[00:01.270 --> 00:04.910]  We had some information before, which has since changed.
[00:05.970 --> 00:13.790]  Kevin has been in communication with us, and we were going to have him speak, just say hello.
[00:13.830 --> 00:14.930]  He really can't say anything.
[00:15.270 --> 00:18.490]  You know, anything he says will be used against him in one way or another.
[00:18.490 --> 00:31.010]  But after talking with his lawyer and after talking with him, we all kind of reached the conclusion that it wouldn't be in his best interest to actually talk directly to the conference.
[00:31.450 --> 00:37.370]  He did, however, convey that he wants to say he's sorry that he can't say something directly.
[00:37.370 --> 00:39.410]  He has received all of your mail.
[00:39.950 --> 00:41.610]  He would like to be able to reply.
[00:41.790 --> 00:50.090]  However, everything he says is subject to be read and to be misinterpreted in all kinds of manners by the authorities.
[00:51.090 --> 00:55.610]  So we do have his lawyer with us on the line.
[00:55.770 --> 00:58.910]  Actually, let's make sure we have him on the line with us.
[00:59.450 --> 01:00.770]  Don Randolph, are you there?
[01:01.390 --> 01:03.750]  Well, I'm here, but I can't hear you very well.
[01:03.750 --> 01:04.450]  Okay.
[01:04.710 --> 01:10.790]  Well, actually, that doesn't really matter because I'm going to read this press release and then we'll give you a chance to make a statement.
[01:11.430 --> 01:20.450]  And we'll relay some questions from the audience and whatever press people are still awake that may want to get the other side of the story for a change.
[01:20.630 --> 01:27.690]  Because I don't think we've ever actually heard anything other than what people like John Markoff have to say about Kevin Mitnick.
[01:29.750 --> 01:35.370]  Before I begin, I will be playing this for Kevin over the phone sometime this week.
[01:35.510 --> 01:39.130]  And the first thing I would like for him to hear would be a good round of applause from everybody.
[01:58.310 --> 01:59.330]  That I did hear.
[02:00.650 --> 02:04.890]  This is one of the most incredible cases I think we've ever seen.
[02:05.610 --> 02:11.370]  And a real indication of the sickness of some of the people in charge of prosecutions.
[02:11.370 --> 02:18.630]  I'd like to read this press release then turn it over to Don Randolph to give us a statement and take some questions.
[02:20.090 --> 02:22.490]  The United States versus Kevin David Mitnick.
[02:22.650 --> 02:30.750]  With 25 counts of alleged Federal computer and wire fraud violations still pending against him, the criminal prosecution of Kevin Mitnick is approaching its most crucial hour.
[02:31.230 --> 02:34.370]  The trial is anticipated to begin in January 1998.
[02:36.050 --> 02:47.190]  In reaching this point, however, Kevin has already experienced years of legal battles over alleged violations of the conditions of his supervised release and for possession of unauthorized cellular access codes.
[02:47.730 --> 03:03.490]  The seemingly unexceptional charges relating to supervised release violations resulted in months of litigation when the government attempted to tack on additional allegations for conduct occurring nearly three years after the scheduled expiration of Kevin's term of supervised release in December 1992.
[03:04.370 --> 03:16.110]  The government claimed that Kevin had become a fugitive prior to the expiration of his term, thereby tolling the term and allowing for the inclusion of additional charges.
[03:16.630 --> 03:28.210]  After months of increasingly bold assertions concerning Kevin's fugitive status, evidentiary hearings were held in which the government was forced to concede that its original position in this matter was unsupported by the facts.
[03:28.210 --> 03:36.670]  In June of this year, Kevin was sentenced for certain admitted violations of his supervised release and for possession of unauthorized access codes.
[03:36.990 --> 03:41.610]  The court imposed a sentence of 22 months instead of the 32 months sought by the government.
[03:41.990 --> 03:47.850]  Since Kevin has been in custody since his arrest in February 1995, this sentence has been satisfied.
[03:48.210 --> 03:51.010]  We are currently preparing a request for release on bail.
[03:51.010 --> 04:02.770]  During this stage of the proceedings, the government sought to impose restrictions on Kevin's access to computers, which were so severe as to virtually prohibit him from functioning altogether in today's society.
[04:03.290 --> 04:12.430]  The proposed restrictions sought to completely prohibit Kevin from using or possessing all computer hardware equipment, software programs, and wireless communications equipment.
[04:12.430 --> 04:27.150]  After arguments that such restrictions unduly burdened Kevin's freedom to associate with the online computer community and were not reasonably necessary to ensure the protection of the public, the court modified its restrictions by allowing for computer access with the consent of the probation office.
[04:27.610 --> 04:35.390]  Nonetheless, the defense believes that the severe restrictions imposed upon Mr. Mitnick are unwarranted in this case and is therefore pursuing an appeal to the Ninth Circuit.
[04:35.850 --> 04:43.490]  One of the strongest motivating factors for the government in the prosecution of Kevin Mitnick is a desire to send a message to other would-be hackers.
[04:44.370 --> 04:56.110]  The government has hyped this prosecution by exaggerating the value of loss in this case, seeking unreasonably stiff sentences, and by painting a portrait of Kevin which conjures the likeness of a cyber-bogeyman.
[04:56.810 --> 05:00.610]  There are a number of objectives prompting the government's tactics in this respect.
[05:01.030 --> 05:08.070]  First, by dramatically exaggerating the amount of loss at issue in the case, the government arbitrarily claims losses exceed some $80 million.
