Slow Motion

At last we know what it was all about.

Since February of 1995 when Kevin Mitnick was arrested in North Carolina (and for more than two years before then when he was trying to avoid being captured), people have been asking what the big deal was.  Why were the federal authorities so intent on imprisoning Mitnick?  What crime had he committed?  Why was this so important?

We know that it wasn't about his being a fugitive from justice.  Why?  For one thing, it turns out he never was a fugitive in the first place!  An article by Jonathan Littman (author of The Fugitive Game) pointed this out back in 1997:

"The change in the government's stance came to light last week during a routine pre-sentencing hearing before Federal Judge Mariana Pfaelzer.  The U.S. Marshal the government had relied upon to claim that Mitnick fled before his three-year probation was finished on December 7, 1992, testified he never made any such statement.  Minutes later, Mitnick's former probation officer, Frank Gulla admitted he wrongly stated that Mitnick was a fugitive."

"No longer able to prove Mitnick was a fugitive, the government instead claimed the hacker was tardy with his paperwork, failing to submit three monthly supervision reports.  But Gulla testified that for 33 months, until September 1992, Mitnick 'conscientiously' complied with the reporting requirements of his 36 months supervision."

A minor infraction at best.  But that apparently didn't matter.  Mitnick had committed crimes while on the run, even though he wasn't really on the run.  And justice had to be served.

So Mitnick was charged with possessing access devices in the form of codes to make free cellular phone calls.  (Had prepaid phone cards existed back then, there's little doubt Mitnick would have used this anonymous method to stay in touch with friends and family - one simply does not get a landline while being hunted.)  It wasn't exactly manslaughter but a message had to be sent.  He got 22 months for this infraction.  The government wanted 32.  (Manslaughter, incidentally, would have gotten 34.)

There's actually a slight clarification to all of this.  Mitnick also pleaded guilty to violating his supervised release.  Why would he do such a thing if the government admitted that he was never a fugitive?  Two reasons:

1.)  The government didn't make this admission until a year after he pleaded guilty.

2.)  By agreeing to plead guilty, Mitnick was assured that he would not be transferred back to North Carolina for trial, something he desperately wanted to avoid since it was far from his family in California.

Not pleading guilty would have made an already difficult situation unbearable.  Ironically, by the time he was sentenced he had already served 28 months anyway.  But they were far from finished with him.

The real fun came from the 25 count indictment filed against Mitnick in September 1996 where he was basically accused of copying software and lying on the telephone about who he was (this is commonly known as social engineering).  While laughable to most of us, Mitnick was facing serious prison time for these infractions.  Large corporations were claiming millions of dollars in damages from his having accessed their files, even though he never did anything with them.

Throughout it all, the crimes that made all the headlines (hacking into Tsutomu Shimomura's machine, possessing a list of 20,000 Netcom customer credit card numbers, etc.) mysteriously vanished, either because everyone knew Mitnick had nothing to do with them or because they weren't even crimes.

It took until 1999 for Mitnick to finally give in and agree to a plea bargain just as nearly every defendant in a federal case eventually does to put an end to the nightmare.  The new seven count indictment had charges that were just as laughable as the original indictment but pleading guilty could get Mitnick out of prison in another year.  Again, not pleading guilty would have made life unbearable since the government had made it nearly impossible for the defense to analyze the evidence.  In other words, the deck was stacked against them.

When the damages the various companies were claiming got leaked and subsequently published on our web site, a lot of people finally started to realize how wrong this whole thing was.  While the prosecutors and media were always throwing around a damage figure of $80 million, the total amount of damages arrived at by adding the figures on the leaked documents came to over half a billion dollars!  Something clearly wasn't right.  Sun Microsystems alone was claiming $80 million for Mitnick's copying of Solaris source code, something they offer to the public for $100 - free for students.

Demonstrations were held outside federal courthouses in 15 cities around the world on June 4, 1999 demanding an end to the injustice.  Many thousands of leaflets were handed out to passersby and federal employees.  A lot of eyes were opened on that day and the hacker community took a big step into the world of activism.

