A Give Up Exclusive!
from Spectacular Computer Crimes
by Jay Bloombecker

KEVIN MITNICK: THE WILLIE HORTON OF COMPUTER CRIME?

INTRODUCTION

In the waning days of 1989, I sat in The Bicycle Club, a gambling club in Bell, California, sipping on a coke and listening to Susie Thunder tell me about Kevin Mitnick. Thunder, one of the few women hackers to surface in the last decade, had turned her skills and will to playing poker professionally. We spoke a few hours before a tournament in which she planned to compete.

In 1982, when I first heard of Thunder, she was part of a group that met at a Los Angeles Shakey's Pizza Parlor and planned ways to compromise Pacific Telephone's computer and communication systems. Kevin Mitnick and Leonard DiCicco were members as well. Phone phreaks with computer science sophistication, these teenagers studied communication systems and mastered their complexities. Computer systems are not the only kind of systems that interest people like Thunder (or Jerry Schneider or Robert Morris). Whether they involved calculating the odds on a winning hand, loopholes in the international banking system, or flaws in communication network software, systems-savvy people can often exploit any system they can understand. Susie understood the mathematics of poker, she explained, so now she had changed her focus from computer systems to gambling.

Intriguingly dressed from her feather earrings to her cowgirl boots, Thunder was willing to admit to a variety of "psychological subversion" techniques she had used to gain information about computer systems. She was the kind of woman, she told me, who would go to Kansas City on a whim and concoct a scheme of disinformation. She picked a man at random out of the phone book and circulated information suggesting he was guilty of a serious crime. She assured me she stopped before the man was arrested, but not before some information had circulated which could have been incriminating.

"Kevin's not like me," she explained. "He's really crazy." I asked her about his being held without bail and she approved. "Any punishment he gets is ok with me," she said. "he's dangerous."

Speaking before a chapter of the Association for Computing Machinery, I met a woman whose view of Mitnick paralleled Thunder. "I had to clean up the mess that little twirp made," she told me angrily, "and I don't care if they throw the book at him."

In all, five people have told me how evil they think Kevin Mitnick is, and how happy they are that he has been punished. None has expressed an interest in considering whether his constitutional rights have been violated. As I read the reports of Kevin Mitnick's journey through the criminal justice system, I wondered where is Clarence Darrow now that unpopular computer criminals like Kevin Mitnick need him?

"The right to bail is illusory these days," says Jerry Kaplan, a Los Angeles defense attorney with a heavy federal caseload. Kaplan, whose clients are often charged with murder or cocaine offenses, has seen drug dealers detained a number of times. But even Kaplan considers Mitnick's case unique. "It is unusual for someone to be held without bail unless the case involves a presumption of dangerousness."

The federal law creates a presumption that someone arrested should be detained as dangerous if that person is charged with a violent crime, a capital crime, or a drug crime involving more than a 10-year sentence. Mitnick's case fits none of these criteria. Instead, it would seem to be brought under language in the Act allowing for pretrial detention whenever release of the accused "will endanger the safety of any other person or the community." Ironically, Mitnick could not have been detained under this law if his case had been brought in Massachusetts, where Digital Equipment Corporation maintains offices. In the case of U.S. v. Ploof, the U.S. Court of Appeals, First Circuit, ruled that detention for dangerousness is only permissible in those cases meeting the specific criteria listed above.

Clearly this language offers little precise guidance. Instead, it invests the judicial officer considering bail with considerable discretion. Since the decisions are discretionary, they are unlikely to be reversed on appeal. Appellate courts generally limit their reversals to mistakes of law, overturning only the most extreme abuses of discretion. Mitnick's case suggests very strongly that the vague language of our bail laws can be used to punish an unpopular defendant.

If the bail laws can be abused in this way, the example of this abuse also presents an ethical challenge to the prosecutor. Unlike the defense attorney, whose only responsibility is to the client, the prosecutor is obliged to work for justice, as well as for guilty verdicts. The prosecutor has the responsibility of presenting evidence under the bail laws and choosing those cases in which they will argue for pretrial detention. I have serious doubts about the ethical behavior of the prosecutors who chose to argue for Mitnick's detention based on the evidence they presented to the court.

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