And it's exactly 8 o'clock, you're listening to radio station WBAI in New York, and it's
Tuesday night, that means it's off the hook time.
And it's exactly 8 o'clock, you're listening to radio station WBAI in New York, and it's
Tuesday night, and it's exactly 8 o'clock, you're listening to radio station WBAI in
New York, and it's exactly 8 o'clock, you're listening to radio station WBAI in New York,
and it's exactly 8 o'clock, you're listening to radio station WBAI in New York, and it's
exactly 8 o'clock, you're listening to radio station WBAI in New York, and it's exactly
8 o'clock, you're listening to radio station WBAI in New York, and it's exactly 8 o'clock,
you're listening to radio station WBAI in New York, and it's exactly 8 o'clock, you're
listening to radio station WBAI in New York, and it's exactly 8 o'clock, you're listening
to radio station WBAI in New York, and it's exactly 8 o'clock, you're listening to radio
station WBAI in New York, and it's exactly 8 o'clock, you're listening to radio station
Machines, machines, we made them to serve us Machines, machines, we built them to serve
us But till the day that I'm buried in my grave
Yes, right until that day I know I'm gonna be a slave, a slave, a slave, a slave
To the machines, machines, they keep right on grinning
Machines, machines, they keep right on grinning
You know, it's really cool when you find a song that hasn't been around for, you know,
25 years and it's perfect, perfect for everything that you stand for and believe in.
It just fits.
Yeah, Lothar and the Hand People from God knows when back in the 60s, Machines.
Wow, it's been quite a week, quite an action-packed week for all of us.
Of course, we've got all kinds of things going on here.
We're at the Linux Expo.
Isaac, I saw you over there at the Linux Expo this past week and what a lot of fun that was.
Well, I wasn't there for the Linux, but...
No, that may be true, but still, it was a fun bunch of people to hang out with for a few days.
And we have a couple of news items.
We're going to be talking with Kevin Mitnick live on the radio, which I don't think has
ever happened anywhere before.
That is a first.
Well, it's happened on the ham radio before, because he's a ham radio person.
Broadcast radio is another story.
Yeah, but this is the first, as far as I know, the first FM radio broadcast live going out over the airwaves.
Well, we have some fun news from the KGB.
Well, actually, they're not the KGB anymore.
Do you know what the successor to the KGB is?
The FSB?
That's very good.
Thank you.
That's very good.
A lot of people just think the FSB is a TV station in Hartford, but no, it's a lot more than that.
It's a lot more of a front for the Russian spy agency.
How did you think I not knew that?
I don't know.
I have a very low opinion of some people sometimes.
Thank you.
Yeah.
Well, anyway, about the FSB.
Yeah, well, they have a grand project codenamed SORM, S-O-R-M.
In fact, the headline of the story, KGB takes Internet by SORM.
Kind of cool.
To spy on its citizens' Internet transmissions.
That's right.
We talk about Russia, not the United States.
We're talking about Russia this time.
As if that weren't disturbing enough, last month, acting president and ex-KGB agent Vladimir Putin gave the Orwellian project a momentous but little-noticed power boost.
Now, not only is the long-feared FSB allowed to implement the spy technology and use it at will, but so are seven other federal security agencies, including the tax police and interior ministry police.
And he enacted this in his first week in power.
Is that something?
This new SORM technology, according to opponents, allows security agencies to bypass the legal requirement to obtain a warrant before monitoring private correspondents and will put an end to privacy and to the Internet as an instrument of democracy.
Well, strong cryptography could certainly keep people off the streams.
Well, that's certainly true.
And I'd like to start a program to encrypt every single message going in and out of Russia.
But I do believe they had passed some strong anti-cryptology legislation.
That's what I was looking for.
Yeah, that kind of...
If you engage in it, you wind up equally in jail anyway.
Exactly. You're a criminal if you do this.
So, meanwhile, back here in the States, of course, we're involved in a legal battle that I intend to bring all the way to the Supreme Court.
And, of course, you know what I'm talking about, right?
What would that happen to be?
The parking ticket I got last week.
Oh, that's right.
What did you think I was talking about?
The parking meter downstairs that you put quarters in and the number doesn't go up.
And I got a ticket for that, even though I put the money in.
Do you know if you go down there right now, it still is doing it?
Really?
Yeah.
I'm still a witness.
You're still a witness.
You're a witness.
I had another witness.
Anybody that comes down here can be a witness.
But, you know, we need to get it on video.
So if anybody has a video camera, please show up.
Oh, how about that?
There's a video camera in the room.
Okay, well, we can use that.
We're going to make some testimony there.
But, no, there's actually another issue that we're involved in heavily, of course.
And that's the DVD crisis, as it were.
I have a confession to make.
What's your confession?
You watched a DVD this week?
No, I actually bought a DVD.
It was like a sale.
The music stopped at just the right moment.
Well, do you even have a DVD player?
I thought I did.
I have a DVD drive.
And, unfortunately, my Mac will not run the DVD player software that Apple has.
Well, gosh, you know what you're going to have to do?
I might just have to return it.
You're going to have to design your own player.
Oh, my.
You'll get a world of hurt for trying to do that.
Well, I don't associate with you anyway.
How about that?
That's kind of cool.
Echo.
I don't know why we're getting echo there.
Well, I know why.
Because I was bringing up the cassette player.
And we have actually a comment from somebody on this issue.
