Mitnick trial will venture onto new legal ground ------------------------------------------------ By refusing to plea bargain, hacker aims to set precedent By Mike Brunker July 23 -- The government says Kevin Mitnick broke into computers, lots of them, during his 2 1/2 years on the run. But with his trial on federal computer- and wire-fraud charges scheduled to start in a matter of months, the imprisoned hacker is now focused on breaking into something entirely different uncharted legal territory. GOVERNMENT ATTORNEYS portray the case as a by-the-book prosecution of a criminally proficient repeat offender who just happens to be the world's most notorious hacker. But Mitnick's attorney, Donald Randolph, notes that the prosecution of his client is anything but routine since the case will, by all appearances, be one of the first major federal computer hacking cases to actually go to trial. While researching various motions filed in the case, Randolph said he discovered that defendants in virtually every previous high-profile case had accepted plea bargains rather than face trial. The resulting absence of case law has allowed prosecutors in Mitnick's case leeway in arguing, for example, that he should not have access to a computer at the Los Angeles jail where he is being held, Randolph said. But Mitnick, who has been jailed without bail for nearly 3 1/2 years while awaiting trial (serving 22 months for cellular phone fraud and probation violation along the way) is determined to go to trial despite indications that the government intends to make an example of him, the attorney said. "He has had the audacity to be prepared to go to trial on this matter rather than taking a plea agreement with an uncertain future at sentencing," Randolph said. Mitnick's supporters also see his prosecution as an effort at intimidation. Eric Corley (a.k.a. Emmanuel Goldstein), editor of 2600 -- the Hacker's Quarterly, says the government also has established a precedent of sorts through its hardball tactics. "When you realize that you have to wait 3 1/2 years for a trial, even if you're innocent you're going to plead guilty," he said. But assistant U.S. Attorney Christopher Painter denied the government is using Mitnick to send a message to other would-be computer crooks. "He is being prosecuted because he violated the law. ... He violated a lot of laws," he said. " ... Is it true that computer hackers should think twice before violating the law? Yes, it is our position they always should do that. ... But Kevin Mitnick is not being singled out." Mitnick stands accused in a 25-count indictment of causing a mind-boggling $80 million in damage by breaking into the computer networks of such high-tech firms as Motorola, Sun Microsystems, NEC and Novell during the 2 1/2 years preceding his arrest Feb. 15, 1995, in Raleigh, N.C. The crimes could conceivably earn him nearly 200 years in prison, though sentencing guidelines would preclude the 34-year-old Southern California native from receiving a sentence anywhere near that harsh. TRIAL SET FOR MID-JANUARY Randolph said Mitnick's trial, now expected to begin in mid-January 1999, will establish precedent in terms of "the manner in which the evidence is handled, how the assessment of the amount of the alleged loss is [computed] ... and how the wire fraud law is applied to computer fraud situations like this one, where there is no attempt at an economic or gainful use by the defendant." By also raising issues such as whether a defendant should have access to encrypted evidence that prosecutors can't decode and whether a hacker can be denied bail on the basis that he or she poses a risk to the public, "It may set the standard for how computer fraud cases are going to be handled in the future," Randolph said. Mitnick already has blazed a small trail by winning the right to use a laptop computer at the jail to review the mountain of electronic evidence the government has compiled against him -- enough data to fill a library if it were printed out, Randolph said. During numerous hearings on the matter, prosecutors urged U.S. District Judge Mariana Pfaelzer to deny Mitnick access to a computer at the jail -- even one without a modem -- arguing that he could somehow use it to engineer an escape or otherwise compromise security at the jail. The judge sided with the prosecution during a series of hearings on the matter, but reversed course in March and allowed Mitnick to review evidence on a laptop in the jail's attorney-client conference room. ACCESS TO LAPTOP Under the arrangement approved by the judge, Mitnick will review electronic evidence on a laptop set up in the attorney-client conference room. The evidence will be on CDs that Randolph or a member of his staff will carry into and out of the jail each day. Mitnick will only be able to review the evidence when he is with his attorney. Painter downplayed the significance of the evidence-review procedure in terms of establishing precedent. "Kevin Mitnick has in the past been involved in computer crime," he said. "There were some real concerns about security ... [that] required us to work out something where he could review the evidence. ... I'm not sure it's breaking new ground, but it's just kind of reacting to the realities of each case." Mitnick has been unsuccessful so far on other fronts during pretrial legal skirmishes. Motions to set bail for him were rejected by the judge, who agreed