1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) Case No. C940322CR ) 6 vs. ) Appeal ) Transcript 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) ) 9 10 11 BE IT REMEMBERED that on the 21st day 12 of July, 1995, the above-entitled matter came on for 13 hearing before the HONORABLE ALAN BONEBRAKE, a 14 Circuit Court Judge. 15 APPEARANCES: 16 THOMAS J. TINTERA 17 Deputy District Attorney Representing the State 18 MARC SUSSMAN 19 Attorney at Law Representing the Defendant 20 * * * 21 22 BOB A. ZARO Official Court Reporter 23 CSR No. 90-0119 24 25 2 1 THE COURT: Mr. Sussman, you have a matter 2 you want to address, I think, about the possibility 3 of producing additional testimony regarding the 4 matter that came up yesterday, I think? 5 MR. SUSSMAN: That's correct, Your Honor. 6 Your Honor, during the State's 7 cross-examination last Friday of Patrick Reilly, our 8 character witness -- I am sorry. It was Tuesday. 9 Time flies -- on Tuesday regarding -- on 10 cross-examination of Patrick Reilly, our character 11 witness, the State, on cross-examination, asked 12 Mr. Reilly if he had heard Mr. Schwartz's contract at 13 Motorola would not be renewed, and that was because 14 of a personality conflict. I had no prior 15 information about this. This was new information. 16 It appeared to be kind of -- it 17 appeared to be cross-examination that was proper for 18 a -- I mean, at least having heard portions of 19 that -- appeared to be proper cross-examination of a 20 character witness, but since that time, upon 21 investigation, we've learned -- and, actually, this 22 was late yesterday that the information that 23 Mr. Schwartz's contract -- the decision that his 24 contract would not be renewed and that it was because 25 of a personality conflict was not accurate. 3 1 I have spoken to the executive at 2 Motorola, who was the supervisor of the person, the 3 systems administrator, who informed me Mr. Schwartz 4 is still under a valid contract. No further 5 information was available about his appointment 6 status, and nobody was authorized to indicate 7 otherwise or indicate it would be removed because of 8 a personality conflict. 9 I think the jury was left with an 10 impression, which can be a very powerful one, by that 11 particular question, and it's an impression which we 12 believe is essential for us to correct and rebut. 13 I have the witness, and we were able 14 to contact him only yesterday. They would speak with 15 us only upon sending them a subpoena. I spoke with 16 them only this morning at approximately 7:30 our 17 time, and I was informed of the facts which I have 18 related to the Court. 19 This witness is leaving this evening 20 for vacation, which will take him away from the 21 business. There would -- and there is no way for me 22 to compel this witness' personal appearance before 23 this court today or on Tuesday, you know, be able to 24 get that done for him to be here on Tuesday. 25 THE COURT: I assume the witness is in 4 1 another state? 2 MR. SUSSMAN: The witness is in Austin, 3 Texas. 4 THE COURT: Typically, if a witness is 5 resistant, sometimes it takes a couple months. 6 MR. SUSSMAN: Precisely. We would have to 7 go through the out-of-state -- process of subpoenaing 8 a witness through the out-of-state statute for 9 out-of-state witnesses, and so the only -- the 10 witness is available to be heard by telephone 11 testimony today, and we propose to offer this 12 testimony on this point by telephone testimony as we 13 were able to do with Tonya Herlick. 14 THE COURT: Okay. 15 Mr. Tintera? 16 MR. TINTERA: Your Honor, the questioning, 17 as I recall, was two-part. The witness was asked, 18 "Had you heard that the contract for Mr. Schwartz 19 would not be renewed?" The answer was, "Yes." 20 "And had you heard it would not be 21 renewed because of personality difficulties?" or 22 words to that effect, and the answer was, "No." 23 The Evidence Code provides for that 24 type of questioning. There was no objection made to 25 any of that line of questioning at the time. The 5 1 Evidence Code does not provide for proof on a 2 collateral matter. The answers have to be accepted, 3 and I don't think it's proper for them to try to 4 offer evidence on a collateral matter. 5 And I am not agreeing to a telephone 6 conference. 7 THE COURT: Okay. 8 MR. SUSSMAN: Your Honor, could I respond, 9 briefly? 10 THE COURT: You bet. 11 MR. SUSSMAN: As far as -- my recollection 12 on the question is slightly different than 13 Mr. Tintera's, but I'll ask the Court to rely -- 14 THE COURT: Which witness was it? 15 MR. SUSSMAN: Patrick Reilly. 16 THE COURT: I didn't even write that down. 17 I am looking at my notes. Okay. 18 MR. SUSSMAN: What I would also like to 19 add, if the impeachment -- the impeachment -- if the 20 impeachment was proper, it would be -- it was because 21 it was not a collateral matter and a permissible area 22 of cross-examination. 23 The State introduced this issue before 24 the jury. It was a matter which we had based on 25 information that was only within the knowledge of the 6 1 State. We had no way of knowing. 2 The misinformation -- I am not 3 suggesting Mr. Tintera is deliberately 4 misrepresenting something before the jury. There may 5 have been a misunderstanding, but the point is that 6 there was information presented to the jury that 7 presents a serious misrepresentation, in fact, in 8 terms of what the actual circumstances are and one 9 which can be very prejudicial to Mr. Schwartz -- 10 THE COURT: Not as prejudicial as I thought 11 the question was going to be. Because -- and I am 12 sorry I interrupted you. At pretrial I thought this 13 would all be evidence of prior cracking programs and 14 that sort of thing. When I heard something about a 15 personality conflict, I thought -- maybe I had 16 forgotten -- but that was the first time I heard of 17 that, and I am wondering if that really is evidence 18 of prior bad acts -- I guess, in my mind, in a case 19 where one of the allegations involves unlawful 20 cracking of passwords or wrongful passing of 21 passwords, prior incidents similar in nature 22 certainly have a possibility of leading to prejudice, 23 but where the prior evidence is a personality 24 conflict, the possibility of prejudice, in my mind, 25 is certainly not as great when you weigh those sorts 7 1 of things. 2 I was suspecting, when the question 3 was asked, "Have you heard" -- and I was waiting for 4 Mr. Tintera to say something about another one of 5 these cracking incidents, and, in fact, it was a 6 personality conflict. 7 In my mind the possibility of 8 prejudice is not nearly as great. But go ahead. 9 MR. SUSSMAN: That was the additional point 10 I wanted to make. I don't think -- if it was 11 collateral, to begin with, it would have been 12 improper cross-examination. Because the State opened 13 that door, I think we needed to correct that 14 impression, which is based on inaccurate 15 information. 16 THE COURT: Your client is still, 17 apparently, employed or has a contractual 18 relationship with Motorola? 19 MR. SUSSMAN: That's correct. 20 THE COURT: I will permit him to say, if he 21 testifies. 22 As counsel knows, from my review of 23 the statute, which is ORS 45.400, there is no 24 authority in Oregon law for taking telephone 25 testimony in a criminal case. We occasionally do 8 1 when parties agree to it, and I encourage parties in 2 appropriate cases to do that, as you have already in 3 this case once. But if Mr. Tintera is not prepared 4 to stipulate or agree to it, it isn't going to 5 happen. 6 Now, I am always concerned about some 7 prejudice or great injustice done to a party. In my 8 mind, the possibility of prejudice is not as great as 9 if the testimony had come out that this was another 10 one of those running a cracking program without 11 authority or authorization incidents. That's not 12 what this is. This has something to do with a 13 so-called personality conflict, and, in my mind, the 14 possibility of prejudice is not nearly as great. 15 We all have that sort of dilemma, 16 occasionally, in our interaction with other people. 17 That is not something where a jury necessarily would 18 infer a person is a bad person. It is not similar in 19 nature to, I don't think, anything we have heard 20 about in this case. 21 In any case, I can resolve it easily 22 by the statute that doesn't permit telephone 23 testimony. 24 MR. SUSSMAN: I understand that. We have 25 reviewed the statute with the Court. I would point 9 1 out that although we have the statute that so limits 2 the testimony, that under these circumstances, I 3 believe, the Court would have authority to allow it 4 on its own on two other grounds. First of all, the 5 Court -- 6 THE COURT: You are not going to tell me 7 about inherent authority, are you? 8 MR. SUSSMAN: Well, not only inherent 9 authority, Your Honor, because -- but you also -- 10 Mr. Schwartz also has the constitutional right to 11 present witnesses in his own behalf, either subpoena 12 witnesses and produce evidence favorable to his 13 defense, and that constitutional right would be 14 violated by not allowing the testimony by phone of 15 this particular witness, because, otherwise, the 16 evidence is not available. 17 Now, of course, under these 18 circumstances we can offer this testimony through my 19 investigator, who also, initially, got the statement 20 and the information from the witness, and we could 21 offer this as a statement of an unavailable witness 22 through the hearsay exception. 23 If the Court will not allow us -- 24 THE COURT: I am only ruling on the one 25 method right now. 10 1 MR. SUSSMAN: Let's stay with the telephone 2 testimony right now. But that the -- I believe -- 3 you know, there is a legitimate constitutional basis 4 for the Court to exercise its inherent authority to 5 order the telephone testimony in this case. As the 6 Court knows, there are times where statutory 7 restrictions are outweighed by the constitutional 8 protections -- fraud, trial rights of an accused -- 9 and I think this is such a case. 10 This is not an isolated point. There 11 have been certain other circumstances in this case 12 where evidence was brought up that suggested 13 improprieties by Mr. Schwartz, for instance, the 14 incident involving the computer -- the DEC computer 15 that was described as a security incident and the 16 witness -- the testimony later on indicated that 17 wasn't the case at all. 18 So I think there have been instances 19 of misimpressions that because of information that 20 was inaccurate or not founded -- and I think it is 21 essential to our defense showing what -- how 22 Mr. Schwartz conducted himself, whether or not in 23 evaluating the evidence -- whether the accusations, 24 the information presented to the Court, for the 25 State, are founded for us to be able to produce 11 1 this. 2 If the Court will not allow the 3 testimony of this witness, I certainly would -- will 4 ask the Court to allow me to make an offer of proof 5 right after the noon hour, just put the witness' 6 statements on the record. 7 THE COURT: Live or through another 8 witness? 9 MR. SUSSMAN: First, you know -- 10 THE COURT: Like, to have somebody relate 11 what the witness says? That is sufficient for an 12 offer of proof. We don't have to have them on the 13 telephone. 14 Okay. I have heard the argument, and 15 I'm ruling only on what's before me, and that is a 16 suggestion that the witness at Motorola be permitted 17 to testify by telephone. As I said, there is no 18 authority under Oregon law to permit that in a 19 criminal case absent an agreement. I think it is a 20 serious question, even with agreement of the parties, 21 that there is authority to do it. The prior Oregon 22 law before the statute was because there was no 23 provision under Oregon law for taking telephone 24 testimony in any case, that the court didn't even 25 have the authority to do it, but, of course, if no 12 1 one objects and cites it as error, it is 2 permissible. I suspect when every party stipulates 3 to it, it is hard put to cite it as error later on. 4 We did that previously. 5 Mr. Tintera says he is not prepared 6 and will not stipulate to it in this particular 7 instance. I already indicated the possibility of 8 personal conflict and the fact his contract had not 9 or would not be renewed is not great. I already 10 indicated I will permit the defendant, if he 11 testifies, by telling what the current state of his 12 contract is, and I am just convinced that's 13 appropriate under all the circumstances of this case, 14 and that's my ruling. 15 Anything else? 16 MR. SUSSMAN: Yes, Your Honor. Then, 17 first, just given the Court's indication, the offer 18 of proof can be made by representation to the Court 19 now. 20 The witness' name is Tom Navickas, and 21 that is spelled N-a-v-i-c-k-a-s, Navickas. He is an 22 executive at the Motorola University in Austin, 23 Texas. Mr. Navickas, if called, would testify that 24 he is the supervisor of an individual named 25 Tom Gocker, G-o-c-k-e-r, who hired Mr. Schwartz to 13 1 teach classes, that Mr. Schwartz is still under 2 contract with Motorola. No decision has been made 3 regarding his employment status, and no one was 4 authorized to represent that Mr. Schwartz's contract 5 had been terminated or would be terminated for any 6 personality conflicts. 7 That is the testimony that the -- 8 would have been elicited from the witness. I put 9 that on the record by way of the offer of proof at 10 this time. 11 Now, the next motion that I would 12 make, I would ask if you would allow me to present 13 this witness through an investigator, who spoke with 14 Mr. Navickas yesterday afternoon and brought this 15 information to my attention. The discussion took 16 place with Mr. Navickas, with the Motorola corporate 17 counsel on the line, and that was the information 18 that was related, again, to me this morning, and 19 under the exception to the hearsay rule for 20 unavailable witnesses, the Court could allow my 21 investigator to testify as to this conversation and 22 allow me to put on the evidence through the 23 investigator. 24 MR. TINTERA: Who is the investigator? 25 MR. SUSSMAN: Phil A-g-r-u-e, Phil Agrue. 14 1 THE COURT: I don't want to hear all the 2 argument and make the decision yet. I will be 3 thinking about it, because we would have an 4 opportunity to do that. I would like to get started, 5 because the jury has been sitting in there for an 6 hour. I'll think about it a bit and give Mr. Tintera 7 a chance to argue. Maybe we will reconvene early 8 after the noon break and get a chance to argue this. 9 (To the clerk) Bring in the jury. 10 (Whereupon, the jury entered the 11 courtroom, and the following 12 transpired:) 13 THE COURT: Good morning, folks. We are 14 ready to proceed now. 15 Mr. Sussman, you may call your next 16 witness. 17 MR. SUSSMAN: Thank you, Your Honor. We 18 would now call Mr. Schwartz. 19 20 21 22 23 24 25 Schwartz D 15 1 RANDAL SCHWARTZ was called as a witness on 2 his own behalf and, having been duly sworn, was 3 examined and testified as follows: 4 DIRECT EXAMINATION 5 BY SUSSMAN: 6 Q Mr. Schwartz, where do you live? 7 A Just north of Beaverton, Oregon. 8 Q How long have you lived there? 9 A About -- I think about six years, six and a 10 half years. 11 Q Now, the jury has had a good idea what 12 you -- you worked at Intel at one time. Would you 13 tell the jury what you are doing now, what your 14 occupation is now. 15 A I am an independent computer consultant. 16 What I am doing now is providing training on a 17 computer language called Perl language that I have 18 written, and I am consulting companies. 19 Q What companies have you been consulting to? 20 A In terms of training, I have been all over 21 the country, a company in Alaska down to a company 22 in -- University of Buffalo, Silicon Graphics in 23 California. I also have been doing computer 24 consulting work for Motorola Corporation and a small 25 company called Air Net out in Florida. Schwartz D 16 1 Q What was the nature of the consulting work 2 you did for Motorola? 3 A At Motorola I was a -- I guess the best 4 word for it would be toolsmith, someone who creates 5 software tools -- software is computer programs -- 6 create tools to support a group, a part of Motorola 7 that was building a satellite system that would allow 8 you to have cell phones anywhere in the world. My 9 particular role was to provide tools to help the 10 group that was doing simulations of this system once 11 it was up and running, and I would create pieces of 12 software to help them get their job done. 13 Q Now, what's the status of your contract at 14 Motorola? Are you still under contract with them? 15 A Yes, I am currently under contract with 16 Motorola University in Austin, Texas, to provide my 17 Perl training class on a regular basis. I have 18 classes from next month to the end of the year, about 19 one a month, and I am currently in negotiations for 20 me to go to China and Japan through that contract. 21 Q What about Air Net? You are still doing 22 work for them? 23 A The Air Net project was a small project. 24 They are keeping me in mind for future work. I think 25 I worked there three or four times, more recently two Schwartz D 17 1 or three months ago. 2 Q Let's kind of go back, back a long way. 3 A Okay. 4 Q Tell the jury a little bit about yourself. 5 A Okay. 6 Q Where did you grow up? 7 A Started out in Gladstone, Oregon. I was 8 born in the Willamette Falls Hospital in Oregon City, 9 just up the hill, and I spent 13 years in Gladstone. 10 I then moved -- I moved to Colton. That is a little 11 town past Mollala. I think they have got one traffic 12 light, and there is a school and store, and that is 13 about the entire size of the city, and I graduated 14 from high school there. 15 Q So what -- tell me about your family. We 16 know you have one brother. What family did you grow 17 up with? 18 A Yeah, I had two younger brothers. I was 19 the oldest of three. In fact, the brother, Russ, the 20 one that came here yesterday, is exactly one year 21 younger than me. We shared birthdays. That was kind 22 of fun. 23 It was my mom and dad and the three 24 kids. The other brother, like, two and a half years 25 younger, has gone on to be a music teacher. He -- we Schwartz D 18 1 lived together both in Gladstone and in Colton. The 2 reason we moved from Gladstone to Colton is my dad, 3 who had been working for himself creating -- not 4 creating -- fixing heating and air conditioning, 5 appliance repair, that sort of thing, finally got -- 6 changed his mind about what he wanted to do. He 7 actually wanted to have a job, and he found a job in 8 Colton, and so we had to move to out where the job 9 was. 10 Q What kind of work was he doing? 11 A For -- I think the name of the company was 12 Hardware and Industrial Tool Supplies Company. He 13 just called it his company. They made carbide tips. 14 He was a general handyman. He would 15 use his head to solve whatever problem he had out 16 there. Most of my problem-solving ability came from 17 watching him work. Here is the problem, and here is 18 72 parts, and see what we can put together to make it 19 work. He was a really creative guy. I really admire 20 him for it. 21 Q Was your mom working? 22 A She was the classic homemaker. She took 23 care of the kids, and she liked doing that. That was 24 perfect for her. We were well taken care of as kids. 25 She showed a lot of concern for us. Schwartz D 19 1 Q You went to school throughout your 2 elementary and middle school years in Gladstone? 3 A Yes, until ninth grade I was in Gladstone. 4 Q And how was school for you? Was it a good 5 experience? Were you having problems? Did you do 6 real well? How would you describe it? 7 A Somewhere around the middle of second 8 grade, they decided I didn't need to go to third or 9 fourth grade. I got moved up from second to fifth 10 grade. That created a lot of social problems. I 11 wasn't with people my own age anymore. I started 12 focusing on things I knew best, which was reading 13 books and talking to teachers and learning everything 14 I could learn. That was the thing I was best at. It 15 was difficult, though, because I was always -- I 16 mean, you can't really talk about it terms of peer 17 pressure. I didn't look at the people I was with as 18 peers. I got disconnected from everybody there. 19 Q So, then, what were your middle school 20 years and high school like? 21 A Well, as I started growing up, you know, 22 you go through these social changes. You go through 23 junior high, which is difficult enough for anybody. 24 Here I was, the computer guy in the corner. I 25 decided when I was nine that computer was everything Schwartz D 20 1 I wanted to do. I started learning everything I 2 could about them. 3 It's an experience I don't want to 4 relive. I made it through there, but it was 5 difficult. I didn't have a lot of friends. The few 6 friends that I had I only saw occasionally at 7 school. I spent most of my time learning and reading 8 and just trying to figure out everything I needed to 9 know in order to get my career done. 10 Q When did you start getting interested in 11 computers? 12 A About nine. 13 Q So with the difference in ages and school, 14 computer became kind of a -- that became your 15 alternate refuge? 16 A Yeah, I escaped in that. It was the only 17 comfortable thing I knew how to do was work with 18 computers, work with machines. You know, it's what 19 made me good at what I am doing now. It certainly 20 didn't give me the rich set of experiences growing up 21 most people seem to have, at least from the outside 22 they seem to have. 23 Q Now, did you -- how were you doing in 24 school with these different habitats, grade -- 25 because you were ahead of yourself, did that create Schwartz D 21 1 problems for you there? 2 A Yeah. Anything I really wanted to do, 3 anything that I had an attraction to, I did well in, 4 because whatever I focused my mind at, I did well 5 at. That's what I started discovering. But if I 6 didn't want to do good at it, I didn't. I flunked 7 junior high English. I didn't get really good grades 8 in high school. I wouldn't do homework outside of 9 the class. I got through there, and it caused 10 problems. It was difficult because of that. 11 Q But in other areas -- were there people 12 that helped you along and made that experience easier 13 for you? 14 A Oh, yeah. All the way through -- anytime 15 somebody saw that I was skilled, somehow -- I 16 remember, especially in junior high, my math 17 teacher. He decided I was already far enough ahead 18 in math he would take his prep period to teach me. 19 He was teaching the whole day, but we worked out a 20 schedule so I would be in his class one-on-one with 21 him during his prep period. He was teaching me 22 advanced high school math when I was in junior high. 23 He took an attraction toward me and made that work 24 and said, "This is somebody who needs extra 25 assistance. This is somebody that is obviously going Schwartz D 22 1 somewhere, and let's give him attention at this 2 point." My first grade teacher paid special 3 attention to me, saying, "This guy seems to have 4 something going on; so maybe we'll do some stuff." 5 I remember getting that sort of 6 favored treatment, and it really helped. It was 7 two-way. I was also able to be someone who was 8 moving forward in their classes. That doesn't happen 9 all the time. I don't know. I am not a teacher, and 10 so I can't really tell. 11 Q In high school, as you continued on, was -- 12 were you able to do anything additional with your 13 interest in computers? 14 A Yeah. By the time I was in high school, I 15 had already been spending a lot of time working with 16 a computer terminal, that is, like a keyboard and 17 screen attached to a computer system provided by 18 the -- I think it was provided by the Portland public 19 school system -- no. It was provided by the 20 educational service district, one level up from the 21 school system. They had this big computer all the 22 school systems were sharing. We had a terminal that 23 would attach to the computer, and I could tape in 24 computer programs and get them to run. I actually 25 created a system in that system that allowed me to Schwartz D 23 1 communicate with other students at other schools 2 around the area to send, you know, computer cases 3 back and forth, both immediately and sort of 4 electronic mail. I created a sort of electronic mail 5 system, in fact, when I was in high school at age 15, 6 16. 7 Q Did you get involved in other activities at 8 school? 9 A As I said, the learning was sort of my 10 focus, but towards my junior and senior year, I was 11 pulled in as technical assistant to a play, a school 12 play. I think I was the lighting coordinator or the 13 spotlight operator, something to do with that. It is 14 kind of fuzzy. It is a long time ago. 15 What I noticed there, drama people 16 were different from ordinary people, and I was 17 different from ordinary people in the other 18 direction, and I liked what I was seeing there. I 19 liked the enthusiasm they were showing for being able 20 to express themselves. With their encouragement I 21 actually tried out for the next play and got a fairly 22 significant part with actual lines and having to 23 stand up in front of all these people, and for 24 somebody who had spent most of their life in the 25 corner with computers, it was quite a draw in the Schwartz D 24 1 other direction. 2 Q Were you able to do more in school with 3 computers? 4 A Yeah. In high school I assisted the 5 computer teacher with his work. I actually helped 6 him prepare lesson plans and maybe even occasionally 7 got up in front of the computer class and taught. 8 That was my first real teaching experience back 9 then. I found that fun. It was exciting. 10 Q Was there anything else happening in your 11 life, your family, at that time that was helping 12 shape what was happening to you? 13 A Well, my dad -- I think -- my dad was -- 14 not career-oriented -- yeah, career-oriented. He 15 was. Let's face it, he was. He was gone 7:00 in the 16 morning until 8:00 or 9:00 at night most of the time, 17 and I think, eventually -- I still don't know all the 18 reasons behind it -- my mom got tired of it. She 19 wanted someone around. I can't blame her. When you 20 are in a relationship, it is nice to have them 21 around. They started breaking up and having 22 disagreements and arguments as I got sort of toward 23 the end of my high school years. 24 Q So what happened then? 25 A Right after I graduated from high school -- Schwartz D 25 1 this would be about '78 -- they split up within six 2 months later -- I don't know when the divorce was 3 filed or when it was final, but it was right in that 4 period of time somewhere. 5 Q You said you graduated from high school in 6 '78? 7 A Yes. 8 Q What did you do when you finished high 9 school? 10 A Well, the last year of high school, before 11 I actually graduated, I started working for a small 12 software company, group of -- like a handful of 13 consultants, maybe five or four consultants who were 14 providing software services to the Washington County 15 Educational Service District. Again, that is a 16 support organization that assists the schools, kind 17 of one level up from the school district themselves, 18 and at age 15, when I was working for them, I was 19 writing programs, grading and testing packages, text 20 editors, things that are used to change the way text 21 appears on the screen and so on. I was already doing 22 contract software before I got out of high school. 23 Q So what did that lead to? 24 A Well, I didn't get good grades in school; 25 so I wasn't really looking forward to any Schwartz D 26 1 scholarships. As much attention as people had paid 2 to me -- paid toward me to make me skillful, I 3 just -- you know, I just didn't seem to get the 4 grades in school that you would need for 5 scholarships. My parents weren't rich. My dad was 6 blue collar, working long hours to get what he 7 wanted. College wasn't in the plans. I couldn't see 8 any way of doing that without going into a tremendous 9 amount of debt and not knowing where it would come 10 from. 11 But I already had gotten this 12 contract, at least, bit work with this consulting 13 firm. The day I graduated, I moved from Colton to 14 out here to Beaverton to live with my uncle, who had 15 a house out here, and he had a room he could put me 16 up in, and I continued working for that consulting 17 company. My idea was to keep getting jobs. If I got 18 that job, I could get another one. Never mind I was 19 16 at the time. I didn't seem to pay attention to 20 that. 21 Q What happened -- what jobs or what did you 22 wind up doing next? 23 A My uncle happened to go to church with a 24 second level manager at Tektronix, and this was in 25 about April or May. I graduated in January, a half Schwartz D 27 1 year early out of my senior year. This was getting 2 about April or May. My uncle talked to his friend 3 and said, "You got anything, like, a summer temp 4 program we can put this guy in?" and, sure enough, 5 there were a couple slots available. It happened to 6 be in a technical writing position. That's someone 7 who understands the machinery and writes the books 8 that you get with the machinery once you buy it. 9 Usually the things are incomprehensible. Mine 10 weren't, at least I try not to make them that way. 11 Things that are hard to read, that's the kind of 12 things I would create. 13 The slot became open. I interviewed 14 for the job. I was a bit hesitant, because I hated 15 junior high English. I didn't like English or 16 writing. I am a software engineer. I put software 17 programs together. I figured if I get my foot into 18 the door, they would see the skills I had, and I 19 would eventually find my way into the slot I wanted. 20 Q At this point did you have any thoughts 21 about maybe going on to college or something or plans 22 to do that? 23 A Well, as I said, you know, I didn't get the 24 grades; so I didn't think the scholarships would be 25 there. Schwartz D 28 1 MR. TINTERA: Your Honor, I have to 2 interrupt. I don't mind a bit of background, but I 3 don't think we need the detail we are going into. We 4 are still -- as I see it -- 17 years away from -- or 5 so -- 15 years away from what the jury is here for. 6 I object. I don't mind some background about 7 Mr. Schwartz, but I think the amount of detail is too 8 great. 9 THE COURT: Overruled. Proceed. 10 Q (By Mr. Sussman) Anyway, was there 11 anything else that came up that might have affected 12 you -- your plans, any plans you might have had to 13 consider going to school? 