[05:08.750 --> 05:13.090]  The government can seek a longer sentence and create a high-profile image for the prosecution.
[05:13.750 --> 05:19.550]  Second, through a long sentence for Kevin, the government hopes to encourage more guilty pleas in future cases against other hackers.
[05:20.070 --> 05:31.210]  For example, a prosecutor offering a moderate sentence in exchange for a guilty plea would be able to use Kevin Mitnick's sentence as an example of what could happen if the accused decides to go to trial.
[05:31.730 --> 05:43.890]  Third, by striking fear into the hearts of the public over the dangers of computer hackers, the government hopes to divert scrutiny away from its own game plan regarding the control and regulation of the internet and other telecommunications systems.
[05:44.450 --> 05:53.470]  The greatest injustice in the prosecution of Kevin Mitnick is revealed when one examines the actual harm to society or lack thereof which resulted from Kevin's actions.
[05:53.770 --> 05:57.910]  To the extent that Kevin is a hacker, he must be considered a purist.
[05:57.910 --> 06:05.210]  The simple truth is that Kevin never sought monetary gain from his hacking, though it could have been proven extremely profitable.
[06:05.890 --> 06:10.070]  Nor did he hack with the malicious intent to damage or destroy other people's property.
[06:10.530 --> 06:17.870]  Rather, Kevin pursued his hacking as a means of satisfying his intellectual curiosity and applying Yankee ingenuity.
[06:18.290 --> 06:22.150]  These attributes are more frequently promoted rather than punished by society.
[06:22.150 --> 06:29.970]  The ongoing case of Kevin Mitnick is gaining increased attention as the various issues and competing interests are played out in the arena of the courtroom.
[06:30.390 --> 06:40.730]  Exactly who Kevin Mitnick is and what he represents, however, is ultimately subject to personal interpretation and to the legacy which will be left by the United States versus Kevin David Mitnick.
[06:40.970 --> 06:43.050]  That was written by Donald Randolph.
[06:43.190 --> 06:44.870]  Who joins us on the phone...
[06:44.870 --> 06:46.670]  Mr. Randolph, you're there.
[06:47.030 --> 06:47.570]  Yes, Eric.
[06:47.890 --> 06:48.310]  Okay.
[06:49.430 --> 06:55.910]  If you can get closer to the phone, it would be helpful because I can obviously hear me, but I can't hear you very well.
[06:56.030 --> 06:57.970]  Okay, I will move the phone closer to me.
[06:58.090 --> 06:59.990]  Is this any better?
[07:00.790 --> 07:01.710]  You're getting better.
[07:01.990 --> 07:02.310]  Okay.
[07:02.610 --> 07:04.650]  Well, I'm not really going to say a whole lot from this point.
[07:04.650 --> 07:09.030]  I'm going to allow you to make a statement, and then we'll take some questions from the audience.
[07:09.150 --> 07:12.470]  I guess I'll relay those to you since you probably won't be able to hear them very well.
[07:12.470 --> 07:12.550]  Okay.
[07:12.910 --> 07:14.230]  Can you hear me in the back there?
[07:14.230 --> 07:14.930]  Yes.
[07:15.690 --> 07:15.750]  Yes.
[07:16.210 --> 07:16.570]  Yes.
[07:17.530 --> 07:22.150]  Now, Eric, did you put up the life-size cardboard cutout I sent you by the phone there?
[07:22.850 --> 07:23.330]  I'm sorry.
[07:23.410 --> 07:23.990]  I couldn't make that out.
[07:24.290 --> 07:26.930]  I sent you that life-size cardboard cutout of myself.
[07:26.930 --> 07:28.050]  Did you prop it up there?
[07:29.010 --> 07:30.670]  A life-size cardboard cutout?
[07:30.750 --> 07:31.610]  No, I don't think I have that.
[07:31.850 --> 07:32.150]  Okay.
[07:32.150 --> 07:38.830]  Well, maybe someone from the audience about 5'10 and dark hair could sit by the phone and impersonate me.
[07:39.450 --> 07:40.530]  So we can...
[07:40.530 --> 07:44.910]  Because it's a little difficult to speak to a group of people from a telephone.
[07:45.150 --> 07:45.410]  Yes.
[07:45.410 --> 07:48.590]  But I want to give you all a big California welcome.
[07:49.670 --> 07:54.470]  And there are a couple of restrictions that, unfortunately, I have to place on myself.
[07:55.030 --> 08:11.070]  The first is that, because we have ongoing litigation and a trial next January, I'm hard-pressed to reveal any of our strategy or planning or discuss the ongoing litigation in any great detail.
[08:12.790 --> 08:22.350]  I guess I'd like to, if there are members of law enforcement in the audience, and I suspect there are, maybe they could stand up and identify themselves to the group.
[08:24.590 --> 08:25.430]  Also, if there are any...
[08:25.430 --> 08:27.930]  Let the record show that nobody stood up.
[08:28.110 --> 08:28.350]  Okay.
[08:28.510 --> 08:31.390]  Well, how about any law enforcement members that are working undercover?
[08:31.890 --> 08:33.690]  Maybe you could stand up and...
[08:34.290 --> 08:35.390]  Come on now, don't be shy.
[08:35.390 --> 08:38.350]  A couple of people stood up and then sat down again with silly looks on their faces.
[08:39.210 --> 08:46.530]  Well, at any rate, I'm going to assume that everything I say is on the record.
[08:46.710 --> 08:50.550]  And therefore, I will try to be somewhat circumspect when I need to be.