I'm kind of leery now if it's going to work.
Because it's not supposed to do that, make that noise.
Basically, at the Linux Expo, obviously, Linux is at the crux of the matter.
Because it was people who developed a Linux player that wrote the program DCSS.
By the way, the author of that program, or the alleged author of that program,
and one of the distributors of it, will be on the show at some point.
I'm not sure if it will be next week or the week after.
John Johansson was arrested by Norwegian police.
And, of course, a bunch of us are being sued here in the United States by the Motion Picture Association.
We had a bunch of leafleters going out last Friday concerning this.
And we did great.
We did amazing.
We handed out over 3,000 leaflets in New York.
A lot of you theater goers may have gotten a leaflet handed to you.
Not shoved in your face like some leafleters.
But we were very polite and we had a very good response.
And this happened all throughout the world.
You can see some of the accounts over on 2600.com.
Thank you to those volunteers.
Yes, it really was great.
We got a lot of people from the Linux Expo to take part as well.
And a lot of Linux user groups throughout the world also took part,
as well as the 2600 meetings, which we're meeting in 100 cities last Friday.
At the conference, of course, it was a very hot topic.
Everybody knew about this.
And it was really cool to be able to go to a place like Javits
and actually have the place filled, I'd say 90% plus,
of intelligent people that understood exactly what the situation was.
And you didn't have to explain every detail and nuance
as to why we're right and they're wrong.
And, of course, you had Linus Torvalds there, the creator,
the great maker of Linux.
Here's what he had to say.
Let's hope this works.
No, of course it didn't work.
Okay, well, why don't you banter for a second
while I figure out why this didn't work.
Well, Linus was certainly at the conference.
And was it his opening address or a later address
in which he was somewhat upset over the MPAA's restrictions?
It was the keynote speech, the keynote address, yeah.
And that was pretty much where he expressed his discontent.
Well, there were a lot of people.
I'm going to hit a button that I really don't think I'm supposed to hit,
but I'm going to hit it anyway because, oh, wait a minute,
did I, I think I know what I did.
I think I pushed, hello?
Yeah, okay, I pushed the wrong button.
It's my fault.
I'm willing to admit when I make a mistake,
and I made a mistake this time.
Okay, this is what the founder of the whole Linux project has to say about it.
Thank you very much.
There.
Hi, Linus.
I'm Bruce Perens.
Hi, Bruce.
This question is not an ad for my company.
I have an old laptop, and I'd like to play DVD discs on it.
What do you have to say about that?
Well, I hate the DVD situation as much as anybody who knows what's going on.
The DVD situation right now is that we have all the technology.
We also have large companies who are acting very unfriendly
so that we can't use the technology.
This is a perfect case of a company who, or companies,
who actually want to screw their customers over.
So by, what happens is that the DVD industry wants to control the market,
and they want to control it not by being a good technical solution.
They want to control it by just locking customers into a certain solution.
So obviously Linux has been fairly well publicized as the DVD cracking thing,
which was really just a case of people wanting to play DVDs on Linux.
And people got sued, and nobody's in jail,
but some people were taken into custody and questioned
under the bright stare of the police lamps shining in their eyes,
and it's not very pleasant.
I think that what will happen is, I hope what will happen is
that the DVD consortium will lose this lawsuit,
and we'll just have DVD on Linux freely,
and not just on Linux, but anywhere you want to have it.
If that doesn't happen, probably a commercial company will come in
and license the deal because it's obvious that there is a need.
I watch DVDs on Linux myself, but I can't give the binary out
because it's legally encumbered.
This is not something I can decide on.
I hope that maybe Linux companies will help,
especially the Electronic Freedom Foundation,
in fighting this lawsuit.
It's out of the technical people's hand.
Okay, and that took place last Wednesday.
That was Ernest Torvalds, the founder of Linux,
the person who put it together originally.
It's Electronic Frontier Foundation, by the way.
Nobody can seem to get that right.
You can find out more about them at www.eff.org,
and they're certainly taking a front seat on this particular case.
In fact, a related case, mp3.com, is striking back.
They're suing the recording industry of America.
Isn't that cool?
That's not bad.
They're filing a countersuit,
and they're accusing them of engaging in unfair business practices.
Of course, RIAA filed a suit against mp3 a few weeks ago,
and it's considered to be all pretty much a coordinated effort
to win public approval.
But, you know, they're going to lose this fight.
They really are, because the public, once they're educated,
and I know this firsthand, once they're educated,
they turn, and they realize who's telling the truth and who is not.
Speaking of telling the truth and who is not,
you see the reports about Yahoo over the past day?
The New York Times today, look at this.
Yahoo blames a hacker attack for a lengthy service failure.
Yahoo blamed a planned attack by computer hackers
for a service failure that lasted nearly three hours today,
actually yesterday, in a rare interruption
of one of the most popular and best-performing sites on the World Wide Web.
Well, that reads like an advertisement, doesn't it?
Basically, you know, you don't just go blaming somebody without evidence.
They say, oh, hackers did this.
Oh, but sure you can.
Well, they did, obviously.
It just happened.
But how do you know hackers did it?
How do you know?
I mean, somebody going out there and turning on, you know,
an OC-12 or whatever and aiming it at somebody
and overwhelming them with all kinds of nonsensical packets
and bringing them down to their knees
and taking them off the net entirely,
that turns them into a hacker just because they do that?
