A federal judge signaled his intention Monday to slap admitted computer hacker Kevin Poulsen with an even tougher jail term than federal guidelines allow for a plea bargain approved by prosecutors.
As a result, Poulsen's sentencing was delayed for what is considered to be the hacker underground's most audacious exploit: his scheme to win cars and cash by rigging radio station contests. He faces separate charges of espionage for acquiring a classified 1987 Air Force order listing targets in case of nuclear war.
"The defendant's actions are more serious than the guidelines take into account," said U.S. District Court Judge Manuel Real, referring to federal sentencing guidelines which limit a judge's discretion in imposing punishment for federal crimes. "They are not really designed for this kind of matter, where a person puts (law enforcement) agents in jeopardy."
Poulsen, who has been in jail nearly four years already--longer than any other hacker in history--previously pleaded guilty to seven counts of conspiracy, fraud, and intercepting wire communications in connection with the contest rigging scheme.
He parlayed expertise in computers and an intimate knowledge of telephone operations to seize control of the lines of Los Angeles radio stations KIIS-FM and KPWR-FM in 1990 to win Porsches and $50,000 in cash.
But what apparently upset Real most was Poulsen's entry into a federal interest computer, where he tried to obtain the names of undercover businesses operated by the FBI.
"This wasn't just hacking," Real said at the hearing.
Real rescheduled sentencing for April 10, in order to give defense attorney Michael J. Brennan time to present arguments in opposition to the stiffer sentence. The defense was hoping Real would impose a sentence equal to or less than the time Poulsen has already served.
But the judge said he felt Poulsen's intrusions called for a "more serious" sentence than the range of time allowed by the plea agreement entered into by the defense and prosecution. Under federal sentencing guidelines, each count carries a range of penalties, but Real said he wanted to go beyond that range.
Asst. U.S. Atty. David Schindler refused to explain the specifics of the plea agreement, saying it was secret.
Real's tough stance comes less than two weeks after a nationwide electronic manhunt netted the nation's most famous fugitive hacker, Kevin Mitnick. Schindler denied that Real's intention to depart from federal sentencing guidelines in Poulsen's case was influenced by the arrest of Mitnick or any other hacking cases.
"The court is attempting to address solely Mr. Poulsen's conduct," Schindler said.
Poulsen's parents, Lee and Bernadine Poulsen, were sitting in the front row in court when their son, smiling, with his short brown hair parted in the middle, was brought in before sentencing.
"It's nervous time," said Lee Poulsen, 59, a retired mechanic. "I'm just keeping my fingers crossed."
Bernadine Poulsen said her son was keeping his spirits up and recently won a jail chess contest. "He's always been brilliant," she said.
Growing up in the San Fernando Valley, he taught himself the computer on a TRS 80 Radio Shack model and got a job in the 1980s testing computer security for the Pentagon.
After his arrest in 1988, he fled and was captured three years later in a Valley supermarket, after the television show "America's Most Wanted" profiled him. After the profile, phone lines to the show went down mysteriously for several minutes as operators stood by to accept tips on Poulsen's whereabouts.
"He feels he's been in prison long enough," said Lee Poulsen.
Though Poulsen faces up to 40 years in prison in Los Angeles, the case in Northern California is conceivably more serious. Poulsen is the first hacker to be charged with espionage as a result of a search of a storage locker in Menlo Park in 1988, which turned up the classified targets list.
The search was first ruled illegal, but a federal appeals court said in December that because the rent was more than two weeks past due the owner of the locker could seize the contents and turn them over to authorities. Poulsen is facing 13 other charges in that case, including eavesdropping on private telephone conversations, and tapping into Pacific Bell's computer as well as an unclassified military computer network.
Although it is Kevin Mitnick who has received all the publicity lately, some computer crime experts consider Poulsen to be perhaps the most skilled hacker of all. Poulsen's parents said that in his last call from jail, Poulsen said he was surprised Mitnick "was still out there doing it."