14 A Oh, yeah. I -- because of my mom and dad 15 splitting, my mom was now left without a lot of 16 career experience. It was the classic case of 17 someone who was married straight out of high school 18 and only been a homemaker all her life. I took my 19 mom and my youngest brother into my apartment to take 20 care of her. I figured that was my responsibility 21 now. 22 Q You had a job at this point? 23 A I had a job and an apartment, and I could 24 share the resources that I did have available. 25 Q So you actually wound up getting a Schwartz D 29 1 full-time job at Tektronix? 2 A Oh, yeah. About a month into the 3 contract -- excuse me, not a contract -- but about a 4 month into that position of being a technical writer, 5 I was sitting in the cafeteria alone, sort of working 6 on the work I was doing, and an older gentleman, 7 Lyle Settle, also noticed I was working there alone 8 and started asking questions about what I would -- 9 what I would do under certain circumstances. He had 10 a proposal for a manual he was trying to create. He 11 said, "How would you handle this? What would you 12 do?" I looked at it and gave him common-sense 13 answers. At least they were common sense to me. 14 "Wow, those are interesting ideas. How long will 15 you be here? Do you mind if I get you transferred 16 over to my project?" I said, "No, I am here to 17 work. I don't care what I am working on. If you 18 want me to work on your stuff, I will work on your 19 stuff." 20 He adopted me. That is the best way 21 to say that. He became my mentor. He taught me over 22 the next four years how corporations work, how to get 23 the job done, how to deal with situations as they 24 arose and, best of all, how to think for the 25 customer, how to imagine someday somebody is going to Schwartz D 30 1 have to get this book in their hands and figure out 2 how it works, and, really, pretty much everything I 3 know, at least in my formative years, on how to deal 4 with companies and corporations came from Lyle. 5 Q How long did you wind up staying at 6 Tektronix? 7 A Five years. 8 Q What kinds of things did you do while you 9 were at Tektronix? 10 A Well, for the first four years I worked 11 with Lyle as a technical writer and eventually a 12 manager of technical writers. 13 While I was in that group, I also 14 created the typesetting systems that our group used. 15 I had -- in a typesetting system, you type the letter 16 "A," and, eventually, it has to end up as black dots 17 on a white paper in the shape of the letter "A." I 18 made it so that stuff would work all correctly. 19 After the first four years, I 20 transferred into the software engineering group that 21 I had previously been writing books for. So my peers 22 that were sort of across the hall, I would put it -- 23 I would design it, and now I was part of the group. 24 Q When that happened, what -- what did you 25 wind up doing? Schwartz D 31 1 A I was -- I managed a couple of people that 2 were creating new versions of software for one of the 3 products that Tektronix was releasing. 4 Q How did things go for you at Tektronix? 5 Did you wind up leaving on your own? Was it -- was 6 it a mutual decision? 7 A Oh, yeah. Everybody liked me there. They 8 kept saying, "You are doing good work." My reviews 9 were always really cool. 10 Eventually, though, I got an offer 11 from a start-up company to be assistant manager for a 12 couple of small fax computer systems. That is 13 computer equipment from Digital Computer Company. It 14 was downtown, and I was working with a manager that I 15 formally worked with at Tektronix that had gone on to 16 another project, and he called me up from there. 17 Because of my admiration for my former 18 manager, Joe Turner -- Joe says, "Come on over, and 19 take a look at this project." Even though I had been 20 at Tektronix for five years -- I thought I could 21 retire from here -- I thought, "Well, I could look at 22 this. I will never know unless I take this 23 opportunity." Of course, there is a big kick-up in 24 money. That kind of motivates the decision. Yeah, I 25 took on this new role. Schwartz D 32 1 Q And what -- how long were you there? What 2 kind of things did you -- 3 A I was there for about ten months, and I was 4 assistant manager, as I said, for a couple of 5 computer systems. I was in charge of keeping the 6 systems and networks up and running, the networks 7 being the wires that keep the computers together. 8 I was there for ten months, and the 9 manager that brought me from Tektronix went to 10 another company, Servio Logic, then left to go to 11 another company and called me from there and said, 12 "You got to come over here." I still liked him. It 13 was kind of silly. He dragged me over to Servio, and 14 he took me to the next company. I respected his 15 decision. I checked it out. The new company was 16 Sequent Computer Systems, and within a couple months 17 I became employee No. 64 at Sequent. 18 Q And how long did you stay there? 19 A I stayed there, I think it was, two and a 20 half years. 21 Q What kind of work were you doing at 22 Sequent? 23 A At Sequent I went back to being a technical 24 writer. I was up writing the manuals for an 25 operating system called UNIX. What Sequent was doing Schwartz D 33 1 was putting UNIX on their particular machine, their 2 hardware, and selling the package to their 3 customers. As they did that, they made modifications 4 to UNIX. The documentation, reference cards, 5 everything with it had to reflect the changes that 6 Sequent had made to UNIX in order to put it on their 7 machine. I spent time rewriting the manuals as my 8 initial job. 9 Q What led to your departure, and what did 10 you do next? 11 A Well, on towards the end of my stay at 12 Sequent, there was a dispute over the number of hours 13 I needed to work to be an employee there. They kept 14 asking for 80 hours for 40 hours' pay, and I realized 15 it was a start-up company. I had a lot of outside 16 activities at that point, and I thought 60 would be 17 about right. They were asking for a lot of work. We 18 reached a mutual decision that maybe I should go 19 somewhere else. 20 Q Where did you go? 21 A I used that as an opportunity to say, 22 "Well, my dad was self-employed. Maybe I will do 23 that for a while. Maybe I will be a contractor or 24 consultant. If I don't like that, maybe I could go 25 back to another company." Schwartz D 34 1 Q That was -- 2 A That was back in '86. I haven't worked for 3 a company as an employee since then. I have been in 4 business for myself since '86 or '87. The dates 5 escape me. 6 Q What is the name of the company? 7 A Stonehenge Consulting Services. Stonehenge 8 is this big rock pile in England. 9 MR. TINTERA: Objection, he answered the 10 question. 11 THE COURT: Sustained. 12 THE DEFENDANT: Sorry. 13 Q (By Mr. Sussman) What kinds of -- what 14 kind of consulting service work is it you started up 15 doing after you set up your own business? 16 A Well, my first big contract, my first big 17 one at Stonehenge was, I think, about a 18 nine-month-long contract for Tandem Computer Systems 19 down in the Bay Area, San Francisco Bay Area, down at 20 the south end. We call that "Silicon Valley," the 21 part where all the computer companies are. My 22 contract was to create a security administration 23 guide -- big technical terms -- a book to tell you 24 how to keep your systems secure. Since my interest 25 and background was computer security, that fit really Schwartz D 35 1 well. I was working with my mentor, Lyle Settle, my 2 mentor at Tektronix. 3 Q How was the end of the contract? Was that 4 the end of the work? 5 A Yeah, I wrote the book, and they were happy 6 with it, and they said, "Fine," and they called me 7 back a few months later to rewrite one of the other 8 books they had on security, and I went and did that, 9 and they were happy with that, as far as I could 10 tell, too. 11 Q And so you continued doing some consulting, 12 various contracts for different durations for a 13 number of years after that? 14 A Yes. Like one ongoing contract I have had 15 from roughly that same period of time was 16 Astro Western gas stations, the Astro stations you 17 drive by everyday. The software that tracks the gas 18 that is being hauled from the distributor to those 19 gas stations is being tracked by my software. Every 20 time a truck goes, it makes an entry into this data 21 base I created. 22 Q When did you wind up doing work at Intel? 23 A A friend of mine, Connie Brown, had worked 24 with me at Tektronix and had gone on to be either an 25 employee or a contractor at Intel. When she heard my Schwartz D 36 1 second project was winding down at Tandem, she said, 2 "You ought to go try this project here I have heard 3 about, the new Gemini project," some sort of project 4 inside Intel to create, yet, another advanced 5 microprocessor chip. It is not the ones that are in 6 IBM PCs, but a different kind of architecture. 7 Q Did you get the contract? 8 A Yes. My contract was to do technical 9 writing, once again. In this case it was the 10 documentation, the book on the chip itself, the 11 microprocessor, about a 450-page book that described 12 exactly how the microprocessor worked. 13 Q Tell the jury who you worked for, then, 14 under that first contract. 15 A If I remember the name right, it is 16 Patty Langstrat. I think that is her name. 17 Q What did you -- let me ask this: So 18 overall, how long did you wind up working at Intel? 19 Was it one -- did you work continuously, or was it 20 off and on? How did that work for you? 21 A The first contract was with Patty at this 22 Gemini project. Gemini became the BIIN Corporation 23 in the building over here on Jones Farm, big 24 roll-out. The governor was there with the big 25 operation. Gemini went BIIN. My contract went from Schwartz D 37 1 Intel to BIIN, B-I-I-N, BIIN. It was really all the 2 same company, different name. 3 Then my contract with BIIN -- the 4 company was run into financial troubles. "Okay. No 5 more contractors." We all got cut in one big swoop. 6 The building was being shared by 7 another Intel group. I walked across the aisle and 8 said, "It looks like I am getting lost here, because 9 they cut all the contractors. Have you got anything 10 I can do over here?" My first person I contacted was 11 Dave Riss. "We are looking for a systems 12 administrator. Have you had experience working as a 13 systems administrator?" and that is how it worked. 14 Q Do you recall when that came about that you 15 became a systems administrator? 16 A I am going to say it was either '88 or 17 '89. I really can't tell. 18 Q Maybe this will help you remember a bit. 19 Let me show you what I have marked into evidence as 20 Defendant's Exhibit No. 156. 21 A Okay. 22 Q Do you recognize what this -- 23 A Yes. This would be an invoice to Dave Riss 24 on that first contract with IWARP as systems 25 administrator. Dave Riss was my boss, initially. Schwartz D 38 1 Q When was the date? 2 A June 6, 1989. 3 Q This is the beginning of work you did for 4 IWARP? 5 A I don't know if this was the very first 6 contract. "Orientation" sounds like it is probably 7 the first contract. 8 Q I notice, looking at this contract, that 9 you were -- talked about doing toolsmithing? 10 A Uh-huh. 11 Q You mentioned earlier in your testimony 12 about one of the first things you were doing at -- 13 with the schools you were creating tools. You talked 14 about computer tools. What does that mean? What is 15 tools and toolsmithing? 16 A Well, if you are a carpenter and you are 17 going to go build something, you go down to the 18 store, and you buy a hammer, and you buy a saw, and 19 you buy a screwdriver. Those are your tools to get 20 the job done. 21 If you are a user of a computer, you 22 might go out and buy a word processor, something that 23 can allow you to type words in and arrange them on 24 the page, or you might buy a spreadsheet, which 25 allows you to do accounting sort of stuff, adding up Schwartz D 39 1 of things and stuff like that. If you are a 2 programmer of computers like me, you can go out and 3 buy tools, and I frequently do. Often what I do is 4 simply create the tools. I design computer programs 5 that assist me in further doing my work. I create 6 the tools. I call that "toolsmithing." 7 Q So would you give us an example of a 8 program that is a tool that you might create to do 9 your job. 10 A Yeah. Let's say I had to tell the computer 11 the same five things in sequence everyday. I had to 12 do this and this and this and this and this over and 13 over again. Well, I could put that into a file. 14 That's a place where a computer can store 15 information, and then all I have to do is the one 16 command that says, "Do that file." That would be an 17 example of a tool. If I knew I had to do that 18 everyday, I could even go further and just tell the 19 computer, "Just go do that once a day. Don't even 20 tell me about it. Just go do it." 21 So the act of building up kind of, 22 like, my work bench -- you can't really see 23 anything. It is stuff inside the computer. It is my 24 work bench. I have tools over here to do these 25 things and tools to do these things. That is what Schwartz D 40 1 toolsmithing basically is. 2 Q We heard testimony about a .rhost file. 3 A Uh-huh. 4 Q During one of the projects you were on, 5 this was something that was left in a DEC computer, 6 one of the projects later on, and there was some 7 reference to that being a tool. Is that -- is 8 an .rhost file a tool that you are describing? 9 A Yes, you could certainly call an .rhost 10 file a tool. It is more of a configuration file than 11 a tool. It is more telling the computer how you want 12 to do your job, that this is something you will be 13 working on, and this is the way you will work on it. 14 We call those configuration files setting up -- 15 setting up the computer so you can use it later. 16 Q You were hired, then, as an independent 17 contractor? 18 A Yes. At Intel? 19 Q Yes. 20 A Yes. 21 Q When you were hired as an independent 22 contractor, is it your understanding -- or did you 23 have any understanding as far as there were any 24 differences in the way you would be performing or 25 doing your job than regular Intel employees? Schwartz D 41 1 A Yes. Because of my experience with Tandem, 2 I was already familiar with the differences between 3 contractors and employees. 4 A contractor is someone who is brought 5 in that already has a certain skill set that they can 6 offer to the client, and the basic meanings of 7 interaction is you are told -- I was told, "Here is 8 the problem. Go solve it with what you know." They 9 don't want to know how I did it to get there. They 10 just want the problem solved. 11 An employee -- 12 Q What -- why do you say they didn't want to 13 know how you solved the problem? 14 A They hired me to take care of the problem. 15 They didn't necessarily have the expertise to even 16 know the steps they would have to go through in order 17 to solve the problem. That's why they brought me 18 in. 19 Q Go ahead. You were starting to say about 20 employees? 21 A I was contrasting that with an employee. 22 An employee is a different matter. As an employee 23 you are brought in, and one of the resources -- 24 MR. TINTERA: Judge, could I ask a question 25 in aid of objection? Schwartz D 42 1 THE COURT: Yes. 2 MR. TINTERA: Were you an employee of 3 Intel Corporation? 4 THE COURT: No. 5 MR. TINTERA: He doesn't have knowledge as 6 an actual employee. If this is something he read, it 7 is hearsay. 8 MR. SUSSMAN: He works daily with 9 employees. 10 THE COURT: Overruled. Go ahead. 11 THE WITNESS: As an employee -- doesn't 12 matter whether it's Intel or not -- you are brought 13 in as someone that's part of the company. You are 14 working there from day-to-day. The company invests 15 certain resources and interests in you. They have 16 this sort of obligation, in a sense, to keep you on. 17 You are not going to be just cut at the end of next 18 Friday arbitrarily. You are part of the company. 19 So in that case, you are given a lot 20 more restrictions and detailed information, because 21 what they want to create is a person that works well 22 with the entire organization. 23 Q (By Mr. Sussman) Now, as a contractor, 24 were you required to attend all the meetings that 25 employees were required to attend? Schwartz D 43 1 A No. I wasn't allowed to go to certain 2 meetings because they were employee-only meetings. 3 Q When you were given specific things to do, 4 as a systems administrator, did Dave Riss or other 5 people ask you to go to them for permission or 6 authorization before you did each of your -- each job 7 that you did or dealt with each problem that you 8 had? 9 A No. Actually, in fact, basically, the 10 interactions I had with Dave -- "What is going on? 11 Anything I need to be aware of?" I would tell him 12 the most important problems I was working on, and he 13 would say, "Fine. Take care of it." My actual 14 day-to-day activities, except for the parts I would 15 tell Dave from time to time, he didn't know, and I 16 suspect he didn't care as long as results were being 17 accomplished. 18 Q When you were hired, was there -- at Intel, 19 did Intel -- was there a specific period you were 20 contracted to work for? 21 A Yeah, one thing about a contract, there is 22 an end date. There is always an end date out there. 23 There is always something that says, "This is how 24 long it will be." From my understanding, the typical 25 one was no more than six months. You were always Schwartz D 44 1 working on the short-term project. The concept of 2 the contractor is to bring them in for a certain 3 period of time to solve the problem that is there 4 now. 5 Q Well, now, after you started this contract 6 with -- at IWARP with Dave Riss, how long did you 7 stay at IWARP? 8 A Well, after the first six months, as it got 9 close to the end, he said, "Sounds like we will keep 10 needing you. Do you mind sticking around?" I said, 11 "Sure." We kept renewing the contract. It was two 12 years after I finished. 13 Q Was there a new contract written up? 14 A Generally, they would have a bureaucratic 15 form, and they would say, "He can keep working and 16 bill under the same file." There were extensions, 17 just more money and more end dates thrown into it to 18 make it longer. 19 Q During the time you were in that initial 20 two years at IWARP, were you, as a contractor, given 21 any specific security manuals from Intel, corporate 22 security policy? 23 A I don't recall any. 24 Q Were you given any memoranda showing any -- 25 describing any restrictions, company policy Schwartz D 45 1 restricting your activities on the -- you know, as a 2 systems administrator? 3 A There were conversations that happened all 4 the time. I didn't do my job in a vacuum. But as 5 far as specific, "Here is a document that needs to go 6 on," I don't recall anything formal like that. 7 Q Were you working there full-time? 8 A At IWARP, I believe, early on I was working 9 there somewhere between 30 to 60 hours a week. I 10 guess you would call that full-time. 11 Q As time went on, did you continue to be 12 there essentially full-time? 13 A There were other contracts outside of 14 Intel. Part of that is the IRS policy that you can't 15 keep working for one person entirely for the year; so 16 I would always find other things to do, projects to 17 work on, so that neither they nor I would be at risk 18 of having this relationship be claimed to be an 19 employee. 20 Q What other kind of contracts were you 21 doing? 22 A I was still doing the Astro project all 23 along. Actually, every time the tax laws changed, I 24 had to go down and change it, and you would be 25 surprised how much the tax laws change relating to Schwartz D 46 1 hauling gas. 2 Q I want to talk to you about a few things 3 you were doing as a systems administrator. 4 THE WITNESS: Could I get some water? 5 THE COURT: Sure. Since we have been out 6 here over an hour, we should take a break, and then 7 we will go into the noon hour. Let's take a 8 mid-morning recess, and we will continue on until 9 12:30. 10 Okay. Let's start again at about 11 quarter after. 12 You may step down. 13 (Brief recess) 14 THE COURT: Proceed, Mr. Sussman. 15 MR. SUSSMAN: Thank you, Your Honor. 16 Q (By Mr. Sussman) Mr. Schwartz, how are you 17 feeling today about testifying? 18 A I'm nervous. 19 Q Why is that? 20 A Well, this is the first time I have 21 testified like this before, and I'm sure that's a 22 natural reason to be nervous. 23 Q Well, slow down; okay, when you talk to the 24 jury so we can catch everything. 25 A Sorry. Schwartz D 47 1 Q Let's go back to kind of an overview here. 2 A Okay. 3 Q You were telling the jury you had a 4 contract that had you working at the IWARP section 5 for about two years. Okay. Just kind of to help us 6 with an overview, after -- tell us -- kind of run 7 through where you worked after the IWARP section 8 until the time your employment ended at Intel. 9 A Okay. I worked at IWARP until IWARP merged 10 with SSD late '91, early '92, right around December, 11 January. I continued to work under the same combined 12 IWARP and SSD until April or May of '92. 13 Now, before that contract ended, I had 14 obtained a contract through Bob Wilcox. I think I 15 picked that up in February of '92, and I was still 16 under that contract until November of '93; so those 17 were sort of overlapping and parallel. 18 Now, towards the end of '92 I came 19 back to SSD to work on the test automaton, the "TA" 20 that you heard referred to earlier, and that was 21 for -- officially, it was for Dave Riss, but my 22 contract boss was Herb Mayer. I think that was 23 toward the end of '92. Now, somewhere in there -- I 24 think it was late '92, maybe September, October, 25 something like that -- I was also contracted by Schwartz D 48 1 Clayton Kirkland out of Fulton, California, to 2 provide DNS technical support and architecture for 3 the entire company, and I was still under that 4 contract at the end of 1993. 5 Q As an independent contractor? 6 A Uh-huh. 7 Q Did you sign certain contracts? I want to 8 show you what's been marked for identification as 9 Defendant's Exhibit 106. 10 A Okay. 11 Q Take a look at that. See if that looks 12 familiar. Does it look familiar? 13 A Okay. Let me see what this entails here. 14 It looks similar to something that I signed pretty 15 much every time I have a contract with Intel. It's a 16 corporation purchase agreement for services. This is 17 sort of a -- every time I signed it, it was something 18 different, but this seems to be close to sort of the 19 general flow of what was in these contracts. 20 Q When you say it was sometimes different, 21 was there sometimes more documentation than that or 22 more likely less? 23 A This looks like about the thickest packet I 24 would have signed. Often it was smaller. 25 Q And this packet has the definitions, Schwartz D 49 1 including your definitions of independent contractors 2 and employees and the kinds of duties that -- and 3 control over your services in it? 4 A Yeah, this particular packet does have that 5 on it. 6 Q Were you familiar with that? 7 A I was familiar with that, not necessarily 8 from that page, but I was familiar with that. 9 Q And the -- now, the other document in front 10 of you, what has been received as Exhibit 103, what 11 is that? 12 A Well, this is the -- they call it the 13 famous 20-questions list, or at least this is some 14 derivation of that. The IRS, in testing whether a 15 person -- 16 MR. TINTERA: Objection, nonresponsive. 17 THE COURT: Sustained. 18 MR. SUSSMAN: Okay. 19 Q (By Mr. Sussman) You are familiar with the 20 document? 21 A I am familiar with the document. 22 Q That -- and that is the 20-questions list 23 that you filled out to show you're an independent 24 contractor, for the IRS. 25 Now, take a look -- is that your Schwartz D 50 1 signature at the end of the document? 2 A Let's see. It says "sponsoring manager's 3 signature." I don't see my signature on the 4 20-questions part. 5 Q But is that the kind of 20 questions -- 6 were you required to fill that out with the contracts 7 that you -- 8 A There may have been exceptions, but, 9 generally, every contract I signed we had to fill one 10 of these out. 11 Q All right. And in the text, what is it -- 12 what does the text include as far as the company's 13 ability to control your work hours, your -- the 14 method of your work and so forth? 15 A Well, down here it reads, "Company 16 determines order of work. Contractor relies on 17 company for total order and sequence of work." The 18 box here is checked "No." 19 Q That was the checklist for the IRS. On the 20 document that you previously identified that had the 21 definitions, was this also the Intel standards that 22 were set out in the contract? 23 A Let me see this for a second. 24 Q Uh-huh. 25 A Yes, this seems consistent with what I am Schwartz D 51 1 aware of about the contractors. 2 Q What were the limitations on the control 3 over you as independent contractor as defined by the 4 Intel contract statement policy? 5 A Well, here it says -- 6 MR. TINTERA: I object to his reading it. 7 It has already been offered into evidence. 8 THE COURT: It has not been received, I 9 don't believe. 10 MR. TINTERA: I think that is 103. 11 THE COURT: Has that been received? 12 THE WITNESS: No. It is 106. 13 MR. TINTERA: I see it as offered and 14 received. 15 THE CLERK: 103 has been received. 16 THE WITNESS: This is 106. 17 THE CLERK: It has been received. 18 THE COURT: Don't read it out loud. 19 Q (By Mr. Sussman) Without reading it, what 20 was, generally, the policy limitation, policy 21 restrictions on control over you as an independent 22 contractor? 23 A The way I understood it, very simply, they 24 could say what to do, but not how to do it. They 25 could control the goals, but not the methods. Schwartz D 52 1 Q Take a look at this one. Let me show you 2 what has been marked here for identification as 3 Defendant's Exhibit No. 157. What I am going to do 4 is go through a few of these invoices. 5 This -- why don't you just identify 6 what the document is. 7 A This is an invoice from me to Dave Riss for 8 the IWARP contract dated June 30, 1989. 9 Q What I want to do is go through a couple of 10 these, some of your invoices describing your work, so 11 we could talk about the way you did your work and who 12 you talked to about what you did. 13 A Okay. 14 Q On this one here, Exhibit 157, it mentioned 15 here, I think, on the second page that you put cables 16 in the ceiling. There we go. 17 A Okay. Yes, yes, it does. 18 Q Now, what would that be for? 19 A Well, my responsibilities in IWARP included 20 everything involved with being a systems 21 administrator. That is a really broad set of tasks. 22 It includes keeping the systems running. It includes 23 installing new systems, installing new software, and 24 handling emergencies. 25 Q Now, when you put cables in the ceiling, Schwartz D 53 1 did you -- did that alter the computer system? 2 A I would have to say so. 3 Q Did you have to get anybody's permission 4 before you did that? 5 A It was part of my contract. No, I didn't. 6 Q What about on this contract over here? 7 This is an invoice for work that Dave Riss stated -- 8 well, we have got this marked Defendant's Exhibit 158 9 for purposes of identification, and take a look at 10 this one. 11 A Okay. 12 Q Okay. And when is that one from? 13 A This is a contract to Dave Riss from me 14 dated October 19, 1989. So, again, it would be the 15 IWARP contract when I was being systems 16 administrator. 17 Q Now, on this particular one, it refers 18 here, on October 10, to doing networking. What does 19 that mean? 20 A That was probably my shorthand for talking 21 about setting up some configuration of the network. 22 In other words, the wires that connected the 23 computers together, they had to be told how to 24 connect to each other. The computers had to be told 25 how to connect to each other. I am sure that had Schwartz D 54 1 something to do with that, and if I wrote 2 "networking," that is what I meant. 3 Q Anybody specifically authorize you to do 4 that? 5 A It was authorized under my contract. I was 6 systems administrator. That was part of my job. 7 Q Over here there is a line that mentioned 8 "leased line debugging." What is "debugging"? 9 A Getting the bugs out. "Bugs" in computer 10 terms is something that is in the way, something that 11 is broke. A bug in a piece of software means it 12 doesn't do what you told it to do. It is kind of 13 like you have a sound in your car, and you drive and 14 turn to the right, and it always makes the same 15 sound. That is a bug in computer parlance. 16 "Debugging the leased line" means I 17 was looking at the telephone connection that Intel 18 and SSD shared out to the Internet and making sure 19 there was nothing wrong with it. Maybe somebody had 20 reported a problem with it, and I was trying to 21 figure out how to get that problem out of there. 22 Q Again, did you have to ask anybody's 23 authorization to do that? 24 A No, that was part of my job. 25 Q This is an invoice that has been marked for Schwartz D 55 1 identification as Defendant's Exhibit 159. 2 A Okay. 3 Q Here is a curious entry on February 28. 4 When is this one dated? 5 A The contract, again -- this invoice is 6 dated March 16, 1990. 7 Q Now, over here -- well, let me go to the 8 next one, too. Let me look at the one that has been 9 marked for identification as Defendant's Exhibit 10 No. 160. When is that invoice, and where is that 11 from? 12 A Again, it is invoiced to me -- it is 13 invoiced to Connie Woodworth. Connie took over as my 14 boss after Dave left to go to another group. So I 15 worked for Dave for a while, and then I worked for 16 Connie for a while, but I was doing the same job. 17 Q Now, I am looking at this invoice, these 18 two invoices here. 19 A Yes. 20 Q And I notice, like, there are numerous 21 references -- 22 MR. TINTERA: Counsel, could you refer to 23 them by number, or would you like me to stand up 24 there with you? 25 THE COURT: I am sure he will refer to them Schwartz D 56 1 by number. 2 MR. SUSSMAN: I am sorry. 3 Q (By Mr. Sussman) Defendant's Exhibit 4 No. 159? 5 A Yes. 6 Q Look at Defendant's Exhibit 159. There are 7 numerous references to "fires." There are also a 8 number of references to "fires" in your invoice of 9 November 16, which is Defendant's Exhibit 160. What 10 are you talking about? What do you mean by "fires" 11 here? 12 A In my role as systems administrator, I have 13 30 computer systems in this group, somewhere around 14 30 computers, that had to all be up and running, had 15 to all be talking to each other, had to all be 16 talking to the Internet, had to all have mail going 17 in and out for everybody to do their job there. 