solicitor should be able to advise you on whether keeping quiet is the best course of action.

[SolidSquid]

I'm kind of curious about this now. I know the comments he made later kind of screw him over, but is it just a requirement to have heard the Miranda warning or could he argue he hadn't understood it given his being a foreign national? The Miranda warning itself isn't really a legal requirement in and of itself, it was something written to make it more likely people would be aware of their rights when they were arrested and so make it more difficult for a defendant to argue they didn't know they could stay silent. Not understanding it seems like it'd fall into the same category

[M.V. Lipvig]

"Ignorance of the law is no excuse" is a concept that is firmly entrenched in US law. Claiming ignorance as a foreigner might get you off a jaywalking charge but that's about it.

[SolidSquid]

This isn't actually true, "mens rea", or criminal intent, is included in a wide range of US law. "Ignorance of the law is no excuse" is a common phrase, but isn't actually true. At the very least it can be a mediating factor

[VulcanV5]

It woz the drink wot did it. Oh, and all that neon, too.

I can see how El Reg is sympathetic to someone rendered vulnerable to unfair legal process in consequence of his / her own behaviour immediately prior. But the defence "I've been totally pissed this week and was suffering a godalmighty hangover when questioned" is pretty feeble even as a plea of mitigation, still less an acceptable defence. The judge has presumably viewed the video recording of the Hutchins interview in order to determine not merely the content of what he said but the physical / mental state he was in at the time he said it, and concluded that nope, Hutchins gave no indication of being confused, hung-over or even boastful. The Miranda issue isn't of itself a major prop to the defence -- though it certainly becomes one when seeking to undermine the credibility of any prosecution witness. As for the recorded telephone conversation transcript, Hutchins has only himself to blame; there's certainly no abuse of process in that transcript being referenced as corroborative evidence.

It's certainly unfair that an individual innocent of any crime -- which Hutchins is, unless and until proved otherwise -- is held in custody for so long in denial of a basic human right (not applicable in the USA, though certainly applicable in Europe) to speedy Justice. But other than that: what's all the fuss about? The judge has behaved as a sensible judge should. The fact that Hutchins has not behaved equally as sensibly is his fault, and no-one else's. Meantime, I guess El Reg's decidedly sympathetic stance towards him will continue on . . .

[$till$kint]

Re: It woz the drink wot did it. Oh, and all that neon, too.

Worth noting that he's been out on bail, albeit with some pretty debilitating conditions, since August 2017. Adding this to correct the assumption that he's still banged up. To all intents he's still being denied his liberty, as he is unable to leave the US and has had restrictions placed on his use of technology and the internet that effectively prevent him working or even helping build his defence case.

He's worth a follow on Twitter, if you're into the twitterings. @malwaretechblog

[M.V. Lipvig]

Re: It woz the drink wot did it. Oh, and all that neon, too.

None of that is a restriction on liberty. Anyone in any nation's legal system has their movements limited and anyone accused of using something to commit crime has theirnaccess to that thing restricted. US citizens mighy be told not to.leave town , for example. As a foreign citizen, he has the ability to leave the US forever and be beyond the Us legal system, which would require a lengthy and extensive extradition to get him back. Far easier to just not let him leave.

Doesn't mean they can't go ahead and use said thing, just means getting caught using it is a new charge. Drunk drivers lose their license to drive, but it doesn't stop them from driving. They get a whole new set of problems if caught, though.

Once he's clear of the US legal system, he'll be free to leave.

[BugabooSue]

Welcome to The Circus

The USA Law system is truly nuts now - I will never visit there again.

The trouble is that here in the UK, our Law system is also truly nuts now too.

Both of them have always been nuts, but the last few years have seen a whole new level of batshit-crazy being introduced.

I am glad I am getting old. I won't have to put up with this shit-show for much longer.

I've never felt so threatened by the people who are supposed to have our best interests at heart. The sheer incompetence, corruption, and judicial overreach is almost too much to bare.

True, the guy was dumb in the things he said and did, but these days - "Everyone needs to be made an example of!" And there lies the issue. "Justice" these days is a dirty word. It's all about the Public Spectacle and scoring points in the eyes of the gutter press.

[Anonymous Coward]

Re: Welcome to The Circus

Having been set up for a "perp walk", by the police; using an accusation made by a known serial fantasist who had made multiple accusations against me that had already been disproven, I heartily agree.

Anon, because innocence isnt enough these days - mud sticks.

[Sequin]

How long before he tries the "I'm autistic and I'll top myself if I get thrown in the slammer" defence?

[Cliffwilliams44]

Typical Rogue FBI tactics

As someone who lives in the US I can tell you exactly how this was played out.

The FBI had some vague account of how this young man "may" have been involved in Cyber crime.

When they learned he was going to be in the US they setup a plan to capture him

They danced around the warrant amd meranda rights knowing he was not a US citizen expecting him to do something stupid. it worked!

