The Neidorf/Phrack Trial
by Gordon Meyer and Jim Thomas
"The Government screwed up!"
"William J. Cook pulled his head out!"
"The computer underground will live forever!"
These comments, and undoubtedly countless others, have been echoing throughout the computer underground ever since the surprise announcement on July 27 that the Government was withdrawing from the prosecution of Craig Neidorf and Phrack Magazine (see Spring 1990 issue). What follows is a full accounting of the events of this five day trail.
The Trial: Day-by-Day
Day One (July 23): The jury selection in Case No. 90 CR 0070 (United States v. Craig Neidorf) was completed on the first day. Although opening statements were also scheduled to begin that day, the selection of jurors, while not overly arduous, did perhaps take longer than was anticipated. Courtroom observers were overheard remarking that Judge Bua seemed to be a bit more cautious and in-depth in his questioning than usual.
The government was represented by a team of three attorneys, headed by William J. Cook. Also in attendance was SS Agent Foley of the U.S. Secret Service. Defendant Neidorf, dressed in a blue blazer and khaki pants, was seated next to his attorney, Sheldon Zenner. Also in attendance, though seated in the gallery, were Craig's parents, his grandparents, expert witnesses Dorothy Denning and John Nagle (scheduled to testify later in the trial), and several other lawyers and staff from Katten, Muchin, and Zavis (the firm with which Zenner is associated)
Bua's opening remarks to the prospective jurors included a brief summary of the charges and an admonishment that an indictment does not necessarily translate into guilt, Bua's questions to each of the Jurors, after they were called to sit in the jury box for consideration, included the traditional "where do you live" and "what magazines do you subscribe to" questions, but also included specific inquiries into grievances or affiliation with BellSouth/AT&T/Illinois Bell, association with Craig's college fraternity (ZBT), and use/knowledge of computers Jurors were also queued as to whether or not they had any idea what a computer bulletin board was, and if they had ever used one.
The process of juror selection took over four hours and thirty minutes (excluding recesses). During this time several people were excused from the selection pool for various reasons. In federal court the judge queries the jurors, with the counsel for each party communicating their "vote" via written messages. Therefore, it is difficult to say for sure whether the defense or prosecution wished to exclude which individuals. (It is also possible that a potential juror was excluded for other reasons, such as knowing a witness, etc.) Nevertheless, it seemed quite obvious why some people were not chosen. A few, for example, turned out to be BellSouth and/or AT&T stockholders. Another had a husband who worked for Motorola Cellular (which has ties to BellSouth Mobile). One man had served on three juries and one grand jury previously. And finally there was a Catholic priest who had studied constitutional law, been involved in an ACLU sponsored lawsuit against the state of Colorado, and been involved in various other litigations.
Here is a thumbnail sketch of each jury member that was selected. (The first six were selected and sworn in before lunch, the next six and the alternates that afternoon.) The information here has been gleaned from their selection interviews and is presented so as to get a better idea of who the "peers" were that would have judged Craig.
1.) Male, White, mid- to late-20s. Works in an orthopedic surgeon's office. Has computer experience in using SPSSx-PC, Lotus 1-2-3, and various other number-crunching applications. Doesn't subscribe to any magazines.
2.) Elderly White female. Retired, but used to work at a Hallmark Cards store. No computer experience.
3.) Female, White, mid- to late-40s. Teaches court reporting at a trade school, has never worked as a court reporter. Has some computer experience with word processing and spreadsheets.
4.) Female, White, middle-aged. Former City Clerk (elected) of a Chicago suburb. No computer experience. Subscribes to Reader's Digest.
5.) Male, White, late-30s. Passenger pilot for American Airlines. Subscribes to Compute! Magazine. Has a PC at home. The only juror to have ever used a BBS (one set up by American for use by the pilots).
6.) Female, Black. Works as a school volunteer and a babysitter. Has used history teaching programs on Apple PCs at Malcolm X College.
7.) Female, Black. Works in claims underwriting at CNA. Experience in word processing and using LAN based PCs. Former Illinois Bell and AT&T employee.
