Letter from Jail
By Ed Cummings
During a search of Cummings's home, police discovered a tone dialer that had been modified to obtain free calls from pay phones, and computer software that could alter the identification codes of cellular phones. Although there were no signs this equipment had been used illegally, the evidence was enough to charge Cummings with possession "with intent to defraud." Cummings is the first to admit that he's no Boy Scout. Nevertheless, his story is a nightmare of legalistic double-talk and national security alarmism that casts a pall over other attempts at Net legislation such as the NII copyright bill and the Clipper key escrow proposals - both ripe for arbitrary abuse by law enforcement.
Dear Wired,Naturally, I'd prefer to have sent you this letter digitally, but here in prison, I have no access to computers - just "collect only" inmate telephones. My case is complicated, and it has become a focal point in the rift between the hacker community and the United States Secret Service - a battle that continues even while I languish in jail.
The crux of the issue is that I've been imprisoned for most of the last year for the mere possession of speed dialers and an IBM laptop computer. I did not use this equipment to commit any fraud, nor have I been accused of committing fraud or gaining unauthorized access to telecommunications services. The US attorney's office has stated for the record that there were "no victims" in my case.
My prosecution is not about fraud, or theft of services, but about information. Specifically, I believe that I aroused the wrath of the Secret Service by making public photographs of undercover Secret Service agents working in the Philadelphia field office. These same photographs were later broadcast by WXTF-TV in Philadelphia. Apparently, the Secret Service doesn't like it when undercover agents have their pictures broadcast on TV - especially when the pictures show them picking their noses.
Still, I am the first casualty of CALEA, the Communications Assistance for Law Enforcement Act, which Congress passed and President Clinton signed in 1994. While the most infamous parts of CALEA pertain to the development of a massive wiretapping infrastructure for use by law enforcement, other dangerous and vague provisions of the law went uncontested because no hearings, committee deliberations, or floor debates on the legislation were ever undertaken.
I was convicted for the mere possession of hardware and software that is readily available at any RadioShack store or on the Internet. Indeed, with CALEA's use of such ill-defined terms as "unauthorized access" or "unauthorized use," simply owning a modem could be interpreted as possession of "hardware or software used for altering or modifying telecommunications instruments to obtain unauthorized access to telecommunications services." Likewise, CALEA's "intent to defraud" provisions are so broad and vague that the mere knowledge of any potentially "illegal" application of common hardware or software can constitute a federal crime.
I don't believe that law enforcement agencies will apply the statute to pursue millions of PC users. But I do fear that the government will misuse CALEA to selectively prosecute "undesirable" individuals by applying the law in an arbitrary and discriminatory manner - as it was done in my case. My goal is to prevent this from happening.
My 7-month federal prison sentence has been served in its entirety, and my 6- to 24-month sentence for a probation violation (stemming from a misdemeanor charge of "tampering with evidence" by removing the batteries from a touch-tone dialer) qualifies me for release sometime between now and next November.
Nevertheless, I'm trying to launch an appeal of my case, even though I may soon be free. Why? Because I strongly believe that CALEA contains badly worded and dangerously vague language. As the first person in the country ever charged with violating this onerous legislation, I'm in a unique position to try and strike the law down.
However, being in prison makes it difficult. I have no access to a direct telephone line or online information resources.
Thanks for your interest in this story, and please forgive my handwriting - I'm used to using a keyboard.Sincerely,Ed Cummings (aka Bernie
S.)
- Ed Cummings (bernies@2600.com) is a computer consultant and writer for 2600 magazine. More information about his case can be found at www.2600.com/law/bernie.html.
Last year, phone phreak Ed Cummings was imprisoned under a little-known provision of the Communications Assistance for Law Enforcement Act of 1994. Under this law, criminal penalties can be assessed against anyone who "knowingly and with intent to defraud uses, produces, traffics in, has control or custody of, or possesses" a telecommunications instrument that has been modified to obtain unauthorized use of telecommunications services, or hardware or software used to obtain unauthorized access to telecommunications services. (See "How Good People Helped Make a Bad Law," Wired 4.02, page 132.)
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