0\6\2/7\4/2\4\8\2|8|6|7\0\4\3/2|8/7/3\2/2/5|6/4|8\7\6\6\3\2|3/3\7/4|6/0/3|7/0\6|8|9/4\4/6/5/3|5|0\8\9\7/4|4/4|8|5/3/3|5|8|4/0\5|8/2/
My new home was the Wake County Jail in downtown Raleigh, which offered a decidedly different form of Southern hospitality. As I was being booked, the Federal agents gave strict orders again and again and again that I was not to be allowed anywhere near a phone.
I asked every uniform going past my cell to let me call my family. They all might as well have been deaf.
But one jailer seemed to be a little more sympathetic. I gave her a story about how I needed to call my family to arrange bail. She took pity on me and after a short while moved me to a cell with a telephone.
My first call was to my mom; Gram had driven over so the two of them could worry about me together. They were both in a highly emotional state, very upset and distraught. How many times had I done this to them, bringing such pain into their lives because their son/grandson was going back to prison, perhaps for a very long time.
After that I called De Payne. Since all calls from jail cells are monitored, I couldn’t say very much.
“Yes, hello?” mumbled a sleepy Lewis De Payne. It was around 1:00 a.m. California time, the morning of February 15, 1995.
“This is a collect call,” said the operator. “Caller, what’s your name?”
“Kevin.”
“Will you accept the charges?”
“Yeah,” said De Payne.
“I just was arrested by the FBI tonight. I’m in jail in Raleigh, North Carolina. I just thought you ought to know,” I told my coconspirator.
He didn’t need me to spell out that he had to go into immediate cleanup mode once again.
The next morning I’m taken to court for my first appearance, still in the black sweats I wore to go to the gym some twelve hours ago, on my last night of freedom.
I’m stunned to see that the courtroom is buzzing and packed, with every seat filled. It seems like half the people in there have either a camera or a reporter’s pad. It’s a media circus. You’d think the Feds had caught Manuel Noriega.
My gaze settles on a man standing near the front of the courtroom, a man I have never met in person but immediately recognize: Tsutomu Shimomura. The FBI might never have caught me if he hadn’t become irate enough about the break-in to his servers to drop everything else and lead the parade to find me.
He glares at me.
He and his girlfriend are giving me the eagle eye, especially the lady. John Markoff starts scribbling.
The hearing lasts only a few minutes, ending with an order from the Magistrate that I be held without bail. And once again, that I be held without access to a telephone.
I can’t stand the thought: I’m headed back to solitary.
As I’m being led out in handcuffs, I pass Shimmy. He’s won. Fair and square. I nod to him and figuratively tip my hat: “I respect your skills,” I tell him.
Shimmy returns the nod.
Coming out of the courthouse in chains, I hear shouts of “Hey, Kev!” I look up to the balcony, where what seems like a hundred paparazzi are aiming their cameras at me and now clicking away, flashbulbs going. Oh, my God, I think. This is a lot bigger than I thought. I’m beside myself. How did I come to be this much of a story?
Of course I didn’t see it when it was published, but Markoff’s article in the next day’s New York Times—even longer than his Independence Day piece of the year before, and once again on the front page—seemed certain to cement the image of Osama bin Mitnick in the public’s mind. Markoff quoted Kent Walker, the Assistant U.S. Attorney from San Francisco, as saying, “[Mitnick] was arguably the most wanted computer hacker in the world. He allegedly had access to trade secrets worth billions of dollars. He was a very big threat.”
At the time of Markoff’s original July 4 story, I was wanted only for violation of my supervised release, yet the story left readers with the impression that I was a supervillain, a threat to every American. His account of my arrest now ignited a fire under the rest of the media. The item was picked up on Dateline, Good Morning America, and God only knows how many other major shows. My capture was all over the news for three days straight.
Typical of the tone of the coverage was a piece published in the February 27, 1995, issue of Time. The subhead began:
AMERICA’S MOST WANTED HACKER HAS BEEN ARRESTED
The news from my court-appointed attorney in Raleigh wasn’t good. I was indicted on twenty-three counts of access device fraud. Of these, twenty-one were related to calls made when my phone was cloned to someone else’s number. The other two counts were for possessing information, specifically the mobile phone number and electronic serial number pairs that could be used for cloning. The maximum sentence was twenty years for each free phone call. Twenty years for each call! I was facing a worst-case scenario of 460 years.
It did look bad for me—460 years was no walk in the park. I didn’t relish the idea of being locked away in prison for the rest of my life, unable to live a happy and productive life, and especially not being able to spend quality time with my mom and grandmother. They had me, hands down, for cloning cell phone numbers (the ESN’s were considered unauthorized access devices under Federal law). It was also true that I’d violated the terms of my 1989 supervised release by hacking into the voicemail of Pacific Bell Security Investigator Darrell Santos to gain information on the Teltec case, and also by associating with “computer hackers.” But 460 years for these “evil” crimes? Were there no war criminals left?
