Forwarded From: malat_private http://www.wired.com/news/news/politics/story/14855.html Hacker Can't Get Access By Arik Hesseldahl 8:35pm 4.Sep.98.PDT The epic legal wrangling in the Kevin Mitnick case took a new turn last week when the accused hacker lost an appeal to access certain encrypted data that his attorneys say could help him. The data, seized by the FBI from Mitnick's computer when he was arrested in 1995, could contain evidence that could prove him innocent of some of the charges against him, according to his defense. In its encrypted form, the data is useless to prosecutors, who may have tried to decode it and failed, said Donald C. Randolph, the Santa Monica, California, attorney defending Mitnick. Mitnick is facing federal charges of stealing millions of dollars in software from computer companies, such as Digital Equipment Corp. The indictment lists 25 counts: 14 counts of wire fraud, eight counts of unlawful possession of access devices (in this case, files containing user names and corresponding passwords) and one count each of unauthorized access to a federal computer, causing damage to a computer, and unlawful interception of electronic communications. He has been sitting in a California prison cell for nearly three and a half years. When Randolph was pushed to explain what the new data might include, he would only offer a hypothetical example. "Such a file might be a letter from a recreational hacker to my client saying they had hacked into company XYZ, and asking if he would like to see the information on how to do it," Randolph said. "Something like that might show that one of the alleged victim companies was hacked by someone other than my client." Assistant US Attorney Chris Painter said the government doesn't plan to use the encrypted data in its case, and that any claims that the data could help Mitnick's case if decrypted are mere speculation. "We told the judge that giving him access to those files was like giving someone access to a locked safe that might contain a gun," Painter said. "[Mitnick's attorneys] claimed in court that the data might contain exculpatory evidence but offered no further explanation." Greg Vincent, Randolph's associate on the case, said that under federal rules, Mitnick should be given access to all the evidence against him, and that by denying such access, the government is opening itself up to losing an appeal should Mitnick be convicted. Vincent also said the government was willing to give access to the encrypted files, provided that Mitnick hand over the password. This, said Vincent, would violate Mitnick's Fifth Amendment rights against self-incrimination. Painter confirmed that the files had not been decrypted by the government. "These are obviously files the government does not plan to use, but because we don't know what's in them, we don't think they should be turned over," Painter said. In another development, US Supreme Court Justice Sandra Day O'Connor declined on 31 August to hear an emergency appeal to obtain bail for Mitnick. That decision guarantees that Mitnick will remain in prison pending his trial, which is due to begin on 19 January 19 1999. Mitnick has also begun reviewing evidence against him using a laptop computer that a US District Court judge finally agreed upon in July. The laptop is disabled from connecting with the outside world. It has no modem, and no network card. The data is recorded on write-disabled CD-ROM disks. Mitnick is only allowed to use the computer in the presence of either Randolph or Vincent at the Metropolitan Detention Center is Los Angeles. "It would be a lot more efficient if he could review it on his own time, but the judge has decided that he must do it under our supervision," Vincent said. If convicted, Mitnick could face up to seven years in prison, Painter said. -o- Subscribe: mail majordomoat_private with "subscribe isn". Today's ISN Sponsor: Repent Security Incorporated [www.repsec.com]
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