From: John Young <jya@pipeline.com>
Date: Sun, 7 Jan 1996 01:31:08 +0800
To: cypherpunks@toad.com
Subject: Mitnik: latest? -- Long, watch it
Message-ID: <199601061716.MAA01565@pipe2.nyc.pipeline.com>
MIME-Version: 1.0
Content-Type: text/plain


   Perhaps Brian Davis will comment with the latest but here's
   Littman on Mitnick (and scans of Shimomura/Media/Feds)
   through October, 1995:


   As Tsutomu Shimomura launched his new careers as pitchman,
   author, movie subject, and video game designer, Kevin
   Mitnick sat in a Southern county jail. Mitnick wrote to me
   nearly every week on yellow legal paper in longhand,
   bemoaning the lack of a word processor as he recounted the
   hardships of jail. He told me he had been attacked and
   robbed by two inmates and barely avoided fights with
   several others. When he complained that the vegetarian diet
   he requested was limited to peanut butter sandwiches, and
   that his stress and stomach medication prescriptions
   weren't filled, he was moved to a tougher county jail.

   His grammar wasn't perfect, but his writing was
   surprisingly frank and descriptive. Mitnick punctuated his
   letters with Internet shorthand, noting the precise minute
   he began each letter, as if he were still online. He was
   bitter, but he hadn't lost his sense of humor. When his
   jailers admitted they'd read the letter Mike Wallace wrote
   him, inviting him to appear on 60 Minutes, Mitnick admitted
   the irony of him, of all people, complaining about other
   people reading his mail. "Poetic justice, eh? ..."

   Once in a while he'd slip in a tantalizing comment about
   his case. One week he'd appear to trust me, the next he'd
   wonder whether I would betray him. It was strange
   corresponding with the man the media and our government had
   cast as a twenty-first-century Frankenstein. Mitnick
   himself didn't seem sure of who or what he was. He asked
   whether I felt he should be given a long prison sentence.
   Did I think he was evil? Dangerous?

   When he was sent to his second jail, as a matter of policy
   the U.S. Marshals confiscated his books, his underwear, his
   toiletries. Mitnick was doing the worst prison "time"
   possible, because the Eastern District of North Carolina
   had no federal detention center. That meant he would have
   to defend himself without access to a law library, required
   by law in federal institutions. The nurse in Mitnick's
   second county jail cut his medication again, and on June
   18, his attorney filed a motion in federal court stating
   that Mitnick "was taken to the hospital and diagnosed with
   esophageal spasms." The attorney argued that the
   "deliberate indifference" to Mitnick's "serious medical
   needs" violated constitutional standards.

   Before a federal judge could order a hearing on the medical
   issues, Mitnick was transferred to his third North Carolina
   jail in as many months. "He [Mitnick] overextended his
   welcome," explained a deputy U.S. Marshal in Raleigh who
   preferred to remain anonymous. "It was time for a change of
   scenery. This happens with a lot of them. They get where
   they think they're running the place."

   Mitnick's third county jail was his worst yet. He shared a
   cell with seven other men. There was no law library, radio
   or television, and each inmate was allowed only two books
   at a time. Mitnick's were the Federal Criminal Code and the
   Federal Sentencing Guidelines. The eight men in Mitnick's
   cell were forced to share a single pencil stub that was
   taken away in the afternoon. Mitnick was allotted one sheet
   of paper a day.

   On April 10, 1995, John Dusenberry, Mitnick's public
   defender, filed a motion to suppress evidence and dismiss
   the indictment. He argued that the blank search warrants
   and the warrantless search of Mitnick's apartment violated
   the Fourth Amendment, which specifically prohibits
   unreasonable search and seizure.

   In the government's response, John Bowler, the Assistant
   U.S. Attorney in Raleigh, defended the blank search
   warrants, not an easy proposition in a free country. Bowler
   prefaced his argument by claiming, despite evidence to the
   contrary, that Shimomura tracked Mitnick on his own until
   February I4, just hours before his capture. The
   government's response to the issue of the blank search
   warrants was to blame Magistrate Wallace Dixon. Bowler
   asserted that the FBI had wanted to execute the search
   properly, but the magistrate had "upon his own initiative"
   insisted on signing the blank search warrants.

   But a judge never ruled on these arguments. The
   twenty-three-count indictment the Associated Press had
   hypothesized could land Mitnick 460 years in jail fell
   apart. The government abandoned its case in Raleigh,
   dismissing all but one of the counts in accepting a plea
   bargain from Mitnick that would likely get him time served,
   or at most eight months. The tiny story was buried in the
   back pages of the New York Times.

   "Kevin is going to come and face the music in L.A., where,
   of course, the significant case has always been," David
   Schindler, the U.S. Attorney in Los Angeles, told the L.A.
   Times. The newspaper said the prosecutor believed Mitnick
   would receive stiffer punishment "than any hacker has yet
   received," a sentence greater than Poulsen's four years and
   three months.