I mean, you know, anybody with the access could have done this.
And not everybody with access is a hacker.
Well, there are far more elegant ways to deny them service as well.
Mm-hmm.
None of these are particularly, you know,
worthy of the title hacker either.
Yeah, I mean, I think anybody in the hacker world,
even if it was somebody that was in the hacker world
that somehow got access to all of this bandwidth,
and we're talking a lot of bandwidth here,
they're saying a gigasecond is what they were being hit with,
which I think someone from Yahoo said that's more bandwidth
than some sites experience in a year,
which may certainly be true.
But, you know, just because somebody does this
does not make them a hacker.
And I think anybody in the community,
if it did turn out to be somebody inside the community,
would definitely say that person's a criminal, not a hacker.
There's a big difference there.
Well, somebody who certainly knows something about the difference
between criminals and hackers
is someone we've been talking about for many, many years
here on this program.
He's the center of the whole Free Kevin movement.
And, of course, that would be Kevin Mitnick himself.
Kevin, are you there?
I'm here.
How are you doing?
Doing a lot better than I was a few weeks ago.
Or a couple of years ago, even.
Oh, yeah.
You know, do you realize next week, a week from today,
is the fifth anniversary of your being captured in North Carolina?
Right.
No, I fully am aware of that.
That's really something.
I don't think people realize how much has changed in those five years.
I mean, when you first went in,
the net was a completely different place, wasn't it?
Yeah, I think the mosaic was at version 1.0
and people were using links.
I mean, the Internet has completely boomed while I was in custody.
I think there was very little e-commerce at the time as well.
You were on CNN today, in fact.
I just found out about this a little while ago,
but you were saying something about the whole Yahoo incident.
Yeah, they wanted to interview me
because they wanted to ask some questions about the Yahoo incident
and what I knew about it.
They had some other general questions about me personally.
What I determined through my sources
is that Yahoo did not experience a denial-of-service attack
because, from what I understand, nobody's claimed responsibility,
and usually that would happen.
Secondly, the other people that are provided service
by the upstream provider of Yahoo were also not affected.
Usually, in any case where you have a denial-of-service attack,
all the bandwidth that would be consumed by that
would also affect the other customers of the ISP.
I don't know.
I don't know what's the truth and what isn't.
At least you're not going around saying a particular group of people did it.
We're customers of Yahoo, too.
That's typical of the New York Times.
I wouldn't believe anything I read in the New York Times.
Well, now you have a special relationship with the New York Times, don't you?
Yes, I should disclose that I have a past relationship
with specifically one reporter that wrote pretty much several libelous
or false and defamatory claims against me,
which subsequently circulated throughout international and national press
as being the truth, which it wasn't.
I remember seeing that article five years ago, the front-page article.
I'm not talking about the one on July 4, 1994.
We'll get to that one in a little bit,
but the one on February 15, 1995 by John Markoff
that basically was giving the details of your arrest in North Carolina.
In the first paragraph, they said that you were caught with 20,000 credit card numbers,
and I think it was 19 paragraphs later that he mentioned
that there was no indication that you had ever used any of them.
Right, I was never charged with any crimes involving any possession of credit card numbers.
And I can say to this day that I've never used
nor intended to use anybody else's credit card.
And also we can say, because I printed it a year earlier,
we disclosed the existence of that file floating around all over the Internet
and that hundreds if not thousands of people had gotten a hold of it,
and its possession certainly was not an indication of using credit card numbers.
I did possess the entire customer database,
including all the credit card numbers of all the Netcom customers,
and why I wanted to have that file in my possession
was not to abuse anybody's credit card per se,
but how Netcom authenticated that you were a valid user.
In fact, if you were to call up and say, I'm user Joe Blow,
and you wanted your password changed or you wanted any type of customer information,
they used the knowledge of your credit card number as a validation tool.
So it was just simply like having the list of everybody's mother's maiden name that used Netcom.
It was for authentication purposes only.
It wasn't to engage in any sort of credit card abuse.
Did you say they asked for the whole credit card number or just the last four digits?
No, they asked for the entire thing.
Like if you called up and said, hey, I'm Joe Blow.
I forgot my password. Can you change it for me?
They're going to ask you your name, your address, and your credit card number.
So they were constantly accessing this file and printing it out perhaps?
From what I understand, it was on an accessible partition to all of Netcom's customers.
Now, I don't think the file was a world read,
but with the number of vulnerabilities that exist in the Unix operating system, among others,
you could understand why that file was circulating six months ago.
Right, and they denied its existence when we brought it out to them.
They said, nope, no such thing.
Another lie.
I know, of course.
Wouldn't be the first time.
Let's get back to John Markoff.
Let's talk about the Article July 4, 1994.
That started the whole thing.
Basically, John Markoff, I would say, was the person that really created the myth of Kevin Mitnick for the world.
What he basically did is he made several claims in his writings.
For instance, that I broke into NORAD, that I planted a news story release about Security Pacific Bank
when I was turned down for a job, that I wiretapped the FBI,
that I led agents to raid somebody's house through manipulating some telephone switch,
among other things that simply not only did I not do, but did not occur.
At the same time, he taunted federal law enforcement agencies as being too stupid to catch me.
What he essentially did is I became a huge target for the government,
and John Markoff was successful at creating a character that he could write a book about.
