The Bernie S. Saga (Summer, 1995)
---------------------------------

It's almost a given that the first few pages of 2600 will be devoted to the
latest travesty of justice, the most recent in the long string of harassment
against computer hackers. Regretfully, this issue will not be an exception. In
fact, this time what we re talking about could have such profound effects on the
rest of us that nothing will ever seem the same. It may sound a bit
over-dramatized but we feel the facts have no trouble supporting our cynical
conclusions. 

Bernie S. (Ed Cummings) was involved in 2600 for most of our existence. If
anyone could answer a question on scanners, surveillance, or the technical
workings of a certain piece of machinery, he could. His presence at the Hackers
On Planet Earth conference last year provided many informative lectures to a
fascinated audience. Like most good hackers, Bernie S. believed in sharing the
information he was able to obtain or figure out.

At the time of this writing, Bernie S. sits in federal prison, held without
bail and without any prospect of a trial in the near future. The more we find
out about this case, the more we believe that nobody really knows why he's been
imprisoned.

It started outside a 7-11 in Pennsylvania when Haverford Township police came
upon what they believed was a drug deal in progress. They were wrong. What they
were witnessing was a transaction involving crystals, which could be used to
modify Radio Shack tone dialers into red boxes. The key word here is "could"
since crystals themselves can be found in a multitude of sources and their
possession or sale is far from illegal. Bernie S. believed in making technology
accessible to the public and providing something as basic as a crystal was one
way of achieving this. However, the police did not understand this and thought
they were onto some really big nefarious scheme to do something really bad. So
they searched the vehicles of Bernie S. and the people he had met there. They
confiscated all of the crystals as well as "suspicious" reading material such
as The Whole Spy Catalog, a must for any serious hacker. They said everything
would be returned if nothing illegal was found to be going on.

Then the U.S. Secret Service was contacted. Special Agent Thomas Varney
informed the local police that there was no other use for a red box (and hence,
the crystals in question) but to commit fraud. The Secret Service even went so
far as to go to a payphone with the Haverford police to demonstrate how an
illegal red box call is made. Based upon this, Bernie S. was forcefully
arrested at gunpoint by numerous law enforcement personnel and thrown into
state prison. All of his books, manuals, copies of 2600, and anything
electronic were seized. The charges were possession of a red box (a non-working
Radio Shack dialer that someone had asked him to look at) and unauthorized
access to a phone company computer. Apparently the thought behind the latter
charge was that if Bernie S. had used a red box, he would have had to have
signaled a computer with the red box tones simply by playing them. And so,
unauthorized access.

The judge refused to indict him on this charge because it was so far-fetched
and because there was no indication that Bernie S. had ever even used a red
box, let alone a phone company computer. Ironically, the Secret Service and the
Haverford police had already done both, in their eagerness to capture Bernie S.
No doubt with all of this in mind, the judge set bail for the remaining charge
of possession of a red box: $100,000.

The fact that such a bogus charge and exorbitant bail were allowed to stand
shocked many. And shock turned to disbelief when a student questioning this on
the Internet found himself threatened with a libel lawsuit by the Haverford
police. This was truly turning into a spectacle of the bizarre. Bernie S.,
meanwhile, endured week after week of squalor and inhuman treatment in a state
prison.

Then, one day, the Haverford police announced they were dropping all charges in
the case after Bernie S. spent more than a month in prison with rapists and
murderers. It almost appeared as if they had realized how flimsy their case
actually was and how unfair it was to penalize someone so severely who hadn't
even been accused of doing something fraudulent. But this was not to be. The
local police had made an arrangement with the federal government that
substituted the old red box charge with new federal charges accusing Bernie S.
of possession of hardware and software that could be used to modify cellular
phones. Was this really the best they could do? Bernie S. had openly advertised
this software, which had been used legitimately by many to create extensions of
their cellular phones. Many hackers learned about this technology at the HOPE
conference. But because this software could also be used by criminals, the
government decided to charge Bernie S. as if he were one of those criminals.
And for this, the government has declined to set any bail.

To give you an idea of the intellect we're dealing with, here's a quote from
Special Agent Thomas Varney's affidavit:

"During my review of the items seized pursuant to the state search warrant, I
 determined that Cummings had in his residence the following items that could
 be used for the cloning of cellular telephones:

 a. Three cellular telephone cloning computer disks.
 b. A laptop computer that had a cloning software program on the hard drive
    which I confirmed by observation.
 c. A computer cable that would allow for cloning of Motorola brand cellular
    telephones.
 d. Several cellular telephones some of which had broken plastic surrounding
    the electrical connectors to the battery pack. The breakage of the plastic
    is a required step before cellular telephones can be connected to a
    computer for cloning.
 e. A book titled, Cellular Hacker's Bible.
 f. Photographs depicting Cummings selling cellular telephone cloning software
    at an unknown event."

We congratulate Varney on being the first person to grasp the concept of
photographs being used to clone cellular phones. However, until the scientific
evidence is in, perhaps we'd just better strike item (f).

Items (a) and (b) are the same (a) is a disk with a computer program and (b) is
a computer with the same computer program. With a little more effort, the next
item could have been a house with a computer program in it, but the Secret
Service probably felt that a laptop computer would be of more use around the
office. (A large number, if not most, of computer hacker cases never see owners
reunited with their computer equipment.) So if we follow the logic here, it's
possible that Bernie S. got himself thrown into prison without bail because he
figured out how to make an extension of a cellular phone and wrote a computer
program to do this. Way back before the Bell breakup, people were afraid of
getting into trouble for plugging in extra phones without letting the phone
company know. We realize now how absurd such thinking was. Yet we're reliving
history, only this time the penalties are much more severe.

Item (c) is a cable. Let's just leave it at that.

Item (d) consists of cellular telephones, none of which were illegitimately
obtained or used for fraudulent purposes. If any of our readers are interested
in how a cellular phone works, we encourage them to take it apart and
experiment with it. Any evidence that Bernie S. was doing any more than this
has yet to surface.

Finally, the Cellular Hacker s Bible is a book anyone interested in electronics
and the phone system would want to read. The federal government has managed to
outlaw radio frequencies but they have yet to outlaw books. With agencies like
the Secret Service doing their dirty work, it's only a matter of time.

So what do we have here? Apart from an inept, backwoods police department
specializing in intimidation tactics and a federal agency bent on keeping a
vice grip on technology, not a whole hell of a lot. Nothing listed above
constitutes a crime, at least not in a democratic society. In a suspicious and
fearful regime, however... books, ideas, technical ability - these could all be
considered threats. And by permitting this to go unanswered, either through
encouragement or through silence, we move steadily down that dark road.

This whole series of events and their consequences is a disgrace to our
judicial system and it's essential that we fight back. Every organization that
claims to have an interest in justice should know about this. Hopefully, the
majority will take a strong stand against what has happened here. The
alternative is practically unthinkable; imagine a world where reading,
experimentation, and software are the only ingredients needed to put a person
in prison indefinitely. There would be very few people looking at these words
who would be safe.