eroesorEiectro Highwaymen?* - University of...

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ABSTRACT

eroes or Eiectro

In his book, Hackers: Heroes of the ComputerRevolution (Doubleday, 1984), Steven Levydocuments the linguistic evolution of the word"hacker." He argues that among computeraficionados the term has been long used toexpress respect and admiration for another'ssuperior computer programming expertise . Inthe last ten years (particularly among membersof the law enforcement community), however,the concept has taken on an extremely negativeconnotation and is regularly used to refer toelectronic vandals and computer criminals . Yet,recent surveys of computer crime victimsindicate that the typical computer criminal is anemployee, not an outsider trying to "hack" intothe system. In trying to explain this paradox,comparisons are made with earlier historicalperiods when highwaymen and train robberswere also viewed by law enforcement ascriminals but considered by their peers as folk

*Paper presented at theAmerican Society of Criminology1990 Annual MeetingsBaltimore, MarylandWednesday, November 7,1990

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Highwaymen?*

Richard C. HollingerDepartment of Sociology and the Center forStudies in Criminology and LawUniversity of FloridaGainesville, Florida 32611

heroes . These modem day "electronichighwaymen" are innovative deviants whoprey on the inherent vulnerabilities of ourpioneering (and sometimes unpopular)communication and information corporations .The social construction of "hackers" as theprincipal focus of computer criminalization isexplained by examining the specificcharacteristics of the victims, offenses,offenders, and law enforcement agencieswithin the scope of the larger computer andinformation technology revolution .

INTRODUCTIONSince the beginning of the computerrevolution serious concerns have been raisedregarding the illegal and unethical uses of thispowerful electronic technology (e.g ., Bequai,1978, 1983, 1987; Johnson, 1982, 1985;Johnson and Snapper, 1985; McNight, 1973;Meldman, 1982; Parker, 1976, 1979, 1980a,1980b, 1982, 1983; Parker, et al ., 1973;Whiteside, 1978) . Increasing involvement incomputer-related (high tech) crime isinevitable as the microprocessor becomesmore ubiquitous in our society. If we continueto refer to every criminal or deviant eventtangentially related to a microprocessor as

Computers & Society, Vol. 21, No. 1 - June 1991

computer crime, we may soon be unable toidentify crimes which do not in some way

ve a computer . ( Albanese, 1988;Kling,1980).

After two decades of only the occasionally-reported computer crime or abuse incident, thepast two years have been particularly activeones . In one of the most complicated instancesof "network intrusion," Clifford Stoll (1989) hasrecently written of his personal efforts to detectan international "hacker" who allegedly attackedover 460 and successfully invaded more than 30different military computer installations aroundthe world. Stoll's book, The Cuckoo's Egg,documents the activities of a twenty-four yearold computer science student named MarkusHess who browses governmental, corporate anduniversity computer networks over a period often months from his apartment in Hanover, WestGermany using his personal computer and atelephone modem (Savage, 1988 ; Markoff,1988; Stoll, 1989).

In November of 1988 a Cornell Universitygraduate student named Robert T. Morris, Jr."infected" a host of government and educationalcomputer centers with a "worm" literallybringing all computational activity to a halt inover 6,000 installations (Spafford, 1989). Aftermonths of indecision regarding whether toprosecute, Morris's trial in Federal District Courtin Syracuse, New York, recently resulted in thefirst successful conviction under the 1986federal Computer Fraud and Abuse Act (U.S .Public Law 99-474, 1986) . In May of 1990Morris, ironically the son of a prominentNational Security Agency computer consultant,was sentenced for his offenses . As punishmenthe was required to spend no time in prison, butinstead, serve three years probation, contribute400 hours of community service, and to pay a$10,000 fine along with associated court andprobation costs.


Early in 1990 federal investigators arrested a19 year old University of Missouri collegestudent named Craig Neidorf who published inhis electronic "Phrack" newsletter proprietarytelecommunications software information. Whenarrested Neidorfalso was found to have in hispossession AT&T proprietary source codesoftware which controls the emergency 911system of BellSouth.* This proprietary UNIXsoftware program allegedly was provided toNeidorf by a Leonard Rose of Middletown,Maryland. In December of 1988 AT&T UNIXemergency 911 system documentation was"downloaded" over telephone by a 21-year-oldassociate named Robert J. Riggs of Atlanta andposted on an Lockport, Illinois electronicbulletin board. On June 9,1990 Adam Grant, 22,of Atlanta and Franklin E. Darden, 24, ofNorcross, Georgia pleaded guilty (along withRiggs) of aiding Riggs in this computer crime(Alexander, 1990). The federal governmentmaintains that all of these young men are part ofa national hacker group called the "Legion ofDoom." According to the government, "...theLegion of Doom disrupted the telecom-munications industry, monitored privatetelephone lines, stored proprietary information,stole and modified credit infommation,fraudulently obtained property for variouscompanies, and disseminated information thatallowed other computer hackers to enterBellSouth and non-BellSouth computer systems"(U.S . Department of Justice, 1990).