What was really surprising is he never disclosed in any of his reporting, to the best of my knowledge,
that he had a prior relationship with me, because back in 1991,
he wrote a book called Cyberpunk with his ex-wife, Katie Hafner.
In this book, he profiled three hackers, me being one of them.
He wanted me to participate in this venture.
I said, I'd be willing to participate, let's discuss a fee.
He didn't want to compensate me for my time, so I basically told him, get lost.
I was basically told, well, anything we hear about you, we're just going to print as fact.
At that time, this was back in 1991, I was kind of naive at the time,
and I figured, well, even if they do do it, it will just blow over and nothing will come of it.
Who's going to read their book?
Well, it turns out that it had a huge effect on my life.
I'm sidetracking here.
But anyway, he never disclosed the fact that he had a prior business relationship
that went sour with me years prior to his article,
nor had he disclosed in subsequent articles about his close personal and professional relationship
with Shimomura, because what he was trying to do was create a Western,
like the bad guy versus the good guy.
Me being the bad guy and Shimomura being the good guy.
He created this fictional story, if you will,
and for some reason, well, of course we know why,
he never disclosed that he had prior relationships with me nor Shimomura.
Also, what is really surprising is Markov was also part of the investigation
while in Raleigh he was actually operating some of the equipment that they were currently using to track me
because Shimomura, since he was working with the full knowledge and acquiescence of federal authorities
and it was his intent to help the federal authorities arrest me,
he, according to federal laws, is what they call a de facto government agent.
So everything that Shimomura does, the same rules apply to any federal law enforcement agent.
And when Shimomura, when Markov essentially became part of Shimomura's team
and at the same time trying to report on the case,
he actually became part of the story but never divulged that fact in his reporting.
So I just understand all these breaches to be a huge breach of journalistic ethics,
but why it's not discussed is everybody seems to be afraid of the New York Times.
So I don't mind disclosing the truth of the matter.
And basically he ruined my life.
Anybody that has the power to write a fictional story that's accepted as truth by the world
on the front page of the New York Times has an enormous amount of power to destroy somebody's life.
And I couldn't complain if he wrote true facts.
And it would have been very simple for him to do some fact-checking.
In fact, in a subsequent article in Forbes, he was called onto the carpet,
at least with the NORAD, that being the more serious, the Northern Air Defense.
And he claimed he heard it from one of my friends,
but any reporter worth his salt would have called the alleged victim, being NORAD,
to determine whether or not they actually had a breach of security.
But he never did that, so he wasn't interested in the truth.
He wanted to create a caricature, if you will, that would give him the ability to write a book.
He essentially became a millionaire.
Subsequently he wrote a book, co-authored with Satoma Shimomura,
and then sold the rights to that book to Miramax Films, which they produced a movie called Takedown.
And when all was said and done, he made over a million bucks by telling lies about me
on the front page of the New York Times.
So obviously I'm not happy with that, and I intend to get the truth out,
because I think it's important for people to know that, number one, these things were not true,
and that the power of the media to basically unfairly change somebody's life.
Because I think things would have been a lot different
if I wasn't profiled on the front page of the New York Times as public enemy number one.
That was my next question, actually.
What was it that they were accusing you of at the time of your arrest?
At the time of my arrest?
Yeah.
In North Carolina?
Uh-huh.
At that time they charged me with basically using a clone cell phone.
I made 21 phone calls on a cell phone.
See, what I was doing is, when I'd access computers,
I would do so from a cell phone to make it more difficult to be tracked,
because not only would they have to track it to the cell site,
but somebody would actually have to go out and do some radio direction finding.
And I used the cell phone for the purpose of masking my location, not making free calls,
because most of the calls I would make would be to a local number,
and I could have just done that from my home phone at no cost.
But in any event, they used a federal statute which criminalizes
or prescribes the unauthorized use of access devices,
and coming within the definition of an access device is a cellular mobile phone number,
and it's an associated electronic serial number.
So essentially, what would have been a misdemeanor under state law in North Carolina,
they charged me with a 23-count indictment.
So I was virtually facing 460 years of imprisonment for making 21 illegitimate telephone calls.
That's absolutely incredible.
I guess that's the reason why you're not allowed to use a cell phone now for the next three years?
No, I think I'm not allowed to use it.
Well, it's really in the discretion of the probation department,
but after meeting with the probation department,
they feel that the judge is just putting all this decision-making in their hands,
and they don't want to deal with it because of my high profile.
So they say that anything that I want to do has to go back to the court.
So I could imagine that it's just going to be bouncing back between the court and the probation department,
and I'm going to be the loser in the middle.
Right.
But I'm not sure.
I just think that I don't believe that the judge came up with these conditions,
nor the probation department, because somebody very technical would have had to write these conditions.
I really think it was the FBI and possibly David Schindler and Chris Painter with the U.S. Attorney's Office
to basically write the conditions that would make it extremely difficult for me to support myself once I got out,
maybe in the hopes that I would turn to criminal activity to support myself
so they could really justify treating me very harshly if I were to get in trouble again.
And what's ironic is I've never done anything in relation to my computer trespassing.
There has been no relationship between any type of employment I've had and my computer hacking.
They were totally autonomous and separate.
And I feel that who knows why.
I think the conditions, if you want to know the truth, are purely punitive,
because when you're in supervised release, the purpose of supervised release is to reintegrate the defendant back into society
and to help them be successful and not return to criminal activity.
