Computer Underground Digest Volume 1, Issue #1.22 (July 14, 1990)

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Skeptic Tank!

**************************************************************************** >C O M P U T E R U N D E R G R O U N D< >D I G E S T< *** Volume 1, Issue #1.22 (July 14, 1990) ** **************************************************************************** MODERATORS: Jim Thomas / Gordon Meyer ARCHIVISTS: Bob Krause / Alex Smith REPLY TO: TK0JUT2@NIU.bitnet COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Contributors assume all responsibility for assuring that articles submitted do not violate copyright protections. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ File 1: Moderators' Comments File 2: From the Mailbag: More on CU and Free Speech File 3: Response to "Problems of Evidence" (Mike Godwin) File 4: What to do When the Police come a'knocking (Czar Donic) File 5: Observations on the Law (Mike Godwin) File 6: Electronic Frontier Fund Press Releases ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ *************************************************************** *** CuD #1.22, File 1 of 6: Moderators' Comments *** *************************************************************** ++++++++++ In this file: 1) Electronic Frontier Fund formed 2) CuD's Readership Survey (reminder) 3) SummerCon '90 4) Errata +++++++++++++++++++++++++++++ ELECTRONIC FRONTIER FUND +++++++++++++++++++++++++++++ The Electronic Frontier Fund has been officially announced. The EFF's mission statement, press release, "Electronic Bill of Rights," and Legal Summary are in File #6 of this issue. The opening day press release and other documents have been combined into a single file and is available from both archive sites (FTP and Krause). The length of the file is about 950 lines. +++++++++++++++++++ CuD SURVEY +++++++++++++++++++ Bob Krause has the readership survey about ready. Those who responded generally thought the survey to be a good idea. There were no negative comments, so it should be going out in a week or two. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ SUMMERCON '90 Week of July 27th St. Louis ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ SummerCon, an annual event where the CU elite gather to party, meet friends, and generally have a good time, returns! This years event is being hosted by Aristotle and Forest Ranger. CuD wishes them the best and welcomes any reports/reviews that attendees wish to contribute. +++++++++++++++++++++++++++++++++++++++++++++++++++++ +++++++++++++ ERRATA (from 1.14) +++++++++++++ In CuD 1.14, we erroneously announced that a PHRACK file to be used for evidence announced the beginning of The Phoenix Project BBS. In fact, the file made no specific reference to the BBS of the same name. =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END THIS FILE + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+= *************************************************************** *** CuD #1.22, File 2 of 6: Mail--More on Harassment *** *************************************************************** To: Subject: Lines of Communication Date: 8 Jul 90 22:37:00 PDT (Sun) From: Higdon) It was most refreshing to see some balanced comment on the subject of opinions and viewpoints. Having been outraged by some of the underhanded tactics of law enforcement, I have been also a little troubled by the inability of some CU types to hear or allow others to hear alternative points of view. A recent incident comes to mind. Some months ago, there appeared an article in Telecom Digest from someone who lamented the advent of CPID. His objections were hardly mainstream: with CPID it became risky to "hack" authorization codes for long distance carriers. I was annoyed on two counts. First was the assumption that CPID would pose any more risk than ANI, something that long distance carriers have had available for years, and second, that somehow searching for authorization codes was advancing the state of hacking in the field of computing or telephony. I posted a straight-forward article expressing my opinion. Mind you, my background includes healthy amounts of hacking, mainly in the field of telephony, with exploits dating back to the sixties. A significant portion of my knowledge of the telephone network (a knowledge which now puts food on my table) was obtained through what can only be described as questionable means. My pointed response rose from the indignations of a "real" hacker over the antics of what appeared to be a schlep. No sooner did that response appear in the Digest, my e-mailbox filled with the most vitriolic, in many cases juvenile, threats one can possibly imagine. Most of the hate mail was anonymous, with mighty computer lords demonstrating their power over e-mail and threatening unspecified retaliation. I answered all that carried a legitimate return address, inviting the writer to take me on in the Telecom forum if he (they were all from males) thought I was out of line. None did. However, the incident confirmed my original premise: the concept of simply stealing authorization codes was a product of juvenile minds. For a time it appeared that this forum was becoming a strident, whiney, self-pitying club. Anything law enforcement did was bad; anything any hacker anywhere did was noble and cause-supporting. We're all adults here. We