Of course, the Feds had also found Netcom’s customer database that contained more than 20,000 credit card numbers on my computer, but I had never attempted to use any of them; no prosecutor would ever be able to make a case against me on that score. I have to admit, I had liked the idea that I could use a different credit card every day for the rest of my life without ever running out. But I’d never had any intention of running up charges on them, and never did. That would be wrong. My trophy was a copy of Netcom’s customer database. Why is that so hard to understand? Hackers and gamers get it instinctively. Anyone who loves to play chess knows that it’s enough to defeat your opponent. You don’t have to loot his kingdom or seize his assets to make it worthwhile.
It always seemed strange to me that my captors had such trouble grasping the deep satisfaction that could be derived from a game of skill. Sometimes I couldn’t help but wonder if maybe my motives seemed incomprehensible to them because they themselves would have found the temptation of all those credit cards impossible to resist.
Even Markoff, in his New York Times article, admitted that I was clearly not interested in the prospect of financial gain. The scale of what I’d passed up was brought home to readers by Kent Walker’s assertion that I “allegedly had access to corporate trade secrets worth billions of dollars.” But since I was never going to use or sell that information, what it was worth didn’t matter to me. So what was the nature of my crime? That I’d “allegedly had access”?
Now that I’d finally been caught, prosecutors in several Federal jurisdictions were frantically compiling long wish lists of counts and accusations against me, but I still had reason for hope. Despite the evidence, the government’s case was not airtight. There were legal conflicts that had to be resolved first. Shimmy, for instance, had been secretly working as a de facto government agent, and was intercepting my communications without a warrant, which smacked of gross government misconduct. My attorney had also filed a motion claiming that the government’s search warrant was flawed. If the court ruled in my favor, all the evidence seized in North Carolina would be inadmissible, not only in Raleigh but everywhere else.
To John Bowler, the young, up-and-coming Assistant U.S. Attorney assigned to my case, this must have seemed like a golden opportunity. If he could get convictions on all counts and convince the judge to slap me with a massive punitive sentence, the media attention alone would be enough to launch his career. But the reality was that Federal sentencing guidelines would ordinarily require the judge to base my sentence on the minimal losses to the cell phone companies when I made those free phone calls.
After my first court appearance, when I was transported to the Johnston County Jail in Smithfield, North Carolina, the U.S. Marshals ordered my jailers to put me in the one place I feared most: “the hole.”
I couldn’t believe it was happening. Shuffling toward that door in leg irons and shackles, I resisted every step. Time itself seemed to slow down. I knew then that the main thing that had kept me on the run for the past three years was my fear of this place. I didn’t think I could take being in there again. Now here the guards were, leading me right back into my nightmare, and there was nothing I could do to stop them.
The last time, in 1988, they’d put me in solitary confinement for more than eight months to get me to do what they wanted: as soon as I signed their plea agreement, they put me in with the general population. And this time, the government wasn’t shoving me into this hellhole to protect the public from me, or me from other inmates. It was coercion, pure and simple. The message was clear: all I had to do was agree to the prosecutor’s demands and waive certain rights, and agree to only call my immediate family and legal counsel, and they’d be more than happy to let me out of solitary, into the general population.
I wish I could describe the sinking feeling I had as I stepped inside. After living in dread of “the hole” for so many years, it took everything I had not to totally lose it when they locked the door behind me. I would rather have shared a cell with a tattooed, whacked-out drug dealer than find myself locked up alone like this again.
The rap about computer geeks is that we spend countless hours in small, dark rooms, crouched over the glowing screens of our laptops, not even knowing whether it’s day or night. To a nine-to-fiver, that might seem like solitary, but it’s not.
There’s a huge difference between spending time alone and being thrown into a disgusting, dirty coffin that is your home today, tomorrow, next month, with no light at the end of the tunnel, controlled by people who are doing their best to make you miserable. No matter how hard you try to reframe it in your head, being in the hole is grim and depressing twenty-four/seven. Solitary confinement is widely condemned as torture. Even now, the United Nations is working to have its use declared inhumane.
Many experts say that extended solitary confinement is far worse than water boarding or other forms of physical torture. In the hole, prisoners commonly suffer from lethargy, despair, rage, and severe depression, and other forms of mental illness. The isolation, idleness, and lack of structure can easily start to unravel your mind. Without anyone else to interact with, you have no way to rein in your thoughts or keep your perspective. It’s far more of a nightmare than you can even imagine.
That’s why every study of solitary confinement of more than sixty days has shown damaging psychological effects. Sometimes they’re permanent. I was afraid of that. It had been over six years since I had been in solitary, and it still haunted me. I wanted to get out of there as fast as I could.
A week after I was thrown into solitary, the Federal prosecutors offered a deal to move me into the general population if I would waive my rights and agree to:
no bail hearing
no preliminary hearing
no phone calls, except to my legal counsel and a few family members.
