MITNICK CHALLENGES MARKOFF!                                                          

The following press release was issued by Kevin Mitnick on January 24, 2000. Mr. Mitnick is the copyright holder of this statement, and hereby gives permission for limited reuse and republication under the Fair Use doctrine of U.S. Copyright Law. All other rights reserved.

"In an article published by Robert Lemos on ZDNet's website (click here to view the article) on Friday, January 21, John Markoff relied on a tired defense against the well-documented examples of his libelous and defamatory "reporting" about me, and failed to provide any evidence in support of his demonstrably false claims about me.

Unlike Mr. Markoff, I'll provide an item-by-item refutation of all of the empty claims made by Mr. Markoff in the ZDNet article written by Mr. Lemos. And I'll remind the cadre of lawyers who stand ready to sue anyone who accuses a New York Times reporter of libel: truth is an absolute defense against a defamation case.

As an interesting footnote, Mr. Lemos is careful to use the word "allegedly" when describing my charges against Mr. Markoff, a courtesy that Mr. Markoff apparently felt was unimportant to observe in his defamatory July 4, 1994 article about me."



Here Ye! Here Ye! There is a new law of evidence known as The Mitnick Ultimate Evidentiary Loophole: Kevin Mitnick, famed "hacker", recently released from prison, teaches the old dogs of law new tricks! "First, strong encrypt your file (the alleged spoils of your crime), so that when the feds seize it, they can't read it. Then claim the Fifth Amendment when the government asks you to decrypt it. Next, politely, request a copy of your own encrypted file. The feds won't give a copy of your own file to you because it could be "dangerous" and they can't read it and you won't decrypt it. Next, file a motion to dismiss the charges, claiming violations of the Brady rule and Due Process. When the feds withhold exculpatory evidence and physical evidence necessary to provide a defense, i.e. the encrypted file, a fair trial cannot be obtained. Last, remind the court that the Fifth Amendment is an absolute privilege unless immunity from prosecution is granted. Thus, no decryption is required per the Fifth Amendment, yet no fair trial can be had. A mere esoteric loophole in the law, Your Honor!" (Mitnick's Caveat: Don't forget your own decryption key lodged in your own brain only!) Thus, Mitnick got a get out of jail fast ticket.

Excerpt of source:

"The heart of the government lawyer's argument was that it would be wrong to return to Mitnick his encrypted files because they could contain the spoils of his crimes -- secret information that he illegally acquired from the companies whose computers he hacked into -- or something even more dangerous. In considering the matter, Judge Phaelzer said that it was "clever" of Mitnick to have encrypted the files in such a way that the government could not use them in its own case but Mitnick could access them if given a copy. The judge said that if Mitnick would "tell the government how to read" the files, then the government would turn over the files in decrypted form. Mitnick's lawyers immediately objected to this condition on the grounds that it would force him to waive his Fifth Amendment right against self-incrimination to obtain evidence he needed and that he had a legal right to see. The judge rejected this point and affirmed her ruling to deny Mitnick's access to the files. Alan B. Davidson, a staff lawyer who follows encryption developments for the Center for Democracy and Technology, a civil liberties group, said he believed the Mitnick encryption dispute is a precursor to a coming battle in Congress. As part of a compromise announced this fall by the Clinton administration that loosened export restrictions on strong encryption software, the administration has committed to sending a bill to Congress laying out rules for when the government can get access to encryption keys, Davidson said. "We are anxiously awaiting the administration's new bill, which will open up a huge debate," he said."

Source: (c) Cyberlaw Journal, Wrinkle in Mitnick Case Hints at Encryption Battles to Come,  by Carl Kaplan (c) January 28, 2000.