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)
