We can all feel better, I'm jazzin' and groovin'.
I didn't need to listen to blues or something, something to make me feel better.
Well, you gotta pull yourself together long enough to let them know when to tune in.
Hey, how about Saturdays?
What time?
Three?
Uh-huh.
To six?
Oh.
Blue, all up in there.
Oh, good God.
Three, four, five.
Then we got liquid sound.
No, just six.
Oh.
That's only a 99.5.
FM, here in New York, WBAI.
Gut bucket.
Mad neck.
The blues, man.
If it don't kill you, it'll make you a mighty, mighty mad.
And you're listening to radio station WBAI in New York.
Eight o'clock, time for Off The Hook.
Hey!
And a good evening to everybody.
This is another edition of Off the Hook here on WBAI,
99.5 FM in New York City.
And, of course, over the Internet.
All throughout the world.
It's been a busy week in cyberspace.
I hate saying that, but it's true.
We have some major news stories concerning Kevin Mitnick,
who had a hearing yesterday.
We'll be speaking with Kevin's lawyer in just a moment.
First, some news updates.
Rather disturbing news updates.
The Attorney General of New York,
Janice C. Vaco, has vowed...
I had killed a man.
No, he didn't vow that.
Stay out of it.
Sometimes the music gets out of hand.
It doesn't even sound like him.
I don't know anything about his history.
He vowed to fight Bell Atlantic Corporation's attempts
to be allowed to raise the price of a payphone call in the state.
Get this.
Now, I don't know if you remember this,
but when we were warning everybody
about the evil Bell Atlantic moving into New York
and taking over the nice, pleasant NYNEX,
you remember that, right?
We said that bad things would happen.
They wouldn't be honest.
They would hurt us severely.
And now they want to go and negate this agreement.
NYNEX had this agreement with the New York State,
with the Public Service Commission,
saying that payphone rates would remain at 25 cents
until the year, what was it?
Yeah, around 2000, 2001, around that area.
And now Bell Atlantic says,
well, you know, we don't want to do that anymore,
so we want to negate that agreement.
Well, you know, I don't think that's right.
You make agreements with people, you should keep them.
And it's kind of late now to negate the agreement
that allowed Bell Atlantic to take over NYNEX,
but fair is fair after all.
Since the FCC deregulated payphones in 1996,
many carriers in other states,
including Bell Atlantic in New Jersey and Pennsylvania,
have increased their rates.
But in New York, Bell Atlantic has been limited
by a 1995 partial deregulation agreement
between NYNEX and the state's PSC
that froze the payphone rate at 25 cents
until at least 2000.
You know, in some parts of Massachusetts,
and I think New Hampshire and Vermont,
payphone calls cost 10 cents up until very recently,
and they just went up to 25.
So let's all kind of settle in at 25 for a while.
Let's all get used to it,
then maybe, you know, 50 years from now,
we can all make the jump together to 35.
You know, it's really hard to fumble around
for a quarter and a dime.
Make up your mind, quarter or dime.
Not both.
All right, how about this?
This news will make people happy.
It'll make a lot of people happy, I think.
A company that once sent as many as 25 million
unsolicited email ads a day
has agreed to pay $2 million to settle a lawsuit
aimed at ending the so-called spamming
Under a consent decree filed in Los Angeles County Superior Court,
Cyber Promotions Inc. also must stop sending
unsolicited bulk emailings to customers
of Earthlink Network Incorporated,
according to the New York Times on Sunday.
The most important benefit of this judgment,
says Charles Gary Betty.
A lot of names he has.
Charles Gary Betty.
A whole family there.
Chief executive of the Pasadena-based Earthlink,
which provides Internet service to more than 450,000 people.
He said, the most important benefit of this judgment
is the message we've sent to spammers
that illegally tap our resources
and clog up the Internet with this trash.
We won't stand for it.
Cyber Promotions, which is based in Dresher, Pennsylvania,
was considered the largest purveyor of unsolicited email ads.
A similar injunction against the company
was issued last year in a lawsuit filed by America Online,
which is the world's largest online service.
Cyber Promotions has been inactive for several months
since its own Internet provider refused
to continue providing a connection.
So that's interesting development there
in the world of spam.
And that's pretty much it.
I mean, there are other things that have been going on,
but I really would like to devote the bulk of the program
to what happened yesterday in Los Angeles.
As you know, we've been talking about this for quite some time.
Actually, we do have an update on the micro-broadcasting convention.
Actually, let me do that now just so we can get it out of the way
and maybe repeat it later on.
As you know, the micro-broadcasting convention
takes place this coming weekend.
Last week we didn't have real audio, but this week we do.
Real audio will be available on the Radio Mutiny website of the conference.
So if you can't go, you'll be able to listen to it.
And that address is www.thud.org.