18 When any piece of it broke, it stopped 19 the work of the person that needed that piece to 20 work. So they would come to my desk and say, "This 21 is broke." Now, their work has stopped. They can 22 not continue to work; so it required urgent 23 attention. It required me looking at the problem, 24 diagnosing it immediately, drawing on my resources, 25 talking to whoever I needed to talk to to get the Schwartz D 57 1 information and to get it to work and do it. It was 2 an urgent situation, and I wrote those down as 3 "fires." 4 Q When you were dealing with a fire, did you 5 have to go to anybody to ask authorization, ask for 6 authorization for modifications you made to a 7 computer or network or system to fix the problem? 8 A As long as it was in the scope of being 9 BIIN systems administrator, I made all the changes 10 necessary to keep people working at their work 11 stations. 12 Q What was the focus of those jobs of putting 13 out those fires? 14 A Get it done now. 15 Q Now, I would like you to take a look at 16 what has been marked for identification as 17 Defendant's Exhibit No. 161. 18 A Okay. 19 Q That's an invoice. When was that dated? 20 A Well, this is an invoice dated 21 March 2nd, 1992, from me to John Gray. 22 Q Okay. On this particular invoice -- it is 23 Exhibit No. 161? 24 A Uh-huh. 25 Q There is reference to "security break-in Schwartz D 58 1 analysis." What was that all about? 2 A Security break-in analysis? Boy. 3 Q Uh-huh. 4 A Part of my work involved being sure that 5 the computer systems were secure, to pay attention to 6 information assets, because the entire company 7 resides -- the product of the company is what's 8 sitting on those disks. That's what the people are 9 producing. They are sitting at their work stations. 10 So protecting that information was my job, to look at 11 the situation, see what needed to be fixed, what 12 needed to be changed, what needed to be installed, 13 what needed to be altered in such a way that the 14 information was protected. 15 I don't know the specific action 16 related to these three words, though. 17 Q But when you talk about "security break-in 18 analysis," that typically would imply to you what? 19 A I can see I wrote this from some sort of 20 action that resulted from me analyzing something that 21 had happened in terms of a security incident, but I 22 don't know, from looking at that, what the details 23 were. 24 Q The entry on 2-18 also talks about 25 installing "TH" and tools. Schwartz D 59 1 A Where is that? Okay. 2 Q What is installing a "TH"? 3 A We weren't as creative as other groups in 4 coming up with names on computer systems. They used 5 letters of the alphabet. When we ran out of the 6 letters of the alphabet, we doubled up. All the 7 computers that were "T" something were similar 8 chassis of machines. We had TA, TB, TC. This was 9 TH. We must have gotten up to eight or nine of 10 those. 11 Q "Tools" -- what does that refer to? 12 A Once again, "tools," creating small 13 programs to assist either me or somebody else. 14 Q Did that alter the system? 15 A Absolutely. 16 Q When you made tools or when you installed a 17 new one -- 18 A Yes. 19 Q -- did anybody authorize you -- 20 specifically tell you that you were authorized to do 21 that when you performed those jobs? 22 A No, it wasn't authorized specifically. It 23 was authorized within the context of me being a 24 systems administrator. 25 Q Looking, now, at what I have marked for Schwartz D 60 1 identification as Defendant's Exhibit No. 163. 2 A Okay. 3 Q That is an invoice from when? 4 A It says April 15, 1992, and it's addressed 5 to Bob Wilcox, and the contract looks like the 6 contract -- the contract would be the one where I was 7 doing network administration and systems 8 administrator for Bob Wilcox out of Hawthorn Farms. 9 MR. SUSSMAN: Counsel, that is 163. 10 MR. TINTERA: Thank you. 11 Q (By Mr. Sussman) A couple places here you 12 say, "Play with Sun Net manager on a couple different 13 days." What are you talking about, the Sun Net 14 manager? 15 A It seems we systems administrators have 16 words that mean something different than other 17 people. "Play with" means getting your hands on, 18 find out what the parameters are, find out how it 19 wants to be installed. 20 Q Stop a second. "Find out what the 21 parameters are" -- what does that mean? What are you 22 talking about? 23 A A program doesn't just sit on a floppy 24 somewhere. The program has to be installed. It has 25 to be set up so people can use it. There are, Schwartz D 61 1 generally, a lot of configuration things, things you 2 have to tell the program about the environment in 3 which it is running in order for it to be effective. 4 Q The environment? 5 A Like the computer system you are on, the 6 way the network is set up, the -- we call it 7 "environment," everything around the program. 8 Q So it's getting a feel for the system and 9 how the computers in the system work? 10 A "Playing" generally refers to something 11 like that. 12 Q Now, I would like to show you what has 13 already been received as Exhibit 102. What is that, 14 just to refresh the jury's memory? 15 A This is an independent contractor 16 requisition, one of the many I signed while working 17 at Intel. 18 Q This was one you signed when you started 19 working for Bob Wilcox? 20 A Actually, no. I am looking to see if I 21 signed it anywhere. Yes, I signed it -- I didn't 22 sign the first page. That was the original request 23 to bring me in. It was an authorization from Bob 24 through his boss to actually be able to pay me. 25 Q Have you worked for Bob Wilcox -- that Schwartz D 62 1 contract had you doing what kind of work? 2 A For Bob Wilcox I had multiple 3 responsibilities. I was the toolsmith of the group. 4 That was my main asset overall was being a 5 toolsmith. Bob had hired me for that. 6 I was also administering the systems 7 in Bob's group, in other words, being a systems 8 administrator for the machines that Bob needed to use 9 in order for him to accomplish his task, and I was 10 also setting up software to monitor networks, in 11 other words, pay attention to the way the information 12 was flowing along the wires out at Hawthorn Farms. 13 Q Now, I would like to show you what we have 14 had marked for identification as Defendant's 15 Exhibit 164, another invoice. 16 A Yeah. 17 Q What is the date on that? 18 A Date is May 18, 1992. 19 Q Now, that talks about downloading GNU Emacs 20 and Perl. Is that all through the system? 21 A Yes. 22 Q Did anybody tell you you could do that? 23 A In the guise of the contract, in the scope 24 of the contract, that was one of the things I was 25 authorized to do. Schwartz D 63 1 Q Part of the everyday responsibilities? 2 A Right. 3 MR. SUSSMAN: That's the document, pages 4 65, 66, Counsel. 5 MR. TINTERA: Thanks. I am following 6 along. 7 Q (By Mr. Sussman) All right. Now, on -- 8 now, what I have marked for identification as 9 Defendant's Exhibit No. 165 -- 10 A Yes. 11 Q -- would you identify what this one is. 12 A Invoice, again, to Bob Wilcox dated 13 May 29, 1992. 14 Q And on this one, this refers to "Spectrum 15 installation"? 16 A Yes. 17 Q What was "Spectrum installation"? 18 A As I said, my responsibilities included 19 three things. The third thing was install network 20 software, software that would manage the network. 21 Spectrum is a program that analyzes the network. 22 Q Does that alter a system? 23 A Completely. 24 Q Did you have to get permission to do that 25 before you did it? Schwartz D 64 1 A No. It was part of my job. 2 Q Now, I am showing you what has been marked 3 for identification as Defendant's Exhibit No. 166. 4 A Okay. 5 Q That is an invoice dated what? 6 A June 30, 1992, to Bob Wilcox. 7 Q This refers to -- I see, "Assist Dan with 8 Cisco router setup." How did that fit into your 9 work? What was that about? 10 A As one of the people in the network group 11 for Hawthorn Farms, I occasionally had to assist the 12 users, the people that work there, in how to set up 13 their boxes, their computers, their systems, to play 14 together with everything else that was going on at 15 Hawthorn Farms. 16 Dan, I believe, was somebody that 17 worked there in another group at Hawthorn Farms, and 18 I was assisting him with their router, their machine 19 that allowed them to connect to their work stations, 20 to the network Intel had, the Intel Net. 21 Q Now, looking at what we have marked for 22 identification as Defendant's Exhibit No. 169 -- 23 A Okay. 24 Q -- we have an invoice dated 25 October 4, 1992? Schwartz D 65 1 A Yes. 2 Q This refers to "Spectrum debugging" and 3 "more Spectrum debugging." Again, what is 4 "debugging"? 5 A Removing the bugs, removing the things that 6 aren't working the way the system was configured. 7 Q Was that altering the system? 8 A Yes. 9 Q Did you have to ask permission before you 10 did that? 11 A No. 12 Q This one -- on this invoice, which we have 13 marked for identification as Defendant's Exhibit 14 No. 170, we see an, "Install X and local tools on 15 Memphis." What are you talking about? 16 MR. TINTERA: Now, Counsel, you lost me. 17 You identified the date, not who it was to. 18 MR. SUSSMAN: Page 77. 19 Q (By Mr. Sussman) Why don't you identify 20 that. 21 A It was to Bob Wilcox, again, 22 November 2nd, 1992. 23 Q We talked about "install X"? 24 A X is -- we are talking about the Xserver. 25 We talked about this yesterday. The tool -- it is Schwartz D 66 1 the package that allows programs to draw on the 2 screen and to access the keyboard and the mouse. I 3 was bringing a version of that from the Internet down 4 to the work stations at Hawthorn Farms and making it 5 work in the local environment. 6 Memphis is one of the names that 7 Bob Wilcox picked for his systems in his area. 8 Q Again, did that alter the computer system? 9 A Certainly. 10 Q Did you have to ask permission? Did you 11 get specific authorization from a supervisor before 12 you could do that? 13 A No. 14 Q Now, I am showing you what we have marked 15 for identification as Defendant's Exhibit No. 171. 16 A Okay. 17 Q Why don't you identify which particular 18 invoice this is. 19 A Well, another invoice to Bob Wilcox, 20 December 4, 1992. 21 Q And on this one, this refers to, I believe, 22 "Set up Duchamp as secondary NIS server." That is 23 referring to one of the computers? 24 A One of the work stations. Bob Wilcox 25 picked the name for it. Schwartz D 67 1 Q "Install and configure Duchamp." When you 2 set up Duchamp and you are setting up a secondary 3 source, does that change anything? 4 A Certainly. 5 Q Again, was that a change or alteration to 6 the system or network, something that you got 7 Bob Wilcox's specific permission for first? 8 A Not specifically. It was part of what I 9 was doing as part of my job as systems administrator 10 in that group. 11 Q You previously mentioned installing Cisco 12 routers earlier. That deals with communication 13 inbound and outbound from the Internet? 14 A Cisco routers are in use all over Intel. 15 They are also used as the firewalls between Intel and 16 the Internet. 17 Q When you work on or install Cisco routers, 18 does that alter the computer system or the network? 19 A Yes. 20 Q Did you specifically have to get permission 21 or authorization to do those? 22 A No. 23 Q Now, I would like to show you what has been 24 marked for identification as Defendant's Exhibit 25 No. 174. This refers -- again, please identify which Schwartz D 68 1 invoice this is and to whom that was directed. 2 A Again, an invoice to Bob Wilcox regarding 3 my contract with Hawthorn Farms, and the date here is 4 March 4, 1993. 5 Q Okay. This one talks about getting manray 6 installed and reconfigured. Are these actions which 7 required an alteration to the system? 8 A Yes, most definitely. 9 Q Were these things you had to go to 10 Bob Wilcox first in order to get authorization or 11 permission for? 12 A No. 13 Q Now, we have an invoice dated -- I am 14 sorry. We have what has been marked for 15 identification as Defendant's Exhibit 176? 16 A Yes. 17 Q And here we are talking about "compile and 18 install latest GNU" -- I am sorry. Thank you. 19 Please identify what this document is. 20 A Got the pattern down. I figured I better 21 do that first. It's to Bob Wilcox, dated, 22 September 24, 1993. It is an invoice from me 23 relative to my contract at Hawthorn Farms. 24 Q Now, on this particular invoice, it talks 25 about restructuring directories or compiling and Schwartz D 69 1 installing GNU software, more tools. Were these 2 things that changed the system or changed the 3 computers? 4 A Yes. 5 Q Again, what permission or authorization did 6 you have to get before you did that? 7 A Nothing specifically. It was under my 8 normal work that I would do as systems administrator 9 for Bob. 10 Q And that is systems administrator kind of 11 work? 12 A Yes, all that, yes. 13 Q Now, I would like to show you what has been 14 marked for identification as Defendant's Exhibit 15 No. 105. 16 A Okay. 17 Q Would you identify what this document is. 18 A It's an invoice sent to Bob Wilcox, 19 December 9, 1993. 20 Q Was this the actual invoice that was sent 21 to Mr. Wilcox? 22 A These invoices were sent via my computer 23 system via fax modem to Bob's fax machine. 24 Q What is this document? 25 A A printout from my computer through that. Schwartz D 70 1 Q What is the date? 2 A 25 September to 25 November 1993. 3 Q That was the last work you did for 4 Bob Wilcox? 5 A Yes. 6 Q October 4? 7 A October 4, 1993, "configure Snoopy." 8 Q What does that mean by "configure Snoopy"? 9 A Configuring a system, making it work with 10 everything around it, telling where the network is, 11 who would be using it. It could mean a lot of 12 things. 13 Q Is that type of work done by a systems 14 administrator or not? 15 A Generally, by a systems administrator. 16 Q Is that the same Snoopy computer we have 17 heard a lot about, sort of the middle of this case? 18 A I would say yes. 19 Q Okay. And did you get any specific 20 authorization, or were you told to configure Snoopy 21 by anybody before you did that? 22 A No. 23 Q Were you told not to do anything with 24 setting up Snoopy, yet, because Mark Morissey was 25 taking over the job as systems administrator at that Schwartz D 71 1 time? 2 A I am sure I coordinated the configuration 3 with Mark. 4 MR. SUSSMAN: Your Honor, at this time I 5 offer Defendant's Exhibits 105, 176 -- let's see, 6 164, 174, 161, 170, 169, 166, 165, and 176. 7 MR. TINTERA: Are those all the invoices 8 for the time period? 9 MR. SUSSMAN: These are. 10 MR. TINTERA: I know they are invoices. 11 Are they all the invoices? 12 MR. SUSSMAN: They aren't all the invoices. 13 MR. TINTERA: I don't object. 14 THE COURT: Okay. Not necessarily in 15 order, but in order recited -- 105, 161, 164, 174, 16 171, 170, 169, 165, 166, and 176 are all received. 17 (Whereupon, Defendant's Exhibit 18 Nos. 105, 161, 164, 165, 166, 169, 19 170, 171, 174, and 176, being 20 invoices, were offered and 21 received into evidence.) 22 MR. SUSSMAN: Thank you, Your Honor. 23 Q (By Mr. Sussman) Now, Mr. Schwartz, while 24 you were there as an independent contractor, were you 25 aware of the policy, or did anybody tell you that Schwartz D 72 1 Intel had a policy that independent contractors were 2 not supposed to be systems administrators? 3 A I only became aware -- no, no. 4 Q Were you aware or informed in any way of 5 any policies that independent contractors were not 6 supposed to have responsibility for systems 7 security? 8 A No. 9 Q Did you, in fact, have responsibilities for 10 systems security at any time? 11 A Yes. 12 Q Now, I want to go back and ask -- to talk 13 about the work that you were doing at the IWARP 14 division. 15 A Okay. 16 Q You are a systems administrator, and while 17 you were there, was part of your responsibility as a 18 systems administrator for dealing with systems 19 security? 20 A Yes, I was. 21 Q What kind of things did you do to protect 22 systems security or test it? 23 A Well, there's a lot of things you do to 24 make sure systems are secure. The first and 25 foremost -- I can't say first and foremost. Maybe Schwartz D 73 1 they are equally important. 2 I would ensure that users' passwords 3 were selected properly to make sure someone couldn't 4 just walk up to a terminal and guess someone else's 5 password. 6 I made sure the systems themselves 7 were not able to be changed by users, the parts that 8 have to stay constant, like, the operating system, 9 which is the part of the system that runs -- oh, 10 boy. Let's see -- the part of the system that has to 11 be there in order for anybody to do their job. I 12 would make sure that would stay protected so users 13 couldn't change that. 14 I also had to make sure the routers 15 were set up properly. I also had to ensure the users 16 were just generally aware of the kinds of stuff they 17 were dealing with, that information in those machines 18 was the product that this company was producing. 19 Q Now, the machines at IWARP, were they 20 information -- was that actually product 21 information? 22 A Yes. 23 Q Now, is there -- was there a distinction 24 between the kind of information that might have been 25 in some machines and others in terms of either Schwartz D 74 1 product information or other kinds of information? 2 A Well, yeah. Most of the machines at IWARP 3 were all connected together in such a way that it 4 didn't matter whether you were sitting at this desk 5 or this desk or that desk or that desk. They all had 6 access to the same data, and on that data was the 7 product. So for the most part that was all connected 8 together, but we did have other machines that didn't 9 have access to that same data. They were off on 10 their own. 11 Q When you say that information was the 12 product, what do you mean by "the product"? 13 A The work output of the IWARP group is a 14 microprocessor. I mean, you heard of the Pentium and 15 386. Those are microprocessors. The IWARP group was 16 making another kind of microprocessor that was 17 particularly good at certain types of things. The 18 engineers were actually designing how the wires get 19 together on the microprocessor, and another group 20 with IWARP was designing the software, the computer 21 programs that would eventually run with this 22 microprocessor. 23 Q Was your -- while you were dealing with 24 security there -- again, were there any specific 25 programs or procedures or practices that you used to Schwartz D 75 1 make sure that the security was what you wanted it to 2 be? 3 A Well, as I said, towards the end of my 4 contract in IWARP, I discovered on the net, on the 5 Internet, that there was a program available called 6 "Crack" that would take and attack the password file 7 and look for passwords that it could get. 8 I started running Crack so to at least 9 achieve the same level of security as someone from 10 the outside who might also have access to Crack. If 11 the bad guys have that tool, you know, we at least 12 have to be as secure as they are if that tool is 13 readily available. 14 Q When you say "the bad guys," what do you 15 mean? 16 A Information thieves, people that want to 17 take information and appropriate it. 18 Q Now, was this program, Crack, set up in 19 order to get into -- guess passwords to get into 20 systems? 21 A I was using Crack in its original, intended 22 form, which is as a tool to -- well, the motivation 23 for writing Crack originally was that the bad guys 24 have tools kind of like this already anyway, and so 25 the guy that created Crack, Alex something -- I don't Schwartz D 76 1 remember his last name. He is over in the UK 2 somewhere -- wrote this program so the rest of us -- 3 the good guys -- could use it and test our own 4 security using a similar technique to what the bad 5 guys were known to be using anyway. 6 Q So did you start using that on the 7 passwords and the password file in the group you were 8 administering? 9 A Yes, I started running Crack on a regular 10 basis against the current IWARP password file. I 11 think I had it set up as some automatic job. It was 12 running frequently, and when it found a bad password, 13 something that was guessible by Crack, something that 14 was either a piece of the name of the user or maybe 15 something out of a dictionary or maybe a dictionary 16 word backwards, something that was easily guessible, 17 it mailed me a message -- electronic mail we are 18 talking here -- mailed me a message and also mailed 19 the person who selected that password letting them 20 know their password was dangerous, insecure. 21 Anyone could take Crack from the 22 Internet, make it work on the machine there, and run 23 it the same way I had run it. The password 24 information is not private. It is available to 25 anyone on that system. Anyone in the group could Schwartz D 77 1 have done what I did and discovered the same 2 password. That is why I ran Crack to make sure there 3 was no possibility that anyone in the group might 4 eventually or could misappropriate the information. 5 Q Now, did you also have any other programs 6 that would keep you up to date on who had passwords 7 and who was using them and how often they were being 8 used? 9 A Well, there's the standard tools that come 10 along with the Unix operating system. You can check 11 when people logged in, logged out. What I mean, when 12 somebody sits down to the terminal and says, "Hi, my 13 name is Randal. Here is my password," that is called 14 "logging in." The system records that. It puts a 15 little entry into a file somewhere saying, "Hey, I 16 logged in." 17 When you leave the system and leave it 18 open for the next person to use it, it records that 19 as a log-out. The system is always tracking all of 20 those. I had some tools that I wrote that would go 21 through all the systems and look for any users that 22 had not logged in in a really long time. That tool 23 would warn me, then, that maybe somebody has left the 24 group without telling us systems administrators, and 25 it's important to know that. If some user I.D. is Schwartz D 78 1 not using, is that person gone? If he is, we should 2 turn off his access. 3 Q Is that a tool you wrote or or used 4 commonly amongst systems administrators at Intel? 5 A That is a tool that I wrote. 6 Q In addition to doing the systems 7 administrator's work that involved security, did you 8 also do work invloving access to the network, network 9 and communication from IWARP to outside? 10 A Yes, yes. Part of my specific 11 responsibility as one of the IWARP systems 12 administrators -- there were actually a small group 13 of us, two or three or four, depending on how far 14 along in the contract it was -- one of my specific 15 responsibilities was to help administer the 16 connection that we and SSD shared to the Internet, 17 the Cisco router at our end and the telephone line 18 that connected us to, I believe -- actually, it 19 was -- I believe it was Sequent Computer Systems that 20 provided the local connection at the other end. 21 Q One thing I forgot to ask, as a systems 22 administrator there -- I am sorry. Let me rephrase 23 that. There has been some discussion about what 24 "root access" is. Just again, just to refresh our 25 memories, what is that? How is that -- is that Schwartz D 79 1 something that was important or necessary for you as 2 a systems administrator? 3 A As a systems administrator -- let me back 4 up a step. In Unix, the operating system, Unix, 5 files are owned by a particular user. Now, it's up 6 to that user whether he wants to make that file 7 available only to himself or to everyone. I am 8 simplifying a little bit here. I hope you appreciate 9 that. 10 Anyway, he can make it available 11 either to himself or to everyone. So associated with 12 each file is a set of permission -- permission 13 information. Let's just call it permission 14 information. 15 Now, if a person created a file and he 16 set that file up so that he was the only one that 17 could read it, then if I, as a systems administrator, 18 came along and wanted to put everything on the disc, 19 everything that was being stored by the computer, 20 onto a backup tape so that if the disk blew up 21 tomorrow, I could still recover everything from the 22 tape, I wouldn't be able to read his file, because he 23 has told the computer, "I am the only one that can 24 read that file." So by necessity, there is a user 25 called "root." This user bypasses all permissions Schwartz D 80 1 within the computer system. It allows the root user 2 to make records of everything that is on the system, 3 to remove files, to read files, and there is also a 4 few other operations of the system that are 5 restricted only to root. 6 For example, creating a user account, 7 creating the ability for me to log in is restricted 8 strictly to the root user. Other users cannot create 9 other users. Only root can create users on the 10 machine. 11 Q While you were systems administrator, did 12 you have root access to the -- 13 A To everything at IWARP? Yes. 14 Q Did you receive any memoranda, any policy 15 statements that told you you could not use root 16 access to look at files of the users within your 17 group? 18 A I don't recall any memoranda. 19 Q Now, were you aware of any policies at that 20 time that you were working on administering the 21 network configuration or the access to the Internet 22 at IWARP about allowing -- that restricted or -- 23 inbound communication or inbound telnetting was not 24 permissible? 25 A I was aware of a corporate policy that we Schwartz D 81 1 used as a guideline that established that inbound 2 telnet was dangerous. 3 Q Now, was that policy or was that guideline 4 in effect when you were working on the connections 5 between IWARP and Carnegie e-mail? 6 A I don't know exactly when that was brought 7 to my attention, but it was brought to my attention 8 by Seth. 9 Q What were you asked to do? What were you 10 asked about connections from IWARP -- giving -- 11 giving access to the Internet for outbound and 12 inbound communication? 13 A When Dave Riss stopped being my manager, he 14 was still managing the part of IWARP that was making 15 the software, the programs that would run on this 16 chip, run on the microprocessor. Some of his people 17 were working very closely with their counterparts at 18 Carnegie-Mellon University. So through some series 19 of conversations with me and Dave and the people in 20 his group, we came up with a strategy of allowing an 21 inbound telnet on a nonstandard place. In other 22 words, when you have telnet to a machine, you try to 23 get to it at a certain port, port No. 23. What we 24 decided -- 25 Q What is the significance of port No. 23? Schwartz D 82 1 A That is where everybody expects to find 2 something that can be connected to for a telnet 3 connection, sort of like this is the rendezvous 4 place. If you are going to telnet to a machine, that 5 is what you telnet to. It is built into the 6 software. 7 Q Significantly, was there a port e-mail went 8 to? 9 A Port No. 25. These were all magic numbers 10 we had to remember as systems administrators. 11 Q What was the strategy? 12 A Our strategy, "Let's not put an inbound 13 port to port No. 23." That was real dangerous. We 14 decided to put a port at 2,003, absolutely mnemonic, 15 but at least it was away from port 23. 16 Q And what would that allow to happen? 17 A That means that people at CMU, or from 18 anywhere, that were aware of this connection could 19 connect from the outside into IWARP to a specific 20 machine that was watching at port 2,003. When they 21 got there, they would be confronted with a standard 22 log-in prompt. They would still have to provide the 23 proper user name and password in order to get through 24 into the actual computers. 25 Q Why was that procedure, that setup, Schwartz D 83 1 necessary? 2 A It was made clear to me by Dave and his 3 group they were working closely with the people at 4 CMU, and from time to time the people at Cornell Oaks 5 would have to fly back to Pittsburgh, and so they had 6 to be able to get back to their data here in order to 7 keep the project moving. Either they were working on 8 things here, or when they were there, they discovered 9 some part of a conversation there they needed to look 10 at. To keep the work moving, we set the system up. 11 Q You mentioned you learned about some things 12 from Seth Bradley. At some point did he have a 13 discussion with you about changing that, or there was 14 a policy against that? 15 A Yes. Seth looked at the setup, and even 16 though I had set it up so it was at a nonstandard 17 port -- so we had taken that security precaution to, 18 at least, make it difficult to find -- he said that 19 still didn't comply with his interpretation of the 20 security policy. 21 Q Why was that? 22 A The way he read it was it just didn't fit 23 what he believed to be true. It was inbound telnet, 24 in general, that was being restricted. 25 Q Was the concern -- was it anything -- Schwartz D 84 1 anyway, so what changes did you make to that system? 2 Did you just eliminate the inbound telnetting? 3 A What Seth and I came up with was a plan to 4 have the data on another system, only the data that 5 they would probably need while they were over in 6 Pittsburgh, or only the data the people in Pittsburgh 7 probably needed. We set it up so they could connect 8 to that machine. It was not a huge product data, but 9 it was a small setup, and it would limit the damage 10 if there was a break-in. 11 Q Why was it necessary to continue the 12 two-way -- why did you continue the inbound 13 connections? 14 A The job needed to get done. 15 Q Were there any other ways to get the 16 inbound -- 17 A I believe at the time there was a modem 18 connection between CMU in Pittsburgh and IWARP, but 19 it did not allow interactivity. 20 Q What do you mean by "interactivity"? 21 A What I mean by that is the modem connection 22 allowed them to send electronic mail back and forth, 23 but someone sitting in Pittsburgh can't say, "Oh, 24 what was in this file over here?" or, "Oh, let me 25 move these three lines around in this file and start Schwartz D 85 1 the process again to see if it works now." All they 2 could do was send a whole file over, take a whole 3 file back, send a piece of e-mail back, take a piece 4 of e-mail back. It was a very slow mechanism to be 5 able to do their work. 6 Q Now, you -- you are describing working at 7 IWARP with sort of general corporation policy to be 8 treated as guidelines -- 9 A Uh-huh. 10 Q -- that were not consistent. Would you 11 describe for the jury what that working environment 12 at IWARP was like, its relationship to SSD and the 13 rest of the company. 