HACKER HELD IN LEGAL LIMBO; LAWYERS PROSECUTING COMPUTER CRIME IN UNCHARTED TERRITORY.

Byline: Peter Hartlaub Daily News Staff Writer

Kevin Mitnick hasn't touched a computer in more than three years, but he still checks his e-mail.

The imprisoned hacker has to read it on good old-fashioned paper.

``His e-mail will be printed out and snail mailed to him,'' Mitnick's official Web site explains, sniping at the U.S. Postal Service's mode of message delivery.

Mitnick was once the most wanted computer hacker in the world, accused of vandalizing government, private and university computer systems, pilfering software and stealing 20,000 credit card numbers along the way.

After more than two years on the run, the former San Fernando Valley resident was arrested in 1995. Since then he's been in a federal prison cell in Los Angeles, short circuited by a court order that says he can't touch anything more complex than a calculator.

Now Mitnick's attorney is arguing in U.S. District Court that his client needs a laptop so he can view the electronic data that prosecutors have gathered - because printouts of the millions of pages would spill out of his cell.

It's a unique paradox for the Information Age: A man accused of wreaking havoc with computers might need the use of one to get to trial.

Federal prosecutors are horrified with the idea of giving Mitnick a computer in prison. They said he would be free to peruse every scrap of information they've gathered in the case - including the copyrighted software he allegedly pillaged.

``(It is) anomalous, if not irresponsible, for the government to provide defendants with copies of the very same proprietary software they are charged with stealing,'' prosecutors assert in court papers.

With plenty of time on their hands to read, it's not unusual for prisoners to have their entire case files in their cells, whether they are representing themselves or not.

The case against Mitnick is anything but usual. The defense claims the prosecution has gathered 200 million pages of discovery, which would necessitate a double-sided printout 125,000 times the size of Webster's New World Dictionary.

Mitnick's attorney, Donald Randolph, wants the documents to be electronically stored. He says Mitnick needs a laptop and a briefcase-size central processing unit equipped with a data translating device called a Sparcplug system.

``In a computer case, the defendant's ability to have meaningful access to prepare his defense is vital,'' Randolph said.

As Randolph points out repeatedly in his motion, Mitnick's prison computer would not have a modem. So it would be technically impossible for him to access data via telephone lines - to hack - even with a ``MacGyver''-style effort to tinker with the system.

Prosecutors say the government is willing to escort Mitnick to an off-site location and let him view the evidence in a supervised setting but don't want him to have private access to all of the data in any venue.

For one thing, they contend, some of the files contain data that has been scrambled with encryption software.

In court papers, Assistant U.S. Attorney David Schindler admitted prosecutors still don't have the passwords to look at encoded files that Mitnick might be able to decode if he gets a copy.

``Since the government has been unable to review certain encrypted files, we do not know if those computer files contain contraband,'' Schindler said. ``We have offered to provide Mr. Randolph with access to those files once he provides us with the passwords necessary to decrypt the files for review.''

A hearing on the computer issue scheduled for Feb. 16 was postponed indefinitely.

Mitnick's grandmother doesn't have e-mail, but she gets plenty of phone calls from the computer generation who make up her imprisoned hacker-grandson's fans.

Most are total strangers, from as far away as Brazil, who find a way to track down her Las Vegas phone number.

``They call just to tell me they're thinking of Kevin,'' Reba Vartanian said last week. ``I don't know where they get my number from.''

Mitnick's prison time may be stretching out, but his legend appears to be growing.

At his World Wide Web site, fans are treated to a virtual amusement park of Mitnick minutiae, including transcripts from old court hearings and his prison mailing address.

The site lists items supporters can send to his cell - letters, postcards, cash - what they can't: stamps, hardcover books, prepaid phone cards. His e-mail account (kevinkevinmitnick.com), is also offered.

``Do not include anything you do not wish prison officials to read,'' the Web site instructs.

Late last year, a group of hackers calling themselves Pants/Hagis managed to post an unauthorized message in Yahoo!, the Internet's most popular directory, threatening to unleash a computer virus if Mitnick is not released.

``On Christmas Day 1998, the logic bomb part of this virus will become active, wreaking havoc upon the entire planet's networks,'' the message warned.

The incident was widely regarded as a hoax. Of Internet news sources, only the Drudge Report suggested that the virus might really exist. But Randolph posted a note on the Mitnick Web site anyway, asserting that his client ``does not endorse causing harm to any computer users on his behalf.''

King of the hackers

Mitnick may be the poster boy for the hacker justice movement, but computer experts don't regard him as an all-star. For one thing, he got caught.

The craftiest computer outlaws are probably pillaging banks and insurance companies, which don't even realize they are being invaded, said Karen Coyle, regional director of Computer Professionals for Social Responsibility.

``I suspect that the hackers who have really done damage we don't know about,'' she said. ``(Mitnick) isn't all that sophisticated, he's just obsessed.''

Since Mitnick was jailed, the government's problems with hackers have gotten worse, not better. In February, hackers engaged in the most organized attack on the Pentagon computing system to date, apparently entering systems with information on personnel and payrolls.

Mitnick was caught in Raleigh, N.C., after a two-year cross-country journey marked with aliases, low-paying jobs and low-rent apartments. He was tracked down by computer security expert Tsutomu Shimomura, who helped the FBI after he suspected the fugitive was breaking into his computer and taunting him.

Mitnick pleaded guilty to illegal possession of telephone codes and violating probation last year, and probably would have been released by now if those were the only charges.

But the U.S. Attorney's Office is still pursuing a 25-count indictment, filed in 1996, accusing Mitnick of stealing software through the Internet and damaging University of Southern California computers, among other things. Lewis DePayne, Mitnick's alleged accomplice, also was indicted.

`Yankee ingenuity'

U.S. Attorney's Office officials say it considers the allegations against Mitnick serious and will continue seeking indictments against hackers who use computers and modems as weapons.

But Randolph views his 34-year-old client as a martyr. He asserts that Mitnick is stagnating in jail because the government made the mistake of treating him like a computer terrorist.

``Rather, Kevin pursued his hacking as a means of satisfying his intellectual curiosity and applying Yankee ingenuity,'' Randolph said in a Web site press release.

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PHOTO Kevin Mitnick

Genius or cyberpunk?