[08:51.810 --> 08:58.530]  Having said that, I know Kevin would like to, of course, send his regards.
[08:58.530 --> 09:09.470]  But we are, as the document that Eric just read you, Kevin right now has been, certain restrictions have been imposed upon him.
[09:09.550 --> 09:20.890]  And since we're still pending before the same judge in California, in federal district court in California, who imposed those restrictions, we thought that discretion was probably in order.
[09:22.050 --> 09:34.650]  So, rather than have his, a couple of weeks after those restrictions were imposed, and while they're on appeal, have him address in any way a conference such as this, we decided that we would do it through counsel.
[09:34.650 --> 09:40.130]  So, I hope you will forgive him for not addressing the group on his own.
[09:41.130 --> 09:42.830]  I'm not sure which of the...
[09:42.830 --> 09:52.030]  There are so many issues that we couldn't possibly cover them all in a short period of time, and I'm not certain of which ones are of the greatest interest to the group.
[09:53.550 --> 10:08.630]  So, perhaps, since we've already opened the floor with the comments from the document that was read by Eric, I'd be happy to respond to anything that you want to ask or expand on any areas that you'd like me to talk about.
[10:09.030 --> 10:16.870]  Okay, and people, when you're asking questions, go up to that part where the microphone is being held up into the air.
[10:17.650 --> 10:19.830]  Any questions you have for Kevin Mitnick's attorney?
[10:19.830 --> 10:29.450]  Remember, there are certain things regarding strategy that he won't be able to tell us, obviously, but any questions concerning what has already happened, I'm sure, would be welcome.
[10:31.750 --> 10:32.650]  First question, go ahead.
[10:33.090 --> 10:36.370]  What specifically are the alleged events that led to Kevin's arrest?
[10:37.670 --> 10:39.090]  Were you able to hear that?
[10:39.270 --> 10:39.850]  No, I wasn't.
[10:39.930 --> 10:40.070]  Okay.
[10:40.270 --> 10:43.870]  What are the specific events that led up to Kevin's arrest?
[10:46.750 --> 11:06.310]  Well, there have been a number of books written upon the subject, and Kevin has advised me that the facts in those books, there's a lot of poetic license that's been taken in order to, when he was finally arrested in North Carolina.
[11:06.310 --> 11:21.250]  All I can tell you is that it occurred in February of 1995, and the Jonathan Littman book was probably the closest to the mark in terms of the events which occurred.
[11:21.250 --> 11:37.470]  So, rather than make... to make a long story short, I think that that book is probably the one that if... anything that's out in the media now, that's the one that probably explains the details most succinctly.
[11:40.090 --> 11:45.670]  I'd like to ask what Kevin's mood has been from the beginning of this.
[11:45.830 --> 11:52.110]  Has he experienced, I guess, a lot of depression from being in prison for two and a half years?
[11:52.550 --> 11:57.070]  And what kinds of things make him feel better?
[11:57.250 --> 11:57.930]  What can we do?
[11:57.930 --> 12:08.050]  Well, I know one thing that would make him feel better is if we are able to be successful in the bail motion that we're putting together right now.
[12:09.410 --> 12:14.530]  There is nothing glamorous about being an inmate in custody.
[12:14.670 --> 12:18.330]  And I think it doesn't make any difference whether it's federal or state custody.
[12:18.730 --> 12:21.870]  It is for a hundred different reasons.
[12:22.450 --> 12:26.270]  Obviously, intellectually, those we can appreciate.
[12:26.570 --> 12:35.470]  But personally, until one has experienced it, I think that it's impossible to understand what the deprivation of rights is.
[12:35.470 --> 12:49.770]  And being thrust into a community where you're completely at the behest of prison guards, people who are bureaucrats in the system, to whom you are a number.
[12:50.250 --> 12:53.550]  So having said that, let me talk to you in a couple of ways.
[12:53.570 --> 12:54.510]  First, his mood.
[12:54.870 --> 12:57.590]  I've been representing Kevin since last October.
[12:58.730 --> 13:17.090]  And he was in difficult straits when I started to represent him because he felt as if the negotiations had bogged down at that point in time in terms of trying to allow him to resolve his difficulties with the government in a reasonable fashion.
[13:17.090 --> 13:28.230]  And what Kevin at that time considered, and what I also consider as unreasonable, is a sentence in the ten-year-plus range for what he has allegedly done.
[13:28.850 --> 13:31.010]  We both consider that to be unreasonable.
[13:31.630 --> 13:40.350]  And so he was obviously depressed by that prospect and by the fact that that's what the government, that seemed to be their position at the time.
[13:40.630 --> 13:53.650]  Since then, the Kevin that I've gotten to know is obviously a young man who's intellectually active, but has a good sense of humor.
[13:54.110 --> 14:03.190]  And if there's one thing that has saved him, I think allowed him to keep his marbles throughout this process, is that he has a good sense of humor.
[14:03.730 --> 14:14.870]  And so we try to find those instances, regardless of the fact that he's in custody, we try to never lose that.
[14:15.830 --> 14:23.850]  For example, and one of the things that helps him is, I think, keep up his spirit, is having communication with people on the outside.
[14:24.090 --> 14:28.670]  And he does get a great deal of correspondence from all over the world.
[14:30.050 --> 14:32.570]  And some of it is insightful.
[14:33.990 --> 14:35.370]  Some of it is humorous.
[14:36.170 --> 14:43.550]  For instance, this year he got a Valentine's Day card, and it's only two lines, so I'll read it to you.