14 A Well, IWARP, to me, seemed like every other 15 place in Intel. They all seemed to be these little 16 pods. They are, like, their own little kingdom, 17 their own little domain, and they used the corporate 18 guidelines as guidelines, but they still establish 19 the policies here -- how to set up the wires, how to 20 set up connections to Internet, how often to do the 21 backups. We listen to the corporate guidelines, but 22 this little pod seemed to have some degree of 23 autonomy on its own. 24 Q Was there some change on that when SSD -- 25 well, IWARP merged into SSD? Schwartz D 86 1 A Our pod merged into the SSD pod. We had to 2 do things the way SSD had done them. It was 3 different, but different from us and still seemingly 4 different from -- well, it was just different. 5 Q Now, when -- you mentioned this merger 6 occurred the end of '91, beginning of '92? 7 A Uh-huh. 8 Q How did things change for you when this 9 merger occurred, in terms of your responsibilities, 10 the work you were doing, and who was reporting to 11 whom? 12 THE WITNESS: Could I get some more water? 13 THE COURT: Sure. 14 THE WITNESS: Thank you. 15 How did it change the end of '91, 16 beginning of '92? 17 Q (By Mr. Sussman) Yeah. When IWARP became 18 a part of SSD, what changes took place? 19 A IWARP split in two different ways. People 20 responsible for the actual chip went one way and 21 became SCIC, S-C-I-C. I don't know what it stands 22 for. They make up acronyms all the time. And the 23 group that was in charge of the software, Dave Riss' 24 group, went the other way and merged in with SSD. 25 The group split up in two different directions. Schwartz D 87 1 My -- Seth Bradley, who was my 2 coworker in IWARP, went with SCIC to be the 3 administrator for that group, and I stayed in IWARP 4 as the remaining systems administrator as we were 5 merging into SSD. 6 Q How long did you remain at SSD after this 7 merger occurred? 8 A Well, the merger was happening, as I said, 9 towards the end of '91 and beginning of '92. 10 My supervisor during that period of 11 time was John Gray. John had told me that starting 12 January 1st, 1992, that that was my last six-month 13 stint; so that would be the end of my contract. I 14 was very clearly told that my contract would be out 15 in -- whatever six months after January 1st is, May 16 or June -- did that answer it? I am lost. 17 Q Now, over the next several months, what 18 kinds of things were you working on? 19 A I was assisting the SSD systems 20 administrators to move IWARP in its process of being 21 absorbed by SSD. I was changing the way the computer 22 systems were configured; so it was a humongous 23 setup. That was to have it all the same. 24 Q Who were you working for? 25 A I worked for John Gray. I was working with Schwartz D 88 1 Lou Poelitz, who had been my counterpart in SSD. 2 Q When you were in IWARP, he was sort of your 3 equal or counterpart over at SSD? 4 A Yes. 5 Q At this point were you working for 6 Lou Poelitz, with him? How was that working? 7 A No. We were both working in parallel for 8 John Gray. Actually, I don't know exactly how Lou 9 reported it to the organization, but that is sort of 10 how we acted; so that's how it worked. 11 Q At this point in time, did you still have 12 responsibility for security in the system? 13 A Yes. I was still the systems administrator 14 for the IWARP systems until the end of my contract. 15 Q Did you stay there until the end of your 16 contract? 17 A No. 18 Q We heard something about a disagreement 19 over policy -- over -- I guess -- I don't know if it 20 was policy or how things -- certain things should be 21 implemented that led to your leaving. Would you 22 describe for the jury what happened there. How was 23 it that you came -- that you left SSD at that point 24 in time? 25 A Okay. As things were being merged, Schwartz D 89 1 connections from the IWARP -- SSD cluster of 2 buildings at Cornell Oaks to the rest of Intel Net 3 and the rest of the Internet were being moved 4 around. One of the changes that was made caused 5 certain kinds of mail that was coming in for the 6 IWARP group to stop coming in. Now, this was of 7 grave concern to the people that I had been a systems 8 administrator for a couple years. Naturally, here we 9 have another fire. People were standing at my desk. 10 They say, "This guy sent me mail. How come I didn't 11 get it from last week?" That is a fire. I try to 12 trace it down, and I trace it down to a configuration 13 change that is happening at the networks. I work 14 with a plan how to do it right, how to get it set 15 up. 16 Q Excuse me for interrupting. I would like 17 to clarify a couple things. The configuration 18 changes -- is that something you had been working on, 19 or is a configuration change somebody else worked 20 on? What was that all about? 21 A In the conversations about the changes, I 22 don't know if it is something I typed or moved or 23 whatever. It was somehow being done by all of us, 24 including me and the rest of the systems 25 administrators. We were all changing, collectively, Schwartz D 90 1 the organization. 2 Q You also mentioned people were getting real 3 upset because they weren't getting their e-mail for a 4 while? 5 A Yes. 6 Q Why was that such a big deal? Why was that 7 such a huge fire? 8 A Well, a lot of people depend on e-mail, 9 sometimes even as their sole source of 10 communication. So if an engineer in the IWARP group 11 was in an electronic conversation, electronic series 12 of mail messages going one way and mail messages 13 coming back the other way and all the sudden the 14 conversation stops, the guy can't work. He is 15 stuck. 16 Q What is the big deal if they use 17 telephones? 18 A If the person on the other end doesn't know 19 the flow stopped, the person on the other end thinks 20 they sent the messages. It takes a while getting it 21 worked out. Sure, they use the phones, and they did 22 that as a work-around. You can't send accurately 23 over a phone call a full file of information. To try 24 to read that over the telephone line to somebody at 25 the other end and have some other person type it, no, Schwartz D 91 1 there will be errors. Electronic mail is crucial to 2 other people. 3 Q Please explain what you tried to do to come 4 up with a solution as to what you saw as the e-mail 5 problem. 6 A I looked at the situation. I used my 7 resources. I started talking to the corporation's 8 mail networking guy at Intel. I talked to my 9 counterparts. I called Seth Bradley. I tried to 10 come up with a solution. I started figuring out a 11 solution that would keep us from having mail coming 12 in and with an eye on the future knowing we are all 13 being integrated into the entire network is the way 14 it was. 15 Q So was this -- was this the kind of DNS -- 16 A You want me to get into the details? 17 Q Was that the kind of system you were 18 talking about? 19 A Yes. The solution that I had come up with 20 involved making a change to the main system entry for 21 the IWARP group, giving it a place for mail to be 22 delivered within our group, the same way mail had 23 been delivered before we made the configuration 24 change. 25 Q Who would you talk to about this proposal Schwartz D 92 1 and developing this system? 2 A I had batted it back and forth a little bit 3 with Lou, and Lou was preaching another kind of 4 solution, one that relied on what I considered to be 5 a bandaid, something that sort of kept us in the 6 past, but at least allowed it to work one more month 7 or one more year, but without much regard for the way 8 the entire corporation was going for the future, and 9 we had argued back and forth whether my solution or 10 his solution had been implemented. 11 Q Had you taken steps to implement your 12 proposal? 13 A Yes. I was getting tired having people 14 standing at my desk saying, "How come the mail still 15 isn't working today?" I went ahead implementing my 16 solution, knowing we could back it out later. I had 17 people screaming at my desk. I implemented my 18 solution. This was early in the morning I set this 19 up. I went away, and I came back, and when I came 20 back, there was an announcement that had been mailed 21 out to the group saying my solution had been undone, 22 and Lou Poelitz's solution had been selected instead, 23 and there would be no further discussion on the 24 subject. 25 Q How did that make you feel? How did you Schwartz D 93 1 respond to that? 2 A I worked real hard to come up with this 3 solution, and I worked with all these people to try 4 to make it work. I had this eye towards the future. 5 I viewed his solution as a bandaid and keeping us in 6 the past. I was upset. I worked real hard to come 7 up with a solution, and it had just been undone. Not 8 only that, it was, like, "Thou shalt be no further 9 discussion on the issue." 10 Q What did you do? 11 A This was already two months away from the 12 end of my contract there, and I already got a new 13 contract with Bob Wilcox working on a project. I 14 sent an e-mail saying, "Apparently my technical 15 services and skills are no longer needed in this 16 position. It has been nice working with you all." 17 In other words, I cut my contract off two months from 18 the end. I figured if this happened, I would 19 probably get overridden on something else the next 20 day and the next day. Why should they bother paying 21 me to do my job if they were going to do something 22 else? 23 Q At that point you still had the contract 24 with Bob Wilcox? 25 A Yes, I started that two months prior. The Schwartz D 94 1 situation at SSD happened around April or May, and I 2 already gotten a contract with Bob back in February. 3 This was in 1992. 4 Q At that point, when you sent this message, 5 was this, what, an e-mail message? 6 A Yes. 7 Q Did you, afterwards, have any discussion 8 with John Gray or anyone else telling you your 9 contract was also terminated at that point? 10 A I believe -- what I recall is that I packed 11 up my stuff, walked it out to the car, walked back 12 in, walked over to the systems administrator group of 13 desks -- they had me off in a separate corner -- and 14 I don't know exactly who I talked to there. It might 15 have been John Gray. It might have been Lou 16 himself. I am not sure. I said, "This looks like 17 this is it. I am not working here anymore," and on 18 the way out the door, a couple of my fellow 19 "Iwarpians" came up to me and said, "You can't leave 20 us alone." 21 MR. TINTERA: Objection, nonresponsive. 22 THE COURT: Would you spell Iwarpians for 23 us. 24 MR. TINTERA: I-w-a-r-p-i-a-n-s. 25 THE COURT: Iwarpians. Schwartz D 95 1 Q (By Mr. Sussman) You didn't get beamed up, 2 did you? 3 A We did have a Star Trek motif for 4 everything. 5 THE COURT: Is this a break? 6 MR. SUSSMAN: This would probably be a good 7 break. 8 THE COURT: Why don't we take our noon 9 recess. Let's try to start at 1:30. 10 I talked with counsel. You know, our 11 program now is to get the evidence done today and 12 come back Tuesday. If for some reason we don't get 13 the evidence done today, is there anybody who 14 couldn't be here Monday afternoon? I know I told you 15 yesterday afternoon you wouldn't be here Monday. We 16 have to finish on Tuesday. You made a plan? Can you 17 be here? We'll see how it looks at the end of 18 today. Maybe we'll have to do that. 19 Okay. We'll be in recess until 1:30. 20 (Noon recess) 21 THE COURT: Mr. Tintera? 22 MR. TINTERA: Judge, you know, it's the 23 State's position that Counsel opened the door to 24 information about the defendant's work performance at 25 Tektronix during his opening statement, and I think Schwartz D 96 1 the Court was holding that ruling in abeyance. 2 THE COURT: In the meantime, I did have my 3 reporter make a transcript of what was said, and, in 4 part, Mr. Sussman said he was the youngest employed 5 full-time employee at Tektronix where he worked for a 6 number of years and provided some remarkable services 7 for the company. That talks about the type of work 8 that he did, "remarkable services." I don't know if 9 that's what you have reference to. 10 MR. TINTERA: Yes, and I think in the 11 general use of "remarkable," passing their password 12 program is a remarkable service that he provided for 13 Tek that ended up getting him suspended for two 14 weeks. Especially, we heard his testimony this 15 morning about Tektronix -- that is why I brought it 16 up -- and, also, the Tandem Corporation. Now that he 17 has testified about what he did at those places in 18 some detail, great detail, in fact, I believe that is 19 a legitimate area for cross-examination, and I am 20 asking the Court, although, I have been prohibited in 21 my case in chief from bringing out those subjects, I 22 think it would be appropriate now that I be allowed 23 to go into them. 24 THE COURT: Mr. Sussman? 25 MR. SUSSMAN: First of all, I haven't Schwartz D 97 1 finished direct. We are probably halfway through 2 direct. 3 MR. TINTERA: I didn't know if we would 4 take another break. 5 THE COURT: I think we probably will. 6 MR. SUSSMAN: That is fine. I think it is 7 an appropriate time. Your Honor, I don't agree the 8 door was opened that wide, but I will accept the 9 Court's ruling on that. 10 THE COURT: Arguably, these are prior bad 11 acts. They are prior acts, and I am relatively 12 certain the defendant will have some explanation. I 13 really think we need to go through a Johns analysis 14 of them, because, arguably, they are relevant to the 15 issue of his knowledge, and I think, after all, 16 that's what this case is all about. When we talk 17 about knowledge, knowledge, like intent, is something 18 that is uniquely within the mind of the actor, in 19 this case, the defendant, and there seldom is direct 20 evidence of that. 21 You prove it or disprove it 22 circumstantially, and these other acts seem to be the 23 type of thing that certainly might be relevant to the 24 issues involved in this case, that is, his knowledge, 25 at least, or the other side of that coin is lack of Schwartz D 98 1 mistake, mistaken belief on his part that somehow 2 this was authorized, and I am going to think about it 3 in those terms, and I will give counsel a chance to 4 address that before we get to that. 5 In my thinking, those are the areas of 6 inquiry under 404(3). Does counsel have anything 7 else to add? I will give you a chance to argue it, 8 and I will probably go through a Johns analysis. 9 Okay. Anything else? 10 MR. SUSSMAN: Mr. Tintera had some of my 11 exhibits on his table. 12 MR. TINTERA: They were dropped, and I was 13 working. 14 THE COURT: Do you have other ones you want 15 to offer? 16 MR. SUSSMAN: In that group of exhibits I 17 offered and the State didn't object to were exhibits 18 157, 158, 159, and 160, and 161. 19 THE COURT: I am sure Mr. Tintera has no 20 objections to those. 21 MR. TINTERA: You are right, Judge. It is 22 a continuing operation of the free flow of -- 23 THE COURT: Would you like to have a chance 24 to say that in front of the jury? 25 MR. TINTERA: Haven't I already? Schwartz D 99 1 THE COURT: You have. If you want to add 2 this one to the file, as well. 3 All right. All joking aside, these 4 other exhibits -- 157, 158, 159, 160, and 161 -- are 5 all received, and the defendant will resume the 6 stand, and we'll bring in the jury, and Mr. Sussman, 7 you may proceed. 8 (Whereupon, Defendant's Exhibit 9 Nos. 157, 158, 159, 160, and 161, 10 being documents, were offered and 11 received into evidence.) 12 THE COURT: While the jury is out, 13 apparently the photographer for The Oregonian is 14 here. The rule now is you have about a minute or so 15 to take pictures, and we will ask you to cease doing 16 that after that. 17 THE PHOTOGRAPHER: After the questioning? 18 THE COURT: You can start it anytime you 19 want. My assumption is you need a half dozen shots 20 or so, and you can go back and decide which one fits 21 your need the best. 22 Got your hair combed? 23 THE DEFENDANT: Just brushing it back. 24 THE COURT: After that, I would ask you not 25 to take anymore. Schwartz D 100 1 THE PHOTOGRAPHER: I'll go ahead and depart 2 after I've finished. 3 THE COURT: Thank you, sir. 4 (To the clerk) Bring in the jury. 5 (Whereupon, the jury entered the 6 courtroom, and the following 7 transpired:) 8 THE COURT: Looks like we have one 9 casualty. 10 Proceed, Mr. Sussman. 11 MR. SUSSMAN: Thank you, Your Honor. 12 Q (By Mr. Sussman) Mr. Schwartz, when you 13 left SSD in the spring of 1992, after the incident 14 you were describing before the break -- 15 A Yes. 16 Q -- did you have -- what happened to the 17 passwords you had on the main cluster of the SSD 18 computers? 19 A They were removed. 20 Q Did you -- you were -- after that, were you 21 continuing to work with Mr. Wilcox? 22 A Yeah. 23 Q Okay. Was there -- sometime later that 24 year, did you have the opportunity to do work again 25 at the SSD? Schwartz D 101 1 A Yes. 2 Q And what work was that? 3 A Well, Dave Riss called me back. Actually, 4 I think it was Herb Mayer that made the actual call. 5 They had needed some work for me to fix up a test 6 automaton or port it to a different architecture or 7 number of different machines. 8 Q What do you mean "port it to different 9 machines"? 10 A To port something is to take it and make it 11 work on another machine, take it to, say, a fax or a 12 microsystem or SGI machine or whatever. 13 Q So was there a formal written contract that 14 you signed for that work? 15 A No, just sort of a handshake thing. 16 Q And, approximately, when did you do that? 17 A The end of 1992. 18 THE COURT: I am sorry? What? 19 THE WITNESS: End of '92. 20 Q (By Mr. Sussman) In order to do that work, 21 did you have any special access to computers you were 22 working on? 23 A Well, they gave me access to the SSD 24 cluster once again so I would have a main account to 25 attach to the rest of the Intel Net, and they also Schwartz D 102 1 gave me access to a number of different architectures 2 of different computers systems so I could use those 3 machines to do my job. 4 Q Were those different than the ones from the 5 main cluster of SSD's? 6 A Yes. 7 Q They gave you passwords on those? 8 A Yes, they gave me passwords on those. 9 Q Was one of the computers you were working 10 on a computer called "Brillig"? 11 A Yes. 12 Q Another one was a DEC Microfax computer? 13 A Yes. 14 Q When you were working on those documents, 15 did you create a type of file called a .rhost file? 16 A Yes. 17 Q What was it for? 18 A If you are on one computer, you use 19 an .rhost file on another computer that you also have 20 access to, and that allows you to go from the first 21 computer to the second computer without saying, "It 22 is still me. I am still Randal. Here is my 23 password." You tell the second computer if the first 24 computer already decided you are Randal, you don't 25 need a second one to tell you that. That is a Schwartz D 103 1 typical use of it. 2 It is occasionally handy to have 3 an .rhost file to say, "Hey, I am Randal," on the 4 file, but I can also become "root." 5 Q Why did you do that? What was the need for 6 that? 7 A Part of my work involved installing stuff, 8 putting programs into the systems' directories where 9 the operating systems was stored. I needed to have 10 root on that box. 11 Q So was that one of those tools that you 12 were talking about earlier? 13 A You could view it as a tool. 14 Q Now, when you took on this contract and 15 worked under Herb Mayer, did he -- how was that 16 approached? Did he tell you, "Here is the job. Go 17 ahead and do it"? Did he tell you, "Here is what you 18 need to do, and this and this and this"? How did 19 that work? 20 A It's pretty much like everything I have 21 done at Intel. They set a goal. "Here is what we 22 want to get done, and use the best of your resources 23 to get it done." Obviously, there is interaction day 24 by day as I come up with pieces of the puzzle and 25 need guidance. I would interact with Herb and talk Schwartz D 104 1 to people to get things done. I don't do it in a 2 vacuum. Basically, there is the goal, and get to 3 it. 4 Q Were you aware while you were doing it that 5 there were any objections to the way you created 6 the .rhost file on the DEC machine? 7 A No. 8 Q Was that brought to your attention anytime 9 later? 10 A Herb Mayer, the systems administrator, 11 pointed out work that they objected to, and he and I 12 addressed it, and that was the end of what I heard 13 about it. 14 Q While you were working on this project, 15 were you still under -- was your contract with 16 Bob Wilcox still in effect? 17 A Yes. 18 Q Now, the contract with Bob Wilcox had you 19 working at what location? 20 A Well, primarily Hawthorn Farms. 21 Q And the project you were working on for 22 Herb Mayer with SSD was that also Hawthorn Farms? 23 A No, that was Cornell Oaks. 24 Q Where SSD was located? 25 A Yes. Schwartz D 105 1 Q Where did you do the work? 2 A Actually, I turned out doing a lot of the 3 work for either end -- I worked in the C.O. office 4 working on things for H.F., and sometimes I worked at 5 H.F. for C.O. 6 Q How did you do that? 7 A They are all intersected, one happy 8 family. I did the commands at H.F. and connected to 9 my machines at C.O. 10 Q I want to ask you to take a look at State's 11 Exhibit 5 that has previously been admitted. Do you 12 remember what this particular blow-up shows? 13 A Yeah, I think it was one of the 14 administrators walking through my home directory on 15 Brillig. 16 Q Brillig was one of the machines that you 17 were working on in this project? 18 A Yes. 19 Q On this Exhibit 5, which is at page 20 -- 20 A Right. 21 Q -- there's a group of files at the top of 22 the page? 23 A Yes. 24 Q Would you tell the jury what this 25 represents. What are these files? Schwartz D 106 1 A These files up here -- 2 THE COURT: Make sure the jury can see it. 3 THE WITNESS: These files here, right below 4 where it says "cd PLAY -*," this was the project I 5 was doing for Herb Mayer. This was the test 6 automaton they talked about. 7 Q The files listed under here were the 8 files -- what kind of files were these? 9 A These were, like, the tools that had to be 10 ported from one architecture to the other. They were 11 the test strips, basically, everything I was doing 12 for Herb Mayer. 13 Q What is the significance of the date along 14 the right-hand columns? 15 A That was the date of last modification, 16 November 19, 1992, primarily, right there, to -- 17 Q Very good. There are a bunch of letters 18 along the sides here -- drwxr-xr-x. What are those 19 letters telling whoever looks at the files? 20 A There is a couple things here. For a file 21 that's just an ordinary data file, something that is 22 holding information, the necessities -- that is 23 indicated by the absence of the letter "d" in the 24 position, just a little dash. That means it's a 25 file. It has information in it. The "rw" says I can Schwartz D 107 1 read or write to this file. 2 The remaining groups here -- the 3 remaining positions show that anybody in the group 4 that I was in could read it, and anybody that had 5 access to the machine, in general, could also read 6 it. That is a file there. 7 For a directory, it's similarly 8 indicated by the "d" in the front. Now, that's a 9 directory. Instead of being data, that is a place 10 where other things are stored. The directory has 11 similar positions. The "rw" means I can look at the 12 directory and change the contents of the directory, 13 and the letter "x" says I can go down into that 14 directory, and that is true, also, for the group and 15 others. 16 Q Does this mean anybody else who can look at 17 your host file, your home file, can look at this and 18 also execute these files and read them? 19 A Yes. It means anyone that has access to 20 this system, that is fully available to them. 21 Q Did you set up your home directory on 22 Brillig with the same abilities for anybody to 23 look -- to read it? 24 A I believe there is an exhibit that shows 25 that. I remember that I did. Schwartz D 108 1 Q Okay. Now, these files were saved on to 2 Brillig? 3 A Yes, they existed physically on Brillig, as 4 far as I can tell. 5 Q Why did you save those files on Brillig? 6 A Because I was under the impression, when I 7 left that group, that there was going to be some 8 maintenance work. It was a very complex piece of 9 software, and so I left the files on Brillig so that 10 I would be ready if they called up at a moments' 11 notice and said, "Hey, something is broken. You need 12 to get it fixed." There goes another one of those 13 fires. I would be able to handle it and take care of 14 it right away. 15 Q Was Brillig one of the main machines you 16 worked on? 17 A Yes. 18 Q That is where you saved the files? 19 A Yes. 20 Q How -- was Brillig a faster machine than 21 the other ones? 22 A As far as I could tell, from typing 23 commands. 24 Q You mentioned you might have to do 25 subsequent maintenance on the project? Schwartz D 109 1 A Whenever you do a project, it is never 2 complete. No matter how carefully you spend trying 3 to make the whole thing work, get it together, there 4 is bound to be bugs. That is the whole point of 5 debugging to get the thing to go away. 6 When I had my discussions at the 7 beginning -- towards the end of that part of the 8 project saying, "Hey, you know, are you going to need 9 me for maintenance on this?" my understanding from 10 the conversations were there would be maintenance on 11 a future date. 12 Q Who were those conversations with? 13 A Herb Mayer, at least, and probably 14 Dave Riss. 15 MR. TINTERA: Wait a minute, Judge. Could 16 I ask a question in aid of objection? 17 THE COURT: You may. 18 MR. TINTERA: Do you remember a 19 conversation with Dave Riss? 20 THE WITNESS: No. 21 MR. TINTERA: I would ask the last part of 22 his answer be stricken. There is no knowledge he can 23 testify to. 24 THE COURT: I'll strike that. The jury 25 will disregard that part of his answer. Schwartz D 110 1 Q (By Mr. Sussman) Now, after you completed 2 the main part of your work on that contract and that 3 project, what happened to your passwords on the main 4 SSD cluster? 5 A It was disabled. 6 Q What happened to your password on Brillig? 7 A It remained active. 8 Q Did that seem unusual to you? 9 A No, not really. 10 Q Why not? 11 A Because I already had the impression there 12 would be more maintenance work done on it; so it 13 wasn't a problem at all. 14 Q Did you continue to use Brillig? 15 A Yes, later that year -- excuse me -- later 16 in 1993. 17 Q Now, you -- when you went through some of 18 the earlier exhibits, you indicated you were doing 19 systems administrator work for Bob Wilcox, and then 20 there was a transition when Mark Morissey came in 21 because he was a full-time employee? 22 A Yes. 23 Q During that transition, did you continue to 24 do any kind of systems administrator work? 25 A Yes. I was still the systems administrator Schwartz D 111 1 for the NCR boxes that the corporate DNS project had 2 installed in our area, plus the boxes that were 3 already part of Bob's organization when I joined -- 4 well, let's see, the timing right there -- some of 5 the machines I helped Bob installed, the early 6 machines. So I had root responsibilities, and I had 7 systems administrator responsibilities both for a 8 couple new machines, as well as machines from the day 9 I arrived. 10 Q After Mark Morissey started taking over the 11 systems administrator responsibilities on several of 12 the other machines, was there any work that you did 13 that was like systems administrator work? 14 A Mark and I worked pretty close together. 15 If he wanted me to help him out with something, I 16 did. There was conversations all the time. After 17 all, Mark was my replacement for the overall 18 administration. When my job would wind down, he 19 would be the systems administrator for the whole 20 group. 21 Q Were you doing outside work at that time? 22 A Outside? 23 Q Other contract work not at Intel? 24 A Oh, yeah. 25 Q What work were you doing at that time that Schwartz D 112 1 involved your being outside Intel? 2 A During the summer of 1993, I spent off and 3 on a couple months writing software for the 4 First National Bank of Chicago. I spent some time 5 there. That took me away from the work I was doing 6 at Intel. 7 I also was beginning to teach classes 8 away from Intel, teaching classes in the Perl 9 language. 10 Q When did you start teaching those classes 11 in the Perl language? 12 A Probably April or May of '93, early 1993. 13 Q Was that in the Portland area or somewhere 14 else? 15 A I have only taught, maybe, a handful of 16 classes, probably under three classes here in town. 17 Almost all of them have been -- well, mostly in the 18 Silicon Valley, San Francisco Bay Area, but, like I 19 say, everywhere from Alaska to New York and stuff. 20 Q When you would go out of town to teach 21 those classes, were you teaching those classes during 22 the time while you were still doing the systems 23 administrator work under your contract with 24 Bob Wilcox? 25 A Yes, I was still responsible for the Schwartz D 113 1 management of the DNS-related systems in Bob Wilcox's 2 area. 3 Q Were you teaching any of those classes 4 while you were still responsible for any of the other 5 systems, the network and the computers? 6 A Yes, before Mark Morissey came on. Like I 7 say, I taught a couple classes down in the Bay Area 8 before Mark was even hired. 9 Q When you were away from town, how would you 10 maintain communication with people in your group if 11 problems came up on the machines in the network you 12 were administering? 13 A I would read my e-mail. That would be 14 easiest, and, occasionally, I would get a phone 15 call. 16 Q You said you read e-mail. Did you have a 17 specific e-mail address you were particularly using? 18 A I had a couple e-mail addresses. The main 19 one for non-Intel related work was sent to my 20 publisher's machine, ORA.com. "Merlyn" was my log-on 21 name on ORA.com. 22 Q What about Intel? 23 A Kandinsky, which is one of the machines at 24 Bob's area. Intel-related business would go to 25 Kandinsky. For anybody else on the outside world, Schwartz D 114 1 they would send information to my O'Reilly machine, 2 my O'Reilly account. 3 Q How important was keeping contact with you 4 through e-mail in order to do your job at Intel? 5 A It was critical. People would say, "Things 6 are broke," or there would be some sort of change on 7 the system, and I would have to pay attention to 8 that. I would have to know it was coming up. 9 Q Before I move on, there are a couple things 10 I forgot to ask you. 11 A Sure. 12 Q Was one of the machines at -- in that -- 13 that you had been administering and Mark Morissey 14 took over, a machine called Wyeth? 15 A Yes. 16 Q Where was that machine eventually located? 17 A I believe it was on Mark Morissey's desk. 18 Q Were some -- after the transition took 19 place with Mark Morissey, where he was taking over 20 the systems administrator duties that you had 21 previously had as a contractor, there was some 22 reference to you -- the fact -- his taking away -- 23 ending your root privileges on certain machines? 