Underground: Tales of Hacking, Madness and Obsession from the Electronic Frontier (50 page)

The chief judge of the County Court agreed to the case stated and sent it up to the full bench of the Supreme Court. The lawyers from both sides were pleased with the bench--Justices Frank Vincent, Kenneth Hayne and John Coldrey.

On 30 September 1996, Mendax arrived at the Supreme Court and found all the lawyers assembled at the court--all except for his barrister.

Paul Galbally kept checking his watch as the prosecution lawyers began unpacking their mountains of paper--the fruit of months of preparation. Galbally paced the plush carpet of the Supreme Court anteroom. Still no barrister.

Mendax’s barrister had worked tirelessly, preparing for the case stated as if it was a million dollar case. Combing through legal precedents from not only Australia, the UK and the US, but from all the world’s Western-style democracies, he had attained a great understanding of the law in the area of computer crime. He had finally arrived at that nexus of understanding between law, philosophy and linguistics which many lesser lawyers spent their entire careers trying to reach.

But where was he? Galbally pulled out his mobile and checked in with his office for what seemed like the fifth time in as many minutes. The news he received was bad. He was told, through second-hand sources, that the barrister had collapsed in a state of nervous exhaustion. He wouldn’t be making it to court.

Galbally could feel his hairs turning grey.

When court opened, Galbally had to stand up and explain to three of the most senior judges in Australia why the defence would like a two-day adjournment. A consummate professional, Geoff Chettle supported the submission. Still, it was a difficult request. Time in the Supreme Court is a scarce and valuable thing. Fortunately, the adjournment was granted.

This gave Galbally exactly two days in which to find a barrister who was good, available and smart enough to assimilate a massive amount of technical information in a short time. He found Andrew Tinney.

Tinney worked around the clock and by Wednesday, 2 October, he was ready. Once again, all the lawyers, and the hacker, gathered at the court.

This time, however, it was the judges who threw a spanner into the works. They asked both sides to spend the first hour or so explaining exactly why the Supreme Court should hear the case stated at all. The lawyers looked at each other in surprise. What was this all about?

After hearing some brief arguments from both sides, the judges retired to consider their position. When they returned, Justice Hayne read a detailed judgment saying, in essence, that the judges refused to hear the case.

As the judge spoke, it became clear that the Supreme Court judges weren’t just refusing to hear this case stated; they were virtually refusing to hear any case stated in future. Not for computer crimes.

Not for murder. Not for fraud. Not for anything. They were sending a message to the County Court judges: don’t send us a case stated except in exceptional circumstances.

Geoff Chettle slumped in his chair, his hands shielding his face. Paul Galbally looked stunned. Andrew Tinney looked as if he wanted to leap from his chair shouting, ‘I just killed myself for the past two days on this case! You have to hear it!’ Even Lesley Taylor, the quiet, unflappable and inscrutable DPP solicitor who had replaced Andrea Pavleka on the case, looked amazed.

The ruling had enormous implications. Judges from the lower courts would be loath to ever send cases to the Supreme Court for clarification on points of law again. Mendax had made legal history, but not in the way he had hoped.

Mendax’s case passed back down to the County Court.

He had considered taking his case to trial, but with recently announced budget cuts to Legal Aid, he knew there was little hope of receiving funding to fight the charges. The cuts were forcing the poor to plead guilty, leaving justice available only for the wealthy.

Worse, he felt the weight of pleading guilty, not only as a sense of injustice in his own case, but for future hacking cases which would follow. Without clarity on the meaning of the law--which the judges had refused to provide--or a message from a jury in a landmark case, such as Wandii’s trial, Mendax believed that hackers could expect little justice from either the police or the courts in the future.

On 5 December 1996, Mendax pleaded guilty to the remaining six charges and was sentenced on all counts.

Court Two was quiet that day. Geoff Chettle, for the prosecution, wasn’t there. Instead, the quietly self-possessed Lesley Taylor handled the matter. Paul Galbally appeared for Mendax himself. Ken Day sat, expressionless, in the front row of the public benches. He looked a little weary. A few rows back, Mendax’s mother seemed nervous.