[14:44.650 --> 14:46.150]  Happy Valentine's Day, Stinky.
[14:47.190 --> 14:50.550]  Dear Kevin, I didn't want you to miss Valentine's Day.
[14:50.930 --> 14:55.810]  However, let's hope they don't do anything special on the 14th at the Metropolitan Detention Center.
[14:56.270 --> 14:58.190]  Well, he appreciated that one.
[14:58.190 --> 15:13.590]  He got another one from a woman who sent him two uncopyrighted manuscripts that she had written, along with a few pictures.
[15:13.590 --> 15:23.530]  And he gets the type of mail that one might expect when you have some notoriety and you're in custody.
[15:24.250 --> 15:34.150]  And then, as I say, he gets a number of well-thought-out letters from people throughout the world who talk about the issues that he's facing and the issues in his case.
[15:34.150 --> 15:55.990]  And I think that the fact that he is fighting for the middle portion of his life in terms of freedom and not being in custody, it helps a lot to know that even though the government is making an example out of his case, that there are other intelligent,
[15:56.350 --> 16:03.130]  clear-thinking people who are also interested in the issues that are being played out in the Kevin Mitnick case.
[16:04.090 --> 16:16.390]  Now, just to make this clear, the deal that the government offered would have resulted, this is the best deal they could offer him, would have resulted in his being in prison for how long?
[16:17.370 --> 16:30.370]  Last fall, the negotiations broke down when the government was, there was a, and I don't want to get into it in great detail.
[16:30.370 --> 16:49.330]  Suffice it to say, that had Mr. Mitnick taken the deal, when the negotiations were at the level that they were last fall, that it would have, it could have exposed him to a significant number of years in custody, upwards to close to 10 years in custody.
[16:50.870 --> 16:56.050]  And that was not something that he was, that we, that any of us felt was reasonable.
[16:56.330 --> 17:05.590]  It could have been less, but there were no protections, and it just, it wasn't the type of situation that he felt he could enter into.
[17:05.590 --> 17:25.510]  And it was way too much time, when you consider some of the issues that I raised in the documents that were read, which is that what we've been trying to create is distinguishing Kevin Mitnick between someone who steals something, whether it be off of a computer,
[17:26.170 --> 17:33.750]  from the internet, or I should say hacking through the internet, or breaking into a company and stealing their trade secrets.
[17:33.750 --> 17:45.950]  Someone who's stealing something for gain, in other words, attempting to take something and then sell it to the highest bidder, or do damage to some corporation, as opposed to someone who is driven by a sense of intellectual curiosity.
[17:47.010 --> 17:54.650]  And what they do is they look at the way to discuss trying to come up with a reasonable settlement.
[17:54.990 --> 18:12.150]  Now, the fact that things take a long time, last year, for example, in the last two years, longer than one would hope, particularly when the result was not a favorable one, at least for Kevin, then you look back and say, why did I waste all of that time trying to negotiate all of these things?
[18:12.150 --> 18:13.570]  But that's what it took.
[18:13.810 --> 18:22.170]  Since October, when I took over his representation, just prior to that time, the new indictment had come down, and we had pending sentencing.
[18:22.430 --> 18:31.250]  In the case, I characterize it as the minor case out of North Carolina, and the sentencing and the supervised release violations.
[18:31.250 --> 18:38.410]  So there were, when I took over, there were three cases, the two minor ones, and then the pending one, which is set for January of next year.
[18:38.730 --> 18:51.210]  Since that time, all parties, including both Kevin and I, admit that the new indictment falls in the category that is legally characterized as a complex case.
[18:51.950 --> 18:54.150]  And, uh, it takes a long time.
[18:54.410 --> 18:56.870]  And, uh, Kevin wants his attorney to be prepared.
[18:56.990 --> 19:00.110]  He wants the defense team to have all the expertise that we need.
[19:00.450 --> 19:03.170]  If we need to get experts, then we will do so.
[19:03.750 --> 19:10.110]  And, uh, so we are, uh, we're, we are the ones that have proposed the date of January 1998.
[19:10.950 --> 19:15.410]  And we still have some concern that, uh, we will be prepared by that date.
[19:15.730 --> 19:19.170]  So it takes a long time, but when it's complicated, that's what it takes.
[19:19.970 --> 19:21.310]  We have a question from before.
[19:21.430 --> 19:21.730]  Go ahead.
[19:22.670 --> 19:26.770]  You say it's a, it's a really legally and technically complicated case.
[19:26.930 --> 19:32.490]  Can you speak to the kinds of, of legal and technical expertise that you'll be bringing into the defense?
[19:32.710 --> 19:37.830]  Is there any kind of general, uh, comments you can make about that without tipping your hand?
[19:39.350 --> 19:42.510]  You wanted to speak about the legal and technical aspects of the case?
[19:42.630 --> 19:44.390]  The, the, the technical expertise.
[19:44.670 --> 19:48.610]  I mean, is there adequate technical, are there adequate technical experts?
[19:48.610 --> 19:50.310]  I mean, is there a technical lawyer?
[19:50.530 --> 19:55.010]  Is there a technical lawyer, is, is the question, to handle the technical aspects of the case?
[19:55.310 --> 20:09.990]  Well, the, the answer to that is you want your lawyer to be familiar with, uh, with what goes on in the courtroom and how to take, uh, technical information, uh, and present it to the court so that they will, so that they will, so that he or she will understand it.
