Masters of Deception: The Gang That Ruled Cyberspace (30 page)

But here he is, the ringleader. A cameraman from one of the TV stations hugs him on the way out.

The story makes NBC's national newscast at six-thirty, with Tom Brokaw. It's the piece Brokaw ends with a forward-tilt,

something-to-think-about piece. There's a headshot of Fishbein speaking to the press and a close-up of Mark teaching a computer class at the New School for Social Research in Greenwich Village. Another shot focuses on Paul, sitting in the first row in the classroom and identified, in a voice-over, as the Scorpion. The piece closes with Mark, talking to the NBC

reporter, on a dark and rainy street. Mark says that he's definitely the victim of political persecution.

There will never be a trial.

So a lot of the arguments that might have been made about whether what the boys did with their computers was truly wrong would never be aired. A lot of murky issues would never be tested. For instance, was it really against the law to possess, on a floppy disk you carry around at school, the phrase "PHIB*SUX"?

There would never be a jury to decide whether publicizing the credit history of your rival's mom was crime enough to go to prison for a year. Or whether crashing The Learning Link and calling its operators "you turkeys" was crime enough to earn a jail sentence.

If there had been a trial, well, then the MOD conspiracy case could have set a precedent for the entire country, could have established a benchmark by which the government could track down other so-called computer criminals. But there wouldn't be a trial because all the MOD boys had pled guilty over the course of the year. They all had given up. What was left after that? It was up to the prosecutors to recommend a certain sentence, and up to the judge to mete it out.

That's how justice works.

From the day of Otto Obermaier's press conference, the case looks unbeatable to the defense lawyers. The government sends them copies of the evidence. Pages and pages of wiretapped conversations in which John and Julio discussed the intricacies, passwords, and logins, of proprietary corporate systems. Sometimes Mark was on the wiretaps, explaining precisely how to defeat Tymnet's security. A few times, Eli was recorded, too, asking Julio to use TRWNET to look up confidential credit reports. Federal law says it's illegal to break into private computer systems, and here the government had thousands of pages of notes, written in the boys' own hands, that incriminate them. Passwords and logins for phone company computers. Long-distance access codes. And in case the defense attorneys want to argue that simple possession of this information was no crime, well, then the government has hundreds of pages of printouts from Dial Number Recorders that show precisely which New York Telephone computers were dialed from the boys' homes.

And do you want to talk about intent? Do you want to make the argument that these were just poor scientists, and the world was their laboratory? Then try explaining Julio and John taking money from Morty. Try explaining that phone call where Julio said to Mark, "I would, like, crash everything. "

The facts trouble Mitch Kapor and John Perry Barlow, whose Electronic Frontier Foundation has been monitoring the progression of the MOD boys' case since the very beginning. They wonder whether the government has taken to picking on defenseless teenagers. One day in 1992, the EFF's staff lawyer (yes, there's a staff now, and an office in Cambridge) comes to New York City to investigate.

The EFF lawyer is named Mike Godwin. He looks over all the government's evidence against Mark, and he consults with Mark's lawyer, Larry Schoenbach. Godwin tells Mitch that the foundation should become more involved in the case, and that if Mark gets up on the witness stand, he might be able to convince a jury that what the boys did wasn't enough to land anybody in jail. Godwin, who once was editor of the daily newspaper at the University of Texas at Austin, has friends among the reporters at Newsweek and other national publications. He lays out a sweeping media campaign that the EFF could wage.

But Godwin's boss, Mitch, isn't so sure. For one thing, he doesn't like the idea that Mark kept hacking, even after his first bust. And there's another, bigger reason that the MOD case looks unappealing.

The political world was changing as fast as the online world was in the last half of 1992. Bill Clinton might be headed for the White House, and his would-be vice president, Al Gore, has promised to do everything he can to build what Gore has dubbed a "national information superhighway. " The White House will have a lot to say about government's role in policing the new electronic frontier, and the EFF wanted to be in a position to influence the Administration's gurus. People have warned Mitch that at this critical juncture in the young organization's development, the EFF should avoid being labeled a

"hacker defense fund. " You didn't get anybody's ear in the Capitol with a moniker like that. The EFF's board of directors finally voted to move the organization's headquarters from Boston down to Washington, D. C. If you were an adult, and watching closely, you'd see the message in this. There was more important work to be done than fighting a losing battle on behalf of a bunch of New York City kids who should have known better.

