Cybernetic Notes: Battle of the black and white hats

IT'S THE fashion nowadays to call programmers who confine themselves to writing code "white hats", and those who also enjoy breaking and entering, "black hats", as if the distinction was ever clearer than mud.

Two whey-faced, bespectacled hackers currently dominate the electronic pages of the world's virtual newspapers. One is Bill Gates, the Henry Ford of the personal computer industry, chairman of the software giant Micro-soft Corp, to some the devil incarnate for making the cyberworld Windows-shaped. He's the white hat. The other is Kevin Mitnick, unemployed, one-time fugitive from justice and the longest- serving detainee at the Metropolitan Detention Center, Los Angeles. He's the black hat.

Both Gates and Mitnick are wrestling with an American justice system that wishes to make examples of them both. Whereas Gates is feared because his phenomenal success in the highly competitive computer business has given him the wealth and power of a nation state and a de facto monopoly of the world's most widely used business tool, Mitnick is feared because of what people imagine he might do, and others like him, when Gatesworld is wired up, and relies on being safely and securely so.

Bill Gates has deep pockets to pay the phalanxes of lawyers and spin doctors he needs. He will probably not end up in gaol even if it is proved that he is a black-hat businessman and his company broke the laws of capitalism and ruined its competitors. Were it to be proved, then his fortune and his company would be hostage to the lawsuits that would follow, all based on estimated losses of victim companies.

Kevin Mitnick is being accused of causing his victims losses of a mere $80m and is facing a 200-year sentence for his crimes which, on closer examination, amount to theft of telephone source code (computer instructions which determine how a system behaves), which he kept to himself - the worth of which is debatable - and a few hours of free mobile-phone calls.

Hijacking source code is not as shocking as it might appear. Computer companies whose patents have been infringed go to court only if they see their technology being exploited successfully by their competitors and a deal between them cannot be struck. Cases are almost invariably settled by commercial arrangements that, they hope, are mutually beneficial.

Mitnick refused to plea-bargain and has now been in federal custody for nearly four years awaiting trial. He has spent time in solitary and his reputation for electronic wizardry is so feared, the authorities' ignorance of electronics so great, that he was once deprived of a Walkman in case he used it to bug his warders.

Thanks to the laxity of its original design, the Internet retains its potential for accessible free speech. Mitnick incarcerated, though broke, is not without a voice. He has his own website. His supporters continually lobby for his freedom. Whatever Mitnick did, they reckon, isn't worth what he's got. As a consequence, websites, including that of The New York Times, have been regularly targeted by hackers and their pages overrun with slogans, scribblings, spoof threats, and juvenile smut in order to raise the profile of Mitnick's case and attack anyone else they feel has offended them.

A long sentence for Mitnick would ensure that hackers, however they are motivated, would be more likely to plea-bargain in the future. The defence thinks it suits the government to portray Mitnick as a dangerous public nuisance in order to justify its own agenda for regulation and control of the Internet and the telecommunications industry.

But Mitnick pursued his hacking career, rather typically, for knowledge and control. He did not have the criminality to sell trade secrets in Taiwan nor the white-hat profit motive to exploit what he found. If he had done so, he might, like Bill Gates, have got himself the best justice money can buy.

Denise Danks's latest novel, `Phreak', is published by Victor Gollancz, pounds 9.99