8.) Female, Black. Works for the Chicago Board of Education. Some computer experience in the classroom (as a teaching tool). Holds an MS degree in Special Ed.
9.) Female, White, elderly. School teacher (1st grade). Classroom use of computers. MA degree in education. Subscribes to Newsweek.
10.) Male, Black, 36-years-old. Lives with parents who are retired postal workers. Employee of TransUnion credit reporting company. Programming exposure in BASIC and COBOL.
11.) Female, White, early-20s. Lives with parents. Holds a BA in education, studying for a masters from Northwestern University. Teaches junior high, has WP and some DTP use of computers but limited in other knowledge.
12.) Male, White, 30-ish. Chief engineer at a company that makes floor trusses for construction sites. Has a BS in architectural engineering. Has done a little programming. Uses CAD packages, spreadsheets. Had a class in FORTRAN in college. Has used a modem to download files from software manufacturers.
Alternate Jurors
1.) Female, White. Works as a systems analyst and LAN administrator. Familiar with PC to mainframe connections. Holds a BA in Special Education and has about 20 hours of computer classes. Familiar with assembler, COBOL, and PL/1 among other languages.
2.) Female, White. Owns and operates a small hotel with her husband. Uses a Macintosh for word processing but husband does most of the computer stuff. Holds a BA from Northwestern. Subscribes to The New York Times.
3.) Female, Black. Works at the Church League of Chicago. Formerly a word processor at Montgomery Ward.
4.) Male, White, early-50s. Elementary school principal. Former phys-ed teacher. Accessed school district records using modem connection to district computer, has used e-mail on the district's bulletin board. Holds an MA in Education from Loyola University of Chicago.
Random Notes: Although Judge Bua was careful to pronounce each of the prospective juror's last names correctly, he seemed to mispronounce Neidorf's name differently every time he said it. "Neardorf," "Neardof," and "Niemdon" were distinctly heard. William J. Cook and Agent Foley also continually mispronounced the name, and it was misspelled on at least one prosecution evidence chart.
Finally, a reporter from Channel 7 in Chicago was in and out of the courtroom throughout the day. Reportedly a brief piece ran on the evening news in Chicago.
Day Two (July 24): On the second day of Craig Neidorf's trial in Chicago, both sides presented their opening arguments. The prosecution wheeled in two shopping carts containing documents, presumably to be used as evidence. William J. Cook, the prosecutor, down-played the technical aspects of the case and ted to frame it as a simple one of theft and receiving/transporting stolen property. Sheldon Zenner's opening statements were absolutely brilliant, and challenged the definitions and interpretations of the prosecution.
Day Three (July 25): The prosecution continued presenting its witnesses. The most damaging to the prosecution (from a spectator's perspective) was the testimony of Billie Williams from BellSouth whose primary testimony was that the E911 documents in question were:
- Proprietary
- Not Public Information
Following a lunch break, defense attorney Sheldon Zenner methodically, but politely and gently, attacked both claims. The "proprietary" stamp was placed on all documents at the source without any special determination of contents and there was nothing necessarily special about any document with such a statement attached. It was established that it was a bureaucratic means of facilitating processing of documents. The proprietary claims were further damaged when it was demonstrated that not only was the content of E911 files available in other public documents, but that the public can call an 800 number and obtain the same information in a variety of documents, including information dramatically more detailed than any found in Phrack.
After considerable waffling by the witness, Zenner finally received her acknowledgment that the information found in the files presented as evidence could be obtained for a mere $13, the price of a single document, by simply calling a public 800 number to Bellcore, which provided thousands of documents, "including many from BellSouth." If our arithmetic is correct, this is a little less than the original assessed value of $79,449 in the original indictment, and about $22,987 less than the revised value assessed in the second document.
Ms. Williams often seemed hesitant and uncooperative in answering Zenner's questions, even simple ones that required only a "yes" or a "no." For example, part of Ms. Williams' testimony was the claim that Phrack's E911 document was nearly identical to the original BellSouth document, and she noticed only four changes in the published text. Zenner identified other differences between the two versions. He then suggested that it was odd that she didn't notice that the original document was about 24 pages and the Phrack document half of that. He wondered why she didn't notice that as a major change.