That's T-H-U-D dot org slash mutiny slash H-T-M.
That's what I have here.
I have backslashes, though.
That's kind of weird.
I don't know.
The real audio links will be on by Friday.
They're not there right now.
And I'm told that if you have a shortwave radio,
tune in to 6955 kilohertz.
They'll be broadcasting it there as well.
And that's a shortwave pirate, of course.
Yes.
The panel with the FCC and the ACLU and a pro-pirate engineer
will be taking place on Friday evening at 7 p.m.
And the number to call if you want to register,
which you should do before you arrive,
is area code 215-474-3386,
or send email to WPPR at S-V, as in Victor, A-H-A dot com.
Registration starts at noon on Friday.
We'll continue throughout the conference.
And Friday's events will transpire at Calvary United Methodist Church
on the southeast corner of 48th Street and Baltimore Avenue
in West Philadelphia.
The opening event starts at 7 p.m.
And there will be an FCC representative there,
so that will make things rather lively.
Saturday and Sunday registration is at the At Space.
That's 4722 Baltimore Avenue.
Their phone number is 215-727-0882.
And some of the events scheduled for Saturday,
these are all tentative, by the way, starting at 10 a.m.
Station programming, Transmitters 101,
the State of Radio and Mass Media,
Black Liberation Radio Network, Saturday 1130,
as well as Shortwave and A.M. Piracy
and Broken Transmitter Clinic, and all kinds of other things.
It just goes on and on all the way through Sunday afternoon.
So, again, the website, www.thud.org slash mutiny,
and the phone number to call for more information, 215-474-3386.
Hopefully we'll see a lot of people there.
Now, to get back to the Kevin Mitnick story, as you well know,
and having done a conference this last weekend
at the State University of Stony Brook,
the science fiction conference known as ICON,
I'd like to ask people,
how many of you have heard the name Kevin Mitnick?
Now, this was an audience that was, you know, kind of dead.
You know, these university audiences,
how they, you know, they just sort of stare at you
with a vacant look, and you feel like a teacher,
even though you're not.
It's like, you know, any questions?
Anybody at all have any feelings on anything?
And, of course, nobody does anything.
Nobody even moves.
You think they're all, you know, these mannequins sitting there.
But then I asked,
how many of you have heard of the name Kevin Mitnick?
And I'd have to say everybody's hands went up
except maybe two or three people,
and that's out of a crowd of about, I don't know, what, 60 people?
Did you say? Yeah.
So, that's good.
The news has really gotten out there.
People know who Kevin Mitnick is.
Now, yesterday, Kevin had a hearing in Los Angeles,
and the purpose of this hearing was twofold, really,
to find out if Kevin would be allowed to use a computer
in order to look at the millions,
literally millions of pages of evidence
that the government has allegedly collected against him,
and it's only in computer form.
They haven't printed it out.
They haven't given him millions of pages to look at,
so he basically needs a computer to look at this information.
And to make it short, the judge said,
no, you can't have a computer to look at this.
We'll be getting into more detail on that in a moment.
And the second part was to determine
whether or not Kevin would be allowed to post bail,
however unreasonable that might be.
Again, the news not good,
the judge indicating that she would not now or really ever
give Kevin Mitnick the chance to post bail.
We have on the line with us Kevin's lawyer, Donald Randolph.
Mr. Randolph, are you with us?
I am. How are you, Manuel?
Pretty good, pretty good,
and certainly a lot better than Kevin is right now.
That's true.
Now, you were at the hearing yesterday, I presume.
Well, I was. I was at the podium.
Okay, and what was the mood like there?
I would say, well, we knew it was going to be a bad day
when shortly after I said good afternoon to the court,
I made a couple of prefatory comments.
The judge said, your bail motion is denied.
And I reminded the court that the bail motion was set for next week.
Oh, boy.
So we got an advance denial of a motion that was set a week from now.
So things went downhill from there.
So she started right in.
Indeed.
And denied the motion a week in advance.
Yes.
And then we started to argue that the motions that were before the court yesterday.
Right.
But we knew that the signposts were not positive.
We sort of had that feeling going into this,
but it just seems like nothing is improving.
Now, keep in mind, Kevin Mitnick has been in prison now for over three years.
The trial has not even started yet.
And the crimes he has been charged with, just when you look at them,
seem so incredibly minor compared to the kind of treatment that he's getting.
I'd like to read one letter that I saw on the Ziff Davis website.
There are all kinds of stories about this today.
MSNBC, ZDNet, places like that.
And the ZDNet site had a bunch of people writing in with their opinions and comments.
I counted about 40 people writing in.
Of those people, I didn't read every single one, but I read the majority of them.
And of those, I could only find one that had any kind of support for what the judge did in this case.
Everybody was saying, you know, it was like the L.A. riot jury.