[20:10.450 --> 20:24.510]  Uh, when you get really down to technical, to technical matters, and there will be some in this case when, for instance, when we attempt to value the amount of loss to the various corporations, uh, what, to what the government claims is the loss to the various corporations,
[20:24.750 --> 20:26.290]  that will be a battle of the experts.
[20:26.450 --> 20:32.430]  The government will bring in its experts, and the defense will bring in its experts to try and evaluate that.
[20:32.790 --> 20:48.350]  Uh, but with respect to the issues in the case, uh, on the legal side, it's going to be, uh, discussing what is the law, uh, of, uh, how does, uh, mail and wire fraud, uh, fit in to, uh, to the modern day computer fraud cases.
[20:48.870 --> 20:57.110]  Uh, and that's, uh, that's, uh, that's really the cutting edge, uh, for this case, in terms of, um, where the legal expertise has to come in.
[20:57.710 --> 21:02.270]  Uh, let me, let me just take a minute, since I've thrown that out a couple of times, and tell you what I mean.
[21:03.570 --> 21:19.230]  The, uh, the government in recent, uh, prosecutions, and when I say recent, I'm talking with them, say, the last four or five years, uh, has been using the wire fraud statutes, uh, to prosecute, uh, other, uh, alleged hackers.
[21:19.870 --> 21:35.970]  And the reason that they're doing that is because they're, they're, uh, aside from a statute's limitations, the, uh, the criminal penalties under the wire fraud statute are, uh, are more, uh, are... more extensive than what they can get under other statutes.
[21:36.810 --> 21:43.530]  Defense attorneys have come back and responded to that by saying, computer hacking is not wire fraud.
[21:43.670 --> 21:45.390]  This is not a scheme to defraud.
[21:45.510 --> 22:01.050]  And the aspect of it that distinguishes it from your ordinary fraud, wire fraud case, is because there's no attempt for a purist, someone who's a pure hacker, is not doing it for his own personal use.
[22:01.050 --> 22:03.470]  He's not seeking any monetary gain.
[22:04.210 --> 22:12.910]  And as opposed to, as I say, the thief in the night, who your typical fraud case is someone who's running some kind of scam.
[22:13.130 --> 22:19.570]  And the whole purpose of it is to have a monetary gain for the person who's running the scheme.
[22:20.090 --> 22:41.050]  In the United States, as far as I know, there is only one district and one circuit who have agreed that there should be a distinguishment between someone who does it, say, a purist who does it for their own intellectual curiosity versus someone who is a thief in the night.
[22:41.610 --> 22:43.530]  And that is Boston.
[22:43.690 --> 22:49.230]  That's up in the First Circuit, up in New England, by the way, which includes New York.
[22:50.050 --> 22:51.730]  And there are two cases.
[22:51.730 --> 22:53.790]  One is a district court case up in Boston.
[22:53.790 --> 23:04.510]  And then there's another one in the First Circuit from February of this year called Zubinsky, which does make that difference, differentiates between those two situations.
[23:05.270 --> 23:08.250]  However, that is not the law of the land in the United States.
[23:08.430 --> 23:13.070]  The Supreme Court has not articulated a decision in this regard.
[23:13.370 --> 23:15.670]  And we're out in the Ninth Circuit in California.
[23:15.850 --> 23:18.430]  And there are some bad Ninth Circuit law in this regard.
[23:19.050 --> 23:24.550]  But it all predates the First Circuit case, Zubinsky, out in the East Coast.
[23:24.890 --> 23:38.730]  So we are trying very hard to get our judge to make the same differentiation, because the Mitnick case is the penultimate case in which the facts cry out for that.
[23:38.930 --> 23:42.410]  You have the government coming forward and saying there's $80 million in loss.
[23:44.410 --> 24:00.430]  And on the other hand, you've got someone who is a hacking purist, if you will, and who does it for his own intellectual curiosity, didn't attempt to sell any of the information that he allegedly had access to, and did not do it for personal gain in any way,
[24:00.550 --> 24:01.110]  shape, or form.
[24:01.850 --> 24:09.770]  So that type of issue is really what makes this one of the features which makes this case important.
[24:10.010 --> 24:17.070]  And the government has decided this is where they've drawn the line in the sand, in the sand, and this is where they're going to fight this battle.
[24:17.290 --> 24:21.170]  Now, Kevin has been in prison for over two and a half years.
[24:21.290 --> 24:23.790]  By the time he goes to trial, it'll be practically three years.
[24:23.910 --> 24:24.070]  Yeah.
[24:31.110 --> 24:32.610]  He's been, you know, a real criminal.
[24:33.390 --> 24:36.290]  Do you think the government would have reacted this strongly?
[24:37.290 --> 24:37.730]  No.
[24:38.750 --> 24:40.190]  That sounds kind of ironic, doesn't it?
[24:40.270 --> 24:43.950]  Well, his name is Kevin Mitnick.
[24:44.550 --> 24:48.790]  And that's something he has to carry around with him, because they have decided...
[24:48.790 --> 24:50.470]  Every once in a while, the government decides.
[24:51.130 --> 24:58.490]  They pick somebody who may already have a high profile, or the government decides to make a high profile out of the case.
[24:59.150 --> 25:09.350]  And when you're selected like that, it's not a wonderful day, because they bring all of their power and might to bear on you.
[25:09.750 --> 25:19.910]  And one of the things that they do, as I mentioned, in this case, is they hype it up, because they've decided they want to send the message out, in the Mitnick case, to other would-be hackers.
[25:20.450 --> 25:28.050]  So in order to make an example of somebody, you have to make him bigger than life, and then you have to make sure that the result that...
