DONALD C. RANDOLPH, ESQ., California State Bar Number: 62468 RANDOLPH & LEVANAS A Professional Corporation 1717 Fourth Street, Third Floor Santa Monica, California 90401-3319 Telephone: (310) 395-7900 Attorney for Defendant KEVIN DAVID MITNICK UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) CASE NO. 96-881-MRP ) ) PETITION FOR RECONSIDERATION ) OR, ALTERNATIVELY, FOR Plaintiff, ) PERMISSION TO APPEAL ) vs. ) [NO HEARING REQUESTED] ) KEVIN DAVID MITNICK, ) ) ) Defendant. ) ______________________________) TO THE UNITED STATES OF AMERICA AND TO THEIR ATTORNEYS OF RECORD HEREIN: Defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, hereby petitions this Court reconsider its Order denying the defendant access to encrypted evidence in the government's exclusive possession or, in the alternative, for permission to appeal its order denying the defendant disclosure of discoverable evidence. This petition is brought pursuant to Rule 5 Federal Rules of Appellate Procedure. DATED: June 15, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: ________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK I. STATEMENT OF FACTS In September, 1992, at Los Angeles, California and October, 1994, in Seattle, Washington, and in February, 1995, at Raliegh, North Carolina, the government executed search and seizure warrants of residences known or believed to be occupied by defendant Kevin David Mitnick. Evidence in the form of electronically stored data was seized during each of these searches. On September 26, 1996, based in part upon the seized evidenced referred to above, the government brought a twenty-five count indictment against the defendant alleging various acts of possession of unauthorized access devices: 18 U.S.C. § 1029; computer fraud: 18 U.S.C. § 1030(a)(4); causing damage to computers: 18 U.S.C. § 1030(a)(5); wire fraud: 18 U.S.C. § 1343; and interception of wire or electronic communications: 18 U.S.C. § 2511. On October 24, 1996, the defendant requested in writing, a copy of all discoverable materials including all such evidence subject to discovery pursuant to Rule 16 Federal Rules of Criminal Procedure, and all exculpatory information pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. Subsequently, the government produced to the defense copies of discoverable documents other than those stored electronically. The government maintained the electronically stored data at FBI offices for review by the defense upon reasonable notice. The exception to this were the encrypted files, which were not made available to the defense. On October 8, 1997, the government represented to the defense that it believed it was in full compliance with its discovery obligations. On April 13, 1998, the government filed with the Court a proposed Omnibus Order Re: Discovery and Pretrial Management in which it proposed to allow the defense to duplicate any electronically stored files except those which the government asserted contained: (a) proprietary software taken from victims; (b) files containing "hacker tools"; (c) files containing access codes obtained without authorization; (d) encrypted files, unless the defendant first provided the government with the decryption key. On April 20, 1998, the defense requested in writing a full copy of all electronically stored discovery. On April 27, 1998, the government agreed to provide the defense with a copy of the electronic discovery except for those files containing data of the type described in paragraph 4 above. On April 29, 1998 the government filed a new [Proposed] Omnibus Order Re: Discovery and Pretrial Management incorporating revisions in its position as of April 27, 1998. On May 14, 1998, the defendant filed a formal objection to the government's proposed order and again requested a full copy of all electronic discovery in the government's possession. In its objection, the defense stated its willingness to enter into a non- disclosure agreement to protect all sensitive data, including trade secret information, which might be contained within the electronic discovery, whether encrypted or otherwise. On May 18, 1998, the Court ordered the government to provide the defense with a copy of all electronic discovery, except for the encrypted evidence, subject to the defendant's willingness to sign a non-disclosure agreement to protect the data in question. Acknowledging that the issue before the Court was novel, the Court maintained that the government had no duty to produce any encrypted file which it had been unable to decrypt to the defense. II. STATEMENT OF THE ISSUES (A) Whether the government may withhold from the defendant evidence in its exclusive possession, and which falls squarely within the definition of Fed.R.Crim.Pro. 16(a)(1)(C), on the grounds that it is unintelligible to the government. (B) Whether the government may withhold from the defendant evidence in its exclusive possession, and which is potentially exculpatory, on