Poor Bill Gates might be on the rack at the DOJ but at least he’s getting a hearing and can jangle some loose change to pay for it. Kevin Mitnick, the infamous fugitive hacker tracked down by computer security expert, Tsutomu Shimomura and journalist, John Markoff, is now one of the three longest serving detainees […]
Poor Bill Gates might be on the rack at the DOJ but at least he’s getting a hearing and can jangle some loose change to pay for it. Kevin Mitnick, the infamous fugitive hacker tracked down by computer security expert, Tsutomu Shimomura and journalist, John Markoff, is now one of the three longest serving detainees at the windowless Metropolitan Detention Center, Los Angeles where inmates can only ever see the sky. Some studies say one year’s incarceration will lead to permanent psychological damage.
By Denise Danks
After being in federal custody for more three years, Kevin Mitnick’s case has still not gone to trial and he has now served ten months more than his parole violation penalty stipulated. Mitnick’s attorney applied for a writ of habeas corpus on February 28th. He now has to appeal to the Ninth Circuit on September 9th. Arrested in February 15th 1995, in Raleigh, North Carolina – he got 22 months for probation violation relating to a case heard in December 1988, concerning $4m in ‘damage’ to a DEC computer – later the amount was deemed closer to $160,000 which was how much DEC had to spend tightening up its security. He pleaded guilty and spent 14 months inside before getting probation which his defenders and even some of his original accusers say was never actually violated at all.
Never a fugitive
Recent testimony from Mitnick’s probation officer and others confirm what he has always maintained: that he had completed his probation and that he had gone on the run to escape injustice. The FBI has conceded that he was never a fugitive. It follows then that he should never been imprisoned but, even so, he should have been out by December 15, 1996. However, the federal government continues to detain him without bail pending the trial now scheduled for April 14, 1998 – though this may now be delayed – relating to a 25 count indictment concerning federal computer and wire fraud, the victims of which were : Motorola Inc, Nokia Oy, Fujitsu Ltd, Novell Inc, NEC Corp, Sun Microsystems Inc and various internet service providers. Mitnick is said to have copied their source code and the federal charges accuse him of causing losses in excess of $80m to the victim companies. The logic of this is that since he copied proprietary software, the victim companies could not sell exclusive licenses because the software would be freely available and thus, they were deprived of ‘lost’ sales. This is a devilish point to argue when someone has allegedly merely copied software and kept it to himself. The US legal guideline for all frauds, including computer fraud, uses the monetary value of the victim’s loss as its primary offence characteristic – the greater the loss, the more severe the sentence. Several courts, including the Ninth Circuit, have held that if there was no tangible loss to the victim, it is not appropriate to simply substitute the offender’s gain. The prosecution’s problem in Mitnick’s case is that if Mitnick only copied his victims’ software, without depriving them of it, then there was no tangible loss. Kevin Poulsen, a convicted hacker, now an internet pundit makes an elegant point: that without a loss, Mitnick’s sentencing exposure would be minimal and until the Sentencing Commission sees fit to create a special enhancement for defendants who have been on the front page of the New York Times, prosecutors must look beyond the fraud statutes to give relatively benign trespassers like Mitnick prison sentences commensurate with their media exposure. His own experience has made him something of an expert and he points out that in theft cases, unlike fraud, the value of whatever property the defendant gained from the theft may be used as a substitute for loss. If prosecutors could convict Mitnick of the crime of theft instead of, or in addition to, fraud, then at sentencing they could focus on the value of the software Mitnick copied and bypass the somewhat trickier question of what exactly his victims lost in the process, he writes (www. catalog.com/kevin). US federal law also states that the prosecution does not have to provide exact figures for its claims for damage done. The sum happens to be exactly the amount required before federal prosecutors can demand a maximum sentence – in Mitnick’s case, 200 years. Even so, Mitnick has been consistently denied a bail hearing and adequate access to the law library to prepare his legal defense. He has also been placed in solitary confinement – a feature too of his original stay in prison. For four months this year, Judge Mariana Pfaelzer refused to pay Mitnick’s court appointed attorney, Donald C. Randolph on the grounds that Mitnick’s case was not complex enough to warrant excessive hours. According to Randolph, the government’s case against his client includes over 200 million pages worth of discovery (because it includes a huge amount of source code) Discovery material is the actual evidence (or claimed evidence) against someone that’s going to be used in a case. In Kevin’s situation, it includes everything on his Toshiba laptop computer. Programs and files will be printed out. Phone conversations that were recorded have to be transcribed, etc; and due to the nature of this case, would require expert technical witnesses and specialized research. Without payment from the government, Randolph, a public defender, was unable to represent his client and had to do so out-of- pocket. Although on October 7, 1997, Judge Pfaelzer rescinded her previous decision and agreed to pay the lawyer for his services, the four months of non-payment, the campaign team claims, resulted in several months of delays. All legal defense work had effectively come to a stop and Mitnick has been unable to prepare properly for his trial. He has refused to plea bargain an 8 year minimum term with no time off for time served. Without the assistance of an attorney, Mitnick has been trying to conduct his own legal research at the law library at the MDC where he is being detained. However, the officials at MDC refuse to allow Mitnick more than 5 1/2 hours per week because he is a pre-trial inmate; inmates already sentenced are given priority time.
Last winter, Mitnick suffered 4 days of solitary confinement because prison authorities believed he was a security concern. During this time, Mitnick was not informed of why he was being punished nor what prompted the raid on his cell. His legal defense papers were confiscated during this ordeal and most were later returned to him. He was told the reason for the punishment was that the warders believed that, despite the fact that he is monitored on a 24 hour basis, he was going to plant a modified Walkman in their offices and bug them. A big issue in the original prosecution case against Mitnick initially was his possession of 20,000 credit card numbers. It should be noted that those charges have since been dropped and all that remains is the charges for ‘theft’ of telephone source code and a few thousand dollars of mobile phone airtime. Once front page news for his alleged hacking derring do, Mitnick is broke and almost forgotten while his pursuers carved sparkling media careers from his downfall and netted book and movie rights worth one million dollars. To date, only Poulsen, tried and convicted of only a handful of his original charges, has served more time – 51 months. Outside the US, particularly in the UK where it is equally frowned upon, hackers with, for example, ‘computer addiction’ problems, are rarely incarcerated. Some have even been praised for providing the valuable service of revealing inadequate security in supposedly high security US military computer systems.