[25:28.050 --> 25:41.650]  If you're the government, the result you get out of it is the result that will cause the subsequent impact on future cases that they want in the first place.
[25:41.950 --> 25:44.250]  That's why they make him an example.
[25:44.810 --> 25:48.730]  I think if he were someone else, that he might be out on bond right now.
[25:49.150 --> 25:49.630]  Yes.
[25:50.390 --> 25:51.430]  Question from the floor.
[25:51.550 --> 25:51.850]  Go ahead.
[26:00.060 --> 26:01.580]  Three questions, maybe.
[26:01.880 --> 26:05.980]  The third maybe doesn't really need an answer, but let's have some fun with some of this.
[26:06.160 --> 26:18.180]  The first thing that struck me, as they talked about taking away Kevin Mitnick's right to a computer, is that he is, among other things, a writer for a computer magazine, beloved by almost everyone in this hall.
[26:18.680 --> 26:31.260]  And so I'm wondering, what are the First Amendment consequences of talking about a magazine writer saying that he can't access what is now an absolute basic tool of his trade, a computer.
[26:31.540 --> 26:33.020]  And that seems profound.
[26:33.720 --> 26:51.420]  The point brought up was that Kevin has been a correspondent with 2600 in the past, and that could this be a First Amendment violation by prohibiting him access to computers, which obviously would be necessary for him to continue to do things like that.
[26:53.520 --> 26:57.220]  Well, first the answer is, if you ask me, the answer is yes.
[26:57.860 --> 26:59.900]  But I'm not the one to make the rules.
[27:00.520 --> 27:11.380]  Let me give you, just take a second and tell you, because this is also another aspect of this case which may spawn some circuit court opinions.
[27:12.080 --> 27:18.740]  When it came down, we had sentencing a couple weeks ago in the two smaller cases, as I mentioned.
[27:20.340 --> 27:32.920]  And if and when we get him, not if, when we get Kevin out of custody in this case, then he will have to be on supervised release from that case at a minimum for a period of three years.
[27:32.920 --> 27:38.480]  So the judge had to address the issue of what conditions she was going to place on it.
[27:38.560 --> 27:39.200]  These are...
[27:39.200 --> 27:44.360]  supervised release is the federal court's fancy word for conditions of probation.
[27:45.580 --> 27:49.680]  The court first came forth with her proposed conditions of probation.
[27:50.000 --> 27:51.580]  And let me just read...
[27:51.580 --> 27:53.100]  I happen to have them handy here.
[27:55.660 --> 27:58.540]  So I'll just pick out a couple.
[27:58.840 --> 28:17.780]  The defendant shall not possess or use for any purpose portable laptop computers and derivatives, any other electronic equipment presently available or new technology that becomes available that can be converted to or has as its function a computer-related capability.
[28:18.500 --> 28:26.420]  It seems to me that pretty much covers everything that we have now and everything that we'll be using in our daily lives in the next 10 years.
[28:28.280 --> 28:29.380]  Let's see here.
[28:31.140 --> 28:41.800]  The defendant shall not access computers or other forms of wireless communications via third parties and shall not act as a consultant to individuals or groups engaged in any computer-related activity.
[28:42.260 --> 28:50.960]  The government came forward with their own series of proposed conditions of special release.
[28:51.240 --> 28:53.600]  And they included the following.
[28:55.740 --> 29:10.660]  Defendants shall not participate in any conference, meeting, seminar, class, or discussion relating to computer hacking, the unauthorized access of telecommunication systems, computer systems, or computer networks, or security issues with respect to such systems.
[29:11.020 --> 29:23.520]  He shall not communicate to or receive from any person or person any instructions or information relating to the access, programming, or use of computer systems, computer networks, or telecommunication systems, or devices.
[29:24.500 --> 29:32.960]  When we got these proposed conditions from the court, we argued that we thought they were a tad over-restrictive.
[29:33.980 --> 29:47.260]  And in order to comply with them, really the only safe place for my clients would be in a cabin deep in the woods without electricity or running water, writing his memoirs by candlelight.
[29:48.480 --> 29:53.240]  And we hesitated to point out to the court, look what happened to Ted.
[29:53.240 --> 29:54.800]  Ted Kaczynski under those circumstances.
[29:56.820 --> 30:02.420]  So, I guess we basically backed off and said, basically, she's talking about anybody involved.
[30:02.620 --> 30:09.060]  That if these conditions are put on computer fraud, that it's calling for someone to live an Amish-like existence.
[30:10.020 --> 30:14.580]  Which isn't all that bad if you're an Amish, but Kevin is not.
[30:15.320 --> 30:18.200]  And he wanted to...
[30:18.200 --> 30:23.220]  Obviously, one of the other things you're supposed to do on supervised release is start integrating back into society.
[30:23.220 --> 30:26.240]  And being able to make a living and support yourself.
[30:27.340 --> 30:39.800]  The court, after hearing all of those arguments, was at least somewhat mindful of the First Amendment problems with what the government was asking for in terms of even the right to associate.
[30:42.740 --> 30:57.820]  And the language that remains is, and I'm not going to read all of it, but that he shall not act as a consultant or advisor to individuals or groups engaged in any computer-related activity.
[30:57.820 --> 31:05.520]  And all the other restrictions that he cannot use or possess, anything computer-related.
[31:05.800 --> 31:17.060]  We did our darndest to educate the judge that a laptop, for example, sitting alone is like an old Remington typewriter.
