Should hackers spend years in prison?

Stiff penalties for computer trespassing could create a broad new class of criminal -- including you and me.

By Peter Wayner

Jun 9, 1999 | The FBI recently declared war on those pesky hackers -- again. The news is filled with the story of some group known as Global Hell that is breaking into Web sites and causing mayhem. The FBI is cracking down, confiscating computers and taking names; and some hackers are actually fighting back and shutting down some government Web sites.

The press loves hackers because computer crime is something new. (I'm using "hackers" the way the media does, to describe those who get their kicks breaking into computer systems, rather than the older usage describing those who delight in difficult software coding work.) Murder, rape, drug dealing, theft and fraud continue as always, with ups and downs in their rates -- but teenagers breaking into Web sites is something no one has seen before.

The problem with the war against hackers is that most of what the hackers are supposedly doing would be trivial if it weren't happening on the Internet. The typical hacker attack on a Web site isn't much different from scrawling graffitti on the outside of a building. Many attackers are just poking around -- like suburban teenagers who hop a fence to jump into a pool.

All of this would be great theater and a nice distraction from the war in Kosovo if it weren't inspiring some serious reprisals in the courts -- and some ominous inflation in sentencing that could wind up affecting everyone who uses computers in his or her daily life.

Wars on hackers are usually followed by calls for legislators to "do something!" and campaigns for new laws to crack down on the bad guys. The problem is that "doing something" often produces laws that treat the same action much more harshly in cyberspace than in "meatspace."

The archetype of the demon hacker is Kevin Mitnick, a young man who has spent more than four years in jail waiting for his trial. When he was arrested, Monica Lewinsky was in her last year of college. During this time, Mitnick and his attorneys have jousted with government lawyers in endless pre-trial maneuvers that seem to have ended recently when Mitnick decided to plead guilty, probably hoping to receive a sentence that would be limited to time served. But even that deal is uncertain and taking forever to evolve; meanwhile, for Mitnick it's just prison without a trial and with no bail.

Many, no doubt, see the crackdown on folks like Kevin Mitnick as a great deal for society: Information can be stolen just like anything else; surely the thieves who traffic in such goods should be locked up, just like car-jackers and muggers.

But there's also a hidden danger. The precedents that the courts set now for dealing with demons like Mitnick will also apply equally to everyone who follows. And it's not clear that the world is ready for Mitnick-like sentences for the crimes he might have committed, which remain murkily defined.

Think about it: Someone who reads another person's Rolodex is just a snoop, but someone who clicks through somebody else's Palm Pilot is hacking a computer database.

Next Page: How can grabbing code be a serious crime when companies give the code away?

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