She tried to avoid the question, and in exasperation, Zenner gently asked if she didn't think that to reduce 24 pages to about 13 indicated a major editing job: "Doesn't that indicate that somebody did a good job of editing?" "I don't know what you mean." After a bit of banter in which Zenner tried to pin down the witness to acknowledge that a major editing had occurred such that the Phrack document was hardly a facsimile of the original, and several "I don't knows" from the witness, Zenner turned to her and said gently: "Editing. You know, that's when somebody takes a large document and reduces it" "I don't know," she repeated again. This seemed especially damaging to the prosecution, because they had claimed that the document was nearly identical. In challenging a motion to dismiss, the prosecution had written:
"Neidorf received and edited the file and subsequently, on January 23, 1989, uploaded a 'proof copy' of the edited text file onto Riggs' file area on the Lockport bulletin board for Riggs to review. (Counts 8 and 9). Riggs was to proofread Neidorf's version before Neidorf included it in an upcoming issue of Phrack. The only differences between the original version posted by Riggs, and the edited version that Neidorf posted for return to Riggs, were that Neidorf's version was retyped and omitted all but one of the BellSouth proprietary notices contained in the text file. Neidorf modified the one remaining BellSouth warning notice by inserting the expression 'whoops' at the end:
NOTICE: NOT FOR USE OR DISCLOSURE OUTSIDE BELLSOUTH OR ANY OF ITS SUBSIDIARIES EXCEPT UNDER WRITTEN AGREEMENT. [WHOOPS]"
Also in the afternoon session, Secret Service Special Agent Timothy Foley, in charge of the search of Craig Neidorf and others, related a detailed account of the search and what he found. A number of files from Phrack and several e-mail messages between Craig and others were introduced as government exhibits.
In addition to the E911 files, the following were introduced:
From a spectator's perspective, the most curious element of Agent Foley's testimony was his clear presentation of Craig as initially indicating a willingness to cooperate and to talk without a lawyer present. Given the nature of the case, one wonders why the government couldn't have dealt less aggressively with this case, since the testimony was explicit that, had it been handled differently, justice could have been served without such a waste of taxpayer dollars. When Agent Foley read the Phrack file describing Summercon, one was also struck by what seemed to be little more than an announcement of a party in which there was explicit emphasis on informing readers that nothing illegal would occur, and that law enforcement agents were also invited.
It was also curious that, in introducing the Phrack, Inc. Hacking Directory, a list of over 1,300 addresses and handles, the prosecution found it important that LoD participants were on it, and made no mention of academics, security and law enforcement agents, and others. In some ways, it seemed that William J. Cook's strategy was to put hacking (or his own rather limited definition of it) on trial, and then attempt to link Craig to hackers and establish guilt by association.
It was also strange that, after several months of supposed familiarization with the case, neither William J. Cook nor Agent Foley would pronounce his name correctly. Neidorf rhymes with eye-dorf. Foley pronounced it KNEEdorf and Cook insisted on NEDD-orf. Further, his name was spelled incorrectly on at least three charts introduced as evidence, but as Sheldon Zenner indicated, "We all make mistakes." Yeah, even William J. Cook.
One can't but think that such an oversight is intentional, because a prosecutor as aware of detail as William J. Cook surely by now can be expected to know who he is prosecuting, even when corrected. Perhaps this is just part of a crude, arrogant style designed to intimidate. Perhaps it is ignorance, or perhaps it is a simple mistake. But, we judge it as an offense both to Craig and his family to sit m the courtroom and listen to the prosecutor continually and so obviously mispronounce the family name.
Day Four (July 28): Special Agent Foley continued his testimony, continuing to describe the step-by-step procedure of the search, his conversation with Craig, what he found, and the value of the E911 files. On cross-examination, Agent Foley was asked how he obtained the original value of the files. The value is crucial, because of the claim that they are worth more than $5,000. Agent Foley indicated that he obtained the figure from BellSouth and didn't bother to verify it. Then he was asked how he obtained the revised value of $23,000. Again, Agent Foley indicated that he didn't verify the worth. Because of the importance of the value in establishing applicability of Title 18, this seemed a crucial, perhaps fatal, oversight.