[31:17.960 --> 31:21.220]  Unless it's connected to a modem, you can't communicate with anybody.
[31:23.660 --> 31:37.240]  One of the things that I think your organization, and again, as we turn the millennium, people are going to have to be educated as to what a computer can and can't do.
[31:37.240 --> 31:42.420]  Not everybody even understands what a modem does, and what the Internet is.
[31:43.280 --> 31:47.720]  I know that many of the people at the detention center don't.
[31:48.100 --> 32:00.700]  And we've got people in positions of great power and making decisions who don't fully appreciate what has happened in our society.
[32:00.700 --> 32:13.940]  And the judge in our case, the way she dealt with that, was she added some language, which was very important, by saying he cannot do any of these things unless it's previously approved by the probation officer.
[32:14.240 --> 32:21.820]  Well, that's helpful, because we can then deal with the probation officer and make a reasonable presentation to them.
[32:21.940 --> 32:24.360]  But what if we have an unreasonable probation officer?
[32:24.900 --> 32:34.340]  I think that that's a delegation of authority which we weren't happy with and which we wanted the judge to make the circumstances less restrictive.
[32:35.160 --> 32:52.080]  I don't want anything I say, by the way, to be interpreted as a criticism of the court, but simply because the judge came a long way towards us in terms of the actual amount of time that she gave to my client and did not give him... she cut down by one-third,
[32:52.240 --> 32:54.600]  for example, what the government was asking in this case.
[32:54.940 --> 33:02.800]  So the government was thwarted in its first salvo at making Kevin the example for the decade.
[33:03.380 --> 33:13.160]  And so we think that the judge sent out a message, a little bit of a message, at least to the government, that's not going to be freewheeling in this case.
[33:13.260 --> 33:15.880]  We have a follow-up question, and then there's another question.
[33:16.360 --> 33:16.900]  Go ahead.
[33:16.900 --> 33:17.420]  Okay.
[33:17.700 --> 33:21.780]  We hear about a very harsh sentence being possible.
[33:22.220 --> 33:27.120]  What kind of chilling effect do you think might happen if the government succeeded in that?
[33:27.520 --> 33:28.200]  Okay.
[33:28.200 --> 33:34.660]  The question is, what kind of chilling effect would a harsh sentence have on the rest of society, I suppose?
[33:36.680 --> 34:03.120]  Well, in order to answer that, we have to, and I think you all would know better than I, what's going to happen to technology in the next five to ten years in terms of what's going to be available for hacking, what constitutes hacking, when are you going to run afoul of the computer fraud statutes and of the wire fraud,
[34:03.120 --> 34:07.060]  if it's still allowed to be used in computer hacking situations.
[34:09.420 --> 34:11.880]  I think that Kevin...
[34:12.520 --> 34:13.740]  It would have a chilling effect.
[34:13.760 --> 34:21.440]  If Kevin Mitnick gets anywhere near the type of sentence that the government has been calling for, I think it would have a dramatic chilling effect.
[34:21.660 --> 34:23.220]  It chills me just to think about it.
[34:23.220 --> 34:37.760]  And my business is not involved in a day-in-a-day-out aspect of trying to directly with computers, except for legal research and that sort of information.
[34:38.820 --> 34:42.180]  But someone who's, for example, even...
[34:42.180 --> 34:49.340]  Forget about people who are actively engaged in computer hacking, and just take it to the next stage.
[34:49.340 --> 34:53.360]  It's someone who's simply trying to do research, but oversteps the bounds, maybe.
[34:54.840 --> 35:07.020]  Maybe it's not even clear to someone who is getting information that they have gone beyond where they should in terms of getting access to claimed confidential information.
[35:07.420 --> 35:08.920]  It concerns me greatly.
[35:09.800 --> 35:11.360]  Okay, we have one final question.
[35:11.480 --> 35:11.760]  Go ahead.
[35:12.340 --> 35:12.720]  Yeah.
[35:13.300 --> 35:24.360]  In response to some of the restrictions which would be placed on Mitnick when he's released from custody, there was one regarding encryption and the possession of devices or techniques of encryption.
[35:25.320 --> 35:34.620]  Now, this begins to go into a realm of thought crime, where it becomes illegal for him to come up with new forms of encryption because it could be construed as being a technique of encryption.
[35:36.040 --> 35:37.860]  When these sorts of ideas have...
[35:38.260 --> 35:45.840]  Or, well, first of all, have these ideas been presented to the government and what have been the judicial and governmental reactions to this?
[35:46.780 --> 35:50.020]  Okay, the question concerns the restriction of encryption.
[35:50.480 --> 35:58.320]  Asking if that does not connotate some kind of thought crime and how that has been addressed.
[36:01.620 --> 36:04.440]  Well, encryption is going to come up in our case.
[36:04.940 --> 36:26.820]  And so I'm not going to be able to address it in any type of substantive fashion other than to say that the proposed proposals for, I guess, the government is talking about key escrow for encryption codes for increased access.
[36:27.180 --> 36:34.320]  Another proposal that I read about in the media for increased government access to quickly...
[36:34.920 --> 36:49.300]  to ease the manner in which phones can be wiretapped, for example, are items that I would put in the category of the government's interest in controlling telecommunications and the Internet.
[36:50.540 --> 36:53.620]  So to the extent that the government...
[36:53.620 --> 36:56.160]  I think I may have mentioned that earlier.
[36:56.160 --> 37:11.860]  I think that's, again, one of the reasons why it's important to the government to make an example out of Kevin Mitnick, because to the extent, obviously, that he is a bad guy, and he's what is to be feared.