But in my case, they're not interested in my rehabilitation,
because the purpose of imprisonment nowadays is punishment, not rehabilitation.
They basically warehouse you.
That's what the Federal Bureau of Prisons does, and that's a directive from the Congress.
That's the Sentencing Reform Act of 1984.
But in any event, the conditions that were imposed against me are simply punitive,
intended to punish me and make it extremely difficult to live a normal life.
And there are going to be extremely difficult obstacles to overcome so I could be successful,
because I'm not interested in hacking anymore.
I mean, I enjoyed it when I was doing it, and now it's time to move on and meet other challenges.
It seems to me, though, that the government, during these periods of supervised release,
they actually seem to want someone to fail, to be sent back to prison.
It's like they get some kind of...
Well, they send an informant to try to entrap me.
I mean, there's a guy, Justin Peterson.
At that time, I was living in Vegas, and I was actually not doing anything.
I wasn't hacking or doing any type of, let's say, electronic enthusiast activities.
You were on supervised release back then for the previous sentence.
Yeah, I was on supervised release for hacking into DEC
and obtaining a copy of the VMS operating system,
because I wanted to learn all the different security patches that would be identified in the source code,
and that way I could figure out all the security holes.
And that was the purpose of getting a copy.
And why I had to copy it is it would...
Are you going to use DEC's machine to peruse through the source code?
Are you going to copy it somewhere else where you're not online to their computers so you can be traced?
So, of course, I would copy it to look at it later,
because it would have been an extreme risk to sit on the computer while browsing through the code.
Right.
But I was...
Before you asked me that question, I was on something else, but I forgot what I was talking about.
Well, we'll probably get back to that as soon as we cover everything.
But everything that happened to you pretty much since then
was based on something that happened during your previous supervised release.
Is that correct?
Well, no.
I mean, I had an informant target me, and that was Peterson, the FBI specifically.
You know, it's kind of like you have a guy who's a coke addict,
and he's a recovering coke addict,
and then the feds send a coke dealer to try to get him back on the drug.
Right, but if you're...
That's essentially what they did.
If you're on supervised release when that happens, it's all the worse, isn't it?
Because you violated your supervised release,
and that's reason enough for them to send you back to prison immediately.
Well, when I violated my supervised release was, one,
as I was associating with Louis DePayne, who was my co-defendant in a recent case,
and secondly, I was listening to the voicemail messages of Pacific Bell security agents
because when I learned that they actually were tapping my phone line
and had an intercept on my phone line,
and I traced it all the way back up to Pac Bell headquarters on Monterey in San Francisco,
I decided I was going to do some countermeasures,
and then I decided I would listen to the internal messages of their agents
to try to determine why they were monitoring my phone.
And, of course, I found out later it was because Peterson was working this investigation,
and apparently they established enough probable cause to put a wiretap on my dad's phone.
That's who I was living with at the time.
So, first of all, I think it was proven later that Louis DePayne wasn't even a felon,
so it wasn't illegal for you to talk to him. Is that right?
He did get his—well, I had a condition I couldn't associate with known hackers.
Uh-huh.
So, I mean—
You can associate with unknown hackers.
It was a minor technical violation according to law, but I still violated it.
But these are fairly trivial things.
It's because of these two fairly trivial things that everything that happened since happened.
Is that right?
Well, no.
I mean, what happened is a warrant was issued for my arrest.
They never told me about it.
My supervised release expired.
I learned that Peterson was an informant trying to entrap me.
I decided, well, I'm going to go underground to evade any questioning.
And then when I was underground, I continued my hacking activities,
and that's where I accessed the source code of all these different cellular phone providers—
I mean, phone manufacturers.
It was like a trophy.
It was pretty much for the intellectual challenge of getting in,
the knowledge I would gain, and the trophy of actually getting a copy of the code.
It was kind of like a trophy.
I did that, and then I moved on to the next.
Now, I didn't even read most of the code that I copied.
It was just, could I get it?
I got it, you know, and on to the next.
Now, according to these companies, that trophy is worth $300 million.
So, what do you think about that?
It's absurd.
First of all, these companies,
obviously it was a gross invasion of privacy by obtaining a copy without permission,
and it is wrong.
It's of the likes of copyright infringement,
like somebody going in and taking a copy of Microsoft Word,
which I'm sure you can go into any major corporation these days,
and they have illegitimate copies of software.
The only distinguishing factor would be is that, in this case,
it was source code, and usually these companies consider it proprietary.
They don't release it because it's really not necessary.
What the source code was was to the firmware that actually controlled the operations of these phones.
So, I obtained a copy of it, you know, basically to learn.
I was very fascinated with cellular telephone systems.
I wanted to learn all I can.
Ever since I was a young kid, I always wanted to get a job with a phone company,
so I really developed a fascination with telecommunications.
So, I copied the code, you know, again, as a trophy for the intellectual challenge of the knowledge,
and I did nothing with it.
I never used it, and I never disclosed it, never sold it,
never offered it for sale to anyone at any time, nor did I ever intend to.
And, hence, I've never deprived the companies of their property interest in their confidential information.
I simply copied it without doing anything more,
which must have caused some sort of loss.
How you measure that loss, I'm not an economist, so I don't know.
Well, it's very easy to say that copying something is equivalent to stealing,
but when you copy something, it's still there, so obviously it's not the same.
It all comes down to deprivation.