24 A Yes. 25 Q And, as I recall, there was some testimony Schwartz D 115 1 about your putting a root file back on one of the 2 machines. I think it was Kandinsky. 3 Now, do you recall creating a root 4 file while you were -- that would have been on 5 Kandinsky? 6 A Do you mean the root program that was in my 7 BIIN directory. 8 Q Maybe that is what we are talking about. 9 A Yeah, I recall creating that. 10 Q What was that root program, then, in the 11 BIIN directory for? What was the purpose of that? 12 A It was one of my tools. When you are 13 constantly shifting back and forth between performing 14 tasks -- when I was doing that, doing tasks as myself 15 and doing tasks as root, it is easier to not keep 16 telling the machine, "Yes, yes, it is me." I can go 17 ahead and be root. It's lots of extra typing, and 18 there's the possibility of having somebody watch over 19 your shoulder and see what your password is. That is 20 a security problem. You don't want to have them see 21 that. Instead, I installed a program where I stored 22 my tool box that allowed me, only someone named 23 Merlyn, on that machine to become "root" for a 24 particular set of commands. Instead of typing the 25 command, it would say "root," space, and "command," Schwartz D 116 1 and it would do that command as "root." The program 2 refused to work for anybody that wasn't me. 3 Q When did you create that file? 4 A I had something just like that at IWARP. I 5 brought the concept forward with me. I probably had 6 it there the first week or two. I might have made 7 changes, but I had it for the first week or so. 8 Q If I could show you Defendant's Exhibit 9 No. 155. 10 A Okay. 11 Q Take a look at this document, and tell me 12 what that is. Tell the jury, too. 13 A Okay. Yeah. The names here are names of 14 files that I'm told by Rick Cower were files in my 15 home directory, and I believe it to be. One of the 16 names is ".bin/root." That's the root program I am 17 talking about. These files were in my home file on 18 Kandinsky. 19 Q That is the root program that Morissey was 20 referring to? 21 A Yes. 22 Q If we look at the document on the far 23 right-hand side of that, it has the name of the file, 24 and immediately to the left of that over here there 25 is a date, "102893." Do you know what that date Schwartz D 117 1 represents? 2 A Where are you looking at, 10-28-93? 3 Q Here. 4 A 10-28-93 -- I am told -- I don't know for a 5 fact -- 6 MR. TINTERA: All right. I object. 7 MR. SUSSMAN: I think this is something we 8 had a stipulation, that this was the printout from 9 the backup tapes that Mark Morissey made of the 10 Kandinsky machine that Rich Cower printed out for 11 us. 12 MR. TINTERA: If the attorneys have a 13 stipulation, that is fine. I don't think the 14 defendant should be relating that to the jury. 15 THE WITNESS: Okay. 16 MR. SUSSMAN: Do we have that stipulation? 17 MR. TINTERA: That is fine, yes. 18 Q (By Mr. Sussman) Now, there is a date 19 immediately to the left of that? 20 A Yes. 21 Q And what -- the date next to the reference 22 to the ".bin/root" is what? 23 A It says here December 8, 1992, at 2:37 in 24 the afternoon. 25 Q What is the significance of that date? Schwartz D 118 1 A As I said before, as I was going through 2 this exhibit, that's the last time that file was 3 modified. 4 MR. SUSSMAN: I would offer Exhibit 155. 5 MR. TINTERA: We don't object to it. 6 THE COURT: All right. 155 is received. 7 (Whereupon, Defendant's Exhibit 8 No. 155, being a document, was 9 offered and received into evidence.) 10 Q (By Mr. Sussman) So that would indicate 11 nothing was done to that directory? It wasn't 12 changed by you after December of 1992? 13 A Nothing was done to that program, yes. 14 Q Nothing to that program. Before I shifted 15 gears on you, I was asking about your traveling, your 16 being away from town to do some teaching classes, and 17 it became necessary for you sometimes to be able to 18 communicate back here to deal with the problems that 19 would come up. 20 Well, what did you do to make it 21 easier for you or to allow you the access to your 22 e-mail and communicate with the people in your group 23 to stay on top of things when you were out of town? 24 A Well, I established -- I requested the use 25 of an Internet gateway called "Mink." That was the Schwartz D 119 1 official Internet gateway for Hawthorn Farms, as far 2 as I understand. I asked for an account on Mink, got 3 the account on Mink. That meant I had the capability 4 of connecting to the Internet. Most machines on 5 Hawthorn Farms were restricted from any type of 6 communication with the Internet entirely. 7 Q Was that gateway, that machine only, at 8 Hawthorn Farms? 9 A Mink is at Hawthorn Farms. 10 Q Then what -- what did you do -- what did 11 you do once you got the ability to use Mink? 12 A Initially, I started using Mink as a way of 13 getting out to my O'Reilly mail. I would telnet to 14 Mink first, and then I would telnet from there over 15 to O'Reilly, and that would allow me to type 16 characters in and have me affect my mail on O'Reilly 17 or read my piece of mail or reply to it. That became 18 difficult after a while. I wanted something simple. 19 I made a program called "Door." I would type a 20 command in at Hawthorn Farms and immediately be 21 through -- I would connect to Door over on Mink, and 22 I would tell Mink I want to go to O'Reilly, and then 23 the transfer would be simpler. I initially used the 24 program to connect from my desk at H.F. to O'Reilly's 25 mail. Schwartz D 120 1 Q Did that need change, or did you -- were 2 any modifications made to that program when you 3 started traveling for business? 4 A Yes. I noticed by using the same program 5 from the Internet, I could connect in to get my mail 6 at the Kandinsky site. 7 Q Why did you do that? 8 A Because my mail at Kandinsky doesn't stop. 9 People send me requests, people telling me machines 10 are down, need to be configured. My job lived in the 11 mail at Kandinsky. 12 Q Now, wasn't that then creating an inbound 13 telnetting connection from O'Reilly using this Door 14 program? 15 A Yes. 16 Q Were you aware -- at that point in time, 17 were you aware of any policies that said you couldn't 18 do that? 19 A I was aware of the corporate guidelines and 20 the reason they were there. 21 Q Why did you think you could do that? 22 A Because I had gone to extra precautions and 23 made sure it was secure. 24 Q Well, but if there was a policy -- help us 25 understand -- if there was a policy that you knew -- Schwartz D 121 1 you were aware of that said I couldn't do it, why 2 would making it more secure satisfy the policy, in 3 your mind? 4 A Because at IWARP, the big problem with the 5 initial setup I had made with CMU was that it was 6 viewed as not being secure enough. We changed the 7 method we used at IWARP to connect the machines that 8 had less product data. I had the idea if I made it 9 more secure, it wouldn't fall into the purview of the 10 original corporate guidelines. 11 Q Are you talking about the first Door 12 program? 13 A Yes. 14 Q At the time you created the first Door 15 program, did anybody tell you you couldn't create a 16 Door program like that -- 17 A No. 18 Q -- when you were working there? 19 A No. 20 Q All right. Were you aware of any other 21 two-way programs like that? 22 A What we had at IWARP, for example. 23 Q But at that -- when you did that, didn't 24 you have an account on that Defender system that 25 would allow you access from the outside by dealing Schwartz D 122 1 in? 2 A The Defender system only allowed me -- 3 MR. TINTERA: Objection. It requires a yes 4 or no answer, Your Honor. 5 THE COURT: Sustained. 6 THE WITNESS: Yes. 7 Q (By Mr. Sussman) So why didn't you use the 8 Defender program? 9 A The Defender system is set up so I could 10 place a call in from a couple of known phone numbers 11 that had to be prearranged. The two phone numbers I 12 gave was the phone number of my home number and my 13 brother's home number. They both came to the same 14 house, and that wouldn't have worked had I gone out 15 to, say, Chicago or California or any of the places I 16 needed to go, because the phone numbers would not be 17 accessible through the Defender system. 18 Q I would like to show you what has been 19 marked as Defendant's Exhibit 104. Do you recognize 20 this document? 21 A Yes. 22 Q What is that? 23 A That's the scrawlings of whoever was 24 working with me on the Defender system telling me 25 what I had to enter in order to make Defender work. Schwartz D 123 1 Q This was an identification number 2 corresponding to the phone number? 3 A Corresponding to a specific phone number. 4 Q And what are the two phone numbers that are 5 shown here? 6 A The phone number on the top is the phone 7 number of my brother, Russ. That is his home phone 8 number, and the phone number on the bottom is my 9 number. 10 Q Were you both living together at the time? 11 A We were both living together in my house. 12 MR. SUSSMAN: I would offer 104. 13 MR. TINTERA: Thank you. No objection. 14 THE COURT: Received. 15 (Whereupon, Defendant's Exhibit 16 No. 104, being a document, was 17 offered and received into evidence.) 18 MR. SUSSMAN: I would ask that the jury 19 look at this. 20 THE COURT: Pass that around, ladies and 21 gentlemen. 22 Q (By Mr. Sussman) Now, so when you were 23 away on business, would it be virtually impossible 24 for you to get access inside with the Defender? 25 A Yes. Schwartz D 124 1 Q I would like to show you what we previously 2 had marked for identification as Defendant's Exhibits 3 111 and 151. 4 A Okay. 5 Q What are these two? First, look at 111, 6 and tell the jury what that is. 7 A Okay. 111 -- let me take a look at this. 8 This appears to be -- looking for the right lines 9 here. Okay. This appears to be the Door program 10 that I started with; although, all the words "door" 11 were changed to "gate." 12 Q Why was that? 13 A I don't know. 14 Q Okay. And now would you take a look at 15 what has been marked for identification as 16 Defendant's Exhibit 151. 17 A Okay. 18 Q Is that the same program except for the use 19 of the words "door" and "gate"? 20 A It appears to be. 21 Q What is the difference on 151? 22 A Just that the word "door" is changed to the 23 word "gate" or vice versa. "Gate" from here is 24 "door" over here. 25 Q On that particular program, the first -- Schwartz D 125 1 that first Door program that you created -- 2 A Right. 3 Q -- what did that do? What did that allow 4 you to do? 5 A It allowed me to do two different things: 6 It allowed me to sit at my desk at Hawthorn Farms and 7 connect out to my O'Reilly mail without having to do 8 a double telnet. The problem with the double 9 telnet -- 10 Q Just -- 11 A Sorry. 12 Q What else did it allow you to do? 13 A It also allowed me, knowing where Door was 14 in this vast array of ports and addresses, to connect 15 back in through the Intel firewall back to my desk at 16 Kandinsky. 17 Q What would you have to do to get through 18 the firewall to get to your desk at Kandinsky? 19 A First you would need to know that Door was 20 running. You would need to know where Door was 21 running, the exact host and Door number. Once you 22 got there, you were presented with nothing, simply a 23 connection. You then had to type the right sequence 24 of connectors, such as host word, port number, and 25 that would connect you to Kandinsky. Schwartz D 126 1 Q So, in your mind, what were the built-in 2 security features that made that -- that protected 3 the machine or protected Intel's security items? 4 A First, if you don't know that something 5 like this is running, there is no reason to suspect 6 something is. You have to get over the hurdle, "Well 7 I think something like this is running on the Intel 8 network; so I'll go look for it." Then you would 9 have to guess which one of the hosts and which one of 10 the ports this one was running on, and Intel had an 11 address base that included something, like, 65,000 12 hosts times five, and each one of those had 65,000 13 ports. 14 Q Let's clear something up here. When you 15 said you had 65,000 hosts, what is that? 16 A Hosts is IP address. 17 Q Times five? 18 A There were five of these 65,000 host sets 19 at the time. 20 Q What were those sets called? 21 A Class B network. 22 Q So then each one of those IP addresses had 23 another, approximately, 65,000 ports? 24 A Yes. 25 Q So -- go ahead, and explain what were the Schwartz D 127 1 layers of security that you had -- 2 A Okay. So I talked -- first you had to have 3 a suspicion that something out there was like this. 4 Q We have gone past that. 5 A Once you were connected from there? 6 Q Yes. 7 A Once you were connected there, you were 8 then presented with a blank screen, nothing except 9 the idea that you were connected. So then you had to 10 guess even what the function of this connection was. 11 You had no clue from the outside what the connection 12 was. It could be anything. You have no idea a door 13 was there. You had to guess the right sequence of 14 characters to get to the next step. 15 Q Now, if you got to those next steps, you 16 got into Kandinsky? 17 A Uh-huh. 18 Q Wouldn't that allow access to any of the 19 machines inside Intel? 20 A Yes, if you could manage to guess the right 21 sequence of somewhere between 50 and 45 characters -- 22 MR. TINTERA: Objection. He is not 23 answering the question. That required a yes or no 24 answer. 25 THE COURT: Sustained. Schwartz D 128 1 Q (By Mr. Sussman) Was there a yes to that 2 part of the question? 3 A I don't remember the question. 4 Q Okay. Once you got -- if you did -- 5 some -- somebody managed to get through, you know, 6 get to the right IP address, get through to the right 7 number, figure out what to do with the blank screen, 8 put it in the right sequence of additional commands 9 and then got to Kandinsky, wouldn't that open up the 10 rest of the machines inside Intel, in theory? 11 A Not only -- yes. 12 Q All right. Did anybody talk with you about 13 problems because the way that program was written? 14 A Yes. 15 Q Who did? 16 A I was approached by Mark Morrisey and 17 Dirk Brandewie. 18 Q What was the problem that was pointed out 19 to you, if you recall, as best you can recall? 20 A The way I understand it, they were 21 complaining about the fact that once you went through 22 what I considered to be pretty phenomenal hurdles of 23 identifying and figuring out what sequence of 24 characters -- which I say -- 25 MR. TINTERA: Objection, not answering the Schwartz D 129 1 question. 2 THE COURT: Not responsive. 3 THE WITNESS: Sorry. 4 Q (By Mr. Sussman) Again, what was the 5 problem that was identified to you, as best you can 6 recall? 7 A They -- I understood them to instruct me 8 that it wasn't secure enough. 9 Q And in what way was it not secure enough? 10 A They claimed, and I agreed with them, that 11 if you had managed to locate it, to understand what 12 it was for and get the right sequence of characters, 13 you could, indeed, get to anywhere on the Intel 14 network if you knew the names of the computers within 15 the Intel network. 16 Q The problem, as you found it, if you got 17 in, it opened up the Intel network, potentially? 18 A Yes. 19 Q So did you take any steps to respond to the 20 concern that you understood? 21 A Yes. 22 Q What steps did you take to respond to 23 that? 24 A I restricted it so it could not be used 25 from the outside. I could use it in the function Schwartz D 130 1 from my desk out to my O'Reilly mail, but not to come 2 back. 3 Q Well, was that program -- actually, I 4 better just show you. 5 Mr. Johnson-Laird testified yesterday 6 and referred to "Door2." Is that the program he was 7 testifying to? 8 A I believe so. 9 Q I'll show you Defendant's Exhibit 152. Is 10 that it? 11 A Let's see. Where is it here? Yes, except 12 that the address might not have been 128 215. It 13 might have been 138 141, but the function is still 14 the same. 15 Q At sometime later on, after you had made 16 these changes to the Door program, did you write 17 another program that was similar, you know, that 18 allowed you to come back in from the outside? 19 A Well, I stopped using the Door program. 20 THE COURT: It's not responsive. 21 THE WITNESS: Sorry. 22 Yes. 23 Q (By Mr. Sussman) Okay. What happened? 24 Why did you write another program? 25 A Well, in the course of doing all these Schwartz D 131 1 connections out to O'Reilly, the -- it started 2 occurring to me it would be more efficient to have 3 the O'Reilly's mail operator mail script, write 4 directly to my screen when I was sitting at my desk, 5 rather than slogging through a telnet connection, 6 which is a slower method of communicating back and 7 forth, first. If I could run it to my screen, I 8 could use a mail program and other programs involving 9 graphics that would make it easier for me to interact 10 with it from the mail coming from O'Reilly. 11 Q Were there any changes from your working 12 situation that would require you to try to get the 13 communication back in? 14 A Just getting the job done faster. The 15 easier it was to read my O'Reilly mail, the less time 16 I would spend doing that, and more time would be 17 spent and focused at another task at hand. 18 Q Did O'Reilly have anything to with your 19 work at Intel? 20 A Yeah. I had a lot of problems, and I had a 21 lot of colleagues, people that work over the place. 22 I do lots of favors for them, and they do them for 23 me. When I have a question about how something 24 works, I can contact these people through the 25 Internet to find out how something works. Schwartz D 132 1 Q Couldn't you do that through your Intel 2 e-mail address? 3 A They all knew me as "Merlyn" at Oridotcom. 4 The conversations lasted about that long. I also 5 wanted to read their responses after I left 6 Hawthorn Farms. 7 Q How long have you used that as "O'Reilly"? 8 A At least two or three years. 9 Q What made you think -- you know, that 10 this -- you -- this change would be after -- would be 11 acceptable after the conversation you had with 12 Dirk Brandewie and Mark Morissey about restricting 13 inbound telnet connections? 14 A Because it wasn't an inbound telnet 15 conversation with me. It was -- 16 Q Why is that different? How is it not? 17 Please help us understand. 18 A I am not exposing the outside connection to 19 any possibility of getting at some sort of product 20 data within the company. They are simply coming in 21 to the screen that I was sitting on. 22 Q Wasn't there information -- was there 23 information in your machine that was product machine? 24 A No. My machines were used for network 25 configuration -- no. Schwartz D 133 1 Q Well, what made -- again, what -- what made 2 you think that was within policy? 3 A It seemed to be within policy for me. It's 4 the way I understood policy to be. People were 5 concerned about connecting the machines that had 6 product data. 7 Q What was your basis for that? 8 A My information from IWARP was when were we 9 able to move it from a product information machine 10 over to a machine that had limited information. 11 Q You started to answer this before. How was 12 your machine, Kandinsky, different from machines that 13 you thought would be a problem? 14 A Because when I was working for Bob Wilcox, 15 I was not working on products or near products. What 16 I was working on were systems that were controlling 17 the way the networks work. There was no product data 18 anywhere near my machines. 19 Q Let me show you now what has been marked 20 for identification as Defendant's Exhibit 153, and is 21 that the program that you were just talking about 22 now? 23 A Yes, marked "Gate-X." 24 Q And explain why you thought that was secure 25 and wouldn't expose Intel's internal machines to an Schwartz D 134 1 outside cracker. 2 A Okay. 3 Q Okay. Well, as I understand your 4 testimony, you are saying it allowed a communication 5 inside the firewall to your -- to your machine? 6 A Yes. Well, this program only connects to 7 the machine cage. It's listed right in the middle of 8 the program and only to the Xserver on there. 9 In order to get access to my machine, 10 someone would have to find the program running. Just 11 like the first one, we still have 65,000 hosts and 12 ports, five sets of those. And once we got there, 13 all they got was an Xserver connection. They would 14 need to do more research. 15 Q We heard testimony that somebody could look 16 over your shoulder while you were looking at an 17 Xserver and see what you were doing and pick up 18 important information that would allow them to get 19 it. How did you deal with that? How does this 20 program protect not leaking security? 21 A Well, for one thing this program would only 22 be useful when I was actually at my desk. When I 23 logged out at night, the program would be completely 24 useless. I would have to be at my desk running the 25 program. I was only at Bob's area half time. That Schwartz D 135 1 reduced the vulnerability, the window of 2 opportunity. 3 Q Wasn't there a risk while you were there, 4 somebody could probe that, or were there safeguards 5 to think something like that wouldn't happen? 6 A I don't know of any other safeguards, 7 because the fact is it simply was only looking at my 8 Xserver, and it couldn't actually change things on my 9 Xserver. 10 Q With somebody trying to sneak in, is there 11 a length of time to make the connections to the 12 program -- people would look over your shoulder -- 13 that would take a long enough time so it became 14 practically difficult in logging out? 15 A Yeah, it would take a really long time to 16 have found Gate in the first place. It is in that 17 big field of all these things. You don't know there 18 is anything out there in the first place, and then 19 you have to find it among all the things that are 20 there, and the connections that would have to be made 21 in were also being logged, and I reviewed the logs 22 frequently to make sure nobody had done that over my 23 shoulder without me knowing about it. 24 Q We heard some discussion from 25 Dirk Brandewie and yesterday from Johnson-Laird the Schwartz D 136 1 concept called "security through obscurity." Was it 2 in reference to this program? 3 A I don't recall. 4 Q You don't recall -- 5 A I remember the phrase "security through 6 obscurity," but I don't know if it applied to this. 7 Q This particular Gate program, where did you 8 put this one? 9 A This was running on Mink. 10 Q Was that the one that was running on Mink 11 when Dirk Brandewie came back to you later on and 12 told you this was a violation of policy, and take it 13 off? 14 A I don't believe so. 15 Q Was there another one? 16 A Yeah. 17 Q Let me show you what we have here marked as 18 Defendant's Exhibit 154 for identification. Tell me 19 which one this is. 20 A This is Gate. 21 Q What version is that? 22 A It's the final version that ran on Mink and 23 the same version that ran on Brillig. 24 Q Was that different from the Gate program 25 that is marked "Gate-X" that is in Exhibit 153? Schwartz D 137 1 A Yes. 2 Q The only difference between Gate-X and Gate 3 is that Gate has a line that says you will connect a 4 gate, and you will connect at port 6,000? That is 5 where the Xserver lives? 6 A The difference between Gate-X and Gate is 7 that the "gate" and "6,000" could be specified when I 8 run the program rather than being in the program. 9 That allowed me to point at different things at 10 different times. 11 Q Didn't that make it less work? 12 A It would depend on how I used it. 13 Q What security -- 14 A I used Gate only for two different things, 15 the same way I pointed -- used Gate-X to point to my 16 Xserver or point to my log imprint on Kandinsky. 17 Q If you got to the log imprint on Kandinsky, 18 didn't that leave it wide open? 19 A You needed some user password on Kandinsky. 20 Q Was that used at certain times when you 21 were away? 22 A Gate was only pointed for my log-in 23 responsibility for the weeks I was gone on work 24 somewhere else; otherwise, it was only used in the 25 Xserver fashion. Schwartz D 138 1 Q When you installed the Gate program -- and 2 I guess that might be described as a port reflector? 3 A Yes. 4 Q You did that on Mink? 5 A Yes. 6 Q At that time did you know that was 7 unauthorized? 8 A No. 9 Q When you made the changes later on and 10 converted it to Gate, the final one that was 11 installed on Mink and later on Brillig, did you know 12 at that time that wasn't authorized? 13 A No. 14 Q But you told us -- help us understand how 15 you can say that when you told us you did know or at 16 least you knew there was a policy against these kind 17 of inbound connections. 18 A I recognize there was a policy. My 19 impression, my understanding is it was a guideline. 20 Because we had set up systems with -- do log-on 21 prints to machines that were at Intel, it was my 22 impression I was doing exactly the same thing with 23 this machine that we did at IWARP. 24 Q When Dirk Brandewie told you this program 25 is not acceptable on -- and -- you know, that you had Schwartz D 139 1 to change the Gate program, was -- what did you do? 2 A I was a little confused, because I thought 3 I had gone to great precautions to make sure there 4 was no way in. If he said it still wasn't acceptable 5 to him, I decided Mink wasn't useful. The only 6 purpose to have Mink was to get out and get mail and 7 be on my way. 8 Q What made you think -- so what did you 9 tell -- what did you decide to do about your account 10 on Mink? 11 A I requested my account on Mink be deleted, 12 and he complied. 13 Q Was that your decision, or did somebody 14 take the account away from you? 15 A I requested the account on Mink be closed. 16 Q Why was that? 17 A Because it was not going to be useful for 18 me if there wasn't some way for me to get out to the 19 Internet and get back in. 20 Q Now, at that point, if Mink was the 21 computer that was set up to allow communication with 22 the Internet -- 23 A Uh-huh. 24 Q -- why did you think you could pick it up, 25 and move it over to another machine? Schwartz D 140 1 A Well, I'm lost on the question. 2 Q You moved -- after you had the account 3 closed on Mink -- 4 A Yes. 5 Q -- did you continue to use the Gate 6 program? 7 A Oh, yeah, I put Gate over on Brillig. 8 Q Did you put it on another machine, in the 9 meantime? 10 A I tried it on Hermeis. I had another 11 machine down in Santa Clara I was also eligible to 12 connect to the Internet. I put the Gate program on 13 Hermeis. 14 Q Did you have any reason or -- to believe 15 that was acceptable on the Santa Clara network? 16 A I lost the first part of the question. 17 Q Well, when you put that program on the 18 machine in Santa Clara -- 19 A Yes. 20 Q -- after Dirk Brandewie said, "No, this 21 isn't acceptable here," what made you think you could 22 do it in Santa Clara? 23 A Again, because it had been done in IWARP, 24 and I also believed that there was local policy, that 25 there was locality decisions about what people were Schwartz D 141 1 allowing their machines to do or not. I sort of 2 looked at Dirk and Mark as having made a decision 3 about Mink. "We don't want Mink used for this." 4 That is what came across to me. That is the way I 5 understood it. I took it to another system that had 6 potentially different policies. 7 Q Did you leave it on Hermeis? 8 A No, it was too slow. Hermeis was very 9 busy. It made it slow getting the connection in and 10 out. I just abandoned it. 11 Q Where did you go next? 12 A Brillig Chicago had an activity account. 13 Q Your password was valid at that time? 14 A Yes, my password was valid. 15 Q So Brillig was at SSD where IWARP had 16 been? 17 A Yes, yes. 18 Q Now, when you put the program on Brillig, 19 what did you call it? 20 A I called it "Gate," again. 21 Q You called the program Gate? 22 A Yes. 23 Q Was it written, you know, with those little 24 ds, ws, xs, and rs, and anybody who could see the 25 machine on Brillig, they could see what it was? Schwartz D 142 1 A Yes. 2 Q If you wanted to hide the program so you 3 could run the Gate program without anybody knowing 4 there was a Gate program running, is that something 5 you could have done? 6 A There are ways you can make it very, very 7 difficult to look at the program. 8 MR. TINTERA: I object. He didn't answer 9 the question. 10 THE COURT: Sustained. 11 MR. TINTERA: Ask the jury to disregard the 12 last answer? 13 THE COURT: I'll strike it. 14 Q (By Mr. Sussman) Could you put that 15 program on Brillig in a way that nobody would have 16 known it was the Gate program? Let me rephrase the 17 question. 18 Could you have hidden it? 19 A I could have made it difficult to find. 20 Q Without -- what -- what direct access to 21 the Internet -- how do you think that would affect 22 Intel's ability to function as a business? 23 MR. TINTERA: Objection, that is not 24 relevant, what he thinks direct access to the 25 Internet -- how it would affect a corporation. Schwartz D 143 1 MR. SUSSMAN: Let me rephrase the 2 question. 3 Q (By Mr. Sussman) Without the direct access 4 to the Internet, based on your work in seeing -- the 5 people you were working with at IWARP and SSD, what 6 would that do to the ability of people actually in 7 the trenches getting their work done, their ability 8 to get the work done? 9 MR. TINTERA: Objection, not relevant to 10 the issues in this case. 11 THE COURT: Mr. Sussman? 12 MR. SUSSMAN: Your Honor, we have had 13 previous testimony showing the importance of the 14 multiple connections. I think it's -- it helps -- 15 THE COURT: Overrule the objection. Go 16 ahead. 17 THE WITNESS: I got to see if I can 18 remember the question. Sorry. 19 Q (By Mr. Sussman) The importance of the 20 access to the Internet for the folks like yourself 21 who were there trying to get things done on a 22 day-to-day basis, inside, and had to go outside for 23 business. 24 A Well, I know, specifically, the group that 25 was at IWARP that was working with CMU needed that Schwartz D 144 1 interaction, needed to be able to get back and 2 forth. Every time it went down, they showed up at my 3 desk. It was very difficult for them to do their 4 job. 5 Q So was there any other purpose for your 6 having these two-way connections besides what we have 7 explained to the jury, to give you access for your 8 O'Reilly -- 9 MR. TINTERA: Your Honor, I object to 10 Counsel's leading nature of the questions by 11 repeating what his witness said or thinking what his 12 witness said. 13 MR. SUSSMAN: Rephrase it. 14 Q (By Mr. Sussman) Was there any way of 15 setting up the program besides your e-mail from 16 O'Reilly? 17 A Was there any other reason for -- 18 Q Having to have a Gate program like this 19 other than reading your e-mail from O'Reilly? 