Next came the testimony of Robert Riggs (The Prophet), testifying presumably under immunity and, according to a report in Computer Underground Digest, under the potential threat of a higher sentence if he did not cooperate. The diminutive Riggs said nothing that seemed harmful to Craig, and Zenner's skill elicited information that, to an observer, actually seemed quite beneficial.
For example, Riggs indicated that he had no knowledge that Craig hacked, had no knowledge that Craig ever traded in or used passwords for accessing computers, and that Craig never asked him to steal anything for him. Riggs also indicated that he had been coached by the prosecution. The coaching even included having a member of the prosecution team play the role of Zenner to prepare him for cross-examination. It was also revealed that the prosecution asked Riggs to go over all of the back issues of Phrack to identify any articles that may have been helpful in his hacking career. Although it may damage the egos of some Phrack writers, Riggs identified only one article from Phrack, Issue #7 that might possibly have been helpful.
Day Five (July 27): After discussion between the prosecution and defense, the judge on Friday declared a mistrial. Although the charges were not, according to sources, formally dropped, the result was the same. All parties are prohibited from discussing the details of the arrangement worked out. But, in essence, Craig was not required to plead guilty to any of the counts and, if he stays out of computer-related trouble for a year, the government cannot re-file the charges.
The arrangement does not prohibit him from associating with whom he pleases, place travel restrictions on him, or prohibit him from editing any newsletter of his choice. He is required to speak to a pre-trial officer for a year (this can be done by telephone), and he in no way was required to give information about others. He will resume school this fall and hopes to complete his degree within about three semesters.
Credit Applications
While some self congratulatory back-slapping and "thumb-nosing" of the feds is expected (and deserved), some kudos need to be shared on both sides of the contest.
To the defense: Dorothy Denning and John Nagle were instrumental in identifying the flaws in the government's case. Their ability to disregard all of the posturing (mostly by supporters on both sides) and focus on the technological and practical side of the charges was superb. But it was Neidorf's attorney, Sheldon Zenner, who was able to quickly integrate and translate the ammunition supplied by Denning and Nagle into the fatal weapons that finally convinced the government to drop the charges. While Zenner's experience as a former Assistant U.S. Attorney was assuredly helpful, his skills in assimilating technical information and applying it in ways that non-technoids could understand was remarkable. And this, from an attorney who is reportedly not all that computer literate himself, although he seems to have learned much since taking this case.
Acknowledgment should also go to Neidorf's family, and to Craig for sticking through the ordeal and not agreeing to plea-bargains or other deals that may have been offered.
Special recognition should go to the efforts of Emmanuel Goldstein and 2600 Magazine for the editorial in the spring issue, and to the prodding Emmanuel did in Telecom Digest, The WELL, and other places. Pat Townson of Telecom Digest, despite his personal views, publicized the issues and allowed Craig's supporters to raise a number of critical points. Finally, Computer Underground Digest circulated a number of editorials and samples of the evidence to corroborate claims that Craig's indictment was exaggerated. Together, these and others who spoke out created the visibility that eventually contributed to the formation of the Electronic Frontier Foundation (see story on page 10).
But let us not forget the prosecution. The U.S. Attorney's office should be acknowledged, as Zenner and Neidorf have done, for "doing the right thing" and pulling out once they realized a mistake had been made. Of course we would have preferred it if they had recognized their mistake earlier in the process, but at least they didn't ignore it and try for one guilty verdict on any of the other counts.
If we were bitter conspiracy theorists, we'd probably suggest that the government knew this case was a waste from the very beginning, but chose to pursue it as a means of harassing (financially and emotionally) Neidorf (and by association the rest of the computer underground). However there is little to indicate that this is true, and there is no reason to doubt the sincerity, albeit misinformed, of Cook et al. (As the old saying goes, do not attribute to malice that which can be adequately explained by stupidity.)
Finally, the long term effects of this case, if any, remain to be seen. The Secret Service is still in possession of much computer equipment and seized belongings. While we don't expect the decision in Neidorf's trial to have any ramifications for the other investigations (Neidorf, after all, wasn't a hacker himself), we do wonder if perhaps the cries of "computer underground conspiracy" and "communist plot" will subside. Perhaps this will allow everyone a moment to reassess their assessment of the danger the computer underground represents.