*Editors Note : Four days into his trial, in July 1990,federal prosecutors dismissed charges against Mr.Neidorf. See Peter Lewis, New York Times, September 9,1990, p. 12F.

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More recent reports of law enforcementactivities against computer crime took placeMarch 1,1990 when federal investigators raidedthe Austin, Texas offices of Steve JacksonGames to prevent the dissemination of a rulebook for a new game called "Cyberpunk" whichU.S. Attorney William Cook of Chicagobelieves is a "handbook on computer crime"(Schwartz, 1990) . This recent raid is part of theongoing Operation Sun Devil investigation, a 2year antihacking investigation which has led tothe seizure of more than 40 computers and23,000 disks in 13 different cities (Campbell,1990).

IS COMPU'T'ER CRIMEREALLY ON THE RISE?From a cursory review of the above incidents itwould appear that computer crime, especiallytelecommunications and systems hacking, is onthe increase . However, we always must be alertto the fact that often what appears to be anincrease in criminal behavior is in reality onlythe by-product of heightened control efforts bylaw enforcement agencies (Ben-Yehuda, 1986;Fishman, 1978). If the reliability of official lawenforcement data is suspect, let us insteadexamine the results of three computer crimevictimization surveys conducted in recent yearsspecifically designed to assess empirically theincidence and prevalence of computer crime.

American Bar Association StudyPrior to the passage of the first federal computercrime act (i.e., U.S . Public Law 98-473, 1984),the American Bar Association released a surveyof corporate computer users from which it wasestimated that at least 25% ofU.S . firmsuncover one or more verifiable incidents ofserious computer abuse each year . Collectivelythe victimized firms reported annual losses thatranged in average from $2 to $10 million

(American Bar Association, 1984). Interestingly,the ABA study also found that the majority ofthese victimizations (77%), were perpetrated bythe corporation's own employees (Zajac, 1986).

MercIn 1986 a survey of Forbes 500 corporationswas reported by the faculty at Mercy College,This survey indicated that 56% of therespondents experienced losses attributable tocomputer crime in the past year (1984-85) . Theaverage loss for the corporate respondents was$118,932 . As in the ABA study, most of theperpetrators (63%) were assumed to beemployees of the victimized firm . More thanhalf of the firms which experiencedvictimizations did not report any of theseincidents to law enforcement authorities(O'Donoghue, 1986) .

Florida Department of Law Enforcement StudyA just-released statewide survey conducted bythe Florida Department of Law Enforcementreports that one business in four (24.2%) hadexperienced a known andverifiable computercrime during 1988. Interestingly, at least fiftypercent (50-84%) of these computer offendersare reported to be adult employees of thevictimized firm, not young school-age hackers(only 19% of the identified perpetrators). Sixty-five percent of victimized businesses elected notto report any computer crime incidents theyexperienced to law enforcement authorities. Infact, the Florida survey indicated that despite thenation's longest experience with a computercrime statute, two-thirds of the law enforcementagencies surveyed had not investigated a singlecomputer crime during the past year ; theremainder saw just a handful. Still fewercomplaints were referred for prosecution, asmany were dropped for lack of an identifiablesuspect (Herig, 1989).


E COMPUTER CRIME PARADOXFrom the results of these victimizations studiesat least three conclusions can be made. First, itappears that computer-related victimizations areoccurring with some regularity among a smallbut significant number of businesses andorganizations each year, resulting in relativelylarge-scale monetary losses. Second,approximately three-fourths of these incidentsare typically perpetrated by employees .. . notoutsider "hackers." As such, the vast majority ofcomputer crime is being handled internally bythe victimized organizations and are not referredto the criminal justice system for prosecution. Itwould appear that victimized organizationsconsider computer crime as simply a "high tech"instance of employee theft (Hollinger and Clark,1983).

How can we account for the inconsistencybetween victimization data and law enforcementactivity? While victimization surveys tend tosuggest that computer crime is an internalemployee-related problem, the focus ofgovernment prosecutions seem to be directed atnon-employee "hacker" threats to varioustelecommunication networks . Despite their lessprevalent involvement, why is it that younghackers are the principal focus of thegovernment's law enforcement attention?