Sign the agreement, they said, and I could get out of solitary. I signed.
My Los Angeles attorney John Yzurdiaga and his partner Richard Steingard helped me make the deal. Since I had been arrested in Raleigh, both attorneys graciously donated their time to work on my case. John had volunteered to represent me pro bono ever since the time in late 1992 when FBI agents searched my Calabasas apartment.
Once I was back in the general population of the prison, I spoke to John Yzurdiaga and Richard Steingard over the phone. There was a tension in John’s voice I’d never heard before. To my surprise, both men started grilling me about state secrets. “Exactly what kind of confidential information did you have access to? Have you hacked into any U.S. intelligence agencies?”
When I understood what they were getting at, I laughed out loud. “Right. Like I’m a spy, engaged in some sort of secret espionage!” I said.
Neither one of them laughed.
“Don’t lie to us, Kevin,” John said, sounding alarmingly earnest. “This is the time to come clean.”
I blinked in disbelief. “Come on, guys—you’re kidding, right?”
Then Richard dropped the bomb: “Assistant U.S. Attorney Schindler is demanding that you agree to a CIA debriefing.”
What the hell was going on? Sure, I’d hacked the world’s most popular cellular phone manufacturers, Bell operating companies, and operating-system development houses throughout the United States, but I’d never even attempted to go after any government targets. How could the Feds have made that leap? The accusation was completely unfounded.
“I don’t have anything to hide,” I said with a sigh. “I’ll participate in the debriefing so long as it’s understood that I won’t inform on anyone else.” I didn’t have any knowledge of anyone who had hacked into government or military systems, but even so, it was against my ethical and moral principles to become a snitch for the government.
In the end, nothing ever came of it. Maybe Schindler or the Justice Department was just on a fishing expedition. It made me think back to the time when Marty Stolz at Intermetrics secretly told me that the super-hacker the Feds were chasing had compromised the CIA. I chalked it up to one more instance of the myth getting out of hand.
In medieval times, the myths that built up around magicians used to cause them serious trouble. Sometimes these myths and superstitions even got them killed. A traveling performer would amaze the local villagers with tricks and sleights of hand. Because they had no idea how he was doing those tricks, they couldn’t guess at the extent of his abilities. He seemed to have the power to make things appear and disappear at will. That was the point. But if anything went wrong—some cows died, the crops failed, little Sarah got sick—it was all too easy to blame the magician.
If things had been different, I might secretly have enjoyed being called “the World’s Most Wanted Hacker” and laughed it off when people believed I was a super-genius who could hack into anything. But I had a bad feeling that it was going to cost me—and I was right. The “Myth of Kevin Mitnick” was about to make my life a whole lot harder.
Because I was such a high-profile inmate, I soon needed John Yzurdiaga to intervene again. The head jailer was opening all my mail, including the letters from my attorneys, which violated my attorney-client privilege. I told him to stop. He kept right on doing it. I warned him that my lawyer would get the court to order him to stop. He ignored me.
John got the court order. The jailer had to comply, but he was furious about it. So he called the U.S. Marshals Service and told them to move me to another jail, which they did. The Vance County Jail made Johnston look like a Holiday Inn.
When I was being moved, a deputy U.S. Marshal with a Southern accent so thick it sounded like he was doing a bad parody of a Good Ol’ Boy sheriff laughed and said, “You’re the only prisoner we ever had that got booted out of jail!”
After I’d been in jail for about five months, my court-appointed public defender in Raleigh, John Dusenbury, recommended that I agree to what is known as a “Rule 20.” This meant that I would plead guilty to a single count of possessing the mobile phone number and electronic serial number pairs that I used for cloning my cell phone in exchange for a recommended sentence of eight months, though I might still be facing up to twenty years if the judge decided not to go along with the prosecutor’s recommendation. Judge Terrence Boyle approved the deal, though. Even better: my case was now transferred to Los Angeles for sentencing and to resolve the pending violation of supervised release, which meant I would be transferred, as well.
My move to Los Angeles from Raleigh was surprisingly awful. Federal prisons are notorious for a form of punishment known as “diesel therapy.” It’s so bad that prisoners often consider it among the cruelest aspects of being incarcerated. What ought to be a simple drive is deliberately and maliciously extended for days or even weeks. Along the way, prisoners are subjected to as much pure misery as their sadistic guards can heap on.
After being woken up at 3:30 a.m., any prisoners who are due to be transported are put in a large room and strip-searched. A chain around each prisoner’s waist connects tightly to his handcuffs at stomach level, so he can barely move his arms. His feet are shackled too, so he can barely walk or move. Then he and his fellow inmates are loaded onto a bus and driven for eight hours each day, with random stops in towns along the route where everyone disembarks, spends the night in another cell, and is woken up again the next morning to go through the whole process again. Eventually, you arrive at your destination feeling completely exhausted.
