The Fugitive Game: Online With Kevin Mitnick (44 page)

Fifth paragraph: "On Christmas Day, he broke into the home com-
puter of. . . Tsutomu Shimomura...." Correct me if I'm wrong, but
shouldn't the word "allegedly" be in there someplace?.. .

Now let's take a look at the technique used to find Mitnick. "Mr.
Shimomura had flown ... to Raleigh, where he helped telephone
company technicians and Federal investigators use cellular-
frequency scanners to home in on Mr. Mitnick."

Does this mean they were monitoring cellular calls? How exactly
was this done so that other cellular calls were not also monitored?
What are the legalities involved? These are very important ques-
tions that go beyond the Mitnick case ... a criminal case in Holland

a few years back was thrown out when it was proven that there was
no way to have obtained the evidence (monitoring cellular calls)
without invading the privacy of others.

The article finally admits 14 paragraphs in that there is no evidence
to suggest that Mitnick was engaged in credit card fraud (an allega-
tion strongly hinted at in the lead sentence) and that he "seemed
more concerned with proving that his technical skills are better than
those whose job it is to protect the computer networks he has
attacked."

This leads me to ask the same question I've been asking ever since I
found out he was on the run: what exactly is he being accused of
doing in the first place? Violating probation is the only concrete
thing I hear. ..."

Goldstein is right to question the law. Eavesdropping on cellular
calls without a warrant is illegal. Strict statutes regulate the use of
scanners for monitoring and eavesdropping.

A few hours later, at 4:48 a.m. on Friday, Goldstein uploads part
of FBI Special Agent LeVord Burns's affidavit.

On January 18, 1995, I was advised by Andrew Gross .. . [that] on
12/15/94 . . . [t]he intruders made a copy of Shimomura's home
directory which included personal files, E-mail, security tools and
other data. They also took copies of software relating to cellular
phones and other security type proprietary software. One of the
files copied was called "Berkeley Packet Filter" or (BPF) .. . devel-
oped under a research grant from the National Security Agency
(NSA) ... a network monitoring tool with the ability to filter
packets from an Unix computer. This tool is unique in that it can be
compiled and inserted into an Unix operating system without shut-
ting down the machine with a re-boot. I was advised by Gross the
cellular telephone proprietary software cost is between $500,000
and $1,000,000.. ..

Is LeVord Burns saying Shimomura had over half a million dollars'
worth of cellular source code and an NSA "packet filter" program

designed to eavesdrop on computers? Why would Shimomura have
proprietary cellular telephone code? And did the FBI really believe
the Berkeley Packet Filter was some valuable spy program? Could
Shimomura's assistant, Andrew Gross, have been misunderstood by
the FBI? The BPF is a freely available software package anyone can
get on the Internet. It doesn't cost a cent.

But before the Well's subscribers have a chance to react to that
disclosure, they've got something new to think about. Friday morn-
ing, Markoff's latest article is uploaded to the thread, and like his
Mitnick story, it too delivers a frightening conclusion, sort of like a
tsunami following an earthquake. According to John Markoff and
the
New York Times,
Mitnick didn't just steal billions of dollars of
trade secrets. He also nearly destroyed the Well.

HACKER CASE UNDERSCORES INTERNET'S VULNERABILITY

By John Markoff

San Francisco, Feb. 16 — In his final weeks of freedom, Kevin D.
Mitnick .. . had been putting severe strains on the Well... investi-
gators say.

And just a few hours before his arrest, they say, he delivered a last
electronic blow that nearly destroyed the Well and the electronic
community it served....

It was as if the hacker were underscoring the larger meaning of
what has been called the most notorious Internet crime spree yet:
the vulnerability of any computer on the global Internet network, if
a sophisticated computer criminal puts his mind to mischief. After
attacks were discovered Jan. 28, Well officials, with some misgiv-
ings, had been allowing Mitnick to come and go unimpeded so that
investigators could surreptitiously monitor his activities. . . .

But early Wednesday, as federal agents closed in on Mitnick 3,000
miles away, he logged in one last time to the Well. . . and erased all
the accounting records for the on-line service, Well officials said.

Shimomura steps from the
sixth-floor elevator like a
rock star arriving for his concert. The signature Oakley sunglasses
propped on his black mane, a windbreaker, a practiced look of disin-
terest, and a tall, slim woman at his side. John Bowler, the federal
prosecutor, guides Shimomura and his companion past the throng of
reporters into the courtroom and a front-row seat.

The time is Friday morning, February 17, ten minutes before
Kevin Mitnick's eleven o'clock bail hearing. I grab the seat two rows
behind Shimomura. His Birkenstock sandals are on the floor. He's
crossing and recrossing his legs, Buddha-style, like he did in his
Newsweek
photo, waiting like nearly everyone else for the preceding
hearing finally to end.

Suddenly, the magistrate barks out his decision, and the court-
room erupts, a herd of print and TV reporters rushing toward Shim-
omura.

"Hi, Tsutomu, I'm Jessica Gerstle from NBC News."

She doesn't have to say she's in television. She's pretty, a perfect
porcelain doll face, impeccably dressed, maybe twenty-two. She slips
her cellular phone into her bag as she speaks.

"I've just talked to print media," Shimomura says eagerly.
"You're the first person I've talked to in TV."

Jessica isn't shy. "We'd love to do a three-part series on you for
Dateline."

Shimomura nods, inviting her to continue.

"Tsutomu, some people outside the computer world look at hackers
as the last rugged individualists," she begins what sounds like a pre-
pared question. "There are people who like Kevin Mitnick."

"He did nothing imaginative," Shimomura snaps, clearly irritated
at the question. "Nothing interesting, nothing new that I can see."