But what the EFF conveys to Mark is: Do what you think you have to do, and we'll help if we can.

Mark doesn't know what to do.

One day in November, he meets Schoenbach at his office on the East Side of Manhattan. For once, Mark arrives early.

He wears baggy jeans and a pristine white turtleneck, an outfit complemented by a gold hoop in his left ear and his signature bandanna, which fits neatly over the ring of hair he recently shaved close. He and his lawyer go to lunch at City Luck, a Chinese restaurant around the corner. Mark orders skewered steak steak on a stick, he calls it a Coke, and egg drop soup. He does not brave the chopsticks.

Schoenbach and Mark discuss the upcoming meeting with the prosecutors to take place three days from now. Mark's allergies bother him, as usual. He sniffs and sneezes and blows his nose as Schoenbach explains that Fishbein is about to offer a deal to all the MOD defendants. Schoenbach figures that in a case like this, if the defendants plead guilty and obviate the need for a lengthy and costly trial, then the prosecutors could recommend lenient sentences, maybe even no jail time. The MOD boys could all go on with their lives. The downside is that all the boys will be convicted felons. They can't hold office or vote for the rest of their lives.

It's a tough choice for Mark, especially since he doesn't believe he did anything wrong.

Schoenbach advises Mark to take the plea. Now, this advice is worth as much as any lawyer's in this country.

Schoenbach has years of experience navigating the federal court system, representing high-profile clients accused of crimes so heinous they don't bear repeating. Terrorists accused of bombing U. S. targets. Alleged Mafia functionaries.

Accused murderers. Although Larry has a fancy East Side office (the trompe l'oeil bookshelves in his lobby make the place as chic as any space in Manhattan) he also defends a lot of very poor clients. He's on the federal court system's roster of court-appointed attorneys. Unlike the public defenders who work in state court, these federal defense attorneys are actually guaranteed a decent hourly fee, courtesy of the U. S. court system. It's not bad money, so the job attracts quite a few private practice attorneys who wouldn't normally be attainable. And that's how clients like alleged terrorists and suspected members of Chinese extortion gangs get an attorney like Schoenbach.

Mark is Schoenbach's first client accused of computer conspiracy, and at first Schoenbach may have been a little befuddled by all this talk of Tymnet access, kilobytes, and hacker "meetings" to plan the conspiracy.

But back in August Schoenbach went to see the hackers gather for their 2600 conflagration, and what he saw of the hackers' culture

essentially, a bunch of wispy-moustached boys cavorting awkwardly and shyly in the indoor plaza convinced him that if you cut through all the technical crap, the case was pretty simple. A bunch of teenagers were trespassing. They got caught. And for this the government wants to label them felons.

Schoenbach doesn't think it's right. But he knows the law, and the law says that what Mark and his friends are accused of doing is illegal. That's the law, and unless you want to argue that the law's wrong, you don't have much of a defense.

He tells all this to Mark. But Mark is trying to navigate an unfamiliar and terrifying terrain, and he can't pull back far enough to see the contour of the landscape. He reminds Schoenbach that nothing really happened the last time he pleaded guilty. Just community service. He hears, but doesn't hear, Schoenbach's warnings that the judge could be harder on a second-time offender. He hears, but doesn't

hear, his friends' imprecations to stand united. He plays with his food in the restaurant, he orders a second Coke.

Mike Godwin calls Mark on the phone one night. He tells him that he knows that Schoenbach thinks Mark should plead guilty. He tells Mark that he will stand by him no matter what decision he makes.

At the meeting with Fishbein, the defense attorneys asked whether the prosecutor would recommend a lenient sentence maybe no jail time at all if all five boys agreed to plead together. Wrap up the whole case at once, you know?