   Mitnick's letters revealed how Schindler planned to win the
   record prison term. Schindler was claiming losses in excess
   of $80 million, the amount that would garner the longest
   possible sentence for a fraud case according to the Federal
   Sentencing Guidelines. Nor would Schindler have to
   substantiate his claim. The government only had to
   "estimate" the loss. Mitnick's attorneys said the figure
   was grossly exaggerated, and added that the case rested on
   source code allegedly copied from cellular companies. There
   was no proof that Mitnick had tried to sell the code, and
   there was no evidence it could be sold for an amount
   approaching $80 million. But under the guidelines the
   absence of a profit motive was no obstacle to a long jail
   term. David Schindler was seeking an eight-to-ten-year
   sentence for Kevin Mitnick, about the same prison time
   doled out for manslaughter.

   The jailed hacker wasn't the only one whose feats were
   being hyped. By August of 1995, the advertisement in
   Publishers Weekly for Shimomura's upcoming book featured
   Mitnick's New York Times photo stamped with the caption HE
   COULD HAVE CRIPPLED THE WORLD. Declared the ad, "Only One
   Man Could Stop Him: SHIMOMURA."

   The hyperbole made me flash on what Todd Young had done in
   Seattle. The bounty hunter had tracked Kevin Mitnick down
   in a few hours with his Cellscope. Unauthorized to arrest
   him, he'd kept Mitnick under surveillance for over two
   weeks as he sought assistance. But the Secret Service
   didn't think the crimes were significant. The U.S.
   Attorney's Office wouldn't prosecute the case. Even the
   local cops didn't really care.

   When I met Young in San Francisco a couple of weeks after
   Mitnick's arrest, he was puzzled by the aura surrounding
   Shimomura and his "brilliant" capture of Kevin Mitnick. We
   both knew from independent sources that Shimomura had never
   before used a Cellscope. Young asked why the FBI would
   bring an amateur with no cellular tracking skills to
   Raleigh for the bust. If Shimomura's skill was measured by
   his ability to catch the hacker, then he was on a par with
   Todd Young, a thousand-dollar-a-day bounty hunter who never
   had the help of the FBI. The simple, unglamorous truth was
   that Kevin Mitnick, whatever his threat to cyberspace and
   society, was not that hard to find.

   I tried to get the government to answer Young's question
   about Shimomura's presence. I asked the San Francisco U.S.
   Attorney's Office and they suggested I ask the FBI. But the
   FBI had no comment. I asked Schindler, the Assistant U.S.
   Attorney in L.A., and he didn't have an answer. I asked
   Scott Charney, the head of the Justice Department's
   Computer Crime group, and he said he couldn't comment. I
   asked the Assistant U.S. Attorney who would logically had
   to have approved sending Shimomura three thousand miles to
   Raleigh, North Carolina. But Kent Walker oddly suggested I
   ask Shimomura for the answer.

   The response reminded me of what John Bowler, the Raleigh
   prosecutor, had said when I asked him how John Markoff came
   to be in Raleigh. He, too, had suggested I ask Shimomura.
   Shimomura seemed to be operating independently. outside of
   the Justice Department's control. Or was he running their
   show?

   The media appeared captivated by Shimomura's spell. Except
   for the Washington Post and The Nation, most major
   publications and the television networks accepted John
   Markoff's and Tsutomu Shimomura's story at face value.
   Kevin Mitnick's capture made for great entertainment.

   Not one reporter exposed the extraordinary relationship
   between Shimomura and the FBI. Most seemed to ignore the
   conflict of interest raised by the financial rewards
   Shimomura and Markoff received by cooperating with the FBI.
   A Rolling Stone magazine story condoned Markoff's actions,
   saying he had merely done what any journalist would do when
   presented with the possibility of a big scoop. The media
   critic for Wired suggested only that Markoff should have
   advised New York Times readers earlier of his personal
   involvement in capturing Mitnick.

   The media functioned as a publicity machine for Shimomura
   and the federal government, quickly churning out a round of
   articles arguing for tougher laws and greater security on
   the Internet. But the fury over what Assistant U.S.
   Attorney Kent Walker described as Mitnick's "billion
   dollar" crimes simply distracted the public from the real
   issues. Privacy intrusions and crime in cyberspace were old
   news, and a series of Internet break-ins after Mitnick's
   arrest proved the capture of cyberspace's most wanted
   criminal had changed little.

   The real story was that Internet providers, the new
   equivalent of phone companies on the information
   superhighway, appeared naive about how to investigate
   break-ins while protecting the privacy of their
   subscribers. After an FBI computer child-pornography
   investigation was made public in September of 1995, the
   Bureau revealed that it had read thousands of e-mail
   correspondences, and invaded the privacy of potentially
   dozens of citizens in the course of its investigation.
   Privacy activists complained that constitutional rights
   were being bulldozed, but the FBI announced the public
   should expect more of the same. "From our standpoint, this
   investigation embodies a vision of the type of
   investigatory activity we may be drawn to in the future,"
   said Timothy McNally, the special agent in charge.

   The government seemed to be promoting a hacker dragnet to
   make sure the Internet was crime free for the millions of
   dollars of commerce on its way. Kent Walker, the Assistant
   U.S. Attorney who left the Justice Department within weeks
   of Mitnick's arrest for a job with a Pacific Telesis spin-
   off, was one of the many government officials who claimed
   the FBI couldn't crack high-tech cases without people like
   Shimomura.

   Perhaps prosecutions would increase if the FBI bolstered
   its force with nonprofessionals. But where would that leave
   the law and the Constitution?

   (pp. 368-73)