In the best bit of news all year, a pending state case against Mitnick was dropped.  The possibility of being immediately remanded into state custody upon his release from federal prison had always existed.  In the end, the state reasoned that Mitnick could not have committed computer fraud if he was merely talking on the phone.  Had the feds come to this conclusion, a lot of time and money could have been saved.  But now it was time for the federal case to reach a conclusion.

Sentencing was set for June 14, postponed to July 12, continued to July 26, and postponed to August 9.  When it was over, the judge had refused to recommend Mitnick be sent to a halfway house and insisted that he serve out the remainder of his plea bargained time in a prison.  She left open the possibility that he could be transferred to a minimum security facility however.  But the really significant part of this was the amount of restitution ordered: $4,125.  Yes, that's what all the years had boiled down to - a fraction of a fraction of the amounts that had been publicized.  And even that figure came with no details on its calculation.

But they still weren't finished with Mitnick.  There was the issue of supervised release after his prison term ends, believed to be in January of 2000.  The restrictions on his life until 2003 are staggering.  No access at all to any computer, to any television capable of being hooked into the Internet, to any electronic equipment that can be used as a computer or that can be tied into a computer or telecommunications network, and no cellular phones.  In addition, Mitnick is forbidden from consulting with or advising anyone on computers or computer related activity, and is not allowed to use encryption in any form.  How he will be able to make a living is something nobody has been able to answer.

But why worry about the future when we still have the present?  Two days after Mitnick was sentenced, he was taken with no warning to a maximum security prison in San Bernardino.  He was forced to leave everything behind, personal possessions, legal documents, even the money in his commissary account.  He was placed in a 50x25 room with 60 prisoners.  One hour outside the room is allowed three times a week.  There are no windows and no clocks.  Prisoners often don't know if it's day or night.  There are no partitions for the toilet or shower.  Imagine having 60 people watching you at all times no matter what you're doing.

But that's not even the worst of it.  Mitnick has been on a kosher diet for some time, something the prison at San Bernardino does not supply.  Despite the fact that established cases have given prisoners the right to practice their religion and obtain kosher food if their religion requires it, the judge has denied his request to be transferred to a facility that provides this.

It's not at all unlikely that this is a form of retribution for being a high profile prisoner and exposing the corruption of the legal system.  It's widely known that the warden at the Metropolitan Detention Center, his former prison, didn't want the publicity that came with Kevin Mitnick.  Ironically, Mitnick's lawyer was waiting to see him when the abrupt transfer began.  Prison officials refused to allow them to meet.  In fact, they tried to rush him out of the prison by giving him the infamous laptop that had been used to go over the evidence which he was there to pick up.  What's incredible about this is that they didn't want to take the time to erase the evidence as they were supposed to.  After all, this was what was supposedly worth millions of dollars, right?  Mitnick's lawyer refused to accept it.

And just when we thought it couldn't possibly get any worse, it did.  On August 25, Mitnick was awoken at 2 am and once again taken without warning, this time back to Los Angeles.  It was an ill-fated trip.  The van he was riding in rear-ended another vehicle at high speed.  Mitnick, who was not strapped in (for some reason prisoners never are) hit his head hard.  Six hours later they took him to a hospital along with the other injured prisoners.  Despite exhibiting symptoms of a concussion, he was driven back to San Bernardino.  The reason for the sudden trip to Los Angeles in the middle of the night remains a mystery.

At press time, the situation remains grim.  No food, barbaric living conditions, and now possible untreated injuries.  The media has lost interest in the case so don't expect to see this on the evening news.

So now we know what it was all about.  It wasn't about justice, protecting America from a dangerous criminal, national secrets, or corporate espionage.  It was really about nothing at all, which also happens to be precisely what has been accomplished by this charade.  Unless a whole lot of people losing faith in our system of justice counts as something.