This is wrong. This was a mistake.
You know, this should not have happened.
One letter in particular said,
I am amazed at how full of fear the U.S. government is of Kevin Mitnick.
Is he a cold-blooded murderer? No.
Did he gain monetarily from his exploits? Obviously no.
Did he injure or cause damage to another party? No.
There was no victim in this crime.
The way the U.S. government is treating Mr. Mitnick is putting fear into me.
And that was a computer programmer in Pennsylvania that wrote that.
I can imagine a lot of people are very disturbed by what happened yesterday.
Yeah. Well, I echo the concerns of that letter.
It's putting fear into me.
And I'm his attorney.
The government is using a fisted glove.
That's for sure.
And the question, every time when I speak of this, both in public and public forums,
and in private, the theme I put forward is, let the punishment fit the crime.
And that is a theme which has been soundly rejected by the government in this case.
And one has to wonder why.
Well, now, there's two possible reasons for that.
One is some kind of real malice on their part where they just want to hurt Kevin as much as possible.
The other is that they don't really understand themselves what this case is about.
Which do you think it is?
I'm going to suggest that there are other reasons.
I don't think that Kevin, although I suppose you can opine that maybe malice is there,
but I don't attribute that motive to the local prosecutors that I'm working with
as the motive for the treatment that he's getting.
In fact, I think it's reasonable to assume with a high-profile case like this
that local prosecutors are not the only ones that are deciding what should happen
and what offers to settle and how the case should be handled.
I think that the government agenda in treating Mr. Mindikin the way they're treating him has to be examined.
And I think some hard questions should be asked of government prosecutors as to why is he being treated this way,
why is the government not distinguishing between the recreational hacker, the hacker purist,
who is really not out to do damage,
and what we characterize as the cyber terrorist who is out to steal, who is out to do damage,
who is out for, at a minimum, for some kind of economic and gainful use in his hacking activities.
And should we not distinguish between those two?
But anyway, I lost it.
Your question was why are they not making that distinction.
I asked the government that question point-blank recently, government counsel,
and the answer was the law doesn't distinguish and we're not going to distinguish.
That's amazing that they actually will not do that.
They won't distinguish between people who are malicious and people who are curious.
Right.
But that point, that is crystal clear, that the government is not making a distinction in that regard.
And it concerns me greatly.
Throughout this case, in conversations, people say to me, well, should Mr. Mitnick walk out scot-free?
Well, the answer is he should walk out because he's done more than enough time.
But putting that aside, I say no.
There are reasons where we have laws that even recreational hackers,
to the extent that you're breaking in to someone else's information and it's done in violation of a statute,
then yes, that's not something that we want to encourage.
And there have to be some rules and regulations, and if people violate them,
then there should be some type of punishment.
But this is off the charts.
The government is clearly trying to make an example of Kevin Mitnick.
But to whom?
Not to the person that, as I say, not to the cyber terrorist.
They're not paying any attention.
Those people that engage in that type of activity are not paying attention to Kevin Mitnick.
They're trying to make Kevin Mitnick an example to all the would-be recreational hackers,
to scare the bejesus out of them.
And I'm not sure that that's the proper role for government to be involved in.
No, absolutely not.
What's odd about this, though, is that they could have done all that in the first year of imprisonment.
A year of prison scares most of us.
But it's been three years, and not only that, they seem to be wanting to go on forever.
I was talking to some people before and saying that it's very likely those kids in Arkansas are going to be out of prison before Kevin is.
Well, under Arkansas law, it sounds like that's true, yes.
It's unbelievable, because that's the kind of thing that happens.
Kevin is being treated worse than people who commit really, really bad crimes.
And Kevin's crime did not involve financial gain.
It did not involve vandalism.
It did not involve anything malicious.
And this is by the government's own definition.
This is by what they're charging him with.
This is not just me saying my opinion here.
Looking at what they're charging him with, you don't see anything.
You don't see anything that is malicious, that involves him gaining in any way.
You see lots of other people making tons of money writing books about this, and who knows what else, making films.
And Kevin, meanwhile, is in prison for over three years.
And you have to wonder, I mean, what's he thinking now?
Is he ever going to get out?
Well, of course, Kevin is, I would characterize his mood as being discouraged by yesterday's events.
There's no way to put a happy spin on it.
And Kevin is discouraged, but he'll bounce back.
And concerned is another word that I would use.
Now, Kevin has remained silent.
And, again, this is at my urging, because in a situation like this, where we're facing a trial somewhere down the line,
and where it's easy to put a spin on what people say these days,
we have just not seen fit to have Kevin make a public statement prior to what will inevitably be his testimony in trial.
So I don't think the world really knows Kevin.
Obviously, it's hard to get to know somebody unless you hear them talk.
Kevin has a great sense of humor.
