Sentencing scheduled in bizarre hacker case [ with justice to

[Dave Farber <farber () central cis upenn edu>]

Emmanuel Goldstein typed:
> From eff-austin-moderator () io com  Wed Jan 24 04:15:17 1996
From: Emmanuel Goldstein <emmanuel () 2600 com>
M




** UPDATED INFO ON SENTENCING FOLLOWS **


Ed Cummings, known to many in the hacker world as Bernie S., has been
living through a real-life version of a Kafka tale since March 1995.
It was then that he was arrested for selling crystals which had the
potential to be used for fraudulent purposes. The United States
Secret Service then stepped in and had Cummings locked away in federal
prison because he had in his possession a modified tone dialer which
could have been used to make free phone calls. He was never accused
of actually having done this but, under a quietly passed law in October
1994, mere possession of hardware or software which *could* be used
in a fraudulent manner carried the same legal penalties as committing
the fraud itself.


Cummings was held for seven months without bail and without trial. When
the time finally came for him to make a plea, he chose to plead guilty
for two reasons: 1) He could face many years in prison if he pleaded
innocent and was found guilty; 2) As the law reads, he was guilty of
possessing hardware or software which could be used fraudulently. The
fact that a large number of law-abiding citizens, if not the majority,
are also technically guilty of this crime, was irrelevant. After accepting
his plea, the judge sentenced him to the exact amount of time he had
already served and Cummings was finally released in October 1995.
But this was not the end of his troubles.


A couple of years ago, Cummings had an almost comical run-in with a
local police department. He and two friends were being questioned by
a police officer and an item the officer took particular interest in
was a tone dialer in Cummings' possession. When the officer left the
room for a few minutes, the batteries to the tone dialer were removed.
Since they were not under arrest and since they had not been instructed
to not touch anything, this clearly did not seem to be that serious an
action. But the local cops went ballistic and charged Cummings with
"tampering with evidence". Cummings insisted that he wasn't even the
person who took the batteries out but preferred to pay a fine and plead
"no contest" rather than turn a friend in. The story should have ended
there. But when the events of March 1995 transpired, Cummings was found
to be in violation of the two years' probation handed down by the local
authorities. And so a hearing was scheduled shortly after his release.


After five postponements (two requested by Cummings' attorney, two
procedural delays, and one court-ordered delay, the hearing was held
on Friday, January 12, 1996. In addition to the judge, Northampton
County probation officer Scott Hoke, Secret Service agent Tom Varney,
and Haverford Township detective John Morris were in attendance.
(The Haverford Township police were the ones who originally suspected
Cummings of taking part in a drug deal when he was spotted selling
crystals to black people in a 7-11 parking lot. Detective Morris would
later threaten a college student with libel for criticizing the actions
of the police over the Internet.) Varney and Morris arrived in the same car.


Ed's attorney was unable to attend because his car had been plowed under
in Philadelphia. He said he doubted the hearing would take place because
of the weather but told Ed to drive up just in case. Ed drove several hours
through blizzard conditions and arrived at the courthouse for the fourth
time. Scott Hoke, however, did not take this effort into consideration
and told the judge he would not tolerate any more postponements, despite
the fact that most of the postponements had been requested by the court
itself and that Ed had been wanting to get this over with from the start.


Hoke complained that Cummings had been "walking around on the street" for
three months. He did not mention that Cummings has been fully employed
during that time and has not violated any laws since his release. The
judge chastised Cummings for his lawyer's failure to appear and refused
to allow him to say anything throughout the hearing.


Tom Varney of the Secret Service then told the judge that he believed
Cummings to be a major threat to society and that he was concerned because
of the upcoming presidential campaign. It was unclear if he was actually
implying that Cummings would somehow be a threat to the president but the
judge and the police listened intently. This was the first time a Secret
Service agent had come to their town. Varney continued to describe the
threatening items that had been found in Cummings' residence: a copy of
The Anarchist's Cookbook, publications from Loompanix, a mag stripe
read head (no electronics) which "could have been used" to commit fraud,
and material thought to be C4 but later proven not to be. However, Varney
said, the fact that it could have been showed how serious this was.
Nobody questioned his logic.


Prior to this hearing, the Secret Service made an extra effort to contact
the county probation officer to insist that Cummings be imprisoned because
he was such a threat. They made quite an impression upon him apparently.
It also became known through various contacts that the Secret Service was
particularly angry at Cummings because he had given pictures of Secret
Service agents to local media (FOX 29) in Philadelphia. These pictures
made the Secret Service agents look foolish. Later, Secret Service agents
would say to a friend of Cummings: "Don't fuck with us. We're the biggest
gang in town."


The judge determined that a probation violation had indeed taken place and
that Cummings should be held and a sentencing date scheduled within 60 days.
The judge had just done the same thing for a man who had just committed his
third DWI offense. In fact, he had killed someone. The judge ordered that
person held on $50,000 bail. Ed Cummings, however, was another matter. The
judge ordered Cummings held on $250,000.


So Cummings is currently being held on a quarter of a million dollars
because he's thought to have taken batteries out of a tone dialer years ago.
He's in a 5 by 8 holding cell 22 hours a day with no windows and no clock.
He never knows what time it is nor whether it's day or night. The temperature
reaches a maximum of sixty degrees and he has only one layer of thin cotton
clothing and one blanket. To add to his misery, he was just notified that
the Haverford Township police will destroy the property they seized from
him last year unless he picks it up by Friday, January 19.


The hearing to determine how long Cummings will be imprisoned for will
be scheduled within 60 days. He could get a maximum of two years.


[1/16/96]


Cummings has been transferred into the "Phase One Inmate Unit" which is
where inmates are held for the first 30 days. There are three phases in
total, the third occurs after 60 days. Right now he's actually in the
cell known as "the hole" which is supposed to be used for solitary
punishment. Because of overcrowding, he's been put in there with two
other inmates, one of whom is a convicted child molestor serving time
for DWI. Cummings described the conditions as "really bad" - the prison
is cold and filthy. The prison itself was built right after the Civil War.
There are tons of roaches and grafitti in all the cells which dates back
to the fifties - the last time it was painted. There are 1200 inmates.


We will continue to forward any email he receives at the bernies () 2600 com
address. You can write to him directly or send reading material to:


Ed Cummings
Northampton County Prison
666 Walnut Street
Easton, PA 18042


[1/22/96]


We just found out that Bernie S. will be sentenced this Friday morning
at 9 am in Easton, PA for the crime of removing batteries from a tone
dialer several years ago. This is defined as a victimless misdemeanor
for which the judge in this small town (under considerable influence
from the Secret Service) set bail at $250,000. He could get two years
in prison at sentencing. Press attention could be very helpful in
avoiding a sentence as irrational as the bail setting - right now the
only influence these people are getting is from the Secret Service and
they want to put Bernie S away for as long as they can. If you're not
entirely up to date on this story, finger bernies () 2600 com for all of
the details.


If you know of anyone who will cover this story, please get ahold of
them right away so they can plan on being there. If anyone is interested
in going, let us know so we can hopefully fill some cars from NYC.


Sentencing is scheduled for Friday, January 26 at 9 am
Courtroom 5
Northampton County Government Center
7th and Washington Street
Easton, PA 18042-7492


(610) 559-3020 (district attorney)


case # 2173-1993
The Commonwealth of Pennsylvania vs. Edward E. Cummings
Misdemeanor 2 - tampering with physical evidence


Please help spread the word.