20 A Well, I used a number of things on the 21 Internet. I used Internet Relay Chat, which is a 22 real-time communication package allowing me -- what I 23 mean by "real time" is immediate answers. I would 24 type in a line, and the people at the other end would 25 say, "That's the answer," or, "I don't know. Ask Schwartz D 145 1 him. He will know." There was sort of on-line 2 interaction. Many people on Chat were familiar with 3 me. I would go to them, and, "Here is my problem. 4 Help me with it." 5 Q Was that set up at all so you could get 6 access to Intel's machines inside and transmit 7 information outside of Intel when you shouldn't have 8 been able to? 9 A It was possible to use that mechanism for 10 that. 11 Q Is that why you did it? 12 A No. 13 Q I would like to move ahead to later in 14 1993. 15 A Okay. 16 Q I would like to talk with you about the 17 Crack programs, again. During the time you were 18 working for Bob Wilcox, were you running Crack 19 programs on passwords at all? 20 A Yes. 21 Q When did you do that, for what purpose? 22 A Initially, the first time I recall running 23 Crack at Bob Wilcox's site, I was a user on a public 24 Unix system. That is a system you pay money for, and 25 you dial money in for their computer, and they gave Schwartz D 146 1 you a place to hold your files and give you access to 2 the Internet. It is separate from Intel's. It is a 3 completely unrelated thing. 4 Well, I was a user of that system. 5 One day I logged on to that system, and there was an 6 announcement that said, "Hey, we have been attacked. 7 Some of our passwords have been guessed, and please 8 change your password, and watch out in the future." 9 I was looking at -- 10 Q Was that a program that you were 11 administering for Bob Wilcox? 12 A No, I am talking about the public Unix 13 system called "Techbook" at the time. Now it's 14 called "Teleport." 15 Q When was this? When did this happen? 16 A That would be late 1993. I don't remember 17 the exact month. 18 Q When was that in relationship to when you 19 ran the Crack program against some of the password 20 files at Intel? 21 A Within a week or so before these other 22 ones. 23 Q Go ahead. 24 A So there was an announcement that passwords 25 had been guessed, and the owner of that system had Schwartz D 147 1 done favors for me before. We trade favors back and 2 forth. That is what systems administrators do. So I 3 had access to some CPU cycles on the machine that I 4 was administering at Intel. 5 Q Which machine was that? 6 A That would be the machines in Bob Wilcox's 7 group. 8 Q Was that any particular machine? 9 A I think the fastest machine at that time 10 was Wyeth. I think I am referring to that. 11 Q What kind of machine is that? 12 A Park2. Some Park, but I don't remember. 13 Q The higher number of those Park computers, 14 the bigger and more powerful it is? 15 A Generally, yes. They increase in numbers 16 as they generally get bigger. 17 Q You saw this and had this message and saw 18 there were some problems with the passwords. What 19 did you decide to do at that point? 20 A I was concerned. I knew most of the users 21 were like me, just paying customers -- a lot weren't 22 like me. They didn't have the knowledge how to pick 23 the right passwords. 24 As a favor to James Deibele, the man 25 that ran the machine, I took his puny available Schwartz D 148 1 password file, took a copy of it over to the machine, 2 Wyeth. I also downloaded from the Internet Crack. I 3 said, "Go at it. Tell me if there is something else 4 besides the password he told me about." 5 Q Did you tell Jim Deibele you would do him a 6 favor? 7 A No. 8 Q Why not? 9 A I didn't want to tell him ahead of time. 10 There was no point to it. If nothing else showed up 11 that proved his system was secure, at least relative 12 to Crack, I would have useful information or find out 13 nothing against him. 14 Q What happened when you ran Crack against 15 the password file? 16 A When I ran Crack against the password file, 17 I found not a couple users, but 30 users, around 18 that. That really concerned me. I thought of a mail 19 message to send him, "Hey, you don't have a couple 20 that are possibly broken, you have a bunch of them." 21 That concerned both of us. I sent a mail message to 22 him. 23 Q What was the substance of the response? 24 A He was pleased that I did that. He thanked 25 me for doing that. Schwartz D 149 1 Q What was your reaction to that? What did 2 you do after that incident happened? 3 A I knew I earned some Brownie points with 4 him. I knew to call in the favor when something else 5 happened. That was cool. 6 Q What did you do next? 7 A I have a fast machine over here. I have 8 Crack up on it. I wondered if there were other 9 passwords. Maybe I would get more "Gee, that is 10 Randal" calls. 11 Q Is that why you did it? 12 A Crack changes from time to time. The 13 version I was using back at IWARP was version 3. The 14 version I downloaded to Wyeth was version 4 and had a 15 much larger set of rules it was using. Instead of 16 names in the dictionaries, it was trying different 17 combinations, turning "I" into "1" and "S" into 18 dollar sign. That was something I hadn't seen. 19 "Let's run it out, and see how many different things 20 I can try it on." 21 Q At this point in time, wasn't this after 22 your job as systems administrator with Bob Wilcox had 23 kind of wound down, and Mark Morissey had taken over 24 those duties? 25 A Mark had taken over the responsibilities Schwartz D 150 1 for the machines that were doing network monitoring. 2 MR. TINTERA: Objection. 3 THE COURT: Sorry? 4 MR. TINTERA: He didn't answer the 5 question, Judge. 6 THE COURT: Sustained. 7 Q (By Mr. Sussman) Wasn't this after the 8 transition and responsibilities went to Mark Morissey 9 as systems administrator and network administrator? 10 A No, it was during transition. 11 Q When did that transition occur? When did 12 Mark Morissey take over those duties? 13 A It started in July. 14 Q Uh-huh, and this occurred, when, 15 September? 16 A Yes. 17 Q Now, as I understand it, at that point 18 weren't you no longer the systems administrator and 19 network administrator and mainly just had the primary 20 duties for the DNS project for Bob Wilcox? 21 A Yes. 22 Q So if you weren't really the systems 23 administrator anymore -- Mark Morissey took that 24 over -- help us understand why you were running Crack 25 programs or running this to see how this Crack Schwartz D 151 1 program worked. That didn't seem to be part of your 2 job anymore. 3 A I was systems administrator for the DNS 4 side of the machines, and I was still the systems 5 administrator for the machines the corporation was 6 using to support DNS, as well. There were still two 7 reasons why I was doing that, and it was still a new 8 toy. Let's see how Crack runs, put stuff on it, and 9 see how it works. 10 Q Would that have been of use to you later 11 on? 12 A Yes. 13 Q So what was the next -- what did you do 14 next to test out this -- your curiosity about the 15 capacity of the Crack program? 16 A I said, "Where else do I have access to a 17 system that has a password file?" I said, "I have 18 O'Reilly." I took the O'Reilly system file. These 19 are all public readable files once you have an 20 account on the system. I brought it over to the 21 Wyeth machine, and I let her have a rip. 22 Q What were you thinking about? Why were you 23 doing this? 24 A I wanted real data to run this thing on. I 25 wanted to try it out with real data. These were real Schwartz D 152 1 passwords that they select based on whatever they are 2 told to do. It gives me a good feel to find out how 3 it worked. I wanted a sample try so I would have 4 things I would be able to carry in the next time I 5 used it. 6 Q What were you going to do with the 7 information you got from on O'Reilly if you got the 8 passwords? 9 A I would certainly notify them that I broke 10 it. 11 Q Did you break any passwords when you ran 12 that? 13 A Not that I recall. 14 Q So what was your response when that 15 happened? 16 A Wow, they have pretty good security. They 17 are doing their job. 18 Q What did you do next? 19 A I said, "Okay. Well, that didn't yield 20 anything to get any Brownie points from anybody." I 21 said, "Where do I have password files and access?" I 22 had Brillig. I took a password for Brillig and ran 23 it over at the H.F. cluster and ran it there on 24 those. 25 Q Again, this was -- Brillig was outside your Schwartz D 153 1 area as systems administrator? 2 A Yes. 3 Q What were you thinking about when you went 4 ahead and did that? Why run that on Brillig again? 5 A It was the same thing I was running on 6 O'Reilly. O'Reilly isn't a systems administrator's 7 responsibility either. I figured if I found 8 problems, I could report them and get Brownie 9 points. 10 Q What did you find when you ran the Crack 11 program on Brillig? 12 A Well, it was a really short password file. 13 I found out of this smallest of users, somebody had 14 picked a bad password, and on this very short list, 15 one person had picked a password that was guessible 16 by Crack. 17 Q What was your response? 18 A I was thinking, on such a short list, 19 somebody there had a password that was there, 20 guessible, especially since it was a dictionary 21 password. It wasn't a combination of letters changed 22 to numbers, anything that we used. It was out of the 23 dictionary. I was sort of shocked by that. That is 24 kind of dumb. 25 Q The account on Brillig was valid? Schwartz D 154 1 A Yes. 2 Q Was that password file available for you to 3 look at and read? 4 A Yes. 5 Q Now, when you saw that password, did it 6 raise any other thoughts or concerns or ideas in your 7 head? 8 A Well, I knew this was a password file on a 9 lab machine, something that wasn't in the main 10 cluster, but it occurred to me that if this user -- I 11 think it was Ron B., had picked a password, "deacon," 12 that was in the dictionary, that he might have also 13 done something that I would call -- not stupid -- but 14 something where he is not particularly aware of 15 security guidelines on the main cluster. 16 Q And so what did that make you think? 17 A Well, I wanted to test it. I was curious, 18 "Did the guy actually do the same thing over there 19 as he did here?" 20 Q Why would you decide or think it was 21 appropriate to test that at that point? 22 A Well, I was curious, and in retrospect, I 23 shouldn't have been that curious. 24 Q Well, was that it, just your curiosity got 25 you? Schwartz D 155 1 A Well, it would also reveal a potential 2 problem in SSD. If SSD -- if Ron B. wasn't educated 3 enough to not pick passwords out of the dictionary, 4 my hunch was maybe other users on that system hadn't 5 been educated either. 6 Q Now, at that point, if you see a potential 7 security problem for the main cluster at SSD, why 8 didn't you just go to the systems administrator for 9 Brillig and say, "Look, you have got a bad password 10 here. This needs to be fixed"? 11 A Well, this is where I -- my judgment went a 12 little astray. In hindsight, I can definitely tell 13 that. 14 I hadn't left SSD exactly on the best 15 of terms. We had this sort of disagreement how I 16 wanted to put things together and how Lou wanted it 17 done and how I wanted it done, and I didn't think 18 that I could just go there and tell them that. 19 Instead what I wanted to do, I started to see an 20 opportunity here. I started to see that if Ron B. 21 really had a bad password on the main cluster, that 22 this would be an opportunity for me to point out 23 something about the way the systems were being run in 24 SSD, and by doing so, sort of, you know, recover 25 that -- the -- save face, I guess, is a way to put Schwartz D 156 1 it. I could come back to that part of the company 2 saying, "Look, you have got a problem. I will help 3 point it out and hopefully help you fix it," and earn 4 respect I thought I had lost when I left the group 5 before. 6 Q When you saw the Ron B. thing, in order to 7 do that, did you have to log in to the SSD computers? 8 A Yeah, there was only one way to tap -- 9 yeah. 10 Q Could you log in any other way other than 11 using "RonB"? 12 A No. 13 Q So did anybody tell you that you could use 14 "RonB" to log in to satisfy your curiosity and test 15 this theory? 16 A No, and yeah -- no. 17 Q Did you have any authority to do that? 18 A Not really. 19 Q When you logged into Brillig to look at the 20 password file, you believed you were authorized to do 21 that? 22 A Yes. 23 Q When you ran Crack on the password file to 24 look at the Brillig passwords, were you trying to 25 take anything? What were you trying to do? Schwartz D 157 1 A I was simply testing Crack, and I was 2 simplifying every password file that I had access to 3 to see how it used to -- 4 Q When you used the Ron B. password to log on 5 to the SSD password file, did you believe you were 6 authorized to do that? 7 A No. 8 Q So why -- what did you do -- what did you 9 do that for? 10 A Again, I was testing the Ron B. password. 11 The only way to test to see if Ron B. had done the 12 same thing on the main cluster as what he had done on 13 the machine I did have access to, Brillig, was 14 actually to try to log in. There is no other way to 15 test it from the outside. 16 Q So you tested it? 17 A Yes. 18 Q Was that the only log-in -- the one 19 password at that point, was it successful? 20 A Oh, yeah, it worked. 21 Q What did you do when you saw that it 22 worked? 23 A Now, I was in sort of this embarrassing 24 situation that I had a password that even though it 25 wasn't mine, I had gotten it from running Crack on Schwartz D 158 1 the Brillig file -- I am here. The password worked. 2 As long as I am here, I might as well continue with 3 my trying to get a scope of the size of the problem. 4 I was already logged into the SSD cluster. I said, 5 "There is a password here. The whole SSD file is 6 here. I might as well take it and run Crack on it." 7 I started doing things to see the size of this 8 problem, and I might as well keep pursuing it. 9 Q What did you do at that point? 10 A I looked at the password file on SSD and 11 brought a copy of it over to the H.F. cluster. 12 Q And for what purpose? Why did you do 13 that? 14 A I had Crack set up over on the H.F. 15 cluster. I was going to run Crack on it, and see 16 what the size of the problem was. 17 Q Well, what were you going to do once you 18 ran Crack on that to see what the problem was? What 19 was the point of that? 20 A Well, the whole point of that -- 21 Q Can you explain that? 22 A Yeah, the whole point of that was so that I 23 could have something that I could take back to the 24 people that I had worked with at SSD to show that, 25 you know, their security had, like, gone downhill Schwartz D 159 1 since I was there before. Because when I was there 2 before, I was running Crack all the time. None of 3 the passwords would have been guessible when Crack 4 was running all the time. I wanted a package where I 5 would walk in and say, "Hey, look, you guys need to 6 fix your security. You guys need to get this thing 7 straightened up." 8 Q Do you remember when you brought the -- 9 copied the password file from SSD and started running 10 the Crack program, where did you -- on what machine 11 did you do that and when was that? 12 A Late September, and the first time was on 13 Wyeth. 14 Q And, now, when you started that going -- 15 when you say "first" -- what happened then? How did 16 you deal with that? What did you do with it? 17 A Well, I let it run. It took quite a while, 18 I think, on the order of seven or eight days. I am 19 not sure how long it was. I saw there were a lot of 20 passwords that were findable by CRACK. Now, I knew 21 my suspicions were right, that something had happened 22 to SSD's level of security since I left. 23 Q Did it complete the first run? 24 A Yes. 25 Q So at that point what did you do with it? Schwartz D 160 1 A Well -- 2 Q First of all, do you remember when it 3 completed that run? 4 A First couple days of October, somewhere 5 down in there. 6 Q So why didn't you -- what did you do with 7 it at that point, the information at that point? 8 A I looked at the information, and I said, 9 "This needs to be reported," but at the same time I 10 was thinking, "Gee, you know, I didn't exactly -- you 11 know, it's real useful information to SSD, but I kind 12 of got it -- I got it by using a password I had 13 cracked." I was stuck with having the useful 14 information and, sort of got it surreptitiously -- 15 kind of without authority. I stepped out of my 16 bounds, made a bad judgment call. 17 Q So what happened? 18 A Well, it turns out the next week I had to 19 go down and teach a couple of contract classes at 20 Pyramid and come back. 21 Q Where is that? 22 A Silicon Valley, down in the San Francisco 23 Bay Area somewhere. 24 Q And so what happened? You left that 25 information sitting there? Schwartz D 161 1 A It was in a protected directory. 2 Q What does that mean? 3 A Readable only by me and "root." 4 Q Why did you do it that way? 5 A I didn't want other users having immediate 6 access to the Crack passwords. I was conscious about 7 that, security-conscious about that. 8 Q Well, why not? Were you just hiding -- 9 were you just trying to hide it out? 10 A No, no. It is just having an open password 11 is a lot less secure than having a password that was 12 still left to be cracked. 13 Q You say it was accessible to you and root? 14 Who was "root"? 15 A I was on those machines. 16 Q Anybody else? 17 A Mark Morissey. 18 Q When you ran that Crack program the first 19 time -- 20 A Yes. 21 Q -- when you ran it on the Techbook 22 machines, what user name did you use? 23 A Merlyn, my own user name. 24 Q How did you name the process of the program 25 when it was run? Schwartz D 162 1 A The program comes out of the box called 2 "Crack.PWC, the Main Work Engine," called "Crack." 3 I didn't make any attempt at all to change that. 4 Q When you ran it against the O'Reilly 5 password files, did you use your own user name? 6 A Yes. 7 Q And what names did you give the -- run the 8 program under? 9 A Same thing, Crack. 10 Q What about when you ran it on the Brillig 11 password file? 12 A Same thing, Crack. 13 Q Using Merlyn? 14 A Using Merlyn, yes. 15 Q And then when you did this run on Wyeth 16 with the SSD password file, whose user name did you 17 use, then? 18 A Merlyn, my own. 19 Q And what did you name the program? 20 A I didn't change the name. Still Crack. 21 Q How did you describe the file? 22 A "Password.SSD." 23 THE COURT: Why don't we take our 24 mid-afternoon recess. Let's take 15. 25 (Brief recess) Schwartz D 163 1 THE COURT: Okay. Proceed, Mr. Sussman. 2 MR. SUSSMAN: Thank you, Your Honor. 3 Q (By Mr. Sussman) Mr. Schwartz, there are a 4 couple things I would like to clear up on your 5 comments about the Gate program. 6 A Okay. 7 Q When you moved, when you took the program 8 off of Mink, after the account on Mink was 9 cancelled -- 10 A Yes. 11 Q -- and you put the program on the account 12 you had on the Hermeis machine in Santa Clara -- 13 A Yeah. 14 Q -- did you have to go to Santa Clara to run 15 that program? 16 A No, no. I did that from my desk at 17 Hawthorn Farms. 18 Q Did anybody there at Santa Clara tell you 19 you couldn't do that or that was wrong? 20 A No. 21 Q Is Santa Clara a busy -- how busy is 22 Santa Clara with machines there? 23 A The machine I had an account at in 24 Santa Clara was the corporate mail gateway. Any 25 incoming mail for the corporation went through this Schwartz D 164 1 gateway into the Intel Corporation. The machine was 2 pretty busy. That is why Gate didn't work very well 3 there. 4 Q Was that noticeable, then, on the program? 5 A Well, if you add -- take a busy machine and 6 you run a not really heavy process on it, not really 7 something that uses up a lot of computer power, it 8 won't be that noticeable. It is just there. 9 Q You did make reference to something called 10 "idle CPU cycles." What were you talking about? 11 A Most of the time when a machine has nothing 12 better to do, it is just sitting waiting. It's just, 13 "What's going to happen next? What's going to 14 happen next?" It sits there and counts idle time, 15 time where it is otherwise not doing anything. An 16 idle CPU cycle is a time that the system is not doing 17 anything else. 18 Q Now, we are at the point -- we are at the 19 point where you were explaining -- telling the jury 20 about how you had gone down to teach some classes at 21 Pyramid. 22 A Uh-huh. 23 Q And you left the information from the run 24 of the Crack program on password, on the SSD password 25 file, in a certain secure directory. Schwartz D 165 1 A Uh-huh. 2 Q When you came back, what did you do at that 3 point? 4 A Well, when I came back, I was still faced 5 with this problem. I knew I had something that would 6 be valuable for SSD to know, but the way I obtained 7 it was questionable, you know. I used somebody 8 else's password to get it. I was still struggling 9 with what to do with that when -- 10 Q Were you going to report it? 11 A I was trying to figure out how to report it 12 so it would be heard, so it wouldn't be buried by the 13 first person that I gave it to. I couldn't figure 14 out -- sort of stuck with this important package, and 15 I didn't know how to deliver it. 16 Q So what did you do, then? 17 A Well, when I came back -- actually, just 18 before I left, we had installed an even faster 19 computer system, Snoopy. You heard that a few 20 times. The Snoopy computer program was installed, I 21 think, just before I left for Pyramid. 22 When I came back, I looked at the 23 password file from SSD, and I looked at this brand 24 new computer. I figured out as long as I was trying 25 to figure out what to do with it and giving it to Schwartz D 166 1 SSD, the business, I might have the most interesting 2 figures I could come up with about it. What I mean, 3 if I could run it on Snoopy -- and it is a faster 4 computer -- and show we cracked this many passwords 5 in this amount of time, it would have more impact, 6 and, also, Snoopy was a new computer, and I wanted to 7 take it for a test run and see what it did. 8 Q So how long were you back before you ran 9 this -- decided to run the Crack program again? 10 A I don't know the exact sequence of days. 11 It is pretty close in there somewhere. 12 Q When you say "pretty close in there," was 13 it a week, a day? 14 A I was gone for a while. When I came 15 back -- I was gone a week or two weeks. When I came 16 back, Snoopy was there, and I started the Crack run 17 on Snoopy with the same password file running it 18 through, and it started on October 21, according to 19 the logs I have seen now, and it was running all that 20 following ten days or so. 21 Q Now, when you got the password, Ron B.'s 22 password -- 23 A Yeah. 24 Q -- how many times did you actually log into 25 the SSD files, the main cluster of SSD machines, Schwartz D 167 1 using that password? 2 A Just to get the SSD password file. 3 Q Weren't there a couple other times you 4 logged in? 5 A None that I recall. 6 Q Now, Detective Lazenby testified you told 7 him there were maybe two to three times that you 8 logged in. 9 A Well, I wasn't sure whether I had logged 10 in -- logged in, logged out, and logged back in 11 again. I may have logged in and went, "Oh, I don't 12 know about this." I don't know to this day if I 13 immediately logged back in or not. It was in that 14 same period of time. 15 Q What were you trying to communicate to 16 Detective Lazenby? 17 A That I was uncertain. I don't know if it 18 was just logging in and grabbing the password file or 19 logging in, logging out, and logging back in to get 20 the password file. I just don't know. 21 Q If it was more than once, what kind of 22 sequence or time frame? Was it the same day, same 23 time? 24 A Like, in the same few minutes. It was in 25 that period of time. I just didn't recall a month Schwartz D 168 1 later what the deal was. 2 Q What were you trying to do by -- when you 3 did log back in to look at the password file using 4 their password, was it your purpose to steal 5 anything? 6 A No, I was trying to get the password file 7 to a machine that I could run Crack on it so I would 8 have the information I needed to carry back to SSD to 9 let them know their security had been slipping since 10 I was there last. 11 Q Did it ever occur to you at that point that 12 copying that password file or using that password 13 could have been committing a theft? 14 A No. 15 MR. TINTERA: Objection, he's leading. 16 THE COURT: Overruled. 17 Q (By Mr. Sussman) Now, when you started 18 running the program, when you ran the prior Crack 19 program on Snoopy -- 20 A Yeah. 21 Q -- starting on the 21st, did you look at 22 the results of what you found? 23 A I started it running, and I looked at it a 24 few minutes later. I don't know exactly how many few 25 minutes. I looked at it a short time later to make Schwartz D 169 1 sure it was on its way, because it took a long time. 2 I wanted to make sure it was doing what it was 3 supposed to do. 4 Q At that point in time, did you see whether 5 or not there were any passwords that had been 6 cracked? 7 A Yeah, the first 10 or 12 had popped up 8 almost instantly. It wasn't even dictionary words. 9 It was things that were related, the actual log-in 10 names or something else in the password file. One of 11 them was a user name of "Web" and a password of 12 "Web." It found that really fast. This was part of 13 my clue I needed to tell SSD about, "Hey, your users 14 are doing this." 15 Q Earlier on, the State offered this exhibit, 16 No. 15, which is -- is that a list of all the 17 passwords that were eventually guessed by the Crack 18 program on the SSD file? 19 A I can't say all, but I can say a 20 substantial part. 21 Q Is that what you saw when you logged in 22 that day to look at what was -- 23 A Yes. 24 Q Is this -- is this the print, the screen, 25 the printout, when you logged in? Schwartz D 170 1 A I typed a command to say, "Only show me the 2 things that start with the word" -- or "have the word 3 guessed in it." 4 Q Is this the list you saw? 5 A Yes. 6 Q The entire list? 7 A No. I only saw the first part of this. 8 When I typed that command, I only saw the ones that 9 were done in the first few minutes. 10 Q So just to make sure that we are clear, 11 this printout of all the words, is this the printout 12 that you actually saw when you logged in when you 13 said a short time after the program started running? 14 A I saw a large file, and I extracted 15 something that looked just like this by typing a 16 single command. 17 Q Let me show you what has been marked for 18 identification as Defendant's Exhibit No. 110. 19 A Yes. 20 Q What is this? 21 A This appears to be the large file. 22 Q Okay. Now, when you first looked at the -- 23 is this the output, then, the results of the Crack 24 program? 25 A Yeah, this is the voluminous program that Schwartz D 171 1 the Crack program generates. 2 Q Is that what you would see when you 3 logged? 4 A Yes, this is -- I could look at the file, 5 and this is what it came out with. 6 Q At what point on that run do you believe 7 was the time that you logged in? 8 A Probably fairly early, which would mean I 9 would only see the ones -- they are time-stamped 10 here. It says "1541" at the beginning. The end of 11 that first pass where all it's doing is trying really 12 obvious stuff says, "End at 1553," which is about 12 13 minutes later. The rest of these all have much later 14 time stamps. 15, 16, 18, 20, for the hour, many, 15 many, hours later. 16 MR. SUSSMAN: Do you have any objection to 17 our offer of Exhibit 110? 18 MR. TINTERA: No. 19 THE COURT: 110 is received. 20 (Whereupon, Defendant's Exhibit 21 No. 110, being a document, was 22 offered and received into evidence.) 23 Q (By Mr. Sussman) So after you looked at 24 the -- you took a look at what was happening on the 25 Crack run on the 21st, what did you do with it after Schwartz D 172 1 that? 2 A I let it run. 3 Q And you let it run until when? 4 A Well, the log says it stopped October 28; 5 so I presume it was running seven days. 6 Q Well, did you stop it? 7 A No. 8 Q Was that the end of the run? 9 A It didn't finish, according to the log. 10 Q Now, when did you look at the log and 11 noticed it hadn't finished? 12 A I don't recall seeing the log anytime -- 13 Q I mean, was that something you looked at? 14 A It's something I looked at in terms of 15 exhibits here. 16 Q So at any time after the 14th did you go 17 back and look at it for passwords, what had been 18 cracked, and examine the results of the run? 19 A I'm pretty sure I checked occasionally to 20 make sure it was still running. I don't know what 21 process I used to do that, perhaps a check to see if 22 the log file was growing. 23 Q And the next -- had you looked at the 24 program at all or done anything else up to 25 November 1st? Schwartz D 173 1 A Looked at it at all? I don't know the 2 context. 3 Q Done anything with that password file or 4 the passwords that you had seen on that password 5 file? 6 A No. 7 Q So what was the next thing that happened 8 where you became aware there was anything going on 9 involving that password file and you are running the 10 Crack program? 11 A Well, I had a knock on the door by the 12 police officers. Do you mean that? 13 Q Let me -- when they showed up with the 14 search warrant? 15 A Yeah. 16 Q Let me ask you this, then: On 17 November 1st, then, that day, when you came in that 18 day, did you do anything with the information on the 19 Crack -- from that file? 20 A Yeah, I noticed that it -- I am not sure if 21 I noticed it had stopped running or not, but I tidied 22 up the directory a little bit. 23 Q What do you mean? 24 A Yeah, I must have noticed it stopped 25 running. I moved a few files to clean up. I removed Schwartz D 174 1 the Crack file. I was going to make another run, 2 because it had aborted somewhere in the middle, but I 3 was also busy with other things that day. I tried to 4 put it aside. 5 Q Would the fact it had been aborted in the 6 middle, did that create any questions in your mind 7 about the program or the machine it was running on? 8 A It concerned me. I didn't know why it was 9 stopped. It was not supposed to stop in the middle. 10 Snoopy was a new machine. I thought there was a 11 correlation. I wasn't pursuing it at the moment. I 12 had some other fires to fight. 13 Q What were you going to do when you filed 14 this information away? 15 A I knew I had to run it one more time, 16 again, because I still didn't have my timing run. 17 Q Now, when you stored -- ran the process on 18 the computer called Snoopy -- 19 A Yeah. 20 Q -- what user name did you use, then? 21 A Merlyn, my own. 22 Q What did you -- how did you type -- name 23 the process that you were running? 