March 19, 1999

Deal Said to Be in Works That Would Free Hacker

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Release Could Come in About a Year

By ANDREW POLLACK

OS ANGELES -- Kevin D. Mitnick, perhaps the nation's most notorious computer hacker, has reached a plea agreement with Federal prosecutors that could pave the way for his release from prison, people involved in the situation said.

David J. Schindler, an Assistant United States Attorney in Los Angeles, confirmed that a filing had been made under seal in the Federal District Court here regarding Mitnick, but would not discuss its contents or even confirm that it was a plea agreement.

But The Los Angeles Times reported this morning that under the agreement, Mitnick would plead guilty and could be out of prison in about a year, given the time he has already served and time off for good behavior. A person involved in the matter said that article was essentially accurate.

The plea agreement, which still requires the approval of United States District Judge Mariana R. Pfaelzer, who is presiding over the case, would avoid a trial that was scheduled to begin in a few weeks.

[Donald Randolph, Mitnick's court-appointed attorney, told the Associated Press that a deal had been struck this week. "We don't want to say anything that would influence the court's decision," he said. "We are cautiously optimistic that the court will accept the agreement."]

Mitnick, 35, who has been breaking into computers since he was a teen-ager, is charged with stealing millions of dollars of software from several manufacturers during a two-and-a-half-year spree. He is also charged with stealing files containing passwords and fraudulently using cellular phones in order to make calls and computer connections untraceable.

Mitnick has been in prison since February 1995, when he was arrested in North Carolina after being a fugitive for more than two years. His downfall came, officials said, after he broke into the home computer of Tsutomu Shimomura, a researcher at the San Diego Supercomputer Center, who then launched a sophisticated electronic hunt for the intruder.

Even after he leaves prison, Mitnick will not be able to use a computer or a cellular phone for three years without approval from his probation officer, according to a ruling in a previous conviction by Judge Pfaelzer. It is possible new conditions will be added to his probation by the latest settlement.

Mitnick first came to national attention as a lonely, overweight teen-ager who broke into a North American Air Defense Command computer. He became the embodiment of the hacker -- a young person subsisting on munchies and working through the night tirelessly trying to penetrate corporate and Government computers using a personal computer and modem. Some experts said such activities posed a grave threat to electronic commerce and privacy. Others saw them as little more than juvenile pranks.

Mitnick's supporters say the extent of his crimes has been exaggerated by the Government and the press. A World Wide Web site set up by such supporters maintains that Mitnick never profited from his actions and instead did what he did as a means of "satisfying his intellectual curiosity and applying Yankee ingenuity."

Hackers broke into the The New York Times site on the World Wide Web last September, protesting articles by John Markoff, a Times reporter who covered Mitnick's arrest and then wrote a book about the case with Shimomura.

Mark D. Rasch, former head of the Department of Justice's computer crime unit, said Mitnick had symbolic importance but that "he's not that important" in terms of damage done. "The techniques that he had and the skills that he had were about average," said Rasch, who is now an attorney working on Internet issues. "He was just more aggressive at doing it."

"People like Kevin are not the real threat to electronic commerce," he continued, adding that bigger threats come from foreign governments and a company's competitors.

Still, if found guilty on all counts and given a stiff sentence, Mitnick could have been in jail for years to come. "Both Mitnick and DePayne face life sentences, not realistically but potentially," said Richard D. Sherman, an attorney for Lewis DePayne, a friend of Mitnick's who is a co-defendant in the case.

Of the four years Mitnick has been in prison this time, 22 months were for violating an earlier parole and for cellular phone fraud. The rest of the time has been awaiting trial on the current charges. The judge denied him bail because he had fled in 1992 when he was being sought by law enforcement officials for violating the terms of the earlier parole.