Naturally when you are first arrested the suits will want to talk to you.
First at your residence and, if you appear to be talkative, they will take
you back to their offices for an extended chat and a cup of coffee. My
advice at this point is tried and true and we’ve all heard it before:
remain silent and ask to speak with an attorney. Regardless of what the
situation is, or how you plan to proceed, there is nothing you can say that
will help you. Nothing. Even if you know that you are going to cooperate,
this is not the time.
This is obviously a controversial subject, but the fact of the matter is
roughly 80% of all defendants eventually confess and implicate others. This
trend stems from the extremely long sentences the Feds are handing out
these days. Not many people want to do 10 to 20 years to save their
buddies’ hides when they could be doing 3 to 5. This is a decision each
individual needs to make. My only advice would be to save your close
friends and family. Anyone else is fair game. In the prison system the
blacks have a saying “Getting down first.” It’s no secret that the first
defendant in a conspiracy is usually going to get the best deal. I’ve even
seen situations where the big fish turned in all his little fish and
eceived 40% off his sentence.
Incidently, being debriefed or interrogated by the Feds can be an ordeal in
itself. I would -highly- reccommend reading up on interrogation techniques
ahead of time. Once you know their methods it will be all quite transparent
to you and the debriefing goes much more smoothly.
When you make a deal with the government you’re making a deal with the
devil himself. If you make any mistakes they will renege on the deal and
you’ll get nothing. On some occasions the government will trick you into
thinking they want you to cooperate when they are not really interested in
anything you have to say. They just want you to plead guilty. When you sign
the cooperation agreement there are no set promises as to how much of a
sentence reduction you will receive. That is to be decided after your
testimony, etc. and at the time of sentencing. It’s entirely up to the
judge. However, the prosecution makes the recommendation and the judge
generally goes along with it. In fact, if the prosecution does not motion
the court for your “downward departure” the courts’ hands are tied and you
get no break.
As you can see, cooperating is a tricky business. Most people, particularly
those who have never spent a day in jail, will tell you not to cooperate.
“Don’t snitch.” This is a noble stance to take. However, in some situations
it is just plain stupid. Saving someone’s ass who would easily do the same
to you is a tough call. It’s something that needs careful consideration.
Like I said, save your friends then do what you have to do to get out of
prison and on with your life.
I’m happy to say that I was able to avoid involving my good friends and a
former employer in the massive investigation that surrounded my case. It
wasn’t easy. I had to walk a fine line. Many of you probably know that I
(Agent Steal) went to work for the FBI after I was arrested. I was
responsible for teaching several agents about hacking and the culture. What
many of you don’t know is that I had close FBI ties prior to my arrest. I
was involved in hacking for over 15 years and had worked as a comp uter
security consultant. That is why I was given that opportunity. It is
unlikely however, that we will see many more of these types of arrangements
in the future. Our relationship ran afoul, mostly due to their passive
negligence and lack of experience in dealing with hackers. The government
in general now has their own resources, experience, and undercover agents
within the community. They no longer need hackers to show them the ropes or
the latest security hole.
Nevertheless, if you are in the position to tell the Feds something they
don’t know and help them build a case against someone, you may qualify for
a sentence reduction. The typical range is 20% to 70%. Usually it’s around
35% to 50%.
Sometimes you may find yourself at the end of the prosecutorial food chain
and the government will not let you cooperate. Kevin Mitnick would be a
good example of this. Even if he wanted to roll over, I doubt it would get
him much. He’s just too big of a fish, too much media. My final advice in
this matter is get the deal in writing before you start cooperating.
The Feds also like it when you “come clean” and accept responsibility.
There is a provision in the Sentencing Guidelines, 3E1.1, that knocks a
little bit of time off if you confess to your crime, plead guilty and show
remorse. If you go to trial, typically you will not qualify for this
“acceptance of responsibility” and your sentence will be longer.
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
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
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
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
$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
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.
Q. OUTSTANDING WARRANTS
If you have an outstanding warrant or charges pending in another
jurisdiction you would be wise to deal with them as soon as possible
-after- you are sentenced. If you follow the correct procedure chances are
good the warrants will be dropped (quashed). In the worst case scenario,
you will be transported to the appropriate jurisdiction, plead guilty and
have your “time run concurrent.” Typically in non-violent crimes you can
serve several sentences all at the same time. Many Federal inmates have
their state time run with their Federal time. In a nutshell: concurrent is
good, consecutive bad.
This procedure is referred to as the Interstate Agreement On Detainers Act
(IADA). You may also file a “demand for speedy trial”, with the appropriate
court. This starts the meter running. If they don’t extradite you within a
certain period of time , the charges will have to be dropped. The “Inmates’
Self-Help Litigation Manual” that I mentioned earlier covers this topic
There are probably a few of you out there saying, “I triple DES encrypt my
hard drive and 128 character RSA public key it for safety.” Well, that’s
just great, but… the Feds can have a grand jury subpoena your passwords
and if you don’t give them up you may be charged with obstruction of
justice. Of course who’s to say otherwise if you forgot your password in
all the excitement of getting arrested. I think I heard this once or twice
before in a Senate Sub-committee hearing. “Senator, I have no recollection
of the aforementioned events at this time.” But seriously, strong
encryption is great. However, it would be foolish to rely on it. If the
Feds have your computer and access to your encryption software itself, it
is likely they could break it gi ven the motivation. If you understand the
true art of code breaking you should understand this. People often overlook
the fact that your password, the one you use to access your encryption
program, is typically less than 8 characters long. By attacking the access
to your encryption program with a keyboard emulation sequencer your triple
DES/128 bit RSA crypto is worthless. Just remember, encryption may not