First Amendment issues connected with this case, and their implications for 2600, TAP, P/HUN, and even Computer Underground Digest, have not been decided. Judge Bua struck down a pre-trial motion (filed by the EFF) on the First Amendment and unfortunately that "ruling" is the only Constitutional debate that ever came to a head. Neidorf won't be the test case for this issue, but eventually someone will. Let's hope that in the interim some other electronic publishing case will set a precedent on this... hopefully one that covers a topic that is not the lightning rod the C.U. seems to be.
COUNT TWO
"...defendant herein, for the purposes of executing the aforesaid scheme did knowingly transmit and cause to be transmitted by means of a wire and radio communication in interstate commerce from Columbia, Missouri to Lockport, Illinois certain signs, signals and sounds, namely: a data transfer of Phrack World News announcing the beginning of the 'Phoenix Project' in violation of Title 18, United States Code, Section 1343."
==Phrack Inc.== Volume Two, Issue 19, Phile #7 of 8 PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN >>>>>=-* Phrack World News *-=<<<<< PWN PWN Issue XVIV/1 PWN PWN PWN PWN Created by Knight Lightning PWN PWN Written and compiled by Knight Lightning PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN PWN >From The Creators Of Phrack Incorporated... The Phoenix Project >>>>>>>>>>>>>>>>>>> -=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Just what is "The Phoenix Project?" Definition: Phoenix (fe/niks), n. A unique mythical bird of great beauty fabled to live 500 or 600 years, to burn itself to death, and to rise from its ashes in the freshness of youth, and live through another life cycle. Project (proj/ekt), n. Something that is contemplated, devised, or planned. A large or major undertaking. A long term assignment. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Why is "The Phoenix Project?" On June 1, 1987 Metal Shop Private went down seemingly forever with no possible return in sight, but the ideals and the community that formed the famous center of learning lived on. On June 19-21, 1987 the phreak/hack world experienced SummerCon'87, an event that brought much of the community together whether physically appearing at the convention or in spirit. On July 22, 1987 the phreak/hack community was devastated by a nationwide attack from all forms of security and law enforcement agencies...thus setting in motion the end of the community as we knew it. Despite the events of July 22, 1987, PartyCon'87 was held on schedule on July 26-28, 1987 as the apparent final gathering of the continent's last remaining free hackers, unknown to them the world they sought to protect was already obliterated. As of August 1, 1987 all of the original members and staff of the Metal Shop Triad and Phrack Inc. had decided to bail out in the hopes that they could return one day when all would be as before... THAT DAY HAS COME... A new millennium is beginning and it all starts on July 22, 1988. How fitting that the One year anniversary of the destruction of the phreak/hack community should coincidentally serve as the day of its rebirth. Announcing SummerCon '88 in (where else would you expect) St. Louis, Missouri! Knowledge is the key to the future and it is FREE. The telecommunications and security industries can no longer withhold the right to learn, the right to explore, or the right to have knowledge. The new age is here and with the use of every *LEGAL* means available, the youth of today will be able to teach the youth of tomorrow. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SummerCon'88 is a celebration of a new beginning. Preparations are currently underway to make this year's convention twice as fun as last year's and the greater the turnout the greater the convention shall be. No one is directly excluded from the festivities and the practice of passing illegal information is not a part of this convention (contrary to the opinions of the San Francisco Examiner, and they weren't even at the last one). Anyone interested in appearing at this year's convention should leave mail to Crimson Death immediately so we can better plan the convention for the correct amount of participants. The hotel rooms purchased for SummerCon'88 are for the specified use of invited guests and no one else. Any security consultants or members of law enforcement agencies that wish to attend should contact the organizing committee as soon as possible to obtain an invitation to the actual convention itself. Sorry for the short notice this year... :Knight Lightning "The Future Is Forever" -=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- =============================================================================The above would have been good for a $1000 fine and up to five years in prison, if Neidorf had been convicted. Welcome too the nineties.