THE HACKER ETHICIn his 1984 book, Hackers : Heroes oftheComputer Revolution, Steven Levy documentsthe initial dream of the microcomputerrevolution . Initially many pioneers of therevolution believed that microcomputers in thehands of the average citizen would bring about amore egalitarian society in which the power ofinformation could be made available to themasses for very little cost . This utopian dreameventually became tainted by those who realizedthe profitability in controlling or selling access


to this powerful new technology (e.g., Bill Gates(President : Microsoft), Steve Jobs (President:NeXt), Steve Wozniak (Apple II inventor), andMitch Kapor (CEO, Lotus)). While few of theseabove former members of the "HomebrewComputer Club" still publicly assert thatcomputer networks and electronic informationsystems should be free and openly accessible toall people regardless of their social status, thereare still many computer enthusiasts who stillbelieve in the original dream and are doing whatthey can to make it come true .

A number of more militant computeraficionados around the country (e.g ., Legion ofDoom) believe that "computer security" is apersonal affront to their unalienable rights toaccess freely all electronically storedinformation (Landreth, 1985). To them piratingsoftware, sharing passwords, illegally accessingremote computers, browsing through electronicfiles is not deviant behavior, but instead, thesymbolic expression of their hostility to all largebureaucratic organizations that controlinformational or communication resources. Tothose who believe in the "hacker ethic," the real"criminals" in the world of computers are theprivate corporations, institutions, andgovernmental agencies who wish to deny access[to] or charge fees for the use of this wealth ofinformation. Since access to information ispower, these countercultural computerenthusiasts believe that control over thecomputer is yet another example of corporateand governmental oppression of the masses(Siegel, 1986). In fact, some of those who nowespouse the "hacker ethic" were the earlier"phone phreaks" of the 1970's who used "blueboxes" and "black boxes" to bypass AT&T'slong distance telephone billing systems (e.g.,Captain Crunch).

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Obviously, not every young computer userbelieves in the countercultural values embodiedin the "hacker ethic." However, given the levelsof undetected software piracy, file browsing,unauthorized access, etc . there are apparentlysubstantial numbers who have no qualms aboutviolating the laws of 49 states and the federalgovernment (e.g ., HHollinger, 1984, 1986, 1988,and 1989). The question is whether it is fair toalmost exclusively target these deviants as themain focus of computer crime countermeasuresand prosecutions .

HACKERS AS ELECTHIGHWAYMENThe term, "hacker," once the highest complimentthat a serious computer enthusiast could pay toanother, has now taken on a very negativeconnotation (Levy, 1984) . Instead of receivingkudos and praise, computer hackers arecurrently being treated as the moral equivalentof twentieth century electronic highwaymen orbandits (Markoff, 1983) . But, if they are noteven the most prevalent computer crimeoffender, why do hackers continue to bevirtually the only offenders that are coming tothe attention of law enforcement, particularlyfederal prosecutorial attention? The explanationof this paradox lies in our understanding of thecharacteristics of the victim, the offense, theoffender, and finally, the law enforcementagencies responsible for this high level of recentprosecutorial interest .

CHARACTERISTICS OF THE VICTIMFirst and foremost, we should point out that thehacker's typical victim is generally not a singleindividual or even a small business firm .Computer system "browsers" and "crackers"(Hollinger, 1988) most commonly seekunauthorized access to the computers of large

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ONIC

institutions -- who by-definition are largeenough to require telephonically-accessiblemainframe computers . In short, hackers are oftenviewed as committing those crimes whichdirectly threaten the computer andtelecommunication systems essential to thecontinuing profitability of our capitalisticeconomy . As such we should not be surprised tofind businesses quite insistent that theircommunications systems, electronically-storeddata, and proprietary software be protected fromoutsider intrusion .

Many other times in our nation's history we haveobserved a similar firm prosecutorial stanceagainst individuals or groups who have attackedcorporate business interests . For example, bankand train robbers such as Jesse James, ButchCassidy, John Dillinger, and "Pretty Boy" Floydall became American folk heroes because theirillegal acts were directed against popularlydisliked financial and business institutions in thiscountry (Kooistra, 1989) . "During the 19thcentury, the banks, monopolies of various sorts,and the railroads . . . became widely recognizedmetaphors for corruption and social evil --symbols of organized injustice . . . that exploitedthe common man" (Kooistra, 1989 : 31) . Onehundred years later we again find large bankinginstitutions, telecommunications companies, andother monopolistic corporations as the mostcommon victims of these electronic highwaymenand bandits that we now call hackers .