[37:11.960 --> 37:20.980]  The only way to control Kevin Mitnick is to allow the government to control the whole darn thing, and they'll take the responsibility for keeping the Kevin Mitnicks out.
[37:21.300 --> 37:24.760]  But you're letting the fox in the henhouse to a certain extent there.
[37:24.760 --> 37:31.920]  So you see more cases like this happening in the future if this one is allowed to succeed, in their eyes?
[37:32.180 --> 37:38.580]  Well, I think we're going to see more cases like this, whether or not they succeed in the Kevin Mitnick case.
[37:39.540 --> 37:51.500]  Depending upon what I think that the government is going to do, it's darned us to get a big sentence against Kevin Mitnick because they feel it will ease their job in terms of they'll be able to use this case as a...
[37:51.500 --> 37:53.100]  use the fear factor.
[37:54.280 --> 37:56.520]  in terms of, you know, don't let...
[37:56.520 --> 37:58.900]  remember what happened to Kevin Mitnick.
[37:59.120 --> 38:00.800]  Sort of like remember the main.
[38:01.440 --> 38:19.200]  And people who are accused, perhaps even falsely accused, might be encouraged by their attorneys to cut the best deal they can rather than go to trial and expose themselves to a judge out of control who will give them a harsh sentence.
[38:20.860 --> 38:24.400]  because the judges pay attention to what these cases involve.
[38:24.920 --> 38:26.060]  And they...
[38:26.900 --> 38:30.340]  sometimes judges see, well, what are other people getting in these kinds of scenarios?
[38:30.720 --> 38:42.540]  And when the sentences start coming out four years, five years, ten years for computer hacking, even where there's no allegation of an intent to engage in some kind of...
[38:42.540 --> 38:47.540]  or receive some type of monetary gain, suddenly it becomes easier.
[38:47.800 --> 38:49.220]  It becomes, well, that's the norm.
[38:49.760 --> 38:56.900]  And before you know it, you've got a situation where people who aren't...
[38:56.900 --> 39:03.400]  and again, I differentiate between the thief and the knight who's using the computer to steal something or destroy something.
[39:03.620 --> 39:05.460]  That's different from a computer hacker.
[39:05.860 --> 39:09.880]  And everybody needs to be educated in this regard, including the judges.
[39:10.900 --> 39:11.920]  One final question.
[39:12.180 --> 39:14.640]  Do you think the media is ever going to get this story right?
[39:16.460 --> 39:17.500]  Well, it's...
[39:17.500 --> 39:19.000]  there are...
[39:19.000 --> 39:19.740]  I think that...
[39:20.700 --> 39:21.220]  that...
[39:21.220 --> 39:24.480]  things have been quiet in the Mitnick case up to now.
[39:25.700 --> 39:35.720]  And partially because we've had our own attention towards these two minor sentencing matters which are now done.
[39:35.940 --> 39:38.760]  And now we're going to direct our attention with the case-in-chief.
[39:38.980 --> 39:43.180]  It's really the case-in-chief that has the main issues involved that we've been discussing here today.
[39:44.440 --> 40:03.560]  So, to the extent that the media starts paying attention to it and doesn't buy into the government press releases but tries to lift a few layers and figure out what's really going on, maybe they'll pick up on some of these issues and they'll start getting a fair play in the media which they haven't been to date.
[40:04.820 --> 40:23.060]  Today, and this conversation with you all, is the first time that we've really come out from behind closed doors and decided to start to at least allow any kind of response through me as to what's going on in our case.
[40:23.220 --> 40:27.340]  And there's a lot more, obviously, that we haven't been able to talk about and time doesn't permit today.
[40:27.700 --> 40:45.480]  But we think it's time, hopefully, maybe even through this conference today and some of the comments that I've made, that word will get out that there's something going on in Los Angeles and it's happening and will be happening over the next six months and there are issues involved.
[40:45.700 --> 40:48.360]  The government has decided that this is the battleground.
[40:48.660 --> 40:56.400]  So there'll be issues involved which will impact cases for years to come and maybe that will cause some of these issues to be heirs.
[40:57.380 --> 40:59.260]  But we need all the help we can get.
[41:00.120 --> 41:07.640]  Dr. Randolph, we want to thank you for taking time out of your vacation to speak with us from California about the Kevin Mitnick case.
[41:07.740 --> 41:14.280]  Dr. Randolph, attorney for Kevin Mitnick, we wish you the best of luck and we'll be following this case very closely.
[41:14.540 --> 41:16.960]  It's been my pleasure coming into your living room today.
[41:17.360 --> 41:17.640]  Okay.
[41:17.860 --> 41:18.940]  Let's give him a round of applause.
[41:25.140 --> 41:25.960]  Thank you very much.
[41:26.140 --> 41:26.520]  You're welcome.
[41:27.860 --> 41:30.160]  Now we're continuing right along here.
[41:30.400 --> 41:36.320]  First of all, for those of you that want to help, please write to Kevin at the address that is dancing around the screen there.
[41:36.940 --> 41:41.640]  And remember, you can't send objects in the mail.
[41:41.760 --> 41:45.800]  You can only send printed material and all of that will be read before he gets it.
[41:46.000 --> 41:47.700]  So send to that address.
[41:48.180 --> 41:49.640]  He's always happy to hear from people.
[41:49.740 --> 41:54.220]  He's not able to respond, unfortunately, because of the restrictions, but he does get everything.