24 A I didn't change the name that was used in 25 the standard system. It was still called Crack. Schwartz D 175 1 Q How did you label the files? 2 A "Password.SSD" and may have been password 3 "Brillig." 4 Q What about O'Reilly? 5 A Probably "password.ORL." 6 Q Had you wanted to hide the fact you were 7 running this process, how could you have done that? 8 A Well, first off, if I wanted to hide it, I 9 probably would not have done it on any machine that 10 anybody else had access to. I mean, these were 11 machines that were shared by everybody in the H.F. 12 networking group. I probably could have -- I know I 13 would have taken it to any one of the DNS server 14 machines that were all around the world. I had root 15 access to any one of those. I could have put it on 16 there. If I wanted to hide it, I could have done 17 that. I could have been doing the computations in 18 Israel, and nobody would have noticed. 19 Q Could you have shown a different user's 20 I.D.? 21 A I was root, and I was root on Kandinsky, 22 and I could have certainly run it as somebody other 23 than Merlyn. Also, if I did it on any other system 24 in the world, I could have done root under those 25 boxes. Schwartz D 176 1 Q Could you have run it outside of an Intel 2 computer? 3 A Certainly. I could have walked away with 4 the password file and taken it to any place. I could 5 have run it on Techbook. 6 Q Where was the original password file for 7 Brillig? 8 A Still on Brillig. 9 Q Where was the original password file for 10 SSD? 11 A Still on the SSD cluster. 12 Q All these processes, they were running 13 within Intel? 14 A Yes. 15 Q And where? At your own work station? 16 A In the cluster of work stations I had 17 access to. 18 Q Could you have changed the name of the 19 program, you know, from Crack.PWC to hide that it was 20 something? 21 A Trivially. 22 Q What do you mean? 23 A Changed a couple configuration files, and 24 that would be all it took. 25 Q How difficult would it have been for you to Schwartz D 177 1 hide what files you were working on? 2 A That would have been even simpler. Rename 3 the file, two seconds. 4 Q Let me ask you something. Did you have a 5 computer at home or someplace else that you could 6 have taken the files themselves out and run it 7 outside of Intel? 8 A Yeah, I could have taken the files away on 9 my powerbook. My powerbook went in and out of the 10 system and out of the building every day. 11 Q So why wasn't it hidden well enough on 12 Snoopy? That was a machine that wasn't being used by 13 very many people. Very few people had access to it. 14 A People did have access to it. I wouldn't 15 hide it on a system where other people were. That's 16 just silly. 17 Q Well, then what happened -- what was the 18 next -- the first indication that you got that there 19 was a problem here, other than hindsight here now? 20 A Well, I was at home Monday night, 21 November 1st, 1993, and I heard a knock on the door. 22 I was preparing to run off to the health club, a 23 workout, and there was a knock on the door, and 24 there's an officer. I think, later -- well, it was 25 Detective -- I think it is Detective Lilly was Schwartz D 178 1 standing there with some people behind him, and they 2 said -- they announced they were police officers, and 3 they announced that they had a search warrant to 4 search my house, and they read the search warrant, 5 and then he asked me if anybody else was at home, if 6 anybody else was there, and I told them, "Yeah, Russ 7 is upstairs. He is right up there," and they said, 8 "Can we come in?" and I said, "Yeah, I guess you got 9 to come in. You got a search warrant. Better do 10 that." 11 Q How many people were at the door? 12 A Initially two, but there were, like, other 13 people just sort of down my driveway. They were all, 14 like, ready to come in. 15 Q Now, had you ever had an experience like 16 this where people came to your door? 17 A No. 18 Q How did that make you feel? 19 A I was really scared. I mean, I had 20 never -- I couldn't have thought, you know -- what -- 21 why are these people -- 22 MR. TINTERA: Objection. The question has 23 been asked and answered. 24 THE COURT: Sustained. 25 Q (By Mr. Sussman) So who -- the officer -- Schwartz D 179 1 some officers came in. How many people came into the 2 house, then, first? 3 A Initially, it was just the person that had 4 the search warrant and, I guess, his assistant and 5 maybe another detective, but immediately following 6 them, once they came in, it was, like, five or six 7 people, I guess, that started sprawling all over the 8 house trying to locate the stuff they were looking 9 for. 10 Q And what was your response while this was 11 going on? How were you reacting to this? 12 A I was shocked. I -- you know. 13 Q Did the officers tell you -- what was the 14 first thing they announced to you or told you? 15 A They said they had a search warrant. They 16 said they were there to take my computers, take any 17 computers, computer devices, printers, magnetic 18 tapes, all sorts of stuff. They started talking 19 about blue boxes, which is a thing that is to hack 20 into telephone lines. It was real spooky. I heard 21 of a blue box. I don't know why it was listed on the 22 search warrant. It didn't make any sense to me at 23 all. I couldn't relate that to anything that was 24 going on. 25 Q Did the officers explain to you why they Schwartz D 180 1 had the search warrant and why they were there to 2 seize things? 3 A I don't remember the exact sequence of 4 details. Real early they started talking about 5 Intel. They started talking about the activities 6 that I was doing at Intel and what was I doing at 7 Intel. 8 Q Now, when the officers came in and read the 9 search warrant -- 10 A Yeah. 11 Q -- to you, where were you when that 12 happened? 13 A I was in the kitchen, which is right around 14 the corner from the living room where the front door 15 is, and I heard the doorbell, and I went around to 16 the front door. 17 Q And your brother was upstairs? 18 A Yeah. 19 Q Do you recall being advised by the officers 20 you didn't have to say anything to them? 21 A Yeah. 22 Q Okay. 23 A They read me my rights. I seen it on 24 "Adam 12." I knew what the rights sounded like. I 25 was scared. This is me they are talking to. Why are Schwartz D 181 1 they doing that? 2 Q So after the search warrant had -- you had 3 been read the search warrant and you had been read 4 your rights, what was going on in your mind at that 5 point? Did you think about why they were here and 6 what you were -- 7 A Well, when they started talking about 8 Intel, I started -- it started dawning on me there 9 was a misunderstanding here. There was some kind 10 of -- somebody had seen Crack running or something 11 and didn't understand all the -- everything I had -- 12 that I was doing there, everything that -- the story 13 I had been telling. 14 Q So the officers asked to speak with you? 15 A Yeah, yeah. 16 Q The detectives, Lilly or Lazenby, asked to 17 speak with you? 18 A Yeah. 19 Q Where did that take place? 20 A Initially, they were confronting me in my 21 dining area. Could I draw a map of that? 22 Q Sure. We'll bring the easel over to you. 23 THE COURT: The easiest way, so the jurors 24 can see, is draw what you want, and then when you are 25 done, step to the side and explain it. Just draw it Schwartz D 182 1 and explain it later. 2 THE WITNESS: I think that will work for a 3 start. My driveway is up here. This is the front of 4 the house, lawn out here. I was in the kitchen on a 5 little table right about here when the door rang the 6 first time. Here is the front door. I came around 7 to the front door here in front of the living room. 8 Q (By Mr. Sussman) So the search warrant and 9 the advice of rights were read to you there in the 10 living room? 11 A They brought me over here to the dining 12 room and sat me and Russ down in a couple chairs in 13 here, and the other officers were coming in going 14 into the kitchen and -- I left out the stairway. 15 This is a stairway that goes up to the second floor 16 right along in there. 17 Q Now, up on this second floor, Russ 18 described that as a computer room? 19 A Yeah, the back half of it. Over the back 20 half of the house is my office, computer room, we 21 call it, and the front half -- over the front half of 22 the house, that's his bedroom. 23 Q Did both of you have computers up there? 24 A Yeah, we both had a lot of computers up 25 there. Schwartz D 183 1 Q Do you have -- have a lot of disks, lot of 2 disks up there? 3 A He collects lots of disks. 4 Q How about you? 5 A I didn't have very many. I had the few 6 disks from the packages of software I bought and 7 about 20 blank disks sitting on the shelves, and that 8 was it. 9 Q After the advice of rights occurred and you 10 were asked -- and the officer -- the detectives asked 11 if they could speak with you -- 12 A Uh-huh. 13 Q -- where did you go? 14 A They asked me where a private room would 15 be. "Where could we talk? " 16 "Why can't we talk here?" 17 They said, "No. How about more 18 private?" 19 I said, "How about outside?" They 20 didn't like that. I said, "The family room?" and we 21 went back there. 22 Q Was Detective Lazenby the first person who 23 talked with you about the situation and about whether 24 you were in custody after that and whether you could 25 be charged with any crimes? Schwartz D 184 1 A I don't remember who talked to me first or 2 the sequence of things. I really don't remember. 3 Q Do you have any recollection of being -- 4 Detective Lazenby telling you you were not in 5 custody, but you could be charged with crimes? 6 A I remember somebody saying -- I don't 7 remember if it was Detective Lazenby or not -- that I 8 would be charged with crimes. 9 Q Where was that in the sequence of events? 10 Was that in the middle of things, towards the end, in 11 the beginning? 12 A I think it was pretty early. 13 Q How did that make you feel when you heard 14 that? 15 A Well, that really upped the ante. I was 16 really scared then. 17 Q Are you finished with the document? 18 A Yes. 19 Q So the detectives wanted to talk with you 20 about what happened. Do you remember the specifics 21 of the conversation you had with Detective Lilly and 22 Detective Lazenby? 23 A Not the specifics, no. 24 Q Those were some -- that was a pretty 25 significant event. Why? Schwartz D 185 1 A Well, first off, there was a lot 2 happening. There was people coming around. They 3 were looking -- they were packing up my stuff and, 4 you know, going upstairs, going all over my house 5 and, you know, asking me questions and stuff. The 6 whole thing is kind of a blur. I think more 7 importantly than that -- the way my mind works, I 8 don't remember specific sentences all the time. I 9 sort of just remember the flow of the conversation a 10 lot, and that's here just like anywhere in life. 11 Q Well, now, do you remember telling the 12 detectives, Lazenby and Lilly, that you knew what you 13 had done was wrong, and it violated Intel policy? 14 A I can certainly imagine saying it was 15 wrong. I can't imagine when or where I said that, 16 but given there were all these people showing up at 17 my house, I probably told them I did something 18 wrong. It certainly seemed like it. I had a house 19 full of cops. 20 Q Do you remember telling them that you knew 21 it was against Intel policy, "But I did it anyway," 22 because you could do this, in reference to running 23 the Crack program? 24 A I remember trying to explain the difference 25 between the corporate policy guidelines and the way Schwartz D 186 1 we had implemented it in the groups. Even if I 2 didn't -- you know, it was what I was intending to 3 communicate, even though I didn't get it all out. 4 MR. TINTERA: I object. The question was 5 pretty specific. 6 THE COURT: Sustained. 7 Q (By Mr. Sussman) Well, were you having -- 8 what were you trying to communicate, or what was your 9 recollection of how that conversation went? 10 A I was trying to communicate the differences 11 between the corporate policy guidelines and the way 12 we had interpreted it in the various groups I was 13 in. 14 Q Do you remember telling -- talking about 15 the Gate program to Detective Lazenby and telling him 16 you got caught doing that? 17 A I don't recall those words. 18 Q Do you remember talking -- 19 A I remember talking about Gate. 20 Q What -- when Detective Lazenby -- why did 21 you tell him at that point there were only about 10 22 or 12 passwords? 23 A That's what I remembered when I first 24 logged in to make sure that this run on Snoopy was 25 still running. I only looked at the first part. Schwartz D 187 1 There were 10 or 12 passwords. That is the answer 2 that came to mind when he asked the question. 3 Q What happened when Detective Lazenby came 4 back and told you there were a lot more? What was 5 the conversation at that point? 6 A Well, I then remembered there must have 7 been more, or I wouldn't have run it the second time 8 through, and, yeah, there was 10 or 12 right away, 9 and, yeah, there was more later. That is what got to 10 that. 11 Q What do you remember about the statements 12 that were reported that you said you knew this was 13 totally wrong, and you would get in trouble if you 14 were caught doing it, or you knew you could be 15 prosecuted for this? 16 A Well, obviously, to me at the time I had 17 picked the wrong way of telling Intel they had a 18 security problem. That is what I was telling them. 19 It is especially obvious, in retrospect. It was 20 definitely the wrong way to tell them they had a 21 security problem. That is what I was telling them. 22 It was wrong, definitely the wrong way. 23 Q Let me ask you this: Did you try to 24 explain the reasons that you had run the Crack 25 program? Schwartz D 188 1 A Yeah, I tried to explain it, but I was 2 thinking really fast, and I don't know that I said 3 everything that I was thinking. I don't know how 4 well I was communicating, and from looking at the 5 reports, it's obvious I wasn't communicating very 6 well. 7 Q Now, when -- when you -- did you tell them 8 you were trying to take anything from Intel, that you 9 thought you were -- when you talked about doing 10 something that was technically illegal, did you tell 11 them you thought you were doing that for the purpose 12 of committing a theft or anything like that? 13 A No, I didn't tell them I was doing it for 14 the purposes of committing a theft. 15 Q Was that your purpose? 16 A No. 17 Q Later on, did you have a chance to go over 18 the reports, the report that Detective Lazenby wrote 19 about your statements? Did he review it with you to 20 check for accuracy? 21 A No. 22 Q How about Detective Lilly? 23 A No. 24 Q Anybody ask you if they could tape record 25 the conversation? Schwartz D 189 1 A No. 2 Q Now, when you -- this was going on, you 3 were talking to the detectives and the people -- let 4 me ask you this: Were there also people from Intel 5 there? 6 A Yes. 7 Q And what -- while these conversations were 8 going on, what else was happening around the house? 9 A Well, I was in the family room, the back 10 room. I couldn't really see much of what was 11 happening in the rest of the house. Given the 12 document that they brought in, I could suspect that 13 there were things going on. 14 Q What -- did anybody from Intel come in to 15 talk to you about your employment situation? 16 A Yeah, somebody came in. I still don't 17 recall his name, and he handed me a document that 18 reminded me that I was still under an Intel 19 nondisclosure agreement and also said -- wanted my 20 badge. I gave them my badge, and he said, "You are 21 no longer employed at Intel." 22 Q Before the police showed up at your door, 23 or -- the point this was going on, had you expected 24 to continue working at Intel? 25 A Absolutely. Schwartz D 190 1 Q Did you want to continue working at Intel? 2 A Yes. 3 Q Now, at the point the police showed up at 4 your door, had you had any opportunity prior to that 5 time to talk to anybody at Intel about what you were 6 doing or why you were -- or your reasons were for 7 this? 8 A No, not at all. 9 Q Mr. Schwartz, just -- to conclude this 10 thing, when you put the Gate program on Mink and then 11 later on Brillig -- 12 A Yes. 13 Q -- did you know that you were altering the 14 machines and the computer systems? 15 A It depends on your definition of "alter." 16 Q Did you know you didn't have authorization 17 to put those programs -- run those programs first on 18 Mink and then later on Brillig? 19 A No, I didn't. 20 Q When you ran the Crack program on the 21 Brillig password file -- 22 A Yes. 23 Q -- did you believe that you had access 24 to -- authorized access to the Brillig computer? 25 A Yes. Schwartz D 191 1 Q When you ran the password -- when you used 2 the password for Ron B. to look at the SSD password 3 file, did you believe you were authorized to access 4 the SSD computers? 5 A No. 6 Q Did you do that for the purpose of 7 committing any kind of theft? 8 A No. 9 Q Were you trying to take -- steal the 10 password -- the password file? 11 A No. 12 Q Were you trying to steal any Intel secrets 13 when you tried to do that? 14 A No. 15 Q Did you have anything in terms of corporate 16 secrets or any of those machines at Intel at your 17 home? 18 A No. 19 Q Had you copied them to any disks? 20 A No. 21 Q Had you sent them to any machines that you 22 had access to anywhere in Intel or anywhere else or 23 outside? 24 A No. 25 MR. SUSSMAN: Thank you. Nothing further. Schwartz X 192 1 THE COURT: You may cross-examine. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Schwartz X 193 1 CROSS-EXAMINATION 2 BY MR. TINTERA: 3 Q Good afternoon, Mr. Schwartz. 4 A Hello. 5 Q Let me go through the password -- SSD 6 password file. You used someone else's password to 7 first view the -- access the complete, full SSD 8 password file; is that right? 9 A Say that again. I used someone else's 10 password to -- 11 Q I could be more explicit. You used 12 Ron B.'s password to view the SSD full password file? 13 A Yes, I did. 14 Q Then you used that password to copy the 15 file to your machine, Kandinsky? 16 A To the systems at H.F., yes. 17 Q Okay. And you knew you were not authorized 18 to do that; isn't that correct? 19 A I knew I was not authorized to use "RonB." 20 Q Well, are you familiar with this 21 nondisclosure agreement, which is page 4 of 22 State's 14? That is your signature down at the 23 bottom, isn't it? 24 A Okay. Let me look. Yes, it's my signature 25 down at the bottom. Schwartz X 194 1 Q Okay. And the first paragraph here says 2 you will not copy? 3 A Uh-huh. 4 Q And then this part about "removing" and 5 "says any Intel proprietary information" -- 6 A Yes. 7 Q -- "except as may be required in the normal 8 course of your work for Intel"? 9 A You skipped over "from Intel's premises." 10 Q Well, we have different premises, don't we, 11 from Cornell Oaks? 12 A It's all Intel to me. 13 Q It is? 14 A That is my understanding. 15 Q You felt, as a systems administrator, you 16 were authorized to go into the supercomputer 17 information file? 18 A No. 19 Q You did not feel that? 20 A I did not have authorization to use 21 Ron B.'s password. 22 Q Did you have authorization to go to the 23 supercomputer division file where your passwords were 24 disabled? 25 A I was not authorized to do that. Schwartz X 195 1 Q When you were in school, you mentioned the 2 drama class that you were involved in or play; 3 remember that? 4 A Yeah. 5 Q And you worked on the technical parts of 6 that? 7 A Yes. 8 Q Did you have rehearsals when you did that? 9 A Obviously, yes. 10 Q And you had a rehearsal for this last 11 night, didn't you? 12 A I met with my lawyers last night. 13 Q No. My question was did you have a 14 rehearsal for your testimony last night. 15 A Not a rehearsal, no. 16 Q Didn't you have someone who was 17 cross-examining you just like I am now? 18 A Yes. 19 Q Isn't that a practice, rehearsal? 20 A You could say it that way, yeah. 21 Q Did you look at the question script that 22 Mr. Sussman has of the questions he was going to ask 23 you? Did you go over that? 24 A Parts of it. 25 Q The attorney gave you some tips on how to Schwartz X 196 1 answer to the jury and how to answer my questions; 2 isn't that right? 3 A You could probably call it that, yeah. 4 Q Okay. That's why you turn to the jury when 5 you answer questions; right? 6 A Sometimes, yes. 7 Q And that is why you repeat my question back 8 to me when you answer; isn't that right? 9 A No. I think I am using common sense 10 there. 11 Q Okay. Let's talk about after you copied 12 the supercomputer division file -- you were not 13 authorized to copy that over to Hawthorn Farms, were 14 you? 15 A That's right. 16 Q And after you did that, you ran it -- ran 17 the Crack program on the Wyeth machine; isn't that 18 true? 19 A Yes. 20 Q You went away for a while and then came 21 back and ran it again on Snoopy? 22 A Yes. 23 Q Did you change the password file at all? 24 A I don't recall. 25 Q Would you have changed it? Why would you Schwartz X 197 1 have changed it? 2 A I don't know. That was two years ago. I 3 don't remember the exact sequence of events. 4 Q It doesn't make sense for you to change it 5 if you were just testing it? 6 A Right. 7 Q The size of the file wouldn't be changed; 8 right? 9 A If I didn't change it. 10 Q You ran the original file that you copied 11 from Ron B.'s password, and you started a rerun? 12 A I ran Crack again, yes. 13 Q You ran Crack again on the supercomputer 14 password file that you had copied on September 24? 15 A To the best of my recollection, yes. 16 Q Did you not understand my question before 17 that? It seemed pretty clear. 18 A Just trying to answer what I hear. 19 Q I will try to be clearer for you, 20 Mr. Schwartz. 21 Now, I would like you to look at 22 State's Exhibit No. 23. Could you just interpret the 23 first line on that document, please. 24 A That would be -- looks like a file named 25 "password.Brillig." Schwartz X 198 1 Q That's all it says? 2 A It has the length and the date and the 3 owner. 4 Q Date is? 5 A September 24, 1993. 6 Q And the owner is? 7 A User is 1000. I think that was me. I 8 don't know. 9 Q You don't remember? 10 A No. 11 Q How about the next line? What does that 12 say? 13 A That's the password SSD file, 14 September 24, 1993. 15 Q And is that -- it has -- it says 16 "play/cr"? 17 A Yes. 18 Q Is that familiar to you? 19 A That would be where I was running Crack. 20 Q So that is from your directory? 21 A Yes. 22 Q What is the last line here? 23 A That's the password file, again, 24 password SSD. 25 Q Okay. And these are from your directory; Schwartz X 199 1 is that right? 2 A As far as I can tell. I can't compare it 3 to what I actually know. 4 Q Last line is dated when? 5 A October 21. 6 Q Isn't it true, Mr. Schwartz, you went back 7 into the supercomputer division and recopied the 8 password file to run it again? 9 A That is certainly within the realms of 10 possibility. 11 Q You actually did not run the password file 12 that you originally ran on September 24; isn't that 13 true? On October 21 you were running a new version 14 that you had gone into the supercomputer division and 15 copied? 16 A Yes. Given that evidence, that sounds 17 completely the way it was. 18 Q You were inaccurate when you said you ran 19 Crack against the old file? 20 A That refreshed my memory. 21 Q The reason is these files are different 22 sizes? 23 A Yes. 24 Q Now, you told the jury you didn't have an 25 opportunity to talk to anyone at Intel about what you Schwartz X 200 1 had done in running Crack on the supercomputer 2 division password files; is that right? 3 A Yes, I do recall saying that. 4 Q But you had plenty of opportunities from 5 September 24 on to talk to Mark Morissey, Bob Wilcox, 6 Seth Bradley, John Gray, any of those people about 7 the problems you saw; isn't that right? 8 A I had the opportunity, yes. 9 Q And when you were working at IWARP as a 10 systems administrator, what was the time frame? 11 A '89 -- whatever it was to about '92. 12 Q I am showing you Defendant's Exhibits 157, 13 158, 159, 160. I would ask you to look at that, and 14 tell me where it is when you were working -- those 15 are the invoices from IWARP; is that right? Why 16 don't you look through those and make sure. 17 A Yes, those are all invoices while I was at 18 IWARP. 19 Q Would you show me on there where your 20 systems administrator duties went off to 21 Hawthorn Farms for you to do anything. 22 A During this contract, I was working at 23 IWARP, and I didn't have any relationship with 24 anything that was happening at Hawthorn Farms. 25 Q Would you show me where those invoices show Schwartz X 201 1 you worked as a systems administrator at 2 Hawthorn Farms. 3 A I didn't work as systems administrator at 4 Hawthorn Farms; so I can't show it. 5 Q It is not there, is it? 6 A Right, it is not there. 7 Q Let me show you State's Exhibit Nos. 26, 8 27, and 28. Could you identify these at all? I know 9 it has been a while. 10 A Those are outputs from Crack, Crack logs. 11 Q And this is the outputs of the Crack logs 12 that you ran on -- in the time frame we are talking 13 about, September, October? 14 A Yes. 15 Q And is your password referenced in there at 16 all? 17 A There is a line here that says "Merlyn." 18 That has my user I.D., has a locked password. 19 Q Can you put a red mark at the beginning of 20 that. 21 A On all three, because it occurs all three 22 times? 23 Q Yes. 24 A Okay. 25 Q Now, it says a little more than "locked Schwartz X 202 1 password," doesn't it? 2 A Yes, says "disabled," like a lot of other 3 passwords on here. 4 Q Right. I am just talking about yourself. 5 A Okay. 6 Q So your password was disabled. What does 7 that mean? 8 A That means I cannot log onto the machines 9 that use that password file. 10 Q That means that you cannot, without 11 authorization, log onto those machines with that 12 password file? 13 A That's right. 14 Q So you, without authorization, logged onto 15 those machines to get the SSD password file; isn't 16 that correct? 17 A That's right. 18 Q Now, you said that you wanted to do that to 19 get into the good graces of the supercomputer 20 division again; is that right? 21 A Yes. 22 Q And you were doing it for O'Reilly and kind 23 of for your own purposes to see how secure they 24 were? 25 A Yeah. I was also doing it to test Crack to Schwartz X 203 1 see what the latest version did, the kind of 2 passwords it could find, the kind of passwords it 3 can't find and so on. 4 Q You were doing it on Techbook to help them 5 out for your own purposes? 6 A To return favors that had been given to me 7 by them and to return -- and to have the opportunity 8 for future favors. 9 Q Did you have an opportunity at your 10 rehearsal to go over by answering my questions by 11 saying what you want to say instead of answering the 12 question? 13 MR. SUSSMAN: Objection, improper argument. 14 THE COURT: Sustained. 15 Q (By Mr. Tintera) So when you took the 16 Techbook password files, you did that for your own 17 purposes, not Intel's purposes; isn't that correct? 18 A Well, no, that's not correct. 19 Q You did it so you could help Mr. Deibele 20 and his security; is that right? 21 A Yes. 22 Q That was for your own purpose; right? 23 A That part of it is. 24 Q Not Intel's purposes? 25 A That part of it. Schwartz X 204 1 Q You used an Intel machine to do that; 2 right? 3 A Yes. 4 Q And so you were -- as a worker, you were 5 interested working back at the supercomputer 6 division; isn't that right? 7 A What time frame? 8 Q Time frame when you are cracking their 9 proprietary password file. 10 A I am sorry. I lost the question, again. 11 From the beginning? 12 Q You were doing that so you -- the idea was 13 you could get in their good graces and be able to 14 work for them again? 15 A Yes. 16 Q So you were doing that for your own 17 purposes; isn't that right? 18 A No, that is just a part of it. 19 Q That is one part of it? 20 A One part of it, yes. 21 Q Your own purpose was to -- that's a 22 personal thing so you can work there; right? 23 A Yes. 24 Q And another purpose you were doing that was 25 so that you could have access for your Gate when it Schwartz X 205 1 was discovered on the Brillig computer, isn't it? 2 A In a long, roundabout way, yes. 3 Q That is what you told the police? 4 A Yes. 5 Q When Gate was discovered or you were caught 6 running Gate, you wanted to have other computers 7 where you could get access to your e-mail, 8 essentially, by putting the Gate somewhere else? 9 A I don't recall the word "caught," and I 10 didn't hear much of what you said after that, because 11 I wanted to respond to that first. 12 Q You were looking for other computers in a 13 system that you no longer worked in to place your 14 Gate program when it was discovered on the Brillig 15 computer. That is why you needed the password file? 16 A No. 17 Q You weren't looking for other computers to 18 place your Gate program? 19 A I was looking for a way to get back into 20 the good graces of SSD so they would continue to 21 offer me access through their computers to access the 22 Internet. 23 Q So you thought they would offer you this 24 access; is that right? 25 A Continued access, yes. Schwartz X 206 1 Q All right. Let's talk about that, then. 2 Way back in the IWARP days you set up a two-way gate 3 from IWARP to Carnegie-Mellon; isn't that right? 4 A I established a port that they could 5 connect into, yes. 6 Q Okay. You like "port" better than "gate." 7 You established a port, and it went both ways; right? 8 A It allowed people from the telnet outside. 9 Q That is not both ways? 10 A Well, they already had access going 11 outward. What I was establishing was access inward. 12 Q You established access inward? 13 A Yes. 14 Q And then your supervisor, Mr. Bradley, had 15 a heart-to-heart talk to you about that, didn't he? 16 A I wouldn't necessarily call it 17 heart-to-heart. 18 Q He told you that Intel's policy did not 19 permit incoming telnets, did he not? 20 A My recollection of my conversation with him 21 was that the way it was set up wasn't acceptable to 22 Seth Bradley and his interpretation of the corporate 23 policy, and so we had to make changes to it. That is 24 my understanding of that conversation. 25 Q He told you the policy was no incoming Schwartz X 207 1 connection? 2 A I don't recall that. 3 Q Now, in March of 1993, when you were 4 approached by Mark Morissey and Dirk Brandewie, it 5 was essentially the same problem, wasn't it, an 6 incoming through Intel's firewall connection? 7 A My understanding of their concern was that 8 the problem was being able to connect to any machine 9 at Intel. 10 Q Well, that was through -- 11 A That was through the firewall, being able 12 to go through the firewall to any machine at Intel. 13 Q Could we agree it was an incoming 14 connection? 