The Chicago Computer Fraud and Abuse Task Force, however, had decided to prosecute Neidorf as a fraudster. To formally admit that Phrack was a "magazine" and Neidorf a "publisher" was to open a prosecutorial Pandora's Box of First Amendment issues. To do this was to play into the hands of Zenner and his EFF advisers, which now included a phalanx of prominent New York civil rights lawyers as well as the formidable legal staff of Katten, Muchin and Zavis. Instead, the prosecution relied heavily on the issue of access device fraud: Section 1029 of Title 18, the section from which the Secret Service drew its most direct jurisdiction over computer crime.
Neidorf's alleged crimes centered around the E911 Document. He was accused of having entered into a fraudulent scheme with the Prophet, who, it will be recalled, was the Atlanta LoD member who had illicitly copied the E911 Document from the BellSouth AIMSX system.
The Prophet himself was also a co-defendant in the Neidorf case, part-and-parcel of the alleged "fraud scheme" to "steal" BellSouth's E911 Document (and to pass the Document across state lines, which helped establish the Neidorf trial as a federal case). The Prophet, in the spirit of full co-operation, had agreed to testify against Neidorf.
In fact, all three of the Atlanta crew stood ready to testify against Neidorf. Their own federal prosecutors in Atlanta had charged the Atlanta Three with: (a) conspiracy, (b) computer fraud, (c) wire fraud, (d) access device fraud, and (e) interstate transportation of stolen property (Title 18, Sections 371, 1030, 1343, 1029, and 2314).
Faced with this blizzard of trouble, Prophet and Leftist had ducked any public trial and had pled guilty to reduced charges—one conspiracy count apiece. Urvile had pled guilty to that odd bit of Section 1029 which makes it illegal to possess "fifteen or more" illegal access devices (in his case, computer passwords). And their sentences were scheduled for September 14, 1990—well after the Neidorf trial. As witnesses, they could presumably be relied upon to behave.
Neidorf, however, was pleading innocent. Most everyone else caught up in the crackdown had "cooperated fully" and pled guilty in hope of reduced sentences. (Steve Jackson was a notable exception, of course, and had strongly protested his innocence from the very beginning. But Steve Jackson could not get a day in court—Steve Jackson had never been charged with any crime in the first place.)
Neidorf had been urged to plead guilty. But Neidorf was a political science major and was disinclined to go to jail for "fraud" when he had not made any money, had not broken into any computer, and had been publishing a magazine that he considered protected under the First Amendment.
Neidorf's trial was the ONLY legal action of the entire Crackdown that actually involved bringing the issues at hand out for a public test in front of a jury of American citizens.
Neidorf, too, had cooperated with investigators. He had voluntarily handed over much of the evidence that had led to his own indictment. He had already admitted in writing that he knew that the E911 Document had been stolen before he had "published" it in Phrack—or, from the prosecution's point of view, illegally transported stolen property by wire in something purporting to be a "publication."
But even if the "publication" of the E911 Document was not held to be a crime, that wouldn't let Neidorf off the hook. Neidorf had still received the E911 Document when Prophet had transferred it to him from Rich Andrews' Jolnet node. On that occasion, it certainly hadn't been "published"—it was hacker booty, pure and simple, transported across state lines.