And he's also a very thoughtful person.
He gets a lot of mail.
And I believe that the mail does get through at the Metropolitan Detention Center, and he reads it.
And I think that does buoy his spirits.
So he is, of course, painfully aware that he's in custody,
that he is getting special treatment that he's not happy about in custody,
in terms of being in longer, say, than most, and not being able to access library materials,
although that was another subject of one of the motions yesterday, and as much as he'd like to.
He does, he is mindful of the fact that he is a recreational hacker,
and the government is enforcing, is pursuing the laws and enforcing them in a very heavy-handed manner against him,
that the issues in his case are creating a certain amount of precedent,
and how this plays out will take some months, if not years, to finish.
Unfortunately, he sits in the can, and we were hopeful that the court would at least recognize at this point in time
that although perhaps the legal issues have to be thrashed out in the courtroom,
that after a certain point, it's all right to let him be released under, I can't tell you,
the extraordinary set of conditions that we proposed for Kevin's release.
We didn't ask that he be released to a beachfront condo, but we said put him in a halfway house.
He can only come to his attorney's office and stay at the halfway house.
We agreed to have his phone service be restricted, no access to computers except in my office when he's looking at the discovery.
We proffered having all of his family members put up their homes, and these are not wealthy people,
so essentially putting up everything that they own in the world to support his bail.
We pointed out that the only time he's ever been out of the country was when he went across the border to Tijuana when he was 12 years old,
so he's hardly the type of person who has international ties.
But it fell on deaf ears, that request, yesterday at least.
One of the quotes that the judge, Mariana Felser, is that how you say it?
Felser.
Felser, we're never in the world going to do that, meaning give him access to a computer.
What does she mean by that? He's not able to look at the evidence against him?
Well, we're going to find out in the next few weeks exactly what the judge will allow him to do.
I think that, and we go back and forth a little bit.
Last fall, I had the impression that the court was going to allow him access to a computer
and hopefully to a laptop that he could easily access in custody.
Of course, we proposed that he be, again, as I mentioned, that he go to a halfway house.
But putting that aside, our follow-up proposal was that he be given a laptop.
We've since determined that we could get the proper equipment to him,
even with the various systems that contain the discovery.
In essence, bringing in two briefcase-sized packages,
we could have the necessary equipment for him to review all of the discovery,
which could be put on diskettes and be made available to him.
That was, the court yesterday was not of a mind to allow that to happen.
So where we're left, you probably know this, the court has instructed the government,
given them a couple of weeks to come up with a viable proposal for Mr. Mitnick
to have access to a portion of the computer discovery.
What kind of plan do they have in mind for this minimum?
What they're going to propose is that he be delivered to a room in the courthouse,
which is next to the Metropolitan Detention Center,
and that he be able to access the information there.
Now, that's as much as they said in court.
We are going to have to, of course, withhold comment until we see their written proposal,
number one, because we haven't seen it,
and number two, because the court specifically instructed us not to respond in writing
until the hearing on April 27th, and then we'll comment orally
and then have an opportunity to respond in writing thereafter.
I suspect that they will suggest that the government set up a computer there,
that they have someone watching vigilantly to make sure that Kevin doesn't,
behind their backs, put two wires together and hack into the Pentagon,
and then at the end of the day he'll be escorted back to the MDC
and look at it again.
That's what I expect.
Now, it seems to me, just looking at this,
that the opportunity for all kinds of abuses on the government's part are here.
They could monitor what it is he looks at.
They can limit what it is he has access to.
I mean, that must be a concern.
Well, the government has in the past said,
look, here we have all of this evidence,
and I think that at the latest total it consists of 9.75 gigabytes,
which we estimate to be something in the neighborhood,
because some of it is compressed,
of something in the neighborhood of 2.2 million pages of discovery, we'll call it,
and I can talk about that in a minute.
Okay.
They said, come on over, come on down,
and we'll find you an office on our floor in the U.S. Attorney's Office,
and you can look at it and bring your clients along.
To this point, we've respectfully declined for several reasons.
Number one, and the most obvious,
is we're aware that such things exist,
such as shadow memory, keystroke logs.
The government and what we do and what evidence we choose to look at,
the order in which we look at the evidence,
how we arrange it, how we access it,
is providing information to the government,
and that's just violative of the attorney-client privilege,
of our own work product privilege.
The government would never in a million years
let us have a window into how they plan to prepare their case,
and turnabout, there are many, many protections against the defense having to do that.
So even with the government promising,
well, we promise, we promise that we won't look at you,
and we will not have any shadow logs, any keystroke logs, I should say,
no shadow memory.
It's too much of a temptation.
It's not something that's happened before.
It's not something that's happened before with other forms of evidence.
Let me say this.
I have been involved in another huge case, ironically, before Judge Felser.