all know there are two sides to any situation. As a hacker, my wish would be that commercial systems designers put a lot more effort into security. If hackers can't get in in the first place, there wouldn't be the need for SS raids and the seizure of private computer systems. The age-old concept of "security through obscurity" will not suffice any longer. Some of the apparent tactics of our law enforcement agencies appear to be questionable at the very least. No doubt some innocent bystanders are being, to put it mildly, grossly inconvenienced. But let's not as a group lapse into self-righteousness, or try to silence those who have an opposing point of view. **John Higdon | P. O. Box 7648 | +1 408 723 1395 | San Jose, CA 95150 | M o o ! =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END THIS FILE + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+= *************************************************************** *** CuD #1.22, File 3 of 6: Response to "CU Harassment" *** *************************************************************** Date: Sun, 8 Jul 90 16:51:10 -0500 From: Godwin) To: Some responses to Mr. Anonymous: RE Point 1 ("misleading" references to punishments): It is true that there are a range of punishments available in cases such as this one. But it is false to conclude that the judge has either the right or necessarily the inclination to sentence leniently. Regarding the former: Federal judges' discretion has been greatly limited by the adoption of the Federal Sentencing Guidelines. Increasingly, judges have complained that they are not allowed by the Sentencing Guidelines to sentence leniently. Regarding the latter: Judges may be likely to accept prosecutors' characterization of all computer hackers as serious criminals, which means the judges won't be likely to use whatever discretion they have to be lenient. So, how did Robert Morris get such a lenient sentence? Answer: Unless I'm mistaken, he was prosecuted for *much less serious crimes* than the LoD defendants have been indicted for. Morris was not charged with theft or fraud, as I recall. This makes it incredibly misleading for Mr. A to compare the Morris case with the Neidorf/Riggs prosecution. RE Point 2 (Confiscation of equipment): There is no doubt that it's more convenient and more efficient for federal law-enforcement agents to seize evidence for inspection. The question is not whether there are alternative means for conducting these investigations, but whether all the necessary interests have been served. One of these interests is every citizen's right not to be deprived of property by the government without due process of law, and without just compensation. Even if Mr. A believes "due process of law" has occurred in, say, the seizures at Steve Jackson Games, *where's the "just compensation"*? Jackson probably has no remedy at all under federal law, thanks to exceptions in the Federal Tort Claims Act. RE Point 3 (What computer criminals will say when caught): Mr. A is perfectly correct to note that that suspects, and especially guilty ones, will characterize their actions as being comparatively innocent. But this is true in all federal prosecutions, regardless of whether the crimes involve computers, and regardless of whether the defendants are truly innocent. Mr. A suggests that "it doesn't matter" why the defendants did what they did. In this, he demonstrates a basic ignorance of criminal law--it is *central* to prosecution of major crimes that the defendants be proved beyond a reasonable doubt to have criminal intent. Therefore, what the defendants were thinking *does* matter--indeed, for most federal prosecutions, the defendant's mental state is the single most important issue to be resolved at trial. Except for purely regulatory offenses (which typically carry only minor penalties), the criminal law is designed to punish (and deter) acts by people with criminal mental states. Proving criminal defendants' mental states to a jury's satisfaction has not been an insuperable task for federal prosecutors up to now, by the way. RE Point 4 (Law enforcement access to the Net): Mr. A is also correct to note that relatively few law-enforcement officials have Net access, and fewer still understand the relevant electronic subculture. This is precisely why it is dangerous for them to go forward and characterize ALL hackers as serious criminals. Some hackers clearly are criminals. But many of them are motivated by the same sense of exploration that motivates federal prosecutors to discover new uses for the wire-fraud statute. The courts are capable of distinguishing between the merely adventurous and the criminal--but misunderstandings on the part of prosecutors can make it more difficult for judges and juries to make those distinctions. And, of course, willingness to seize lots of property as evidence and to prosecute 19-year-old hackers afflicted with braggadocio creates ancillary chilling affects the consequences of which none of us probably would like. The current indictments against Neidorf and Riggs characterize their use of BBS "handles" and their erasure of computer logs that recorded their entry into computer systems as fraudulent misrepresentations. In effect, the federal prosecutors have decided that anyone who uses a BBS "pen name" is misrepresenting himself and thereby opening himself up to fraud