If you steal something or you commit a fraud,
the Supreme Court has held, and it's well settled,
that there has to be a deprivation of money or a property interest.
And deprivation means the person no longer has it.
You steal somebody's money, they don't have it.
You steal somebody's property, they usually don't have it.
But when the object of the property is intangible, such as confidential information,
which, again, the Supreme Court held that confidential information is property.
But the question is, at what point do you deprive somebody of their property interest and information?
And there's only one case that was decided by a federal appellate court in 1997 called U.S. v. Sabinsky.
And in this case, the court held that there had to be an intended use or disclosure of the information.
In other words, in every case across the board,
when information was stolen, it was always used to the substantial benefit of the person stealing it.
And that conduct deprives them of their property interest and the information.
But on the other hand, the court held that if you access information,
confidential information, just out of curiosity,
and they held up why that conduct is reprehensible, it doesn't rise to the level of fraud.
And in my case, this was the issue that I wanted to have tried in front of a jury of my peers,
but it was just too much of a risk.
I was basically given a choice.
You'll have a release date in ten months.
Because don't forget, I was held in prison for four years without even a bail hearing.
Not even, you know, no bail, no bail hearing.
I was held for four years without seeing the evidence against me.
And that's a longer sentence that people get for manslaughter, and I didn't even get to see the evidence yet.
So when the government comes and they make you an offer,
and they're dangling a carrot in front of you saying you'll be out in ten months for sure,
if you decide to go to trial, fine.
The litigation of the trial is going to be over ten months, okay, number one.
Number two, even if you win, let's say you get acquitted on all counts,
what David Schindler told my attorney to communicate to me is they'll simply just indict me in another district.
So I'd be going through revolving doors of trials.
And the government was going to get what they wanted anyway.
They were going to have me serve a specific amount of time, innocent or guilty.
So I figured, you know, I had enough of sitting in the Metropolitan Detention Center for four and a half years,
and I saw that the courts could easily disregard a defendant's constitutional rights
by not even giving them a bail hearing, which is required by federal law in the Constitution.
And I learned that when the government targets you and you don't have the resources,
they have a tremendous amount of resources, you know, unlimited investigators,
unlimited monies to prosecute you.
And at the same time I had a court-appointed lawyer who had limited time,
because they basically pay him a pittance to represent you.
And don't forget, defense attorneys can't drop their whole caseload to defend you properly.
They still have other clients.
So with that said and done, and that being a factor in the extraordinary bias of the district court judge in the case,
and that the prosecutors really wanted to make a name for themselves and advance their career by using me as the poster boy,
I figured, you know, the best thing to do would be just to, you know, just plead guilty to what they wanted,
you know, whatever it was, and sign on the dotted line and get myself out of jail in 10 months.
And that's what I did.
So, I mean, it didn't matter what the charges were, if I did them or not.
And I had to also agree that I caused the loss between $5 and $10 million.
But that's also a legal fiction, because what it really amounted to is they wanted me to do a certain amount of months in jail.
So what they did is they worked backwards through the federal sentencing guidelines and came up with, you know,
the highest loss that they can come up with to fit that sentence so they could, you know,
I guess gain brownie points with the press and the public by saying, well, he admitted he committed a $5 to $10 million fraud.
Well, that's absurd, because that number was just a legal fiction.
And that's essentially why I settled the case.
The chance, you know, it was too much of a risk to roll the dice and then go to sentencing in front of a judge who clearly didn't like me in a prosecutor's office.
I wanted to make a clear example of me.
Well, what could have happened to you had you gone to trial and lost?
Well, under the sentencing guidelines, you know, if the government persuaded the judge that the losses exceeded $80 million,
I could have been facing, like, from, you know, seven to 12 years in federal prison.
And the loss, you know, under federal sentencing has to be either an intended loss, like if you intend to, you know,
to steal $30,000 but you only get $10,000, they'll sentence you on your intended $30,000 loss.
So there was no, the intended loss in this case was zero.
The government was arguing that the actual loss in this case to these companies exceeded $80 million.
And why, you know, and what evidence I could point to that that's a total fiction is these companies are all publicly traded companies.
And the Securities and Exchange Commission requires these companies to report any material losses to their shareholders.
And the government's, you know, claims were substantial enough to be considered material.
So one has to question, why didn't any of these companies report to their shareholders or to their insurance companies any loss?
Well, I'll tell you why, because there wasn't any.
What the government had to do was they, to make me the poster boy, they had to exaggerate the harm that I caused to justify my treatment.
I mean, the FBI even went to the extreme lengths of soliciting these companies not to provide the actual economic harm that was allegedly caused by my activities.
The FBI directed these companies to provide the value of the property involved, being the research and development costs of the software.
And by simply copying a piece of software without doing anything with it, nor intending to, does not deprive the companies of their R&D because they enjoyed the full use and benefit of their programs.
That's like saying, if I read a screenplay to Jurassic Park 4 before George Lucas, you know, released the film on the market,
that I just deprived George Lucas of the millions of dollars that went into making the movie.
And it's scary. You know, everyone should realize that if the United States government targets you, that they will use absurd theories to justify severe punishment.
This sounds a lot like the Bernie S. case, as far as when the federal government targets you, they will do anything possible to win the case.
That's really what it's all about, isn't it? It's winning the case.
Yeah, I mean, look at the results. You've got Schindler, who became an attorney with Latham & Watkins.
