A Culmination of Efforts (Summer, 1999) --------------------------------------- A great deal has happened since we last spoke of the Mitnick case and, more than likely, even more has happened between the time this was written and the time you are reading it. Easily the longest and most complicated of all the cases we've become involved in, the story of Kevin Mitnick is now in the crescendo stage and continues to shock and amaze those who have been following it. Let's catch up. In April, Kevin was forced to make a deal with the government. We say forced because it's the most accurate word we could find. Most of us are led to believe that when someone pleads guilty to a crime that they are in fact guilty. But it's not really that simple. The first thing you have to keep in mind is that the federal government wins over 95 percent of its cases. Is this because they have an unerring instinctive ability to track down criminals? Or because the prosecution does such a magnificent job of presenting its case? Possible... but not very likely. The real reason why these numbers are so staggered in the government's favor is because they have tremendous advantages in virtually every case they take on. The Mitnick case demonstrated this time and again; Kevin's court-appointed lawyer had a tightly capped budget that made it close to impossible to hire expert witnesses, take the time to go through the mountains of evidence, or otherwise mount an adequate defense. The prosecution, on the other hand, had an unlimited budget and was able to hire as many people as they needed. The taxpayers covered the whole thing. And a mere look at the court transcripts shows a judge heavily biased in favor of the prosecutors. The inability of Kevin's legal team to adequately prepare for the case meant that there was a very real possibility of a guilty verdict in a trial. It's not hard at all to get such a verdict when evidence is deliberately confused, missing, or misleading. And, regrettably, this seems to be the way the game is played. Since Kevin could have faced an additional decade in prison if he were to be found guilty in this manner, it made very little sense to take such a risk. By accepting a plea before trial, Kevin would be guaranteed at most another year in confinement. After more than four years of his life lost to this, not counting the years spent trying to elude this form of "justice" and the 1989 nightmare of being locked in solitary for eight months, it provided a sense of closure to at least know when the nightmare would end. We've seen this before countless times. The Phiber Optik and Bernie S. cases are two historic examples where the defendants were forced to accept a plea when what they wanted above all else was to fight the injustice. Real life isn't like an episode of Perry Mason, where all sides of the story are heard and justice always prevails. When details of this plea agreement were mysteriously leaked (this was never investigated but it would have been an incredibly stupid move for a member of the defense team to leak this as it could jeopardize the entire agreement), many people made the mistake of thinking it was all over. Far from it. While Kevin may have had no choice but to accept this agreement, he is a long way from freedom. And, it would appear, there are those who want the suffering to continue and even intensify. First off, let's consider the actual charges to which Kevin pleaded guilty: 1. Making a phone call to Novell on January 4, 1994, and pretending he was "Gabe Nault." 2. Making a phone call to Motorola on February 19, 1994, and pretending he was "Earl Roberts." 3. Making a phone call to Fujitsu on April 15, 1994, and pretending he was "Chris Stephenson." 4. Making a phone call to Nokia on April 21, 1994, and pretending he was "Adam Gould." 5. Altering data in a computer belonging to the University of Southern California between June, 1993, and June, 1994. 6. Sniffing passwords on netcom.com. 7. Improperly accessing well.com. We all know that lying on the telephone to perfect strangers is wrong. And taking advantage of shoddy security to capture unencrypted passwords isn't ethical. And it s always a bad idea to log into a computer system using someone else s account. And as for altering data, no real details on that have ever been released it could be something as simple as showing up in a log file thus altering data. If it were anything more, such as erasing a single file, we probably would have heard all about it. Assuming that Kevin was guilty of all of these charges, how can anyone justify the amount of prison time he has served? Especially when there were no allegations of damage to any system (other than the very vague hint above), profiting in any way, or doing anything that could be considered malicious. The above offenses are, by any reasonable standard, minor ones. What aren't they telling us? It's no secret that Kevin pissed off some pretty big companies when he tricked them into showing him their source code for cellular phones (long since outdated, incidentally). In fact, in letters obtained by 2600 that were put up on our web site, NEC, Novell, Nokia, Fujitsu, and Sun Microsystems all claim direct or implied losses that total several hundred million dollars. All of the letters appear to have been solicited by the FBI shortly after Mitnick was arrested in 1995. This is where things get interesting. If such losses were actually suffered by these companies, it is illegal for them not to report this to their stockholders. The Securities and Exchange Commission is quite clear on this. Yet, not a single one of these companies reported any such loss. In fact, Sun Microsystems implied a loss of around $80 million due to Kevin being able to look at the source code to Solaris. But if one wanders around their web pages, an interesting quotation can be found: "Sun firmly believes that students and teachers need access to source code to enhance their technology learning experience." Even if you don't meet their qualifications for this, you can still get the Solaris source code for $100! That's quite a depreciation in a mere four years, isn't it? If we were to apply this level of exaggeration to the other claims, Kevin s total amount of damages would be somewhere in the neighborhood of $350. It gets even better. When the government found out that we had obtained these documents and were making them public, they went ballistic. At press time, they had filed a motion to have Kevin's lawyer held in contempt of court because they believed he was the source of the documents. (Meanwhile nothing was ever said about the leaking of the plea agreement earlier in the year.) Judge Mariana Pfaelzer has given every indication that she will seriously consider this motion and has already agreed to keep any future evidence to be used against Mitnick at his sentencing a secret. In other words, any other damaging documents that could reveal what a sham this entire case has been will be kept hidden from the public. At best this is an abuse of power; at worst, a cover-up of massive proportions. Public reaction has become increasingly vocal in this case and we know now that this has had an effect. The government s way of acknowledging this is both irrational and unjust and it cannot go unchallenged. By the time you read this, nationwide demonstrations in front of federal courthouses all over the country will have taken place on June 4. We are seeing an unprecedented amount of activism in the hacker community and the reason is simple. This is just too much to tolerate. We cannot permit this suffering to continue. And those who stand by silently are as guilty as those cheering on this kind of abuse. We won't have to look far for the sequels. As we go to press, a new case involving "prohibited electronic communication intercepting devices" is beginning to play out. Radio enthusiast Bill Cheek of California was arrested by federal authorities and accused of violating the law simply because he dared to distribute devices that allow people to monitor police broadcasts, as people have done now for decades. Apparently, such communications, along with cellular and pager traffic, are now to be considered "off limits" to average people. Fortunately, this case has started to attract attention in its early stages. That is likely to make all the difference in the world. But we have to wonder how many more people will be subjected to cruel and unusual punishment because they dared to explore something that powerful entities wanted to keep secret. We don't know how many there will be but we do know there will be more. And what happens to those people in the years ahead will be directly affected by what we do here in the present. If we stand idly by, there will be no end of Mitnick and Cheek cases. But for every person who stands up and objects to this kind of treatment, a small bit of the armor will be chipped away. It's a proven fact that we have this power. What has yet to be determined is how much we will use it.