By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
By Raillan Brooks
Anticipation of the April 14 trial of Kevin Mitnick, America's most wanted computer outlaw, has been building for months. But as the preliminary hearings drag out, the trial date slides later and later--and even Mitnick's optimistic lawyers don't expect the trial to start before the end of the year. By the conclusion of 1998, Mitnick will have been incarcerated in Los Angeles for almost four years without bail, awaiting punishment for activities that some believe exist only in the conditional--crimes that he could have committed. ("It's a kafkaesque case," says Jon Littman, author of The Fugitive Game, a book about Mitnick.) And, ironically enough, the trial hangs on Mitnick getting access to a computer.
Mitnick's trial points to a serious juridical confusion over how to deal with electronic evidence and how to prove the alleged malicious intent of hackers who steal without profit motive. Mitnick faces a battery of charges--25 counts of alleged federal computer and wire fraud, illegal copying of proprietary software, and obtaining unauthorized access to computers. Between 1992 and 1995 (when he was caught), Mitnick allegedly engineered "root" or "superuser" access on computer networks like the nationwide Internet service provider Netcom, and pilfered data about the source codes of cellular phones from companies like Motorola and Nokia. What he did not try to do, maintains his defense team, is sell any of it.
Mitnick served time in the 1980s for breaking into computer systems, and had been forced to undergo counseling for his "computer addiction." He violated a federal probation requirement by associating with hackers and again entering computer networks illegally, and his exploits and eventual capture went on to become the subject of front-page stories in major papers.
The biggest current obstacle to Mitnick's trial is his plea to gain access to a computer--albeit one without a Net connection. His defense attorney, Donald Randolph, maintains that the U.S. Attorney's office in L.A. has over nine gigabytes of evidence that they intend to introduce, and Mitnick wants a chance to examine it. Since it's a mountain of evidence too expensive to print out, "it seems logical that the only way he can have access is through technology," says Randolph. But since Mitnick's not representing himself, requesting access is "asking for special treatment," says David Schindler, a federal prosecutor on the case. "He's being treated like any other prisoner who doesn't get a computer." Judge Mariana Pfaelzer may rule on the computer on April 27, the date of the next hearing, and many expect she will set a new trial date.
Mitnick's attorney hopes to prove that Mitnick is a "hacker purist"--"spoofing" IP (Internet Protocol) addresses and sidestepping passwords as a recreational activity--and not a computer terrorist. "It's joyriding on the Net versus auto theft on the Net," says Randolph.
The question is, where does joyriding become carjacking? Members of the local hacker collective Masters of Deception were jailed for almost a year for taking control of phone networks. Another hacker, Kevin Poulsen, who was infamous for rigging a radio call-in contest so that he won a Porsche and a vacation in Hawaii, served over four years in jail for more-questionable activities such as targeting the FBI.
Meanwhile, various hackers have attempted to build support for Mitnick with the usual m.o.--hijacking Web sites. In December, Yahoo! was hacked, and weeks later, a Unicef Web site was commandeered to read "1f kevin iz n0t rel34sed by febru4ry 2nd (gr0undhog's day), we beg1n the ultim4te h0locaust." But "hacking Web pages isn't going to get Kevin out of jail any faster," says Evian Sim ("Mis[s] Naive" in reverse), who runs a pro-Kevin site, kevinmitnick.com, which includes the federal indictment, court testimony, and extensive links to the news coverage of the trial. "There is so much misinformation about the case that it is necessary to have a central place to get facts and not speculation," she wrote in an e-mail interview. Despite her efforts, the site's defense fund for Mitnick has only raised a little over $200. Sim blames that, in part, on the fact that "his biggest supporters are hackers (for lack of a better word) and hackers tend not to have money."
Burdened by financial constraints and a wildly distorted criminal mythology, hackers may not be able to defend themselves with the same panache as other white-collar criminals, says author Littman. "There's a disturbing tendency in hacker cases that these young men get many more years than serious criminals like Michael Milken or Ivan Boesky when, as in Mitnick's case, there's no proof of profit motive," he says. "We're in danger of having a double standard for young males who play with computers instead of financial instruments." But it's the idea of "play" itself that is on trial. Breaking through media hype about his own culpability could be Mitnick's best hack yet.
The online advertisement for attorney general candidate Evan Davis may be the first political promo ever to run on the Net--and with prices this cheap, prepare for le deluge. "With TV you can easily spend $30,000 for a modest, one-shot ad," says Davis (a lawyer and former counsel to Mario Cuomo). "I spent about one-tenth of that. The Web is incredibly cost-effective." The money certainly didn't go to the banner ad itself, which is standard-issue, proclaiming Davis "a candidate who will not accept corporate contributions," a billowing stars and bars in the background.