It was the U.S. v. Keating et al.,
and I represented one of the co-defendants in that case.
And I reminded the court of this yesterday.
The amount of documentation in that case was massive,
millions upon millions of documents,
and it had been compiled and was stored in a warehouse outside of Phoenix, Arizona.
And we went to that warehouse,
but what we looked at, even though we were let into the place by armed guards,
what we looked at was not scrutinized by the various agents.
They were not able to know.
We would pull out a box and then pull out another box,
but what we looked at in the boxes was not something for them to know.
And what we wanted copies of, well, we would make copies of it,
and sometimes we just wanted to know what documents were,
but we wouldn't make copies of them.
It was not something that each and every piece of paper that we looked at
and each and every document which was important to us was known to the government.
And for obvious reasons, it's not fair.
Well, in this case, I think that,
I don't know if the court fully appreciates
that accessing information on someone else's computer
gives them a blueprint for what it is you're doing.
We did submit a declaration from a local computer expert explaining that to the court,
but the message was not accepted yesterday.
That doesn't mean that we're not going to try again
when the government comes in with their proposal in a couple of weeks.
Would it be at all possible to have a third party arrange the viewing of evidence
so that it wouldn't be the government watching over this,
it would be someone who the two sides would agree is neutral
and would not give out evidence,
not give out what kind of keystrokes were looked at and things like that?
Well, it is not unusual to have a special master set up to do that type of thing.
But again, one of the unique problems with this case is the documentation is so massive
that a special master, I mean, this case would go on forever.
Another good reason for letting my client out of custody
while we thrash out some of these issues.
These are issues that are going to start coming up in computer cases.
Right. But nine gigs of data, I mean, what is it that you think they have there?
Are they copying entire programs?
Well, since we have some idea of what's on there, and I can tell you,
there is a portion of it which is encrypted material.
And the government is dying to know what's there.
And their position is, this is material that we took from Mr. Mitnick's computer
and computer storage, that we're not going to give it back to him
until he decrypts it for us.
And you can imagine that our position is exactly the opposite.
Under the rules of evidence, when you see something from a defendant,
you have to make it accessible to him and or give him a copy.
We would like a copy, but we have no desire or intention
of decrypting any of it for the government's use.
We may decrypt it for our own use to see if there's information in there
that could be exculpatory for my client.
For example, say my client got an email.
And we're assuming, for the sake of conversation,
that everything that is information in this category
is indeed information that they seized from Mr. Mitnick.
So keep that in mind.
Let's say that he got an email from somebody
who admitted to hacking into one of the victims in this case
and just wanted to bring it to Mr. Mitnick's attention.
He might get blamed for it, but this other person is the one that did it.
And let's assume Mr. Mitnick encrypted that email
so that the government doesn't access it.
We would like to get access to that type of information.
But by doing so, we don't think it's appropriate for the government
to have access to force Mr. Mitnick, in order to get one document,
to disclose everything that is there simply because they want to know it.
And the rules of evidence don't...
We have a right against self-incrimination in this country.
And it is precisely...
I mean, everybody knows what those words are.
I plead the fifth.
But really, what they mean is you as a criminal defendant
are not obliged to do anything
and cannot be forced to do anything
which would ease the government's burden in a criminal prosecution.
And those words have meaning.
And they need to have meaning in computer cases as well.
Well, now, if we're talking about encrypted data here
that is part of the evidence,
isn't it to them merely gibberish that can't even do them any good?
It is.
And obviously, to the extent that we, assuming that it is,
again, with the assumption I gave you earlier,
assuming that the government cannot decrypt it,
then it's useless to them.
But the fact that it's useless to the government
doesn't mean that it also should be useless to the defense
because it may well be that there is exculpatory evidence in there.
And without giving anything away,
I don't think that we would be making such an effort
to get access to the encrypted material
if we thought it was just a waste of time.
Okay.
There's just one thing that's kind of confusing here
as far as all the evidence and the rules of what you're allowed to get.
You're allowed to get a copy of everything they have, correct?
Yes.
You should be able to either get a copy or get complete access to it.
Okay.
Now, Ordon, let's say they go into your house
and they take your books,
your pet hamster,
your gun,
and a few other items,
and your clothes.
Now they've got them.
They put them in their storage locker
and they file a case against you.
And they're going to use some, if not all, of those items against you in the case,
in the trial.
So you say, all right, well, I want to come back
and I want a motion for return of the property that you're not going to use.
And if before the trial they can determine
that they're not going to use your pet hamster,
then they return the hamster to you.
If they've got your driver's license,
then typically they will give you, if they need the original for the trial,
they'll give you a copy of it.
And if there's a voluminous amount of documentation that they've seized,
such as in business cases,
they'll say it's cost prohibitive to make a copy of everything.