the grounds that it is unintelligible to the government. III. STATEMENT OF REASONS IN SUPPORT OF PETITION A. There Exists a Substantial Basis for a Difference of Opinion on this Matter. Questions regarding the application of existing law to novel factual scenarios created by the advancement of technology occur relatively frequently. This is such a case. Although there is no legal precedent directly analogous to the issue currently before the Court, there is substantial legal authority, based upon the fundamental principles of the United States Constitution, which supports the position advanced by the defendant. Rule 16(a) of the Federal Rules of Criminal Procedure establishes legal requirements regarding the governmental disclosure of evidence to the defendant. Rule 16(a)(1)(C), relating to documents and tangible things, provides: "Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." The defendant has made numerous requests for the opportunity to copy all of the evidence which falls within the ambit of this rule. Much of the evidence in this case consists of electronically stored documents and/or data stored on various computer systems. Although the government has disclosed some of the evidence pursuant to its statutory obligations, it has refused to permit the defendant to either inspect of copy any portion of the "encrypted" evidence in its possession due to the fact that this evidence is unintelligible to the government. Nonetheless, the government has agreed to provide such evidence to the defense on the condition that the defense first provide the government with the encryption key necessary to decipher the data in question. This position is unsanctioned by both Rule 16 and the United States Constitution Requiring the defendant to waive his privilege against self- incrimination in order to obtain evidence to which he is legally entitled, constitutes a violation of the defendant's Fifth Amendment rights. See, Malloy v. Hogan, 378 U.S. 1 (1964) (an option which exacts a "penalty" upon the exercise of the privilege against self- incrimination violates the Fifth Amendment); see also, Griffen v. State of California, 380 U.S. 609 (1965); Spevack v. Klien, 385 U.S. 511 (1967) ("[i]n this context, 'penalty' is not restricted to fine or imprisonment. It means, as we said in Griffin v. State of California...the imposition of any sanction which makes the assertion of the Fifth Amendment privilege 'costly'." Spevak v. Klien, 385 U.S. at 515 [internal citations omitted]. In this case, the government does not contend that the evidence in question is either irrelevant or immaterial to the case. As evidenced in the Declaration of Gregory L. Vinson, filed in camera and under seal concurrently with this petition, this evidence is unquestionably material to the pending charges. Rather, the government has recited concerns that the encrypted data may contain confidential trade secret information which should not be disclosed to the defense. This concern is illegitimate considering that the defense has agreed to a non-disclosure agreement with respect to confidential trade secret evidence which is not encrypted and for which the government has recognized its duty to disclose. Naturally, any confidential trade secret information found among the encrypted computer files would likewise be subject to the non-disclosure and, thereby, protected from the potential harm cited by the government. While the government has an affirmative duty to reveal evidence helpful to the defense, the defendant bears no reciprocal duty. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Wright, 489 F.2d 1181, 1192-1195 (D.C.Cir. 1973) (the Fifth Amendment requires that the defense cannot be required to turn over evidence favorable to the prosecution; in criminal cases, discovery must inevitably remain basically a one-way street.) B. An Immediate Appeal may Materially Advance the Termination of the Litigation. The resolution of the defendant's right to the evidence in question will materially advance this matter in that it may definitively resolve issues which will otherwise have to be argued through the presentation of secondary sources or circumstantial evidence. Moreover, immediate resolution of this issue will preclude the possibility of having to litigate it following a conviction in this matter. Should the defendant be convicted, government withholding of exculpatory information would constitute clear grounds for appeal and would likely induce the Court of Appeals to vacate any finding of guilt. /// /// /// /// /// /// /// /// IV. CONCLUSION For all the foregoing reasons, this Court should reverse its order denying the defendant access to the encrypted discovery or, in the alternative, grant the defendant permission to appeal its order to this effect. DATED: June 15, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: ___________________________ Donald C. Randolph Attorneys for Defendant Kevin David Mitnick