Electron slipped silently into the back of the room and gave Mendax a discreet smile.

His hair pulled back into a loose ponytail, Mendax blinked and rolled his eyes several times as if brought from a dark space into the bright, white-walled courtroom.

Judge Ross, a ruddy-faced and jowly man of late middle age with bushy, grey eyebrows, seated himself in his chair. At first, he was reluctant to take on the case for sentencing. He thought it should be returned to one of the original judges--Judge Kimm or Judge Lewis. When he walked into court that morning, he had not read the other judges’

sentences.

Lesley Taylor summarised the punishments handed down to the other two hackers. The judge did not look altogether pleased. Finally, he announced he would deal with the case. ‘Two judges have had a crack at it, why not a third one? He might do it properly.’

Galbally was concerned. As the morning progressed, he became increasingly distressed; things were not going well. Judge Ross made clear that he personally favoured a custodial sentence, albeit a suspended one. The only thing protecting Mendax seemed to be the principle of parity in sentencing. Prime Suspect and Trax had committed similar crimes to Mendax, and therefore he had to be given a similar sentence.

Ross ‘registered some surprise’ at Judge Lewis’s disposition toward the sentencing of Prime Suspect. In the context of parity, he told Leslie Taylor, he was at times ‘quite soured by some penalties’

imposed by other judges. He quizzed her for reasons why he might be able to step outside parity.

He told the court that he had not read the telephone intercepts in the legal brief. In fact, he had ‘only read the summary of facts’ and when Taylor mentioned ‘International Subversive’, he asked her, ‘What was that?’

Then he asked her how to spell the word ‘phreak’.

Later that day, after Judge Ross had read the other judges’ sentences, he gave Mendax a sentence similar to Prime Suspect’s--a recorded conviction on all counts, a reparation payment of $2100 to ANU and a three-year good behaviour bond.

There were two variations. Prime Suspect and Trax both received $500

good behaviour bonds; Judge Ross ordered a $5000 bond for Mendax.

Further, Judge Lewis had given Prime Suspect almost twelve months to pay his $2100 reparation. Judge Ross ordered Mendax to pay within three months.

Judge Ross told Mendax, ‘I repeat what I said before. I thought initially that these were offences which justified a jail sentence, but the mitigatory circumstances would have converted that to a suspended sentence. The sentence given to your co-offender caused me to alter that view, however.’ He was concerned, he said, ‘that highly intelligent individuals ought not to behave like this and I suspect it is only highly intelligent individuals who can do what you did’.

The word ‘addiction’ did not appear anywhere in the sentencing transcript.

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They had a gun at my head and a knife at my back Don’t wind me up too tight

-- from ‘Powderworks’ on Midnight Oil (also called The Blue Album) by Midnight Oil

Anthrax didn’t like working as part of a team. He always considered other people to be the weakest link in the chain.

Although people were never to be trusted completely, he socialised with many hackers and phreakers and worked with a few of them now and again on particular projects. But he never formed intimate partnerships with any of them. Even if a fellow hacker dobbed him in to the police, the informant couldn’t know the full extent of his activities. The nature of his relationships was also determined, in part, by his isolation. Anthrax lived in a town in rural Victoria.

Despite the fact that he never joined a hacking partnership like The Realm, Anthrax liked people, liked to talk to them for hours at a time on the telephone. Sometimes he received up to ten international calls a day from his phreaker friends overseas. He would be over at a friend’s house, and the friend’s mother would knock on the door of the bedroom where the boys were hanging out, listening to new music, talking.

The mother would poke her head in the door, raise an eyebrow and point at Anthrax. ‘Phone call for you. Someone from Denmark.’ Or sometimes it was Sweden. Finland. The US. Wherever. Though they didn’t say anything, his friends’ parents thought it all a bit strange. Not many kids in country towns got international calls trailing them around from house to house. But then not many kids were master phreakers.