So why don't you come in, go through this,
and tell us what items you want copies of.
You can look at everything,
and what items you really want copies of to study them more
or to prepare your defense will make copies for you.
So that tells them what you're interested in.
It does.
But what you can do in a case like that is make copies of a whole bunch of things,
some of which you're interested in, some of which you're not.
If you don't want to draw their attention to a document,
then don't make a copy of it.
Just go in there and look at it.
Right.
Now, the rationale behind the government not giving you a copy of everything
is very simple.
In small cases, they just give you a copy of everything.
Typically, we're talking about 100, 200, 300 pages of documents.
In virtually every case I have where there's 200 or 300 pages of documents,
I get a copy of the materials in each and every case.
Why is that?
Because it costs $15 to make copies of 300 documents.
Now, in document-intensive cases,
it would cost hundreds if not thousands of dollars to make copies.
That's why they have you come in and look at it.
Now take this case.
With 9.75 gigabytes, notwithstanding that,
for in the hundreds of dollars, not in the thousands,
all of this information, by virtue of computer technology,
can be put on disk.
And with no problem, no must, no fuss,
we can have our own copy of this information.
Thank you very much.
So they cannot use the cost-prohibitive argument.
They cannot use the...
It's just too difficult to manage this information, even copy it for you.
So what is stopping them from giving you 9.75 gigs of data on a disk?
It's pure and simple.
We don't want to give it to him.
And the judge, to date, is supporting that.
They're refusing to give you, his lawyer, the information in computer form.
Is that what you're saying?
Yes.
Let me talk about what's there.
I told you about the encrypted material.
Another portion of this computer evidence
is items that they claim contains proprietary software.
Information that is, I forgot the most important word,
confidential proprietary information.
In some respects, proprietary software.
Some of it is source code.
Although, obviously, this isn't something that I would read and enjoy,
this is part of the claim that Mr. Mitnick compromised important information,
confidential information, from the victims in the case.
So they don't want to give you copies of software, is what you're saying.
Correct.
Now, my response to that is,
this isn't the first time that information that's claimed to be confidential
was allegedly taken, government has a copy,
and how does the defense prepare for it?
What you do is you turn it over with the appropriate protective orders as needed.
If it still needs protection, the information,
then you get the appropriate protective orders and you give it to the defense
so they can work with it.
We have to have, we have to be able to look at this.
My client is entitled to look at this information.
I liken this type of situation to where he has allegedly,
a defendant has allegedly stolen McDonald's secret sauce
and has it on a piece of paper.
And now the government, and then the government searched his house,
found the piece of paper with the recipe for the secret sauce on it,
and have it in their possession.
And they say, well, we don't want to show you this now.
And we respond, listen, all I want to, I'm not trying,
I don't want to make hamburgers with secret sauce,
I just want my client to be able to look at this information
and say, yeah, that looks to me, that is to tell me, his attorney,
whether or not that is indeed what he compromised.
Because if he looks at it and says, no, that's not what I took,
then that's one type of defense.
If he says, yeah, that's what I took, but I thought it was something else,
that's another type of defense.
But until, unless, that's one of the reasons why you give your client,
why we have rules which allow people to confront the evidence against them.
And I'm giving simplistic, I realize that the analogies are not perfect,
but they're more to the point than not.
And you can't throw the rules out just because there's a computer involved.
This goes beyond just not letting Kevin have a computer.
Now it sounds like they don't even trust you to look at the evidence
and they just want to keep it secret to themselves
and only have you look at it while they're looking at you.
Yes, well, again, they're not saying, no, that I can't look at it,
although they're not going to allow, well, that's a good question.
I don't think they've gone so far as to say we will let Kevin look at
what they characterize as the proprietary software.
But I think that they have indicated that they will allow counsel
and or an expert to look at it to determine what it is.
In your own offices?
No, no, no, not in my office, in their office, under their scrutiny.
If they offer to give you 9.75 gigs of data and not have Kevin look at it,
just have it in your office, would that be acceptable to you?
Well, no, because that cuts out several sentences
in the definition of a right to a fair trial,
which is when someone pleads guilty,
every prosecutor and defense attorney knows that you give up your rights.
And one of the rights you give up is to confront the witnesses
and the evidence against you.
And here we have another situation like this where, you know,
you ought to have the right to confront the client himself,
ought to have the right to confront the evidence against him.
This case is a little different in that Mr. Mitnick is astute.
As I say, he's a thoughtful person.
He's also a very intelligent man.
And he is able to, we will learn something by being able to look at this evidence,
if nothing else, but to be able to somehow confirm
that what they're presenting as evidence against him
is indeed something that he possessed.
I mean, that's a very basic and simple proposition.
But I don't know how you can ultimately defend against that
unless you get past first base.
