The Fugitive Game: Online With Kevin Mitnick (53 page)

"No they should not have been in there," says the magistrate.
"They shouldn't have gone in."

Who is to be believed? A federal magistrate or an FBI agent? Or is
there objective evidence? The hacker's phone bill seems to prove the
timing of his story and corroborates part of the magistrate's account.
Mitnick phoned his attorney, John Yzurdiaga, within two minutes of
the FBI's forced entry, not over a half an hour later after Special Agent
Burns's return, as the government claimed. The Sprint phone bill also
proves Mitnick's call to his attorney was twenty minutes long, twenty
minutes during which Kevin Mitnick and his attorney repeatedly de-
manded to see a search warrant that the FBI did not produce.

About 3:20 a.m., Kevin Mitnick is driven to the Wake County Public
Safety Center in Raleigh. He asks to call his mother.

"What's her name?" the federal agent reportedly asks. "Who
should we say is calling?"

The hacker says nothing for several minutes, and then begins to
talk.

"OK, you got me," Mitnick confesses. "I'm Kevin David Mitnick.
I want you to know that I'm
not
a spy."

If money was the ultimate mea-
sure of success, there was little
doubt who won the fugitive game. Within a week of Markoff's
front-page
New York Times
story his agent had brokered a package
deal for the reporter and the security man with family entertainment
giant Walt Disney. Hyperion, Disney's publishing subsidiary, paid
an estimated $750,000 advance for book rights to
Catching Kevin. The Miramax movie option was $200,000 with a total of $650,000
to be paid upon commencement of filming. Foreign book rights to
the United Kingdom, Italy, Spain, France, Holland, Brazil, Japan,
and Taiwan were estimated at between a quarter and a half million
dollars. Video game rights were also sold. All told, the new business
partners' revenue could approach $2. million.

If fame was the goal, Shimomura had become an instant celebrity.
CNN produced a segment on Shimomura and NBC courted him for
an exclusive interview with Tom Brokaw to coincide with his book
release in early 1996. Markoff, on the other hand, was relegated to
the backseat. Disney was buying Shimomura, the cybersleuth. The
story was to be in Shimomura's words, as told to Markoff, as if the
reporter had played no role in the drama.

Publicity had made Shimomura a marketable property. He was
selling not only his story but his services as a hacker and security

expert. By the spring of 1995, full-page "To Catch a Thief" advertis-
ing spreads appeared nationwide in five computer magazines, featur-
ing Shimomura holding the same computer he'd cradled in his
New
York Times
photo. Shimomura's reputation as a master security
whiz soared.
Newsweek
named him one of the fifty "most influential
people to watch in cyberspace." In May, Shimomura's face was
splashed in the papers when he accepted a public challenge from Sun
Microsystems to crack its latest computers. At a major Internet con-
ference in Hawaii, Shimomura gave a riveting demonstration of how
he tracked a hacker who had cracked into the Pacific Fleet Com-
mand during the Gulf War, intriguing his audience by purportedly
quoting from Sun-tzu's
The Art of War,
a renowned work on mili-
tary strategy by the fourth-century-B.c. Chinese general: "Engage the
opponent, rather than sitting there waiting to be beat up on."

By invoking Sun-tzu, Shimomura appeared to be encouraging se-
curity professionals to draw hackers into battle. But Sun-tzu might
offer a different maxim. The ancient general was principally known
for advocating deception ("war is based upon deception") and
avoiding hostilities: "It is best to win without fighting."

■ ■ ■

The fortunes of two hackers could not have taken more opposite
turns.

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 pro-
cessor 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 re-
quested 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 ad-
mitted 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 Fran-
kenstein. 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. Mit-
nick was doing the worst prison "time" possible, because the East-
ern District of North Carolina had no federal detention center. That
meant he would have to defend himself without access to a law li-
brary, 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 "se-
rious 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 anony-
mous. "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 specifi-
cally prohibits unreasonable search and seizure.

In the government's response, John Bowler, the Assistant U.S. At-
torney 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 14, 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. At-
torney 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 Mit-
nick, about the same prison time doled out for manslaughter.

■ a ■

The jailed hacker wasn't the only one whose feats were being hyped.
By August of 1995, the advertisement in
Publishers Weekly
for Shim-
omura's upcoming book featured Mitnick's
New York Times
photo
stamped with the caption "he could have crippled the world." De-
clared 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 Mit-
nick 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 Mit-
nick'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 Cell-
scope. 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 Of-
fice 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 De-
partment's Computer Crime group, and he said he couldn't com-
ment. 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 Depart-
ment'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 Shimo-
mura'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 inter-
est raised by the financial rewards Shimomura and Markoff received
by cooperating with the FBI. A
Rolling Stone
magazine story con-
doned Markoff's actions, saying he had merely done what any jour-
nalist 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 ar-
guing 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 breakins after Mitnick's arrest proved
the capture of cyberspace's most wanted criminal had changed little.