As far as a sign stating the phone was being recorded, don't count on it. You see, it is perfectly legal in the US for the police to lie to suspects. It is done all the time here.

And now they pull out their #1 "trump" card. Accuse the suspect of lying to the FBI about something not even the FBI can really state they know was a lie. They just "believe" it is a lie. That is all they need to so. The burden of proof on these type of charges is solely on the defendents part. The catch 22 of these situations is how do you prove that you did not lie to the FBI when all they have to say is "we believe he's lieing" Unless they have a recording of him "saying" "I wrote that code specifically for a banking malware" how does the FBI know what he said is not the truth as he remembers it.

The article has it right, if your ever arrested in the US, be polite and STFU and get a lawyer. Preferrably not a Public Defender.

If your ever requested to talk the the police about someone you know who has been arrested, get a lawyer and answer evey question with "I'm sorry I don't recall". Else they will charge you with lying and bankrupt you with legal costs until you tell them what they want to hear, even if that is a lie.

[Anonymous Coward]

Just FTR

Whether you say "I did it" or "I didn't do it", that doesn't make you guilty of an offence.

Where's the evidence?

[Anonymous Coward]

Stupid things we do

Honestly, I do not know anyone who is a half decent white hat hacker that hasn't done a stupid thing in the past. Be honest. Reading this stuff about Marcus, ask yourself whether you have ever done something dumb and illegal? Did your curiosity or intellectual challenge ever get the better of you? Did you just decide to move Bishop to King 7?. Did you ever ponder what it means to be human?

I think that doing stupid stuff is part of being a hacker. And the world would be a bad place if white hats and even grey hats did not exist. Actually, all white hats are just a different shade of grey, right?

If he did not release the malware but just wrote some code for someone who paid him a fee, how can he be a criminal? It is like arguing that the person that made a gun was responsible for the homicide when someone else pulled the trigger. It seems like a fallacious argument (see below).

Marcus' mistake was to stick his neck out and become a WannaCry hero, drink too much and ingest way too many intoxicating chemicals (and no doubt have his fill of the strip clubs in downtown Vegas) not switch his brain back on when the feds wanted a word, and then say down the phone that he wrote some malware that he sold. He must have been super dumb or high to do that because prison phone or not if you are a person of interest then everything is bugged but I am guessing he knew that. If someone was interested in me then I am going to assume everything is hacked by a Government/APT and turned into a listening device. My PC, my TV, my phone etc. So just STFU! So really, he was not super dumb; I can see what happened here.

So I find this all to be crazy. This to me is the fallacious argument and why Marcus said what he said: Even when your brain is still so high it is in a milky way, you haven't slept for a week and you are fried, he was just like saying "yeh I am a gunsmith. I made a gun for someone and sold it. Then they pulled the trigger and shot a couple of people. Now they are trying to pin the murder on me". The prison phone call: he just thought that he had not done anything wrong. When did writing code become illegal? Oh, and when did writing malware become illegal? Because malware is just code. I wrote malware back in the 5 1⁄4-inch floppy day when I was a kid. It did some bad stuff, even sometimes rendering a very expensive IBM 5150 PC into a brick. But it was in a lab and we messed about with it for fun and not profit. Did I break the law? I think not. When I was a kid way back in the dark ages of modems and 8-bit machines my curiosity lead me in all sorts of directions. Thank god that DARPA, JANET, JUNET, WOPR etc were in their infancy. It was just a game of tic tac toe, not Global Thermonuclear War. Joshua.

Just let Marcus go home, wash his hat and get it a bit more white. Give him a slap on the wrist. The world needs people like him. I run a 20 employee consultancy company these days and I would hire him. He needs an old hat like me to keep his hat on the right side of the law. Just like the other 20 guys that work for me.

My closing question to the feds: Just what do you think you're doing, Dave? Dave, I really think I'm entitled to an answer to that question.

[M.V. Lipvig]

Re: Stupid things we do

Except, in the US it's not illegal to make guns and you can't be held liable for what others do with a gun you make. Guns are Consitutionally protected by the Second Amendment, and have many uses, but it won't stop you from going to prison for misuse. Creating malicious code is another story. It's not illegal to write such code as it's protected speech under the First Amendment, but if said code is used to attack other computers you can be held reaponsible for it in the US just as you can be held criminally responsible for yelling FIRE in a crowded area. Case law on both have been extensively tested, and this is how it works in the US.

[anonymous boring coward]

Meanwhile, in the White House, there is a certifiable maniac threatening the planet...

[Anonymous Coward]

Re. Certifiable maniac

Not just this planet.

(cough Space Force /cough)

Also if the aliens ever do turn up, I can only hope that they stop short of orbital bombardment and simply "beam up" Trump and other folks for a cordial discussion about space politics.

[Jake Maverick]

STFU and get a lawyer? how do you do that? they don't play by the rules in the UK or the US....

[Torchy]

Claim Diplomatic Immunity.

Claim Diplomatic Immunity my friend then return to the UK.

It is called "doing the Sacoolas".