We're speaking with Donald Randolph, who is Kevin Mitnick's attorney.
Kevin appearing in court yesterday, having both bail denied
and the ability to look at the evidence against him on computer denied as well.
Mr. Randolph, do you think that this possibly,
them submitting 9.75 gigs of data itself is a tactic to make the case a lot harder to fight?
Well, it's not exactly.
But here's what we have claimed is just not appropriate.
What we put in our papers to the court is that we've been denied meaningful access.
The government comes forward and says, hey, it's all here.
Come on in and have a look, including all the compressed files.
Sit down. We'll even buy you a cup of coffee.
But in our response, aside from the fact that they want us to do it on their computers under their scrutiny,
that is not meaningful access.
The government has resources that dwarf those of my office.
And to be able to have meaningful access,
and there's case law that supports us in this regard,
requires the government to organize it in some way,
to come up with a filing system to summarize what's in each category,
so that we're not spending months, if not years, trying to figure out what it is
and what the government's going to use against us.
So that's the word that we've been focusing on
and so far not successfully convincing the court that when the government sits back and says,
well, we've done a fine job, and look, they're not availing themselves of the opportunities.
We're trying to get the court to look at the fact that what they've provided us is not meaningful access.
The law requires the government to do that.
And we've got a glimmer of the possibility that the court is starting to go our way in this regard,
because we said at a minimum the government should be required to come up with a tentative exhibit list
and list what items in the computer discovery they're planning on using as exhibits,
so at least to pare down to a certain extent what is this universe of material that we're dealing with.
So that's what we're trying to do.
The government has asserted that someone in the government has looked at all of the evidence.
I asked the court to inquire of the government if that was true and who that was,
and if so, were any summaries made,
because the government agent that advised the defense that that was the case also said no summaries existed.
I find it hard to believe that someone's looked at everything and didn't make any notes.
How can they be presenting a case if there's no summary of the evidence?
It's going to be the longest case in history.
The government was clearly not ready to go to trial in two weeks,
which the original trial date was April 14th.
When the court asked, do you have an exhibit list,
the government said, well, no, we're working on it.
Well, until yesterday, the case wasn't continued.
The current trial date wasn't taken off calendar.
So I suspect that the government was ill-prepared to go to trial in two weeks
and was counting, and logically so, on the fact that because this computer morass was not resolved,
that it would be continued, and it is.
We're going to take some phone calls.
I'm going to try to squeeze a few in here at 212-279-3400.
Again, we're speaking with Kevin Mitnick's lawyer, Donald Randolph from Los Angeles,
and Kevin again being denied bail and being denied the ability to look at the evidence against him.
No end in sight to the ordeal, which has now lasted over three years.
212-279-3400.
Good evening. You're on off the hook.
Hello.
How are you doing? What's your question?
I'm calling from Cortlandt.
I'd just like to say that you're on Zord.
Okay, if we don't get intelligent people, we just won't take any calls.
Good evening. You're on the air.
Hello.
Yes, go ahead.
Okay, well, I'm not able to listen to the stream, but I assume you're talking about Kevin.
Yes.
And I was wondering, why has there been, like, no media coverage?
I watched CNN, I watched all the major networks, and I hear nothing.
Mr. Randolph, do you want to address that?
Well, it's interesting.
Even here in Los Angeles, there was a blurb in the local paper saying that Kevin was denied access to a computer.
I think there are two reasons for that.
Number one, in terms of just news, it's not all that juicy.
And secondly, we're a ways away from trial, so maybe that's another reason.
And I think that some of the issues are a little esoteric.
They're important, but they're only important to people who are interested in peeling back a few layers
to see what's important about this case and the fact that he's denied access to a computer.
I mean, who cares?
A lot of people just say, yeah, he was a hacker, he's in custody, and so no, he shouldn't get a computer.
It goes a lot deeper than that, but you have to get into it a little bit.
I will say this to the caller, that inquiries into what's going on are increasing.
And there seems to be a higher level of interest in other countries than the United States at this point in time.
I have to disagree a little bit with the perception that there's no media coverage because I have seen,
I mean, I haven't seen anything really on television, but that's only because I haven't been watching television.
On the web, I've seen all kinds of news sources devoting significant space to this.
There was something on MSNBC, there was something on the Asif Davis site, I think CNN had something too.
And one thing that I've noticed that's changing, and increasingly so over time, is that people are asking,
why is he still in prison after three years?
There you go, and let me chime in on that.
That's an important feature.
Forgetting everything else, whether we should have access to everything,
whether the government should get the decrypted material,
whether the wire fraud statute is applicable to a case that sounds like computer fraud,
putting all of that aside, it's now, he was arrested in February 1995.
He did time in the two, what I call the two minor cases, and he's completed that time.
He's got 18 months in since that time, and basically is just, is this case.