Shimomura tosses out John Markoff's name while answering a
question, and John Johnson, a reporter for the
Los Angeles Times, quickly picks up on it.

"What was John Markoff's role?" asks the reporter.

"John wrote the book on Kevin," Shimomura informs the crowd
of journalists and network TV scouts.

"The third member of our team was John Markoff," volunteers
Julia Menapace, the woman who accompanied Shimomura into the
courtroom. She's casually dressed in jeans, taller than Shimomura,
with long brown hair. She doesn't work for the feds or the San Diego
Supercomputer Center. She's Shimomura's girlfriend.

"So what did John do?" the reporter asks.

"We primarily would ask him, 'If you were Kevin in this situation,
what would you do?'" Menapace replies.

She pauses for emphasis. "He [Markoff] was also a victim," Men-
apace reminds the reporters. "His e-mail was read on the Well."

It sounds incredible, but it's true. FBI agent LeVord Burns's affi-
davit, which reads like the transcribed notes of Shimomura's assis-
tant, Andrew Gross, mentioned Markoff not once but twice as a
victim. The crime committed against Markoff? Mitnick read his
e-mail. And then the prankster made the reporter's e-mail accessible
to the rest of the world.

The crowd shifts, and I find myself standing next to the star.

"Hi Tsutomu. I'm Jon Littman."

He pauses, then shoots a look of recognition. Shimomura knows
something about me, and he says it loud enough for other reporters
to hear.

"Kevin got into your e-mail at the Well."

"Yeah," I reply, unsurprised. "He first got in it in April or May."

The answer fascinates Shimomura. He's interested. He ignores the
rest of the crowd. I move closer.

"I'll bet it's been crazy for you?" I ask him.

"It's a zoo," Shimomura shakes his head.

The voice booms out across the courtroom. "Is there a John
Markoff here?"

It's a bailiff or a marshal, a black man who just emerged from a
door at the back of the courtroom. He's walking toward Shimo-
mura, carrying a piece of paper. My mind races. Why would a
bailiff or a marshal be calling out the name of a
New York Times reporter?

But John Markoff is nowhere to be found.

"So when did you start your investigation?" I ask Shimomura.

He's right next to me now, my body shielding him from the media
throng.

"I started tracking around Christmas."

"When did you know it was Kevin?"

"Around the end of January. A bunch of data was recovered on
the Well —"

But Shimomura is no longer looking at me. His eyes zero in across
the courtroom.

"There's Kevin!" Shimomura says deliberately.

Everyone looks up, following his voice. It's as if Shimomura is
narrating the scene, pointing the media in the right direction.

Mitnick is perhaps fifteen feet away when I turn. His legs shackled,
his wavy brown hair tied in a short ponytail with a yellow rubber
band. He looks stocky and fit in green government-issue sweatpants
and sweatshirt. He's only ten feet away now. Shimomura is right
next to me.

"Hi, Kevin," I say.

Mitnick looks over, sees Shimomura and me.

"Hi," Mitnick responds in that familiar voice.

What does Mitnick see? He knows Shimomura helped catch him.
Could he be wondering about me now too?

Shimomura and I sit down in the front row. He's wearing a
T-shirt from a cross-country ski race, cotton khaki pants, his bare
foot crossed over his knee, inches away.

Shimomura's leafing through his card collection. Associated Press,
ABC's
PrimeTime Live
... He pauses at Jessica Gerstle's NBC
card.

He catches me looking. I whisper.

"Was it tough to catch Kevin?"

He leans toward me, sweeping his black strands over his ear.
"Kevin wasn't very difficult to find."

"Why not?" I ask.

"He didn't do anything that was very difficult," Shimomura
scoffs.

"Why wasn't it difficult?"

"Just follow the bytes." Shimomura shrugs. "It's not terribly
hard."

Ten feet away, Mitnick's tall public defender, John Dusenberry,
hands his client a silver pen at the table.

"What do you think of Kevin?" I continue.

"I only followed him for four days." Shimomura turns to me. "Do
you know why he came to Raleigh?"

"No. How about you?"

"We were more concerned in localizing him than [in] what he
did," Shimomura whispers, raising a finger to his lips, stopping me
before I can ask another question. Kevin Mitnick is standing before
the court.

"Mr. Mitnick, I know your lawyer," Magistrate Dixon begins.
"He practices regularly before my court. . . . You have a right to a
hearing. Your lawyer has informed me you intend to waive [that
right]."

"Yes, I do," Mitnick declares in a clear voice.

"Do you now waive . . ."

"Yes sir," Mitnick says.

Mitnick's attorney, Dusenberry, addresses the magistrate. "We
understand that in exchange for his waiver, Mr. Bowler will not
oppose my modifications."

"We would not oppose that he ... be part of the general [prison]
population," Bowler responds. "The defendant agreed no other
phone access there other than his mother, his father and attorney . . .
the calls will be placed by law enforcement."

Dusenberry pleads. "Your Honor, we ask that he be allowed to
make phone calls at least once per day. This is a very technical case,
Your Honoi."

"I would agree to that," consents Bowler.

The magistrate smiles. "Why don't we agree to calls to Mr.
Dusenberry daily?"

"Could we have the other counsel permitted to have daily con-
tact?" asks Dusenberry.

Magistrate Dixon rules. "1 think it's also fair that he have unfet-
tered access to the attorneys Monday through Friday."

Shimomura is reading the note I've just scribbled to myself,

big announcement, is jm here?

a * a

Walking slowly in his chains, Mitnick is led out of the courtroom as
the media descends on Shimomura.

"Did you ever talk to him before?" asks a reporter.