The Demonizing of a Hacker -------------------------- THE MELISSA VIRUS is causing havoc in corporate America. Y2K has some folks loading up their trucks, boarding up their homes and literally heading for the hills. President Clinton wants to spend $1.5 billion combatting cyberterrorism. There are demons in our computers. They must be exorcised. And that may explain the case of Prisoner No. 89950-012, who resides in a cell at the Metropolitan Detention Center in Los Angeles. Kevin David Mitnick, age 35, is arguably the world's most famous computer hacker. He is the cunning villain in Takedown, the best-selling book by a New York Times reporter and a cover-boy sleuth who collaborated to engineer his capture. Mitnick is portrayed in a Miramax movie that recently wrapped shooting; his role belongs to the wiry young actor who played the serial killer in the hit slasher flick Scream. Mitnick has been in jail for four years -- 22 months for probation violation and possession of unauthorized access devices; over two years awaiting trial on charges of breaking into computers, the charges that made him notorious. He has just accepted a plea deal that will keep him behind bars for almost a year more. Five years for hacking. This in a country where the average prison term for manslaughter is three years. Is Mitnick a cyberterrorist? Will throwing the book at him make our databases safer? The answer to these questions is no. Mitnick's crimes were curiously innocuous. He broke into corporate computers, but no evidence indicates that he destroyed data. Or sold anything he copied. Yes, he pilfered software -- but in doing so left it behind. This world of bits is a strange one, in which you can take something and still leave it for its rightful owner. The theft laws designed for payroll sacks and motor vehicles just don't apply to a hacker. Kevin Mitnick's crime was to thumb his nose at the costly computer security systems employed by large corporations. Using modest skills as a programmer and considerable talent as an impersonator, he tricked employees of computer companies and phone equipment manufacturers into passing him confidential source codes. He then used the software secrets he obtained to perpetrate his next prank. All this was something of a compulsion for him. But the sum and substance of his criminal career was not like a string of bank robberies. It was more like a string of arrests for throwing cream pies in the mayor's face. Mitnick might have passed unknown into history, had it not been for all the attention focused on him by reporter John Markoff of the Times. Markoff recounted the efforts of one Tsutomu Shimomura of the San Diego Supercomputer Center to track down the perpetrator of a computer break- in. The detective work ended in Mitnick's arrest on Feb. 15, 1995 in Raleigh, N.C. Had it not been for the Times coverage, Mitnick told FORBES late last month, in one of his first interviews since going to jail four years ago, "this would have been over years ago." Markoff, he said, "single-handedly created the myth of Kevin Mitnick, which everyone is using to advance their own agendas." That sounds like finger-pointing from a guy who fails to take responsibility for his misdeeds. But some outsiders agree with his take. "I think the prosecutors are trying to make an example of him," says Jennifer Granick, a San Francisco lawyer who has defended hackers. Prosecutors have maintained that Mitnick's activities -- copying computer and cell-phone source code from Motorola, Nokia and Sun -- involved property worth $80 million. Mitnick acknowledged $10 million worth in his plea. Yet even this figure is misleading, says lawyer Granick: "If he never redistributed the information, and never used it or profited from it in any way, how does the act that he merely copied it deprive the owner of its full value?" David Schindler, an assistant U.S. attorney who has worked the Mitnick case since 1991, counters that the "victim" companies spent hundreds of millions in R&D, and Mitnick's break-ins jeopardized that R&D because copying proprietary software decreases its value. For a pretty abstract kind of crime, the government's tactics were severe, as if it were dealing with a genuine terrorist. He wasn't just denied bail, he was denied a bail hearing. Donald Randolph, Mitnick's court-appointed attorney, says he had never heard of that before in his 25 years of practice. It took almost a year, and a number of motions filed by Randolph, before the prosecution turned over the 9 gigabytes of electronic evidence it had accumulated, so the defense could prepare its case. Prosecutors were reluctant to give Mitnick a laptop to prepare his defense. Much of the rationale for the delay was the preposterous fear that somehow Mitnick could -- without a modem -- wreak cyberhavoc from prison. Indeed, prison officials have at times imbued Mitnick with powers befitting James Bond. Mitnick was once placed in solitary confinement because prison officials were afraid he could turn his walkman into an FM transmitter that could be used to bug the warden's office. Demons in the machine. Technology is terrifying, and the fear is directed at the hacker. But the government's crackdown on Mitnick, has, if anything, backfired, and made him a martyr in the hacker world. It has spawned Web sites dedicated to his case. A number of Web-site hacks have been staged in support of him, including an attack on the Times last September. (Mitnick had nothing to do with it.) But he doesn't deny he has spent much of his life as a digital intruder. His first legal scrape occurred when he was 17, in 1981, when he was arrested for stealing computer manuals. Arrests for other antics came in 1983 and 1987. In 1988, when he was 25, the FBI arrested him for stealing software from Digital Equipment. Three judges denied Mitnick bail and ordered him held in solitary confinement, where he stayed for eight months. One rumor making the rounds was that Mitnick could launch nuclear missiles merely by whistling into a telephone. Then Markoff's July 4, 1994 page one story taunted the feds: "Kevin Mitnick is a computer programmer run amok. And law enforcement officials cannot seem to catch up with him." It went on to say Mitnick, as a teenager, had hacked the North American Aerospace Defense Command (Norad), foreshadowing the movie War Games. Scary stuff. Is it true? Mitnick denies it, Norad denies it -- and Markoff admits he didn't check it out, that he got it from "a friend of Mitnick's." Says Mitnick: "When I read about myself in the media, even I don't recognize me." Takedown, the book by Markoff and Shimomura, earned them an advance of $750,000, plus additional payments for the movie rights. Mitnick, on the other hand, is barred from profiting from his story. For three years after he leaves jail, he won't be allowed to touch a computer or a cellular or cordless phone without permission from a probation officer. "There is no way I can earn a living when I get out," he says. "I couldn't even work at McDonald's. All I could do is something like gardening." Is the government making the world safer for data processing? It doesn't look that way.