You've got Chris Painter, who's now going to be the deputy chief of CSIPS, the Computer Crime and Intellectual Property section of the DOJ.
Oh my god.
So you've got these guys that have, you know, and you know it's not, you know, Schindler prosecuted the governor of Arizona, you know, Fife Symington.
He got a conviction, but it was overturned by the Ninth Circuit Court of Appeals.
And so the only case they had to hang their hat on was mine.
And I mean, you put a man in prison for four years without bail, a bail hearing, and not an opportunity to look at the evidence, you know, the guys, eventually, you know,
the person's going to realize the awesome power of the federal government, and, you know, they're going to do what the federal government wants.
That's right.
And I stood my ground as I wasn't going to become an informant, and I wasn't going to talk to them.
You know, they wanted me to put me through a debriefing.
I told them no.
It was a deal breaker.
We're speaking with Kevin Mitnick live on the radio here on Off the Hook.
Kevin, I imagine your case is going to be one that every computer hacker from now until infinity, when they're threatened by the federal government, they'll say,
look what we did to Kevin Mitnick.
I mean, you think that's what's going to happen?
Oh, absolutely.
You know, because if the media and the government, you know, kind of join, I'm not saying they join forces, but if they are successful at creating a cyber boogeyman,
you know, they're able, you know, number one, to try to convince the public to, for greater security, that they should give up more individual rights, like with encryption,
you know, like trying to, you know, I anticipate at one point they're going to allow, I mean, outlaw encryption that can't be broken by the government,
you know, to make it easier for digital wiretapping by requiring all these manufacturers of new digital type of equipment to build in back doors to allow, you know,
government agents to monitor communications.
And these things, these agendas of the government are easier advanced if they can point to somebody and say, well,
we've got to stop people like Kevin Mitnick from being able to, you know, do these, you know, horrible things, and this is why we need to do this.
Also, you brought up the point, they try to, you know, they want to scare the, you know, the heebie-jeebies into any other hackers.
You know, if they get caught, you know, they better sign their plea offer or agree to settle the case on the government's terms or look what we did to Kevin Mitnick will do to you.
And, you know, as a deterrent effect, and also the career advancement of the prosecutors.
I mean, my case was the biggest computer fraud case in history.
And when everything was said and done, look where the prosecutors are today.
Also, if you come up with enough scary scenarios involving hackers where nobody can prove anything, such as the Yahoo thing in today's paper,
that's going to make people, whenever they hear about computer hackers, say, yeah, we have to rein them in, we have to pass all this legislation, never mind our freedom.
It's scapegoating, you know, and just when there's a problem and, you know, the public, or I mean the media, easily points the finger at a group, you know, without, you know,
what it might very likely turn out to be a hardware failure, you know, at the router, you know, rather than any hackers deliberately causing damage.
And don't forget, it could be anybody in the world, you know, you're on the internet, and anybody in the world has the capability to circumvent computer security or to do denial of service attacks.
You know, what's to stop a competitor of Yahoo if they really wanted to from trying to disrupt their service to, so they can get, you know, build their customer base.
I mean, there could be a lot of reasons why people do things, but then they just label it as hacker, you know, whether or not the person's benign, you know, benign goofing around with somebody that's engaging in, you know, passing classified information to foreign power.
I mean, it's easy just to attach a label, and rather than looking at the underlying conduct.
I mean, you wouldn't go out and accuse outright a competitor of Yahoo for doing that, because you'd be sued if you did, without any evidence.
But they feel they can say hackers did this.
I don't have to worry about it. I don't have any money. No, I'm just kidding.
Come sue me.
But no, I mean, yeah, I mean, you know, I don't know.
You know, I guess you don't want to make any false accusations, because then you're doing the same thing that John Markoff did to me.
Exactly.
Kevin, we're starting to run low on time, but there's one thing I really want to touch upon in the time we have today.
And that's something that was not reported very widely at first, and something that a lot of people glossed over, especially Markoff, in their books.
And that's the fact that you spent eight months in solitary confinement back in 1989, I believe.
That's right. I had a federal prosecutor, when I was initially arrested, claim to the judge.
You know, this guy went through a laundry list of things that, you know, and again, just rumors that I allegedly disconnected the phones of actress Christie McNichol,
that I tampered with the TRW of a previous judge I was before, that I erased my police file and police computers,
that I could whistle into the phone and start World War III, that when I was turned down for a job at Security Pacific Bank, that I planted the false news story.
I mean, these were the exact allegations that, you know, that, oh, that I, in my, on my, they executed a search warrant, and on the floppy disk,
I had a who is printout of a site called Dockmaster, which was, you know, associated with the NSA.
And back then, you can do a who is on the site, and you could list the registered users.
It was like a public, a white pages on the internet.
And they, and the federal prosecutors claim that that was classified information of the NSA.
Okay. So, you know, not only are all those claims false, but they never did occur.
And we, and my attorney at the time hired a private investigator because he couldn't believe it.
You know, he said, are you sure you didn't do any of those things?
Because, you know, he couldn't believe a federal prosecutor would stand up in court and make all these claims, which weren't true.
So the investigator, I don't know, took one or two weeks and determined that not only did I not do them, these events never occurred.
And then when we tried to, because these events were the justification to hold me without bail and in solitary confinement.
And when the investigator came back, and we went into court in front of Judge Felser,
and my attorney wanted to bring up the fact that, you know, these claims were untrue, the judge wouldn't allow my attorney to speak.