Easier for the prosecution. Fishbein checked with his bosses, and said, well, okay.

But in the meantime, Mark has changed his mind. He refuses to plead. His friends try to convince him otherwise, but he will have none of it.

By this time, all the boys know where they stand. Each has made a trip, accompanied by an attorney, to Fishbein's office.

Fishbein has laid out the evidence. Here's what we have on you. The boys sat stony and implacable, taking it in, thinking this: I'm going to jail. Oh shit, I am really going to jail!

The facts are glaring to John and Julio. They're charged with the most counts, they're facing the most prison time. After all, John and Julio actually sold TRW accounts to Morty Rosenfeld. The government could argue, pretty convincingly, that John and Julio were hacking for profit. They wanted to make money off their crimes. It doesn't look good. John and Julio are likely to get stiffer sentences than the other boys if this case goes to trial and they lose. Both boys talk to their lawyers about the situation. They will plead guilty on December 2.

They arrive at the federal courthouse, a broad wedding cake of a building, looking nervous. John wears a Giants sweatshirt, but carries a white dress shirt still protected by a plastic dry cleaner's bag. Julio wears a suit.

As part of his guilty plea, John submits a written statement:

I was part of a group called MOD. The members of the group exchanged information, including passwords so that we could gain access to computer systems which we were not authorized to access. I got passwords by monitoring Tymnet; calling phone company employees and pretending to be computer technicians; using computer programs designed to steal passwords.

It's not exactly in John's own words, but he and his attorney have written it out, and now it's court exhibit 3 in the government's case against him.

I acknowledge that I and others planned to share passwords and transmitted information across state boundaries by modem or telephone lines and by doing so, obtained the monetary value of the use of the systems I would otherwise have had to pay for.

What?

In other words, he made some free calls. Who knows how much those calls were worth. The government can't even say.

"I apologize for my actions and am very sorry for the trouble I have caused to all concerned, " the statement concludes.

The judge accepts John's plea.

Then Julio stands up and admits that he broke the law: "There was a phone call I received on November fifth. John called me up and gave me passwords. "

That's all there is to it. They will be sentenced another day. John and Julio leave the courthouse, walking past a vendor selling umbrellas. The vendor yells to them, "Snow's coming. Get your umbrella. Snow tonight, tomorrow, and the next day. "

From that day on, the Masters of Deception no longer existed. Word leaked out that Julio had agreed to cooperate with the government, to testify against Mark at his trial. Julio was angry that Mark had refused a deal. Fishbein won't confirm that Julio was cooperating, but the hackers all saw through that. Paul no longer spoke to Julio. Mark no longer spoke to Julio, and refers to him as "Julio the Rat. " Eli tried to make peace between the former friends, but it was too late.

The five boys weren't standing together anymore. They were on their own.

Mark didn't talk much more about his decision to go to trial. He says he's innocent, of course. What did he steal? What did he break? The EFF will help him, of course. He'd pull a Miracle on 34th Street defense: Yes, I did all that stuff, but where was the harm? All it took was one juror to understand that, and there would never be a conviction. Still, the pending trial upset Mark's stomach. The tension was making him physically ill.

The U. S. Attorney's office has to prepare a full-blown trial, prepare dozens of witnesses to testify, organize rooms and rooms of evidence into a coherent argument that will convince a jury. A second assistant U. S. Attorney, Geoffrey Berman, gets assigned to the case with Fishbein. Together, Berman and Fishbein start to marshal their resources. Fred Staples spends hours and hours downtown, helping to decipher the lines of numbers and times and dates that the DNRs have generated. It's not as easy as it might seem, because if a hacker first called an ITT dialup, then used an ITT PIN

number to place a call, then dialed a ten-digit long-distance number, all those figures would be run together in a long stream, just as they were originally dialed. So Fred helps sort it out.

Fishbein and Berman make a list of potential witnesses. They interview staff at The Learning Link. They interview the system administrator of Southwestern Bell's C-SCANS computers. They talk to officials from all the other phone companies and businesses who were victimized. They prepare elaborate charts and graphics for the jury to explain the