Anthrax loved the phone system and he understood its power. Many phreakers thought it was enough to be able to call their friends around the globe for free. Or make hacking attack phone calls without being traced. However, real power for Anthrax lay in controlling voice communications systems--things that moved conversations around the world. He cruised through people’s voice mailbox messages to piece together a picture of what they were doing. He wanted to be able to listen into telephone conversations. And he wanted to be able to reprogram the telephone system, even take it down. That was real power, the kind that lots of people would notice.

The desire for power grew throughout Anthrax’s teenage years. He ached to know everything, to see everything, to play with exotic systems in foreign countries. He needed to know the purpose of every system, what made them tick, how they fitted together. Understanding how things worked would give him control.

His obsession with telephony and hacking began early in life. When he was about eleven, his father had taken him to see the film War Games.

All Anthrax could think of as he left the theatre was how much he wanted to learn how to hack. He had already developed a fascination for computers, having received the simplest of machines, a Sinclair ZX81 with 1 k of memory, as a birthday present from his parents.

Rummaging through outdoor markets, he found a few second-hand books on hacking. He read Out of the Inner Circle by Bill Landreth, and Hackers by Steven Levy.

By the time he was fourteen, Anthrax had joined a Melbourne-based group of boys called The Force. The members swapped Commodore 64 and Amiga games. They also wrote their own demos--short computer programs--and delighted in cracking the copy protections on the games and then trading them with other crackers around the world. It was like an international penpal group. Anthrax liked the challenge provided by cracking the protections, but few teenagers in his town shared an interest in his unusual hobby. Joining The Force introduced him to a whole new world of people who thought as he did.

When Anthrax first read about phreaking he wrote to one of his American cracking contacts asking for advice on how to start. His friend sent him a list of AT&T calling card numbers and a toll-free direct-dial number which connected Australians with American operators. The card numbers were all expired or cancelled, but Anthrax didn’t care. What captured his imagination was the fact that he could call an operator all the way across the Pacific for free. Anthrax began trying to find more special numbers.

He would hang out at a pay phone near his house. It was a seedy neighbourhood, home to the most downtrodden of all the town’s residents, but Anthrax would stand at the pay phone for hours most evenings, oblivious to the clatter around him, hand-scanning for toll-free numbers. He dialled 0014--the prefix for the international toll-free numbers--followed by a random set of numbers. Then, as he got more serious, he approached the task more methodically. He selected a range of numbers, such as 300 to 400, for the last three digits. Then he dialled over and over, increasing the number by one each time he dialled. 301. 302. 303. 304. Whenever he hit a functioning phone number, he noted it down. He never had to spend a cent since all the 0014 numbers were free.

Anthrax found some valid numbers, but many of them had modems at the other end. So he decided it was time to buy a modem so he could explore further. Too young to work legally, he lied about his age and landed an after-school job doing data entry at an escort agency. In the meantime, he spent every available moment at the pay phone, scanning and adding new numbers to his growing list of toll-free modem and operator-assisted numbers.

The scanning became an obsession. Often Anthrax stayed at the phone until 10 or 11 p.m. Some nights it was 3 a.m. The pay phone had a rotary dial, making the task laborious, and sometimes he would come home with blisters on the tips of his fingers.

A month or so after he started working, he had saved enough money for a modem.

Hand scanning was boring, but no more so than school. Anthrax attended his state school regularly, at least until year 10. Much of that was due to his mother’s influence. She believed in education and in bettering oneself, and she wanted to give her son the opportunities she had been denied. It was his mother, a psychiatric nurse, who scrimped and saved for months to buy him his first real computer, a $400 Commodore 64. And it was his mother who took out a loan to buy the more powerful Amiga a few years later in 1989. She knew the boy was very bright. He used to read her medical textbooks, and computers were the future.

Anthrax had always done well in school, earning distinctions every year from year 7 to year 10. But not in maths. Maths bored him. Still, he had some aptitude for it. He won an award in year 6 for designing a pendulum device which measured the height of a building using basic trigonometry--a subject he had never studied. However, Anthrax didn’t attend school so much after year 10. The teachers kept telling him things he already knew, or things he could learn much faster from reading a book. If he liked a topic, he wandered off to the library to read about it.