with prosecutors that he was both a flight risk and posed a danger to the public. The denial of bail was upheld by the 9th Circuit Court of Appeals in San Francisco. Randolph says he is now preparing an appeal to the U.S. Supreme Court. Nor has Mitnick's legal team -- Randolph and several other attorneys who have donated their services -- had any success in persuading Judge Pfaelzer to allow the defendant access to encrypted files or "hacking tools" that prosecutors say were in his possession when he was arrested. Randolph sought an emergency appeal of the ruling, but that motion also was denied by the judge. His staff is researching whether the law allows a pretrial appeal of the judge's ruling. WHAT IS WIRE FRAUD? During Mitnick's trial, his defense is expected to challenge the use of federal wire fraud charges by arguing that hacking in its purest sense, invasion of computer systems without damaging them, does not meet the legal definition of wire fraud, since there is no monetary gain. The government will likely counter that theft of software is sufficient grounds for the charges. If Mitnick is found guilty, the battle will shift to the prosecution's calculation that he caused $80 million in damage to the companies whose systems he allegedly invaded. Randolph said that the prosecution has included the companies' research and development costs of the software that Mitnick allegedly pirated to reach the sum. "If the [software] is not removed from use ... and has not been shown to anybody, then the victim is not harmed to the extent that all their research and development costs are worthless," he said. Painter agrees that the damages will be a point of contention if Mitnick is convicted. "The way that federal sentencing laws are set up, damages are one of the driving forces of what the sentence ends up being," he said. "There are many components to damages where someone is going and breaking into systems, including what they need to do to fix those systems, repair costs, if material is stolen you have to value the material that's stolen, and there are a variety of ways to do that." A CAUSE CELEBRE The perception that Mitnick is being harshly treated by the government has made his case a cause celebre among hackers and Internet libertarians. There are numerous web sites devoted to his legal battle and a handful of web sites have been altered by sympathetic attackers to include calls for his freedom, notably the UNICEF and Yahoo! home pages. Mitnick and his capture have been documented in several books -- most notably "Takedown" by New York Times reporter John Markoff and Tsutomu Shimomura, the computer security expert who helped the feds track Mitnick down, and "The Fugitive Game -- Online with Kevin Mitnick," by Jonathan Littman. Adding to his notoriety -- at an inopportune time for the defense -- is an upcoming feature film of "Takedown," which is expecting to begin shooting soon. No release date has been set for the film, which is being produced by a division of Disney's Miramax Films and will star Skeet Ulrich as Mitnick. An early version of the script drew howls of outrage from Mitnick supporters because of numerous liberties taken by the writers in the interest of creating dramatic tension. Among the untruths: During the pursuit, Mitnick clubs Shimomura with a garbage can lid, gashing his head (they never met until after Mitnick's arrest); he obtains free phone calls by whistling into the phone ala legendary phone phreaker Captain Crunch; he rigs a radio call-in contest to win a TV, a stunt performed in real life by fellow hacker Kevin Poulsen; near the end of the movie he vows to escape during a jail conversation with Shimomura, saying, "I'll be seeing you. All I need is a dime and a phone. Sometimes, if I'm lucky, I don't even need the dime." ANGERED BY MOVIE A friend of Mitnick's, who spoke on condition of anonymity, said the subject of the film is appalled by the script and fears it will further poison public opinion against him. He is considering legal action to either attempt to stop its release or sue for defamation of character, but since he has no money to hire another attorney there may not be much he can do about it, the friend said. Mitnick's supporters also are looking for ways to make their displeasure known. Corley, the editor of the hackers' magazine, said plans were being laid for picket lines at Miramax headquarters, at the film's set in North Carolina and elsewhere to draw attention to the film's inaccuracies. Asked whether Mitnick backers might use electronic means to voice their unhappiness, Corley said, "We're capable of other things than just playing with computers. But I'm sure we'll be blamed we'll be blamed for all their phone and computer problems." Despite the distraction, Mitnick remains focused on reviewing evidence and helping his legal team prepare for his trial, said his friend, who speaks regularly with him by phone. The friend said the talents that allowed him to become a computer whiz are standing him in good stead during his long incarceration. "The guy is extremely bright, he's got a great sense of humor and he must have a lot of hope because he doesn't give up. He just doesn't give up," the friend said. "It's the same thing that he had with computers -- when it would be 2:00 in the morning and he would just keep working and working on a problem -- that's what's helping him survive in that terrible place he's in."