Moreover, when powerful corporations arevictimized by crime, they not only have a clearvested interest in encouraging criminalprosecutions for general deterrence purposes,they also possess the necessary resources andexpertise to actively participate in theinvestigations . When the Pinkerton DetectiveAgency became "the hired guns of the railroads,express companies, and large labor-


employing corporations" after serving as Unionspies during the Civil War, it is not surprisingthat they were "widely disliked by rural,Southern, and working class people" (Kooistra,1989 :52) . Similarly, we can understand howsome in our society find it difficult to expressfeelings of sympathy for law enforcementefforts to protect the some of the most profitablecorporations in the world like AT&T, MCI andSprint .

ACTERISTICS OF THE OFFENSEAnother important factor in understanding thereaction to the computer hacker is the nature ofthe offense. While most street crimes are reliantupon force in their commission, the computercrime requires a much higher level of technicalsophistication. Since most people in our societyare not literate in computer technology skills,the very nature of crimes committed withelectronic technology is quite frightening. Infact, the theme of uncontrolled computertechnology causing the end of the world isexactly the screenplay outline that has made anumber of recent motion pictures box officesuccesses. The prospect of a teenage hackerinadvertently causing World War III was thestoryline of the 1983 movie "WarGames" (ABCNews: Nightline, 1983). It is this film which wasshowing at exactly the same time as the real"414 Hackers" were detected that precipitated alarge number of states and the federalgovernment to quickly enact computer crimelegislation (Hollinger and Lanza-Kaduce, 1983).

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Perhaps the single major factor contributing toour paranoia about hacking is the"technophobia" in society. Despite the fact thatthere are computers in 30% of Americanhouseholds, most adults in our society are not


computer literate and fear computer technology .When this fact is accompanied with therecognized power of computers, it may beargued that law enforcement's severe negativereaction to hacking is partly a function ofsociety's collective fear and ignorance regardingthe technology . This is exacerbated by the factthat law enforcement as an occupation is one ofthe single most computer illiterate professions.The same high-school-educated police officerswho are resisting the introduction of computerterminals in their patrol cars, are the officerswho are now expected to fight the war against"high tech" criminals. Despite some notableexceptions, law enforcement administratorsaround the world recognize that they are grosslybehind the criminals in understanding bothcomputer use and abuse (Conly, 1989; McEwen,1989).

In addition to the technophobia factor we alsomust recognize that the collaborative, secretiveand conspiratorial nature of computer crime hasto be an influential factor increasing fear aboutcomputer crime. Not only is law enforcementfighting crime that it doesn't understand, but ittruly believes that the battle is being foughtagainst large numbers of offenders organizedinto countercultural groups with such ominousnames as the "Legion of Doom." Our society hasalways feared the group or gang more than theindividual. We need only look to the lawenforcement response to other real andperceivedconspiracies as contemporary examples, namely,the mafia, cocaine drug lords, and urban youthgangs.

Even more frustrating to law enforcement is theethereal nature of most computer hacking.Typical hackers are actually non-maliciousbrowsers searching for intellectual challenges as

they explore the labyrinth of computer systemand telecommunication pathways almost as ifthey were playing the fantasy adventure game"Dungeons and Dragons" (Hollinger, 1988;Landreth, 1985 ; Stoll, 1989). In fact, mostaccused hackers have not committed offensesmotivated by personal greed and avarice, butinstead, are typically involved in various formsof vandalism and malicious mischief. It hasbeen the insider employee computer criminalslike Stanley Mark Rifkin and Donald Burleson,that have perpetrated the most serious acts ofproperty crime. It is almost as if society fearsthe hacker more for what he could have done,than for what actually he has accomplished(e.g ., Business Week, 1981 ; I-Iafner, 1983;Newsweek, 1983a & 1983b; People, 1983a &1983b; Time, 1982, 1983a & 1983b; Shea,1984) .

CHARACTERISTICS ®F THEOFFENDERThe nature of our law enforcement reaction tocomputer hackers is also directly related to thecharacteristics of the offender . For a number ofreasons the computer hacker is a morevulnerable perpetrator than the traditional streetcriminal .

First, these offenders are virtually all under theage of 25 and the largest proportion havejuvenile legal status . As a result many legalliberties are often taken with these offendersunder the principle of parens patriae. Dozens ofcomputer enthusiasts accused of hacking, forexample, have had their computer equipmentconfiscated without due process of law.Financially strapped law enforcement agenciesfind confiscation their most effect tool in

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acquiring new computer software and hardwarefor investigatory purposes .