During my diesel therapy back to Los Angeles, I was detained in Atlanta for several weeks. The Federal penitentiary there was by far the scariest of any of the prisons I was held in the whole time I was in custody. The high walls of the prison are lined with coiled-razor-wire fences. There is no doubt that you’re walking into a dungeon. At every entry, there are big electronic doors and gates. The deeper you go into the bowels of the prison, the more you realize there is no way out.
When I was finally moved again, I was flown to several prisons in different states across the country. By the time I arrived in Los Angeles, I was not in a tolerant mood. When I got off the plane, the deputy U.S. Marshal gave me a big grin and said smugly, “Hey, Mitnick! So the U.S. Marshals finally caught you! It’s all about good police work.”
“The U.S. Marshals had nothing to do with it,” I told him. “It was a smarter civilian, working for the FBI.”
The deputy’s face fell, as all the other inmates around me laughed.
Back in Los Angeles, I was charged with violating the conditions of my supervised release by hacking into a Pacific Bell security agent’s voicemail, along with lesser infractions like associating with Lewis De Payne.
After ten months, my two-man pro bono legal team came to me with the plea agreement offered by Federal prosecutor Schindler. I could hardly believe what I was hearing: eight years in prison… and that wasn’t even the worst of it. This was what was called a “nonbinding plea agreement,” meaning that the judge wouldn’t be bound by the prosecutor’s recommendation, but would instead be free to set a much stiffer sentence. Even worse, I would be agreeing to pay millions of dollars in restitution, a sum that might well be more than I would earn in the rest of my life. And I would have to assign any profits from telling my story to my hacking “victims”—Sun, Novell, Motorola, and so on.
John Yzurdiaga and Richard Steingard are two dedicated attorneys, and they had put in many, many hours defending me pro bono. Nevertheless, I had been offered an unbelievably bad deal. Clearly I would either need to be vigorously defended at trial or work out a better deal with the government.
The problem was, I was in no financial position to hire an attorney. Ironically, if I really had been tapping into those 20,000 credit cards before my arrest, I would’ve been able to afford an attorney who had significant resources to defend the case at trial or could have punched holes in the prosecution’s case to get much better settlement terms.
While I was pondering what to do, Bonnie came to visit and to tell me that Lewis De Payne’s attorney, Richard Sherman, was willing to represent me for free. She claimed he wanted to help because he didn’t think the government was prosecuting my case fairly and he believed I needed an aggressive lawyer.
It sounded good, but I was wary. Sherman wasn’t just Lewis’s lawyer but also his friend. Still, he came to see me himself and talked convincingly about winning at trial. After weighing the option of a minimal eight-year deal and discussing it with my family, I decided to accept Sherman’s offer.
For several weeks he did absolutely nothing on my case except to ask the court to allow me additional research time in the prison law library, a request that was summarily denied. The aggressive defense he’d promised me never materialized. He took my case and basically sat on it.
Soon after he became my attorney of record, I discovered the extent of the deception. When I called Sherman one day to discuss my case, Ron Austin answered the phone. I recognized his voice. Austin was the informant who had recorded my calls for FBI Agent Ken McGuire.
Sherman quickly assured me that Ron didn’t have access to my case files, but that wasn’t the point. These people weren’t on my side. When I realized that, I was as livid with Sherman for making an empty promise to put on a vigorous defense as I was with myself for having believed him.
Sherman, unlike any reasonable lawyer, instead of arguing for my release, actually demanded that the government indict me: “If you have something against my client, just indict him, and let’s go to trial,” he insisted. For a defense attorney to do that seemed outrageous. But that’s exactly what the government did.
On September 26, 1996, after being held for over a year and a half, I was indicted by a grand jury in Los Angeles on twenty-five charges, including computer and wire fraud (copying proprietary source code), possessing access devices (computer passwords), damaging computers (inserting backdoors), and intercepting passwords. These were, of course, added to the original set of cell phone cloning charges from Raleigh.
For an indigent defendant—which I was—the judge can either direct that a Federal Public Defender be assigned or turn to the ranks of what are called “panel attorneys.” These are lawyers in private practice who take on indigent clients for a fraction of the rate that any well-established attorney would charge (at the time, the rate for panel attorneys was sixty dollars an hour). A panel attorney, Donald Randolph, was selected to handle my defense, and the new charges would be heard by Judge William Keller—referred to around the courthouse as “Killer Keller” because, courthouse regulars said, a defendant unfortunate enough to suffer a conviction in his courtroom, or even one who pled guilty, could expect the maximum sentence. Killer Keller was the Central District of California’s “hanging judge.” He was every defendant’s worst nightmare.
But I got a huge break. My other cases were being heard by Judge Mariana Pfaelzer, the same judge who had been responsible for my being held in solitary for over eight months, but at least she didn’t have as scary a reputation as Killer Keller. I really dodged a bullet there.