prosecutions. Only persons ignorant of the current American BBS subculture can draw such a conclusion. **Mike =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END THIS FILE + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+= *************************************************************** *** CuD #1.22, File 4 of 6: The Czar's Guide to Law *** *************************************************************** THE CZAR'S GUIDE TO THE YOUNG CRIMINAL ACCUSED OF USING COMPUTERS With the hyperactivity of law enforcement officials and the current attitudes of the public in general, it is probably time to consider what to do in case of a bust. I would guess that just about everybody receiving the Computer Underground Digest has violated some sort of law somewhere in someone's mind involving computers. This is not to say that all the readers of this publication are really criminals -- just that the laws are so broadly interpreted so as so make anyone with a modem a criminal. For example, if you have ever downloaded shareware and not used it, but didn't delete it, and had it for over 15 days, you could be violating copyright laws if the author put some sort of announcement to the effect that such were the terms of agreement. This means that you could very well be raided someday. Nothing is more gratuitous than free legal advice given to a defendant who has already engaged counsel, especially if the giver of such advice is not an attorney. However, as someone close to me was so arrested (and the charges later dropped), I thought you might be able to benefit from our experience. It does not matter what the computer crime is, how extensive, how serious the charges, etc. What matters is how you deal with the system when it comes knocking on your door. There may be warning signs. You could get a call or a preliminary visit from a member of the Secret Service, a call from security from a local phone company, a visit from a local policeman, news that someone you know has been busted, anything like that. At that point, you are legally free to say whatever you want, but it is best if you give the impression that you are willing to cooperate. Of course, any specific details you give will be noted. They can not be used in evidence against you, but that will not stop them from making the attempt in the future. I would indicate that I was very willing to help but that, right now, I had a number of pressing things to do and that I would like to talk tomorrow when I had much more time and could go into more detail. Right now, I'd say, my mother was calling. Everyone, to paraphrase Thoreau, should have such a mother. I would hardly advise anybody to destroy evidence since that is a crime itself, but it would seem to me that at this point a lot of material you have had around the house has been bringing you bad luck. A lot of paper and printouts are a definite fire hazard and should not be left lying around. Also, old data never does you any good -- it would be wise to format most of your ala disks several times. Better yet, treat yourself to some new ones and maybe your luck will change. All those old, dusty disks simply clutter things up. It's time to reorganize. The search warrant usually takes a while to get, but most judges take the path of least resistance and will issue one on fairly flimsy grounds. Now you must realize that most police officers are not used to dealing with computer people and that they do not like the ones they do have to deal with at work. The are used more to searches in the case of narcotics, illegal weapons, etc. You can not expect them, then, to be overly polite when they do knock on your door. Do not let this frighten you into telling them all sorts of things. During the search, however, it helps to have someone there crying. Also, act limply, as if you have lost the will to live. This will usually placate the more professional ones who should realize thereby that you are not going to shoot at them. This behavior is simply designed to keep you from being beaten or otherwise abused. It does not help your case legally although, if they do beat or otherwise try to intimidate you, and you can document it, a prosecutor will feel less exuberant about taking the case to court. They will probably place you under arrest at this point, reading you your rights. Once they do, you are under no obligation to say anything, but I would advise you to say "I want an attorney." An alternative is "I want a lawyer." You can respond to their "good guy" questions about the weather and such, but then when the questions come back to the topic of computers you had best repeat the above sentence(s). In fact, the more times you say it the better if it ever gets to court, but do not say it gratuitously so as to arouse the macho defensiveness that some officers may have. Realize that the arresting officer is not a legal scholar and that he is no more culpable in this arrest than is the postman for bringing you a bill. The real fighting lies ahead. One final point: it is wise to become acquainted with an attorney before any of this happens. One thing is quite certain: nothing you say to the arresting officers is likely to help your case. While they are carrying out your computer, your floppies, your printouts, your telephones, your answering machine, your radio, your tapes, watch them. Remember the irrelevant