The problem is, the price tag of information is almost impossible to determine. If Mitnick did take a copy of these companies' source code, the companies weren't denied the use of it, as when a mugger steals cash. Mitnick's lawyers seem ready to point out that the companies involved didn't bother to announce an official price on what they lost to Mitnick -- something that the Securities and Exchange Commission requires public companies to do if the losses are significant enough. That would have required strict accounting measures.

To make matters even cloudier, in the meantime, Sun Microsystems began giving away the source code to its operating system to students around the world. In other words, if Mitnick had only waited a few years, enrolled in a university and asked nicely, he might have been a poster boy for Sun's charity instead of a prisoner. Today, Sun is even circulating the source code to products like Java in hope of recruiting customers and snagging bug fixes. The company is practically begging people around the world to come take a look at its code.

This big change in the customs and attitudes of the software industry strains the arguments against hackers. If giving away the source code is now a "good thing" for corporations, did Mitnick and the other hackers do a smaller good thing by grabbing it ahead of time? Is Mitnick now a bit closer to being a Robin Hood instead of a demon? If Linux triumphs, will children be told tales of the dark days when the Sheriff of Notingham sat on the boards of all of the corporations and forced them to keep their source code proprietary so only the nobles could enjoy its bounty? Is it true that begging forgiveness is always easier than asking permission?

Such questions may be impossible to answer, but they illustrate just how confusing it can be in the nether-netherworld of information's hall of mirrors. As a commodity, information is fundamentally different from objects, and society has always graced it with special respect. The journalists who printed the stories about the allegedly racist words that appeared on a secret audio tape of Texaco employees looked like crusaders. But if it had been a digital tape, the reporters could be painted as hacking data compiled by a Texaco employee on Texaco time.

In the long run, society is going to have to think differently about hackers and the crimes with which they are charged. Taking information when it's printed on paper is not always bad, and there's no reason we should change this rule just because the information is stored on a computer disk. The intent of the criminal and the extent of the malice has always played a crucial role in our system of criminal justice. Many owners of things will forgive a theft if the "borrower" merely returns it unharmed. Crimes like trespassing are rarely prosecuted if someone just hops a fence and does no damage.

Computers and the Internet continue to frighten people, but prosecuting hackers runs the danger of setting nasty precedents that will begin to snare regular people, not programmers. Many convicted hackers are released from prison only to be denied the ability to use a computer or the Internet. In the past, this made it impossible for a person to get work as a programmer; today, they can't even push the order screen at McDonald's. After all, it's hooked up to a central database -- who knows what havoc a hacker could wreak while punching up an order of fries?

One of the best ways to put this all in context is to take yourself back in time 100 years to the turn of the last century, when auto racing was just beginning to roar across the scene. The machines were grand in size and sound if not in speed -- Emile Levassor won the 1895 Paris-Bordeaux race with his four-horsepower jack rabbit that covered the distance at an average speed of 14.9 mph. Feats of technical prowess like that frightened the world, and by 1903 the French government was shutting down auto races -- or restricting the death-defying machines to a bearable 20 mph.

A few decades later, James Dean became a rebel automobile hacker who scared parents around the globe. Today, he's just another cutie pie competing with Hanson for poster space on dorm room walls. One era's demon is another's icon. Is teen idol the next stop for Kevin Mitnick?
salon.com | June 9, 1999

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