Attorney Randolph asked Judge Pfaelzer to have the new case transferred to her under the “low-number rule” (which allows related cases to be combined and heard by the judge handling the case with the lowest docket number—that is, the one assigned at the earliest date). Since the cases were related, she agreed. Nine months after I was indicted on the twenty-five counts, the smaller ones—the Raleigh charges and the supervised-release case—were finally settled. I was sentenced to twenty-two months. I had already been in custody four months longer than that. Attorney Randolph made an immediate request for a detention hearing, since I was now eligible for release on bail. The Supreme Court had held that every defendant had a right to a bail hearing.
When my attorney told Judge Pfaelzer that he had filed an application for bail to be heard the following week, the prosecutor objected, calling me a “flight risk and a danger to the community.” Her Honor said, “I’m not giving him bail, so there is no need for a hearing…. Take if off calendar.”
This was widely seen as a blatant denial of my constitutional rights. According to my attorney, no one in the history of the United States had ever been refused a bail hearing. Not the notorious impostor and escape artist Frank Abagnale Jr. Not the serial killer and cannibal Jeffrey Dahmer. Not even the crazed stalker and would-be presidential assassin John Hinckley Jr.
As if that weren’t bad enough, my situation quickly got much worse. A defendant has the right to see the evidence the prosecution plans to use against him at trial. But the government lawyers continually gave reasons in court for not turning all the evidence over to my attorney. Most of the discovery was in electronic format—the files seized from my computers, floppy disks, and unencrypted backup tapes.
My lawyer then asked the judge to allow him to bring a laptop into the prison visiting area so he could review the electronic evidence with me. Again Judge Pfaelzer denied the request, adding, “We’re never in the world going to do that.” She apparently believed that just sitting in front of a computer, even under my attorney’s supervision, I could somehow cause great damage. (There was no wireless Internet in 1998, so it would have been impossible for me to pull an Internet connection out of thin air. But she simply didn’t know enough about how computers worked to have any idea whether I could connect to the outside world.) And besides, the prosecutors kept warning her that I would have access to the victim’s proprietary source code, or that I might write a computer virus that could somehow be released into the wild. As a result, we weren’t permitted to examine any of the electronic evidence against me that was key to the government’s case. When my attorney asked the judge to order the government to print out the files, the prosecutor said that there were far too many of them, so many that they would fill up the entire courtroom, and the judge refused to order the government to comply.
As word got around about the unfairness of my predicament, Eric Corley rallied a group of supporters who wrote articles on websites, spread the word in the online community, passed out fliers, and pasted bright yellow and black bumper stickers that said “Free Kevin” all over the place. Eric even sent some to me in custody.
On my thirty-fifth birthday, while I was being detained at the Metropolitan Detention Center in Los Angeles, my supporters wanted to come visit me, but as a pretrial detainee, I was allowed visits only from my immediate family and legal counsel.
When I spoke to Eric on the phone, I told him I would go to the law library on the third floor of the detention center at exactly 1:30 p.m. Eric and members of the “Free Kevin” movement located the window and positioned themselves across the street. Then, when the guards weren’t looking, I pressed a “Free Kevin” bumper sticker against the window. Eric snapped a photo that ended up being used on the box cover of his documentary film about my case, Freedom Downtime.
Sometime later, the crowd started a demonstration across the street from the detention center itself. I looked out the window of another inmate’s room to see a parade on the street below: a chain of people holding up a big yellow and black “Free Kevin” banner and “Free Kevin” picket signs. Apparently this made the prison officials nervous. Shortly afterward, the entire prison was locked down for “security reasons.”
With the growing public awareness of my case, nearly two years after my attorney demanded that the government turn over discovery materials, Judge Pfaelzer finally relented and allowed me to use a laptop computer to review the evidence with my attorney. I never knew what made her change her mind. Maybe another judge had pointed out that she risked being reversed on appeal. Or perhaps someone had explained that without connecting the laptop to a modem and phone line, there was no way I could damage anything.
Whenever I was at the courthouse for a hearing, I realized the deputy marshals would turn their badges around any time they had to be near me. My attorney and I both wondered what that was about. Later when he was visiting me in the courthouse lockup, he noticed some text blotted out on the visiting form he had to sign. When he held it up to the light, he could read the print through the paper. He shook his head and said to me, “You’re not going to believe this.” Then he read me the blacked-out text:
Please be aware that if Mitnick is taken into custody, he possesses an amazing ability to disrupt one’s personal life through his computer knowledge, i.e., TRW’s, phone service, etc. Exercise extreme caution in leaving anything about which would have personal information about yourself.
Unbelievable! I guess they really were worried I had magical powers.
The Myth of Kevin Mitnick was about to take another really ugly turn. Before my case could even go to trial, Markoff and Shimmy were cashing in on the story. They had already written a book about it together in 1996; now they had sold the movie rights to that book, for a film to be called Takedown.
Luckily, one of the costume designers working on the film leaked a copy of the screenplay for Takedown to 2600 magazine. When I read the script, it literally turned my stomach. The screenwriters had cast me as an evil villain and portrayed me as doing things I had never done in real life, such as hacking into hospitals and endangering patients’ lives by altering their medical records. I was horrified.
