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J. STILL THINKING ABOUT TRIAL
Many hackers may remember the Craig Neidorf case over the famous 911 System
Operation documents. Craig won his case when it was discovered that the
manual in question, that he had published in Phrack magazine, was not
proprietary as claimed but available publicly from AT&T. It was an egg in
the face day for the Secret Service.
Don't be misled by this. The government learned a lot from this fiasco and
even with the laudable support from the EFF, Craig narrowly thwarted off a
conviction. Regardless, it was a trying experience (no pun intended) for
him and his attorneys. Th e point I'm trying to make is that it's tough to
beat the Feds. They play dirty and will do just about anything, including
lie, to win their case. If you want to really win you need to know how they
build a case in the first place.
K. SEARCH AND SEIZURE
There is a document entitled "Federal Guidelines For Searching And Seizing
Computers." It first came to my attention when it was published in the
12-21-94 edition of the Criminal Law Reporter by the Bureau of National
Affairs (Cite as 56 CRL 2023 ) . It's an intriguing collection of tips,
cases, mistakes and, in general, how to bust computer hackers. It's
recommended reading.
Search and seizure is an ever evolving jurisprudence. What's not
permissible today may, through some convoluted Supreme Court logic, be
permissible and legal tomorrow. Again, a complete treatment of this subject
is beyond the scope of this paper. But suffice it to say if a Federal agent
wants to walk right into your bedroom and seize all of your computer
equipment without a warrant he could do it by simply saying he had probable
cause (PC). PC is anything that gives him an inkling to believe you we re
committing a crime. Police have been known to find PC to search a car when
the trunk sat too low to the ground or the high beams were always on.
L. SURVEILLANCE AND WIRETAPS
Fortunately the Feds still have to show a little restraint when wielding
their wiretaps. It requires a court order and they have to show that there
is no other way to obtain the information they seek, a last resort if you
will. Wiretaps are also expensive to operate. They have to lease lines from
the phone company, pay agents to monitor it 24 hours a day and then
transcribe it. If we are talking about a data tap, there are additional
costs. Expensive interception/translation equipment must be in place to
negotiate the various modem speeds. Then the data has to be stored,
deciphered, decompressed, formatted, protocoled, etc. It's a daunting task
and usually reserved for only the highest profile cases. If the Feds can
seize the data from any other so urce, like the service provider or victim,
they will take that route. I don't know what they hate worse though, asking
for outside help or wasting valuable internal resources.
The simplest method is to enlist the help of an informant who will testify
"I saw him do it!," then obtain a search warrant to seize the evidence on
your computer. Ba da boom, ba da busted.
Other devices include a pen register which is a device that logs every
digit you dial on your phone and the length of the calls, both incoming and
outgoing. The phone companies keep racks of them at their security
departments. They can place one on your line within a day if they feel you
are defrauding them. They don't need a court order, but the Feds do.
A trap, or trap and trace, is typically any method the phone company uses
to log every number that calls a particular number. This can be done on the
switching system level or via a billing database search. The Feds need a
court order for this information too. However, I've heard stories of
cooperative telco security investigations passing the information along to
an agent. Naturally that would be a "harmless error while acting in good
faith." (legal humor)
I'd love to tell you more about FBI wiretaps but this is as far as I can go
without pissing them off. Everything I've told you thus far is public
knowledge. So I think I'll stop here. If you really want to know more,
catch Kevin Poulsen (Dark Dante ) at a cocktail party, buy him a Coke and
he'll give you an earful. (hacker humor)
In closing this subpart I will say that most electronic surveillance is
backed up with at least part-time physical surveillance. The Feds are often
good at following people around. They like late model mid-sized American
cars, very stock, with no decals or bumper stickers. If you really want to
know if you're under surveillance, buy an Opto-electronics Scout or Xplorer
frequency counter. Hide it on your person, stick an ear plug in your ear
(for the Xplorer) and take it everywhere you go. If you he ar people
talking about you, or you continue to hear intermittent static (encrypted
speech), you probably have a problem.
M. YOUR PRESENTENCE INVESTIGATION REPORT, PSI OR PSR
After you plead guilty you will be dragged from the quiet and comfort of
your prison cell to meet with a probation officer. This has absolutely
nothing to do with getting probation. Quite the contrary. The P.O. is
empowered by the court to prepare a complete and, in theory, unbiased
profile of the defendant. Everything from education, criminal history,
psychological behavior, offense characteristics plus more will be included
in this voluminous and painfully detailed report about your life. Every
little dirty scrap of information that makes you look like a sociopathic,
demon worshiping, loathsome criminal will be included in this report.
They'll put a few negative things in there as well.
My advice is simple. Be careful what you tell them. Have your attorney
present and think about how what you say can be used against you. Here's an
example:
P.O.: Tell me about your education and what you like to do in your spare time.
Mr. Steal: I am preparing to enroll in my final year of college. In my
spare time I work for charity helping orphan children.
The PSR then reads "Mr. Steal has never completed his education and hangs
around with little children in his spare time."
Get the picture?
J. PROCEEDING PRO SE
Pro Se or Pro Per is when a defendant represents himself. A famous lawyer
once said "a man that represents himself has a fool for a client." Truer
words were never spoken. However, I can't stress how important it is to
fully understand the criminal justice system. Even if you have a great
attorney it's good to be able to keep an eye on him or even help out. An
educated client's help can be of enormous benefit to an attorney. They may
think you're a pain in the ass but it's your life. Take a hold of it.
Regardless, representing yourself is generally a mistake.
However, after your appeal, when your court appointed attorney runs out on
you, or you have run out of funds, you will be forced to handle matters
yourself. At this point there are legal avenues, although quite bleak, for
post-conviction
relief.
But I digress. The best place to start in understanding the legal system
lies in three inexpensive books. First the Federal Sentencing Guidelines
($14.00) and Federal Criminal Codes and Rules ($20.00) are available from
West Publishing at 800-328-9 352. I consider possession of these books to
be mandatory for any pretrial inmate. Second would be the Georgetown Law
Journal, available from Georgetown University Bookstore in Washington, DC.
The book sells for around $40.00 but if you write them a letter and tell
them you're a Pro Se litigant they will send it for free. And last but not
least the definitive Pro Se authority, "The Prisoners Self Help Litigation
Manual"
$29.95 ISBN 0-379-20831-8. Or try http://www.oceanalaw.com/books/n148.htm
O. EVIDENTIARY HEARING
If you disagree with some of the information presented in the presentence
report (PSR) you may be entitled to a special hearing. This can be
instrumental in lowering your sentence or correcting your PSR. One
important thing to know is that your PSR will follow you the whole time you
are incarcerated. The Bureau of Prisons uses the PSR to decide how to
handle you. This can affect your security level, your halfway house, your
eligibility for the drug program (which gives you a year off your sentence)
,and your medical care. So make sure your PSR is accurate before you get
sentenced!
P. GETTING YOUR PROPERTY BACK
In most cases it will be necessary to formally ask the court to have your
property returned. They are not going to just call you up and say "Do you
want this Sparc Station back or what?" No, they would just as soon keep it
and not asking for it is as good as telling them they can have it.
You will need to file a 41(e) "Motion For Return Of Property." The courts'
authority to keep your stuff is not always clear and will have to be taken
on a case-by-case basis. They may not care and the judge will simply order
that it be returned.
If you don't know how to write a motion, just send a formal letter to the
judge asking for it back. Tell him you need it for your job. This should
suffice, but there may be a filing fee. |
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