15 A As part of the condition, yes. 16 Q And that is what they were upset about. It 17 was incoming through the firewall, and anyone could 18 come in and access the rest of the network? 19 A They were concerned about any access at the 20 network, yes. That was my understanding of that. 21 Q You were told right then, again, about 22 Intel's policy about incoming connections, weren't 23 you? 24 A I don't recall the exact conversation. 25 Q So you have no different recollection than Schwartz X 208 1 what Mr. Morissey or Mr. Brandewie have testified to? 2 A I don't have the actual words that I 3 remember, no. 4 Q And so after that, you made some changes 5 that were acceptable to Mr. Brandewie; is that 6 right? 7 A Yes. 8 Q And those changes did not allow you to come 9 in from the outside anymore, did they? 10 A That's right. 11 Q So you are getting an idea at this point, 12 aren't you, what Intel's policy is from Mr. Bradley 13 and now from Mr. Brandewie? 14 A It is still consistent. My idea from those 15 two circumstances was that unrestricted access to 16 product data was definitely dangerous, and I agreed. 17 Q What was acceptable to Mr. Brandewie was no 18 incoming connection? 19 A That was my interpretation of what he 20 said. 21 Q Mr. Schwartz, there is nothing to 22 interpret. You changed the program so there was no 23 incoming connection; isn't that correct? 24 A That is how I resolved the issue of not 25 enough security in that program, yeah. Schwartz X 209 1 Q Right, and that was satisfactory to 2 Mr. Brandewie, wasn't it? 3 A Yes. 4 Q What was satisfactory was no incoming 5 connection; you knew that? 6 A I didn't know his exact criteria for 7 satisfaction or not. All I know, the first program 8 was not good, but the second one was. 9 Q Did it come clear to you in July of '93, 10 after you took off, after you made it where you could 11 come back in, and he approached you again? Did that 12 make it a little clearer what he had in mind? 13 A I began to see his concern was about Mink 14 and about the way Mink was being used. That is why I 15 requested my account be terminated on Mink. 16 Q It didn't come clear to you that he was 17 concerned about incoming connections to Intel, 18 because that is how you changed it? 19 A Right, in response to understanding his 20 request. It wasn't secure enough. 21 Q That is not what I was asking. You changed 22 it in response to his request in March so you could 23 not come in from the outside; isn't that right? 24 A That is how I fixed what I perceived his 25 problem was. Schwartz X 210 1 Q Then you went, because it didn't suit your 2 purposes, and changed it back? 3 A I did not change it back. It was an 4 entirely different program. 5 Q It allowed you to come in from the outside? 6 A On a way that I believed to be secure. 7 Q Could you answer my question and not put 8 your twist to it, please. 9 MR. SUSSMAN: Objection, Your Honor. 10 THE COURT: If you have an objection to the 11 answer, address it to me, Mr. Tintera. 12 Q (By Mr. Tintera) You changed the program 13 back so you could come in from the outside; right? 14 A No. 15 Q You couldn't come in from the outside after 16 you changed the program? 17 A I changed it to a new program that did have 18 the ability to come in from the outside. 19 Q Okay. So you changed it to a program that 20 could come in from the outside? 21 A Yes. 22 Q And then Mr. Brandewie found it, again, and 23 said, "This is unacceptable," didn't he? 24 A Yes. 25 Q And then you said -- well, before that, he Schwartz X 211 1 said, "If you want to do this, you can go to security 2 and get a clearance, and I will permit this once you 3 have a written clearance"; do you recall that? 4 A I recall some conversation to that effect. 5 Q Instead of doing that, instead of going 6 through the authorized channels to conform with 7 Intel's policy, you just had your account closed? 8 A I requested that my account be closed. 9 Q And then you found a computer where you 10 could put your gate in where you thought it wouldn't 11 be discovered for a while? 12 A Not true. 13 Q Right? 14 A Not true. 15 Q But you put it on Brillig, didn't you? 16 A Yes, I put it on Brillig. 17 Q Now, the extent of your contract with 18 Mr. Mayer was to do a test on the testa -- I can only 19 say "TA," because I can't get the last word. 20 A Yes. 21 Q That is what you were authorized to do on 22 the Brillig machine; isn't that true? 23 A I was authorized to be a user on the 24 Brillig machine. 25 Q For the specific purpose of the contract Schwartz X 212 1 you had with Herb Mayer in regard to the test -- I 2 can't say it. I will use "TA." 3 A There were never any stipulations of the 4 kind of uses I could use on Brillig. 5 Q Your access to Brillig was to provide 6 a "TA" program for that machine; is that correct? 7 A No. 8 Q You were hired by Herb Mayer to provide 9 a "TA" machine on the Brillig system -- machine -- 10 "TA" program on the Brillig machine; isn't that 11 correct? 12 A I was hired by Herb Mayer to put the test 13 automaton on a number of different machines, and 14 Brillig was one. 15 Q Exactly. That is what gave you access to 16 that machine? 17 A Exactly. 18 Q That was your authorized access to work on 19 that contract? 20 A I was working on that contract when I was 21 working with Brillig, yes. 22 Q And that contract had nothing to do with a 23 Gate program, did it, sir? 24 A No. 25 Q What efforts did you make to notify Ron B., Schwartz X 213 1 after you cracked the Brillig password file, of his 2 faulty password? 3 A None. 4 Q You were acting as a systems administrator 5 at the IWARP project -- or whatever you want to call 6 it -- group. When a password was cracked, what 7 efforts did you make to notify the user that their 8 password was incorrect? 9 A It was an automatic program, and so we sent 10 it immediately. 11 Q You set up that program? 12 A Yes. 13 Q That wasn't done in this case, was it, 14 sir? 15 A No, it wasn't done in this case. 16 Q Would you consider the password file of any 17 machine -- not any machine -- the Brillig machine to 18 be of proprietary information? 19 A Yes. 20 Q Excuse me. I have a lot of notes I need to 21 check. 22 When you were working at IWARP as a 23 systems administrator -- 24 A Uh-huh. 25 Q -- you were basically -- I have heard Schwartz X 214 1 systems administrator referred to as God. You were 2 the person who kind of shepherds the individual PC 3 users; is that correct? 4 A Yeah, sure. 5 Q Isn't it kind of hard to shepherd those 6 people if you are not aware of the corporate policies 7 that you are working for? 8 A Yeah. 9 Q To be a really good systems administrator, 10 you better know what direction and policies the 11 corporation is headed and following? 12 A I better know the policies of my local 13 area. That was the most important, and that was 14 discussed frequently. 15 Q Sure, and that was also discussed when 16 Seth Bradley had you fix the problem that you created 17 with the original IWARP gate; isn't that right? 18 A Yes. 19 Q That is when those policies were first 20 pointed out to you; isn't that true? 21 A The policies of our local group. 22 Q And the policies of Intel when he said that 23 gate did not conform to Intel's policies; isn't that 24 right? 25 A Yes. Schwartz X 215 1 MR. TINTERA: Thank you, Mr. Schwartz. I 2 have nothing more to ask. 3 THE COURT: Mr. Sussman? 4 MR. SUSSMAN: Thank you, Your Honor 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Schwartz ReD 216 1 REDIRECT EXAMINATION 2 BY MR. SUSSMAN: 3 Q When Mr. Bradley informed you that the 4 two-way connection had been set up -- 5 A Uh-huh. 6 Q -- you know, had to be changed -- 7 A Uh-huh. 8 Q -- did he say there couldn't be any two-way 9 connections or just a change in the way it was done? 10 A My recollection is there needed to be a 11 change in the way it was done, and we accomplished 12 that. 13 Q When Mr. Brandewie first told you the 14 Door -- Door program -- 15 A Yes. 16 Q -- was not -- didn't meet policy 17 standards -- 18 A Uh-huh. 19 Q -- what was your understanding, that there 20 couldn't be any connections, or the way it was set up 21 was the problem? 22 A That the way it was set up was a problem. 23 Q What was the problem with the way it was 24 set up? 25 A The problem is if it allowed inbound Schwartz ReD 217 1 connections, anybody knowing all the security stuff 2 about it could figure out how to connect anyplace in 3 the Intel network. 4 Q When you described tools that helped make 5 your job easier, if they don't work just right or 6 they are not meeting needs, do you rework those, 7 fine-tune them? 8 A Absolutely. You spend a lot of time 9 tweaking tools. That is what all the work was. 10 Q It looks here -- you have a couple 11 different versions of the Door program, at least a 12 couple different versions of the Gate program. What 13 were you doing there? 14 A Trying to accommodate all the changes I had 15 to the program. 16 Q You said you rewrote -- Gate was a new 17 program? 18 A Gate took a lot of stuff from Door. They 19 are very similar. The function was different. Door 20 was a universal. Once I connect with it, you could 21 go anywhere, and Gate was a single-port proxy, 22 stand-in for where I needed to connect to. 23 Q How did that correspond to the changes you 24 made at IWARP that Seth Bradley told you to change? 25 A Seth said as long as we change the way the Schwartz ReD 218 1 inbound connections were happening, to make sure it 2 only connected to nonproduct machines, the machines 3 that didn't give away the information to the kingdom, 4 that was okay. I never pointed it to a machine that 5 contained product information. 6 Q But couldn't the fact that it could get to 7 a machine that had some important information, like 8 password files or certain other codes, give you 9 access to those product-information computers? 10 A Well, they first -- no. 11 Q Let me ask -- when Dirk Brandewie came back 12 to you and told you the second -- the first -- the 13 Gate program wasn't acceptable to run on Mink, why 14 didn't you just then go -- ask for the waiver? 15 A It seemed like more work than I wanted to 16 go through at the time. 17 Q And when you -- you had the account on 18 Brillig over at SSD? 19 A Yes. 20 Q Now, when Herb Mayer set up the account or 21 when an account is set up on a machine -- 22 A Uh-huh. 23 Q -- what are you told about the limits of 24 the use of the account? 25 A Very little. Schwartz ReD 219 1 Q Well, then are -- you know, the computers 2 that you have accounts for used for other purposes 3 than what -- than just the specific work you might do 4 on a specific project? 5 A Yeah, they could be used for all sorts of 6 things. 7 Q Were you given any policy restrictions 8 saying you couldn't do that? 9 A No, not at all. 10 Q Now, was that installation of the Door and 11 the Gate programs, in your mind, different than an 12 installation of other tools that you typically used? 13 A Not really, no. 14 Q Let me talk a little -- follow up on some 15 of the questions about the Crack program. 16 A Okay. 17 Q You were asked about a statement that you 18 made to the detectives saying that you ran the Crack 19 program to get these passwords so you could get 20 access to your e-mail. You keep getting your access 21 to your e-mail from O'Reilly at another Intel 22 machine? 23 A Yes. 24 Q Did you have access to the Internet outside 25 from Intel? Schwartz ReD 220 1 A Yes, through Techbook. 2 Q Could you have gotten your e-mail for 3 O'Reilly from that account? 4 A Yes. 5 Q Why did you need access from Intel to the 6 Internet from another machine? 7 A It was to let me have access to my e-mail 8 during the day. I get, something, like, 200 mail 9 messages a day. If I have to wait until I go home at 10 night to answer them all, it is inconvenient. If I 11 am waiting for a response to a particular problem, I 12 have got to have it now. I can't wait for the end of 13 the day. 14 Q Didn't that assume you were going to keep 15 working at Intel? 16 A Yes, certainly. 17 Q So you only needed that access if you 18 intended and wanted to keep working at Intel? 19 A Yes, it certainly was my plan at that 20 time. Not likely now. 21 Q You were asked whether you made any efforts 22 to contact Ron B. Why didn't you contact Ron B.? 23 A Actually, I didn't even know who Ron B. 24 was. I suppose I could have looked him up. You 25 know, it wasn't really my area of systems Schwartz ReD 221 1 administrator. I was more interested in solving the 2 large problem I was sort of stumbling across. It 3 looked like there was trouble here. I wanted to 4 solve that. I assumed Ron B. would be contacted by 5 the appropriate authorities over there after I sent 6 this package over there. 7 Q Mr. Schwartz, when you ran the program and 8 cracked the passwords from the SSD password file, did 9 you ever use those SSD passwords that you had cracked 10 for anything? Did you use them to get other 11 information -- 12 MR. TINTERA: Judge, he can't ask about 13 this. It is beyond my cross. 14 MR. SUSSMAN: One of the first questions 15 was about Crack and using this program for his own 16 purposes. 17 THE COURT: Overruled. 18 THE WITNESS: Question, again? 19 Q (By Mr. Sussman) When you got the Crack 20 passwords, other than the time to log in, look at the 21 password file, and copy them -- 22 A Yes. 23 Q -- did you use any of those passwords for 24 anything else? 25 A No, not at all. Schwartz ReD 222 1 Q You were asked about your personal purposes 2 in running the Crack program on the Intel computers. 3 A Yes. 4 Q How did you feel about working at Intel and 5 the interests of Intel and work, as far as the work 6 you were doing? 7 A Intel had been my employer for the large 8 part. They had given me most of the money I had 9 earned over the previous five years. I had this 10 loyalty, in a sense, as much as a contractor could 11 have loyalty to a company. They paid my bills. When 12 I discovered the problems, I said, "I better solve 13 this. I better help them out. I better get this 14 thing to work." 15 Q When you were running those things, would 16 you have -- when you put the Gate programs on there 17 for the purposes of compromising Intel's security -- 18 A No. 19 Q -- did you do it for the purpose of 20 stealing any of Intel's proprietary information? 21 A No, not at all. 22 MR. SUSSMAN: Thank you. 23 24 25 Schwartz ReX 223 1 RECROSS-EXAMINATION 2 BY MR. TINTERA: 3 Q Mr. Schwartz, you described yourself 4 somewhere as a computer professional for the last 17 5 years? 6 A Uh-huh. 7 Q And much of computer work is a position of 8 trust, isn't it, sir? 9 A Yes, it is. 10 Q And is it fair to say that -- I am not 11 talking about an emergency situation -- but to take 12 someone's password, even if you know it by 13 circumstance, and using it and impersonating that 14 person is a breach of trust? 15 A I would have to say so. 16 Q And that's exactly what you did to Intel? 17 A In the pursuit of discovering this problem, 18 yes. 19 Q And when you said you didn't know how to 20 get hold of Ron B., you could send an e-mail to 21 Ron B., just addressed to Ron B., and it would get to 22 him through the Intel network; isn't that right? 23 A Yes, I could have done that. 24 Q You didn't need to know who he was to send 25 him an e-mail, "Ron, give me a call. Do something. Schwartz ReX 224 1 Your password stinks," and you didn't do it? 2 A That's right. I could have done it. 3 Q And you didn't ask for the waiver back when 4 Dirk Brandewie removed your account, or you asked for 5 it to be removed, however it was, from the Mink 6 computer? You didn't go to security and ask for a 7 waiver, because you knew, based on what had happened 8 up to that point in time, Seth Bradley and Dirk 9 Brandewie, you weren't going to get it; isn't that 10 right? 11 A No, I would have no idea, if I would have 12 asked for it. I just hate paperwork. 13 MR. TINTERA: That's all I have. Thanks. 14 MR. SUSSMAN: Nothing further. 15 THE COURT: Counsel, approach the bench. 16 (Brief discussion held at the bench) 17 THE COURT: Thank you, sir. You may step 18 down. 19 Do you have other witnesses here? 20 MR. SUSSMAN: Let me check. 21 THE COURT: I mean, 15-minute witnesses. 22 MR. SUSSMAN: Yes, I do have one witness 23 who would be very brief. 24 THE COURT: Okay. Call him. 25 Deibele D 225 1 JAMES S. DEIBELE was called as a witness on 2 behalf of the Defendant and, having been duly sworn, 3 was examined and testified as follows: 4 DIRECT EXAMINATION 5 BY MR. SUSSMAN: 6 Q Mr. Deibele, where do you live? 7 A My address is -- Portland, Oregon. 8 Q What is your occupation? 9 A I'm president of Teleport. It's an 10 Internet service provider. 11 Q There is background noise here. 12 A Okay. 13 Q Please speak up a little bit so I can hear 14 you better. 15 You were saying you are what? 16 A President of Teleport. It's an Internet 17 service provider. 18 Q How long have you been the president of 19 this company? 20 A Going back for about three years. 21 Q Three years? 22 A Uh-huh. 23 Q Do you know Randal Schwartz? 24 A I have met Randal. He and I have exchanged 25 e-mail pretty frequently, you know. He has been to Deibele D 226 1 our offices, you know. 2 Q Now, does he have -- is he a subscriber to 3 your service? 4 A He is a customer of ours. 5 Q Does he have an account? 6 A Yes, he had it for two and a half years. 7 Q Has your business always been called 8 "Techbook"? 9 A It was called "Techbook" before, and we 10 changed the name. 11 Q Pardon? 12 A We changed the name about a year and a half 13 ago. 14 Q So in the -- in 1993, prior to November, it 15 was at that time known as -- 16 A Techbook. 17 Q Okay. Now -- and at that time what kind of 18 services were provided? 19 A We were doing basically the same thing as 20 we are doing now, just on a smaller scale. 21 Q Did Mr. Schwartz have an account with you 22 at Techbook in the summer and fall of 1993? 23 A Yes, he did. 24 Q Were you aware of an incident that -- where 25 Mr. Schwartz ran a password cracking program on a Deibele D 227 1 password file? 2 A He and I had been talking about security. 3 MR. TINTERA: Objection, nonresponsive. 4 THE COURT: Sustained. You need to answer 5 the question first. 6 THE WITNESS: Yes. 7 Q (By Mr. Sussman) How did you become aware 8 of this incident? 9 A Randal called -- excuse me. Which 10 incident? The incident where he cracked -- 11 Q Ran the Crack passwording program. 12 A He e-mailed me. He told me he had done 13 it. He gave me the list of the accounts he had done 14 without the password. He suggested those accounts 15 should be contacted to change the passwords. 16 Q Now, was your password file readable by 17 anybody with an account? 18 A Yes. 19 Q And did Mr. Schwartz explain to you what 20 prompted that? 21 MR. TINTERA: Objection, that would be 22 hearsay. 23 THE COURT: Sustained. 24 Q (By Mr. Sussman) How did you respond? How 25 did you respond to the message you got from Deibele D 228 1 Mr. Schwartz? 2 MR. TINTERA: Objection, it is not 3 relevant. 4 MR. SUSSMAN: It is very relevant to 5 Mr. Schwartz's state of mind. 6 MR. TINTERA: With Techbook. 7 MR. SUSSMAN: This occurred prior to the 8 incidents in question here. Mr. Schwartz testified 9 how it motivated him and his thinking and the process 10 that occurred later on. 11 THE COURT: Overruled. He can answer it. 12 THE WITNESS: I wasn't very happy about 13 it. 14 Q (By Mr. Sussman) Uh-huh. 15 A Randal had not asked me about doing it, but 16 it was meant to help improve security. 17 MR. TINTERA: Objection. That could only 18 be based on hearsay, Your Honor. 19 THE COURT: Sustained. 20 MR. TINTERA: Ask that be stricken. 21 THE COURT: The jury will disregard it. 22 MR. SUSSMAN: Your Honor, this goes to this 23 witness -- explaining what this witness' response 24 was. It is not being offered or stated for the -- 25 necessarily for the specific purpose of what Deibele D 229 1 Mr. Schwartz's -- 2 THE COURT: The last answer was pure 3 speculation, speculating on what Mr. Schwartz's 4 purpose was. 5 Q (By Mr. Sussman) Was that based on 6 communication you had from Mr. Schwartz? 7 A Yes. 8 Q Was that communicated to you by 9 Mr. Schwartz? 10 THE COURT: I am striking the answer. The 11 jury will disregard the answer about the purpose, the 12 stated purpose. 13 Q (By Mr. Sussman) Based on the 14 communication you had from Mr. Schwartz, without 15 going into what he communicated, what then was your 16 response? 17 A My response was to thank him for doing 18 this. 19 MR. SUSSMAN: Thank you very much. Nothing 20 further. 21 THE COURT: Mr. Tintera? 22 23 24 25 Deibele X 230 1 CROSS-EXAMINATION 2 BY MR. TINTERA: 3 Q Mr. Deibele, when you greet new users on 4 what is now Teleport, there is a caution on your 5 screen, is there not, that indicates that 6 unauthorized tampering with your network is not 7 permitted? 8 A I don't know what you are referring to. 9 Q Well, how do you -- you have people log on 10 to your system as a new user? 11 A Yes, that's correct. 12 Q And they receive information about your 13 system; is that correct? 14 A Uh-huh. 15 Q Are you familiar with that? 16 A Yes. 17 Q In there there is -- do you know what I am 18 talking about? There is a cautionary that says what 19 you can and cannot do in your network? 20 A I have no idea what you are talking about. 21 Q You didn't know that was there? 22 A I wrote that? Do you want to show me? I 23 have no recollection of that whatsoever. You may 24 have us confused with somebody else. 25 Q You don't have any information to your Deibele X 231 1 users how they can use your network? 2 A We don't have a user agreement. We don't 3 have any such -- 4 MR. TINTERA: Judge, I could produce this 5 information. I would ask this witness be continued 6 until our next meeting so I can produce that for 7 him. 8 THE COURT: You are here locally, are you? 9 THE WITNESS: Yes. 10 THE COURT: You said your office was in 11 Portland. You will need to -- you'll need to 12 return. The exact date I haven't decided yet. Once 13 we are done here today, I want you to stay until I 14 tell you the date you need to return. 15 Proceed. Any other questions? 16 MR. TINTERA: No. 17 THE COURT: Anything else? 18 19 20 21 22 23 24 25 Deibele ReD 232 1 REDIRECT EXAMINATION 2 BY MR. SUSSMAN: 3 Q Mr. Deibele, were you aware of 4 Mr. Schwartz's reputation on the Internet for helping 5 people? 6 A Yes. 7 MR. TINTERA: Objection, beyond anything I 8 have asked about, and it's not relevant. 9 THE COURT: Sustained on both counts. 10 MR. SUSSMAN: Nothing further. 11 THE COURT: You may step down. If you 12 would just step outside. 13 This is your last witness for the 14 day? 15 MR. SUSSMAN: Your Honor, I had one 16 additional witness, but the additional witness will 17 take a while. 18 THE COURT: We'll conclude for the day. 19 Counsel, approach the bench. 20 (Brief discussion held at the bench) 21 THE COURT: Ladies and gentlemen, the issue 22 is when we are going to begin again, and I know I've 23 expressed this to you earlier, the possibility we 24 might go Monday. I do have another matter set for 25 Monday, and I'm hopeful I can get that concluded by Deibele ReD 233 1 about 2:00 in the afternoon. My plan would be to 2 come in Monday, conclude with all the testimony, 3 however long it takes. I am hopeful we would be done 4 about 5:00, but I'll tell you my plan is once we get 5 everybody here Monday, we are going to go until 6:30 6 or 5:30 or 7:00 or whatever it takes to get the 7 testimony done. So if you would come in, then, 8 Tuesday, and right away we'll start out with 9 arguments by counsel and my instructing, and I know 10 we have plans, and we want to get Mr. -- if I put 11 testimony over, it will be until the middle of the 12 afternoon before we start deliberating, and that is 13 pushing it too much. I would like you to be here 14 Monday. 15 MR. TINTERA: Judge, before we adjourn, I 16 had forgotten to offer State's Exhibits 23, 26, 27, 17 and 28, which were identified by Mr. Schwartz. 18 THE COURT: While Mr. Sussman is looking at 19 those, don't forget, Monday, at -- be here a little 20 before 2:00. We'll probably start at 2:00 o'clock. 21 That is subject to my being done with my other 22 matter. If my other matter is still going, we'll 23 have you check in and be comfortable downstairs. 24 Don't leave the jury room unless Linda says we are 25 ready to go, or you can take a break. I think Deibele ReD 234 1 somewhere after 2:00 we will be able to get going on 2 this. 3 Again, for purposes of scheduling or 4 when you might go home, we will stay here. My plan 5 would be to stay here Monday until we get all the 6 evidence in. 7 Okay. Any questions about that? 8 Don't talk about the case, and have a nice weekend, 9 folks. We'll see you Monday by 2:00 o'clock in the 10 afternoon. Okay. 11 I am sorry. Regarding these 12 exhibits -- 13 MR. SUSSMAN: I have no objection to these 14 exhibits, Your Honor. 15 THE COURT: Okay. They are numbers what? 16 THE CLERK: 23, 26, 27, 28. 17 THE COURT: They are all received. 18 (Whereupon, State's Exhibit 19 Nos. 23, 26, 27, and 28, being 20 documents, were offered and 21 received into evidence.) 22 THE COURT: Thank you, folks. You are 23 excused. 24 (Whereupon, the jury left 25 the courtroom, and the 235 1 following transpired:) 2 THE COURT: Would you tell Mr. Deibele he 3 needs to be back here at 2:00 o'clock on Monday. 4 MR. SUSSMAN: Your Honor, just, perhaps, we 5 can deal with this now, in consideration to 6 Mr. Deibele. I object to cross-examination 7 contemplated on a collateral matter, and it is 8 improper cross-examination. They asked him if he 9 recalled putting -- asked him if he recalls putting 10 messages in terms of users. He doesn't recall doing 11 that. 12 THE COURT: Mr. Tintera -- I am sorry. Are 13 you through? 14 MR. SUSSMAN: Collateral. 15 THE COURT: Mr. Tintera? 16 MR. TINTERA: Yes? 17 THE COURT: The objection to any questions 18 of Mr. Deibele on the issue that you wished to 19 examine him on that it's collateral? 20 MR. TINTERA: I thought I could ask him. 21 He runs the system. He testified about security, and 22 there is a message on there. 23 THE COURT: Now or 1993? 24 MR. TINTERA: Well, that's a good point. I 25 don't know. I know there is now. 236 1 THE COURT: Well, unless you can show that 2 it was there in 1993 -- 3 MR. TINTERA: I can't show that. 4 THE COURT: Let's let him go. Tell him he 5 doesn't need to report. Thank you. 6 MR. TINTERA: Are we adjourned, Your Honor? 7 THE COURT: Unless Mr. Olstad is bringing 8 something else to Mr. Sussman's attention. 9 MR. SUSSMAN: It will be a scheduling 10 matter. 11 I did want to offer certain defense 12 exhibits that we had Mr. Schwartz identify. They are 13 111, 151, 152, 153, and 154. 14 MR. TINTERA: Didn't you offer these? 15 MR. SUSSMAN: No, I didn't offer them yet. 16 They have just been identified and discussed. 17 MR. TINTERA: I don't object to those, 18 Judge. 19 THE COURT: Give me the numbers of those, 20 again. I didn't write them down. 21 MR. SUSSMAN: 111, 151, 152, 153, and 154. 22 THE COURT: 111, 151, 152, 153, and 154 are 23 all received. 24 (Whereupon, Defendant's Exhibit 25 Nos. 111, 151, 152, 153, and 154, 237 1 being documents, were offered and 2 received into evidence.) 3 THE COURT: Anything else? 4 MR. SUSSMAN: Your Honor, just one last 5 housekeeping matter. My understanding is that the 6 State will call Rich Cower on rebuttal presumably to 7 respond, in part, to the testimony of our expert. I 8 would ask the Court to allow our expert to sit in 9 during that testimony in case there is a need for 10 surrebuttal. Mr. Cower was allowed to remain here. 11 THE COURT: Mr. Tintera, do you wish to be 12 heard on that? 13 MR. TINTERA: Well, we are not going to get 14 to surrebuttal, Your Honor. That's all I have to 15 say. 16 THE COURT: Well, it has been known to 17 happen -- 18 MR. TINTERA: I understand that. 19 THE COURT: -- I think, once in 18 years. 20 It might happen again. 21 MR. TINTERA: It's true, and Haley's Comet 22 will return. 23 THE COURT: Yes, he may sit in. Thank 24 you. Anything else? 25 (Proceedings adjourned) Reporter's Certificate 1 STATE OF OREGON ) ) ss. 2 County of Washington ) 3 4 I, Bob A. Zaro, hereby certify that I 5 am a Certified Shorthand Reporter and Official Court 6 Reporter for the Twentieth Judicial District of 7 Oregon; that I reported in Stenotype the foregoing 8 proceedings and subsequently transcribed my said 9 shorthand notes into the typewritten transcript, 10 pages 1 through 237, inclusive; that the said 11 transcript constitutes a full, true, and accurate 12 record of the proceedings, as requested, to the best 13 of my knowledge, ability, and belief. 14 DATED this 7th day of May, 1996, 15 at Hillsboro, Oregon. 16 17 18 Bob A. Zaro 19 Official Court Reporter CSR No. 90-0119 20 21 22 23 24 25 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) Case No. C940322CR 5 Plaintiff, ) ) NOTICE OF FILING 6 vs. ) AND ) PROOF OF SERVICE 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) ) 9 I certify that the original transcript on 10 appeal in the above case was filed in the Washington County Clerk's Office on May 20, 1996. 11 I further certify that I served a true copy 12 of said transcript on appeal to: 13 SCOTT UPHAM District Attorney 14 Washington County Courthouse Hillsboro, OR 97124 15 MARC SUSSMAN 16 135 S.W. Ash Street, Suite 600 Portland, OR 97204 17 18 by depositing said copy in the United States mail at Hillsboro, Oregon, in a sealed envelope so addressed 19 and with postage fully prepaid thereon. 20 Dated this 20th day of May, 1996. 21 22 BOB A. ZARO No. 90-0119 23 Official Court Reporter Washington County Courthouse 24 Hillsboro, Oregon 97124 648-8785 25 A 1 I N D E X 2 WITNESSES: Direct Cross Redirect Recross For the Defendant: 3 Randal Schwartz 15 193 216 223 4 James S. Deibele 225 230 232 5 EXHIBITS: Description Offered Received 6 State's Ex. No. 23 Document 233 234 7 State's Ex. No. 26 Document 233 234 8 State's Ex. No. 27 Document 233 234 9 State's Ex. No. 28 Document 233 234 10 Deft's Ex. No. 104 Document 123 123 11 Deft's Ex. No. 105 Invoice 71 71 12 Deft's Ex. No. 110 Document 171 171 13 Deft's ex. No. 111 Document 236 236 14 Deft's Ex. No. 151 Document 236 236 15 Deft's Ex. No. 152 Document 236 236 16 Deft's Ex. No. 153 Document 236 236 17 Deft's Ex. No. 154 Document 236 236 18 Deft's Ex. No. 155 Document 118 118 19 Deft's Ex. No. 157 Document 98 99 20 Deft's Ex. No. 158 Document 98 99 21 Deft's Ex. No. 159 Document 98 99 22 Deft's Ex. No. 160 Document 98 99 23 Deft's Ex. No. 161 Invoice 71 71 24 Deft's Ex. No. 164 Invoice 71 71 25 Deft's Ex. No. 165 Invoice 71 71 A 1 EXHIBITS Description Offered Received 2 Deft's Ex. No. 166 Invoice 71 71 3 Deft's Ex. No. 169 Invoice 71 71 4 Deft's Ex. No. 170 Invoice 71 71 5 Deft's Ex. No. 171 Invoice 71 71 6 Deft's Ex. No. 174 Invoice 71 71 7 Deft's Ex. No. 176 Invoice 71 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25