One particularly preposterous scene even showed me violently assaulting Shimmy by grabbing a metal trash-can cover and slamming him over the head with it. Frankly, I couldn’t imagine either one of us engaging in such a ridiculous fight.
When he saw the script, Eric Corley wrote online that it was “far worse than I had ever imagined.” If it were made into a film, he said, “Kevin will be forever demonized in the eyes of the public.”
In an article for ZDTV, Kevin Poulsen wrote,
Nobody predicted that the script, supposedly based on the dry, but inoffensive book of the same name, would be filled with so much blatant fabrication. No one expected that Kevin Mitnick might become the most feared and hated screen villain since Hannibal Lecter.
Appalled by the false portrayal of me in the movie script, my supporters picketed Miramax Studios in New York on July 16, 1998. Eric Corley brought international media attention to the fact that the script was filled with blatant lies. Eric was also responsible for getting the word out about the civil liberties issues its release would raise for my case. All of us were concerned that the movie would prejudice my trial.
During a phone call we had around that time, while I was still in pretrial detention, Alex Kasperavicius told me that Brad Weston, one of the producers of Takedown, was very eager to talk with me. I agreed to let Alex three-way Weston onto our call. Brad said he wanted my cooperation on the film. He also said that Skeet Ulrich, who had been cast to play me, wanted to speak with me.
I told Brad that I had read the script and found it to be mostly false and defamatory. I said I was planning to hire an attorney. Brad said the production company would gladly pick up my attorney’s fees; they would prefer to settle with me as soon as possible, rather than run the risk that a court case might delay the release of the film.
Two well-known Los Angeles libel attorneys, Barry Langberg and Debbie Drooz, saw that some, though not all, of the absurdly false stuff was removed from the script. They also secured a decent settlement for me, though I’m not allowed to disclose the details.
Because that settlement came in before my criminal case was resolved, there was some concern that the judge might seize the money as part of a restitution payment. My attorney declared the income in camera (meaning for the judge’s eyes only), and the judge allowed me to keep it private. So the prosecutors never learned that I had received money from the producers of the film.
In the end, the movie version of Takedown was so widely panned on its own merits that it was never distributed theatrically in the United States. As I understand it, after a few faltering attempts in French theaters, it went straight to DVD.
Meanwhile, my attorney had appealed Judge Pfaelzer’s “no bail hearing” ruling to the Ninth Circuit Court of Appeals, which ruled in an unpublished opinion that I was a flight risk and a danger to the community, completely sidestepping the question of whether the government had to prove this in a hearing. We then took it all the way to the U.S. Supreme Court, with my attorney sending the brief to Justice John Paul Stevens. He took an interest and recommended that my case be heard, but when he sent it to the full Court for a decision about putting it on the calendar, his colleagues declined.
Not long after that, I was alarmed to hear that the government prosecutors were alleging I had caused damages in the mind-boggling amount of over $300 million. Of course, there was absolutely no foundation for this figure. My lawyer quickly pointed out that corporations are required by the Securities and Exchange Commission to report material losses to their stockholders, but not one of the companies in any of its quarterly or annual reports had ever claimed the loss of a single penny as a result of my hacking.
Just a few weeks after I was arrested, FBI Special Agent Kathleen Carson had been working to come up with these greatly exaggerated loss numbers. An internal Sun Microsystems memo showed she had told Lee Patch, vice president of Sun’s Legal Department, that the Solaris source code I had copied could be valued at $80 million, which would have called for the harshest sentence for fraud under the Federal sentencing guidelines—so it doesn’t take a genius to figure out how she came up with that number. When she asked Sun to put a dollar value on the loss associated with the break-in, she advised that the figures should be based on the value of the source code.
This was like nabbing someone for stealing a can of Coke and demanding that he repay the cost of developing Coca-Cola’s secret formula!
Someone at the FBI had decided that the best way to inflate the claim for damages was for the companies to report how much it had cost them to develop the software I copied. But they still had their software. They were not deprived of it, so it doesn’t justify claiming a loss equal to the value of developing the source code. A reasonable figure would have been the value of a source code license, which was probably under ten thousand dollars.
However much they wanted to punish me, we all knew that the companies’ actual losses were far, far less than alleged. If anything, they amounted to the man-hours spent investigating my intrusions, reinstalling the operating system and application software in any system I had compromised, and whatever licensing fees they charged customers to purchase a source code license.
The $300 million claim against me for damages was so outrageous that it motivated my supporters to ramp up the “Free Kevin” movement. Every time the government did something that reeked of unfairness, the numbers of my supporters only grew. “Free Kevin” was now a growing grassroots movement that had spread across the country—and even reached as far away as Russia!