Moreover, given the extremely punitive natureof typical computer crime statutes coupled withthe fact that most hackers are first offenders(IIollinger and Lanza-Kaduce, 1988), we findthat very few of these cases are criminallyprosecuted (I-Ierig, 1989; Pfuhl, 1987; Strauband hloffer, 1988 ; Straub and Nance, 1987).Most offenders are diverted out of the criminaljustice system with appropriate promises ofgood behavior but without their computers.

In general, most computer criminals are white,non-violent, middle to upper class, first timeoffenders. In other words, the hacker comesfrom the most easily deterred segment of ourpopulation . Given law enforcements' numerousother major failures (e.g ., war on drugs, savingsand loan crisis, increasing gang violence andpredatory crime), it should be no surprise thenthat hackers are a welcome group of offendersin prosecutorial circles.

ARACTERISTICS ®F LAWENFORCEMENTDespite the fact that the majority of the statesenacted computer crime laws before the federalgovernment, most of the major efforts toprosecute the computer criminal have been theresult of federal law enforcement initiatives.Since the victimization data tell us that thetypical computer crime is an insider employeetheft, instead we would expect that local lawenforcement would initiate the vast majority ofall computer criminality. But, this is clearly notthe case. In fact, in Florida fewer than half adozen prosecutions were filed in the first fiveyears of the nation's oldest computer crime

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statute (U.S . House of Representatives, 1982°41-43 ; 1983 : 3180. Florida is apparently notatypical . A recent national survey of prosecutingattorneys has estimated that from 1978 to 1986fewer than 200 criminal prosecutions were

ed nationally (BloomBecker, 1988).Typically computer crime incidents are beinghandled internally by the victimizedorganizations and are not referred to thecriminal justice system for prosecution. Forexample, the recent Florida survey indicatedthat despite the nation's longest experience witha computer crime statute, two-thirds of the lawenforcement agencies surveyed had notinvestigated a single computer crime during thepast year ; the remainder saw just a handful. Stillfewer complaints were referred to prosecution,as many were dropped for lack of an identifiablesuspect (Herig, 1989). While the number ofstate level prosecutions seems to be increasingin recent years (BloomBecker, 1988), federallevel operations such as the recent Sun Devilprobe suggests that the real "war" againstcomputer crime is being fought with federal, notstate, resources.

Given the specific jurisdiction which federallaw enforcement has been assigned overcomputer crime, the current attention whichhackers are receiving is not unexpected. Thoseforms of computer-related crime that occurwithin a single jurisdiction should be prosecutedby local states attorneys. However, when thecrime involves interstate phone companies,financial institutions, or government computers,naturally federal law enforcement gets involved .Since most hackers commit acts that by-definition utilize telecommunications, theiractivities involve federal authorities with greaterregularity . It is this fact along with the paucityof expertise and resources at the state levelwhich has led us to the current state of affairs.


Namely, the most sophisticated law enforcementagencies in the land (i.e., the Secret Service andthe FBI) are chasing the least powerful and leastprevalent computer criminals. As a result of thefederal computer crime laws and the recentlydiscovered levels of computer related financialfraud related to the savings and loan crisis,substantial resources have been allocated tofederal law enforcement.

CONCLUSIONCurrently we are in the midst of a paradox. Thecomputer criminals doing the least harm and whoare generally the least involved in maliciousactivities, "hackers," have become almost theexclusive prosecutorial focus of computer crimelaw enforcement. As we have seen, the reasonsfor this recent increase in law enforcementattention are many -- powerful corporationsvictimized by technically sophisticated offensesperpetrated by powerless offenders within afederal jurisdictional monopoly .

On the one hand, the non-paranoid observermight conclude from this that the currentsituation is a mere temporal accident . For asmore resources and expertise are acquired at thelocal and state level, we will begin to see agreater balance in both the kind of offenses andoffenders prosecuted for computer abuse. Soonthe demographics of officially detected computeroffenders will more closely match the empiricalresults of victimization surveys. When thisoccurs, computer related employee thefts andembezzlements should soon become the mosttypical crimes prosecuted.

On the other hand, the more critical observermight conclude that the hacker has become andwill remain the most convenient scapegoat onwhich we can blame a whole host of

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criminological events and correspondinglyjustify substantial commitments of lawenforcement attention . If as a result of thisunbalanced law enforcement focustelecommunicating by computer becomessocially constructed as deviant behavior, wemay yet realize the worst fears, (not the dreams)of the computer revolution . Instead of a worldof information accessible to rich and poor alike,our future may more closely resemble the oneportrayed in the science fiction novell984,"Inordinate attention to the deviant e of thehacker may ultimately cost our society a fargreater price than we have bargained for. Theprice of over-zealous crime control in anelectronic information society may be individualprivacy .

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