He's not, as you say, he's not a major felon.
He's somebody that one would think under ordinary circumstances would be put out on bond with reasonable, suitable conditions.
And that's, I think that's an issue that is going to probably, and unhappily for Kevin Mitnick,
to bring greater attention to the case.
And I'm very sorry that that's the one that's going to do it,
because we'd rather have no publicity and have my client be able to be out of custody.
Okay, let's take another phone call. Good evening, you're on the air.
Hello?
Yeah, speak up, please.
Yes, two questions.
What can we do to help Kevin Mitnick?
And number two, can I ask you a phone bill question tonight?
Not tonight, just stick to Kevin Mitnick. We have limited time.
Okay, what can we do?
And is the judge, would you consider the judge hostile in this case?
Well, let me say, let me answer that in a delicate way.
We have a long road ahead of us, and I have, and I respect the judiciary, and I also respect this court.
There is, I think that I will take the blame in saying that somehow,
we will continue to try and better it that we have not presented the case either in a forceful or in a clear enough way
such that the court, that we have been able to get our point of view across.
And we will continue to do that, and hopefully we'll be able to turn the judge a little bit more towards the defense.
Okay, thank you and good luck.
Thank you.
Thanks for calling.
On that note, are there any kinds of addresses, phone numbers, points of contact that you'd like to give out for people who are interested in helping?
Because we do get a lot of people writing to us saying that they want to do something, they just don't know what.
Well, to tell you the truth, we've been pretty busy just trying to deal with these motions.
And I do know that Kevin has a website.
We're not involved in that.
We didn't set it up, in other words.
And he does, of course, appreciate mail.
But other than that, you'd think I'd have an answer to that, and at this point in time, I don't have a flip answer for you.
But I will certainly give some thought to that as to what can people who are interested, how can they help Kevin.
Write him a letter of support.
There's one way.
Right.
And, of course, there is a legal defense fund as well.
I might as well give out that information now.
If you're interested in helping Kevin Mitnick, you can send a donation.
And a number of people have done this, but not nearly enough.
Because we know there are a lot of people out there that want to show support.
And in times like this, a legal defense fund is probably the best way of doing this.
This is something that's being organized by his grandmother.
And that means that checks should be made out in her name.
Her name is Reba, R-E-B-A.
Last name Vartanian, V-A-R-T-A-N-I-A-N.
And all checks should be made out to her.
The account number is 672-190-1177.
And once you do all that, you can mail it to the legal defense fund for Kevin Mitnick.
Care of Norwest Bank, Nevada, N.A.
I guess that means North America.
Rainbow Ridge Office, 672-3104, North Rainbow Boulevard, Las Vegas, Nevada, 89108.
And I pity those people who can't play that back and listen to it a second time.
But if you need it, it's in the latest issue of 2600.
It's also on the websites, which are www.2600.com, or www.kevinmitnick.com.
And that should give you all kinds of information.
Let me just ask one final question because we're running out of time here.
Sure.
Do you think it's possible this whole case is never going to make it to court?
The government will say, well, you know, we have these gigabytes of, you know, evidence against Kevin.
But time has gone by.
Let's just forget the whole thing now.
And after, you know, four or five years, we'll just let you go and we'll never say what we had.
Well, the court yesterday four times looked over and said to us, this case is going to trial.
I think that unless and if we are able to resolve it in a way which we think, again, as our theme, you know,
where the punishment will fit the crime here rather than what's been discussed in the past, then the case can be resolved.
And Kevin can get on with his life.
But we haven't seen that kind of desire to settle a case from our standpoint here.
And so I guess only time will tell.
May I just say, by the way, that my stalwart associate, Greg Vinson, sends out his best to his dad and stepmom in the New York City area.
Well, hopefully they're listening.
I think they probably are.
Okay, great.
And he would speak, except he only has headphones, not a microphone.
Yeah, well, both are important in the radio industry.
Well, Donald Randolph, I want to thank you very much for taking time out of your busy schedule to speak with us
and clear some things up with this case.
I imagine we'll be talking to you again in the future because this doesn't look like it's going to end anytime soon.
Well, not in the next two weeks, no.
Yeah, and the next hearing is scheduled for when?
April the 27th.
And what do you expect to be addressed then?
That's when we'll have the government's proposal, and then we'll orally address that, and then we go on from there.
When do you think the trial will take place?
We haven't.
I think that it will take place this year.
That's what I think the court has in mind.
About later this year.
Yes, much later.
All right.
Okay, well, thanks again for joining us tonight.
Okay, my pleasure.
And this will do it for Off the Hook this week.
Next week we'll be back with more developments in both this case and a report from the micro-broadcasting convention,
which takes place this weekend in Philadelphia.
Until then, this is Emanuel Goldstein for Off the Hook.
Good night.
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