When Eric organized a protest, the television news showed crowds parading with “Free Kevin” picket signs outside Federal courthouses in fifteen different cities, from Portland, Maine, to Los Angeles, from Spokane to Atlanta, and in Moscow, near the Kremlin. Eric recapped the unfairness in 2600 magazine:
Since February 15, 1995, Mitnick has been held in a pretrial facility with no bail hearing for possession of software allegedly worth millions of dollars. But the companies asserting this have never proven these claims nor have they reported these “losses” to their stockholders, as is required by law. Computer and legal experts generally agree that it’s very unlikely there really was any real damage and that the high numbers assume every file and its associated research were wiped from existence. In actuality, no such damage was ever reported. Yet, Mitnick remains imprisoned as if this was what happened.
My supporters wanted the government to respect my constitutional right to the presumption of innocence and a fair trial within a reasonable time.
As I understood it, the “Free Kevin” demonstrators in these cities around the world didn’t necessarily think that all the charges should be dropped and I should be allowed to walk out of prison scot-free. But they objected to the obvious unfairness in the case: the denial of a bail hearing; the illegal search and seizure; the defense’s lack of access to evidence; the court’s refusal to pay my court-appointed attorney’s fees, which effectively denied me representation for four months; and the claims of hundreds of millions of dollars in damages for copying source code.
When people realized what was happening, momentum started to grow. The press was writing about the protests. People were putting “Free Kevin” bumper stickers on their cars and in shop windows. There were even people walking around in “Free Kevin” T-shirts and wearing “Free Kevin” badges and pins.
During the court protests, I looked out the small window of my prison cell and actually saw an airplane dragging a “Free Kevin” banner. I had to pinch myself. I couldn’t believe it was really happening.
Over the previous four years, I’d had to deal with libelous reporters, uncomprehending judges, superstitious Marshals, manipulative friends, and exploitative filmmakers fanning the flames of the Myth of Kevin Mitnick for their own agendas. The idea that there were people out there who could finally see what I’d been going through brought me much comfort.
The support was so encouraging, in fact, that it motivated me to gear up for the fight. I’d found a recent case in the prison’s law library that had convinced me I might be able to beat the most serious charges.
When I told my lawyer Donald Randolph that I’d found a legal precedent that could change everything, he said, “Let me worry about that, Kevin. I’m the lawyer.” But when I showed him the case, his eyes widened.
In 1992, an IRS agent named Richard Czubinski had used his access to IRS computers to snoop into the tax returns of various political figures, celebrities, and other government officials. He did it out of curiosity. He was charged, like me, with computer and wire fraud, and convicted in December 1995. After being sentenced to six months in prison, he successfully appealed his case. The Federal appellate court held that Czubinski, like me, had never intended to either use or disclose the information but had simply accessed it for his own curiosity. He won the appeal, his convictions were reversed, and he never went to prison.
With such a clear legal precedent, I believed we had a chance to beat the government’s case. I eagerly told my attorney that I wanted to go to trial. The strategy I proposed was this: I’d admit to hacking but argue that I was not guilty of wire or computer fraud because, like Czubinski, I had done it merely to satisfy my own curiosity.
Randolph agreed that Czubinski’s case set a perfect precedent for my defense. But there was a bigger problem. Randolph hesitated slightly before he told me what it was; I could see he was trying to be tactful. It seemed to be time for him to say something that, until now, had been left unsaid.
One of the government prosecutors had been urging my attorney for weeks to persuade me to take a plea. Over the last few days, he’d even resorted to ultimatums: if I didn’t agree to plead guilty and settle the case, he warned, the government would put me through a revolving door of criminal trials. If they lost in one jurisdiction, they’d try me in another; if they won, they’d press for the maximum sentence. It wouldn’t matter to them whether or not they got convictions because they’d have me locked up without bail the whole time.
I was ready to fight. But now my own attorney, Randolph, was telling me, as tactfully as he could, “I think you should take the plea.”
And then he explained: “If we go to trial, you’ll have to testify. And that will leave you open to cross-examination about other things…”
Those “other things” were all the wild stories that had circulated for years about my hacking, the rumors that I had gotten into the CIA, the FBI, and even NORAD. Not to mention the many other things I had done in my hacking career but not been charged with: manipulating phone company switches all across America; getting information from the California DMV; tapping into an FBI informant’s phone call; listening to voicemail messages of Pacific Bell security agents. And so much more.
I could see what Randolph meant. During the cross-examination by the prosecutor, I could open myself up to other charges because the government could ask me anything related to my hacking activities if I took the stand. We didn’t really want to get into all of that.
So I took the plea, with terms much better than those of the original plea I had been offered nearly three years earlier.
As for my conditions of supervised release, for three years I wouldn’t be permitted to touch any electronic devices, such as a computer, cell phone, fax machine, pager, word processor, and so on, without the prior written permission of my Probation Officer. Even worse, I was forbidden to access a computer through a third party. The government didn’t even want me to make an airline reservation without asking permission first. So how, I wondered, was I supposed to find work? I also wouldn’t be able to act as a consultant in any computer-related activity. The many, many conditions placed on my release seemed unreasonably harsh, and a number of them were so broad that I worried I might violate them inadvertently.