She goes, was Mr. Mitnick charged with those things? And my attorney said no.
Then she goes, I don't want to hear it. So she would never allow me to clear my name.
But subsequently, after keeping me in solitary confinement for eight months, the government, you know, came to me and said,
well, if you accept our plea agreement, you know, one of the terms is we'll, you know, we'll lift the phone restriction.
Because that's how they did it, is they put a phone restriction on me, and the only place they can keep me was in the hole.
If you agree to, you know, plead guilty, we'll lift the phone restriction and you'll be in general population.
So, you know, after eight months of solitary confinement, you get, you know, you get kind of stir-crazy.
So I'd sign anything. So of course I signed the agreement and I got out of solitary back then in eight months.
But, you know, after I pled guilty, the L.A. Daily News did a story, I think it's on my website, you know, freekevin.com,
where the federal prosecutor, because the news media asked, you know, well, what about all these allegations that, you know,
you claimed, you know, to hold this guy without bail?
And the federal prosecutor says, oh, all those rumors didn't pan out.
And so, you know, I, you know, so pretty much federal prosecutors retracted those allegations,
yet they were used to treat me in such a horrible way.
And then you have a New York Times reporter that took, you know, a couple of those allegations
and printed them as fact on the front pages of the New York Times.
You mentioned also that Judge Fouser was the person who put you in solitary.
Same judge you got for this case, right?
Yeah, that was, yeah, that's true.
She didn't put me in solitary, but she knew what the effect was.
And when my attorney brought it to her attention, her comment is that's exactly where I belong.
She apparently, you know, has just formed an opinion about me based on what I do not know
and has decided from the beginning that I'm, you know, that she doesn't like me and treated me as such.
Well, Kevin, she probably reads John Markoff articles, don't you think?
I don't know where she gets her information.
All right, Kevin, we're just about out of time,
but I want to give you a chance to talk about things that you need as far as support now,
the support you've gotten from people.
We managed to track down the address, so you don't have to worry about that.
We didn't have your mailing address and neither did you.
Well, what I've got to say is I've had a tremendous amount of support.
And, you know, while I was in prison, several people wrote me letters and cards,
and I couldn't respond to them.
And in the beginning, while I was pending trial, I wouldn't respond to anything
because I was really concerned that, you know, it could be another informant trying to set me up.
So I was, you know, very careful to, you know, I only responded to a handful of people.
But that's not to say that I didn't, you know, appreciate everybody's gratitude.
And, you know, it takes time to sit down and write a letter to somebody,
especially to somebody you don't know sitting in prison.
And it really helped me get, you know, through some of the rough spots there.
And I really appreciate, you know, from the bottom of my heart,
all the support that I've received from all around the world.
It was really uplifting, and I still continue to get letters today.
And I just really appreciate it.
I know that you've been an inspiration to people all around the world
as far as just standing up to injustice and sticking with it for five years in horrible conditions.
I know a lot of us would not have that kind of strength,
and we're all very happy that you're out now.
We want to make sure that you make it, that, you know,
you're not entrapped into anything or forced to lead a substandard life.
So if there's anything that you need that you would like people to send you
that would help make life a little bit easier to adjust to,
because, you know, coming out of prison for five years, that's quite an adjustment,
as Bernie S. told us after just being in for a year or two.
So please let us know.
We have your mailing address, so anything that we can send to you.
What I really need is a good-paying career or job.
I need to get associated with something where I can make a good living for myself.
That's the most important to me, aside from material things.
But I need to get my feet back on the ground and start living a good life.
I'm 36 years old, and life's too short to have it all go by you
and not be situated in a good career.
Aside from that, I appreciate anybody's letters and cards.
I received a lot of music in the mail and some videos.
I like action videos.
I want to get Enemy of the State.
You know, like Rolling—
Enemy of the State is a good movie. I saw it in prison.
Yeah, it is good.
I like Rolling Stones, you know, ACDC, Guns N' Roses, Bob Dylan, Metallica, Tom Petty,
you know, those types of—
There you go. Kevin's musical tastes have been revealed.
You're reminding me of, you know, whenever I thought about myself
of enduring this tragedy that I had to endure over all these years,
I think of Tom Petty's song, you know,
I'll stand my ground and I won't back down, you know.
Yeah.
You know, that's how I felt, and I still feel that I'm not—
You know, I still have my First Amendment, and I'm going to—
You know, it's important for me, I think, to tell the truth behind the story,
number one, to clear the air about what I really did do and what I didn't do,
and also to inform the public that you have this thing called the Constitution
and the Bill of Rights, and, you know, that prosecutors will disregard them
and the courts will turn a blind eye to it,
even though, you know, the men and women of this country
have went to war to protect the Constitution.
Kevin, I hate to cut you off, but we are out of time.
Hopefully, you'll come back in the future.
We can continue this discussion, maybe take some phone calls.
All right.
We've got a lot to talk about.
Well, good talking to everybody, and I hope it was informative.
And let's give out Kevin's address.
Kevin Mitnick, 2219 East Thousand Oaks Boulevard,
number 432, Thousand Oaks, California, 91362.
Kevin, we'll talk to you again sometime. Take care.
All righty.
And this is Emanuel Goldstein.
We'll be back again next week with another exciting edition of Off the Hook.
For Isaac, have yourselves a good night.
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Now that's something that can't be confiscated.
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