The government set these broad conditions not only to punish me, but also because they were trying to cover all the bases to prevent me from finding loopholes, ways around the restrictions.
In the end, on March 16, 1999, I signed the deal. The prosecution this time was willing to go with a “binding” plea agreement, which meant that Judge Pfaelzer would have to sentence me to the agreed terms, or I could withdraw my plea and go to trial. I pled guilty to seven counts handpicked by government prosecutors in Northern and Southern California (other jurisdictions also wanted a piece of me), which included wire fraud (social-engineering people over the phone into sending me source code), computer fraud (copying source code), possession of access devices (passwords), and interception of data communications (installing network sniffers to grab passwords).
During the settlement discussions, the prosecution asked for $1.5 million in restitution payments. Fortunately, Federal law required the court to take into account my ability to pay, so even though Judge Pfaelzer surely wanted to come down hard on me, she had to take my potential earnings into consideration. Because of my onerous conditions of release, the Probation Office calculated that I would be able to get only a minimum-wage job like flipping burgers. So Judge Pfaelzer based the amount of my restitution on the Probation Office’s projection of my earning minimum wage over a three-year period. Instead of the millions proposed earlier, I was ordered to pay $4,125.
After my release, I asked my dad to put my Lompoc Prison ID card up for auction on eBay for me. When eBay administrators yanked it down because it didn’t meet the company’s “community standards,” they did me a huge favor. That act generated a media feeding frenzy. The story was quirky enough that it became a top news item on CNN. I then put the card on Amazon, where it was once again yanked for the same reason (thank you, Amazon!). A guy in Europe finally snapped it up for a whopping $4,000—way more than I’d ever expected to get.
With a big smile on my face, I brought the proceeds into the Probation Office, along with the extra $125, and paid off the restitution order. I like to think that made my Lompoc ID a sort of “get out of jail free” card.
The government was furious over that little stunt: the Bureau of Prisons publicly stated that the card was “our property,” and tried to figure out a way to seize the money. I never heard another word about it.
On August 9, 1999, I was officially sentenced to an additional forty-six months in custody, consecutive to the twenty-two months I received for violating my supervised release and making free cellular phone calls. Since I’d already spent four and a half years in jail waiting, my time was almost up.
Several weeks later I was transferred to the Federal Correctional Institution in Lompoc, where I was met by a trio of men in suits. I’d find out later that they were the unit manager, the captain (the head of security for the prison), and an associate warden. I knew this probably wasn’t what happened to every arriving prisoner.
It turned out they were there to warn me to stay away from computers and telephones. If I started messing around with the equipment, they said, “There will be hell to pay!”
Then I was told I had to find a job in the prison within seventy-two hours, or they would find one for me—“and it won’t be very pleasant.”
A conversation with another prisoner turned up the interesting news that there was an opening for an inmate in the Telecom Department.
“Do you have any experience with phones, Mitnick?” the supervisor asked.
“Not too much,” I said. “I know how to plug it into a jack. But don’t worry, I’m a quick learner.”
He offered to train me.
For two days, my prison job at Lompoc was installing and repairing the prison’s telephones.
On the third day, the PA system blared, “Mitnick to the Unit Manager’s office. Mitnick to the Unit Manager’s office.”
That didn’t sound good. When I got there, I was again confronted by the three suits of my “welcoming committee,” and they were livid. I tried to point out that they had ordered me to find a job, and the supervisor of the Telecom Department had taken me on.
They were pissed.
For the next several weeks, my new job was one of the worst in the prison: in the kitchen, washing pots and pans.
On January 21, 2000, in the early-morning hours, I was taken to Receiving and Discharge. I had served my time and was up for release. But I was stressed.
A few months before, a California State case against me, for attempting to trick the DMV into sending me photographs of Joseph Wernle, Joseph Ways, and Eric Heinz (aka Justin Petersen), had been dismissed, but it had left me feeling uneasy. As I waited to be set free, I worried that some other state or Federal agency might be lying in wait outside the gates to arrest me. I’d heard of prisoners being released only to be picked up for something else the moment they got out the door. I paced nervously back and forth in the holding cell, waiting.
When I finally walked out of Lompoc, I could hardly believe I was free to go. My mom and Aunt Chickie were there to pick me up. My dad had wanted to come, but he had suffered a mild heart attack and had a recent triple bypass that ended in a severe staph infection, so he couldn’t make it. A mass of reporters and camera crews were there. Eric Corley and a large, excited crowd of “Free Kevin” fans were there, as well. As we stood talking, the prison sent out chaser vehicles to urge us farther from the prison grounds. But I didn’t care. I felt like a new man. Would what lay ahead be a repetition of my past? Or something quite different?
As it turned out, what lay ahead was a whole new life I could never have imagined.