material they seize. This fact may be helpful in court as well and it may well help dissuade the prosecutor from doing anything much with the case. In one case, they took copies of the Federal Register, a tape of Mozart's 23rd piano concerto (Horowitz), and Gordon Meyer's thesis. The constant repetition of "I want my Mozart back" irritated the prosecutor no end and lessened enthusiasm for the case. (They also picked up pieces of grass the cat had brought in). None of this is legally relevant, but then a lot they do is not legally relevant either ** such as taking the materials in the first place. From here on, the case should be in the hands of a competent attorney. It is not necessary that he be an expert in computers since the prosecutor isn't either and the police even less so. The odds are that you will be able to supply more than enough computer expertise. What is important is his willingness to fight the case. Most will take that path of least resistance, perhaps working toward a plea bargain. The trouble with that is you are not in the best position at this point for a plea bargain. One of you main strategies should be to make the case so much of a pain in the ass for the prosecutor that he tires of it. If the charge is a misdemeanor, be advised that prosecutors do not like to prosecute such cases in the first place. The charge was made a misdemeanor in the hopes that you would simply plead guilty and that would be an end of it. It would also be the last you ever saw of your equipment. One last point: a defense attorney in one of these cases, after I had complained to him that as a taxpayer I resented the enormous expenditure of funds on these cases while there were abundant examples of clear and present dangers ripe for prosecution, said "Oh, they have absolutely no sense of resource management." Hardly encouraging words. A pain in the ass: judges do not like to be overturned on appeal, usually. The Fifth and Sixth Amendments are clearly relevant on your behavior before the trial. I would hope that the First and Ninth would be applied somewhere in the defense. Everyone knows that the first has to do with freedom of expression, but the ninth says, the way I read it, unless we specifically give up certain rights to the government, we retain them. I do not know, really, how these issues would ultimately be resolved, but when constitutional issues are raised during a trial and ruled not relevant, the path is set for appeal all the way, as the saying goes, to the Supreme Court. No matter that it doesn't help in this case specifically -- it may well help in other aspects of the case. The point is that once you are in the legal system and have an attorney, you are in a fight. They have to prove that you are guilty and you have the right to make them prove it legally. This does not mean that you examine all aspects of the case and come to a rational judgment. The interesting thing is that they try to produce any sort of evidence no matter how irrelevant and you try to prevent them from presenting any evidence no matter how germane. There is no longer any objective truth --simply a fight using words. Finally, there is an old maxim to the effect that you should not lie to your attorney. It is also true that it helps to have an attorney who believes in your case and is willing to fight it at every point, even points that seem to you quit irrelevant. When and how much to tell him is a tricky issue. Remember, he is good friends with the judge and the prosecutor, but he is also quite interested in winning cases for his clients. It is also wise to arrange some sort of set fee for the entire case so that you feel more comfortable communicating with him. One thing you should communicate is the outcome you wish to see from the trial and he should also make clear to you what your options are. For example, it is more difficult for a prosecutor to convince a jury that you are guilty. He doesn't even know that much about computers -- imagine him trying to educate others. On the other hand, if he succeeds. and the jury recommends jail time, the judge is more likely to impose it. On the other hand, a judge might be easier to convince, but he would feel much more free to suspend sentence and order "restitution." You have to decide what risks you are willing to incur in search of the desired outcome. I hope this hasn't sounded too frightening and I hope some of it might be helpful to someone out there. All I can say right now is that it is a good time for people with computers to make friends with people with law degrees. The current climate makes it necessary for the one and profitable for the other. =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END THIS FILE + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+= *************************************************************** *** CuD #1.22, File 5 of 6: Mike Godwin on Federal Law *** *************************************************************** The government's use of the 18 USC 1343 and 18 USC 2314 in this {Craig Neidorf's} case, by the way, is similar to its use of 18 USC 641 in the Pentagon Papers case. Basically, the government's strategy is to stretch the notion of "property" in a way that allows prosecutors to characterize defendant's activity as a property crime--theft, that is. There's a very good law-review article on this general subject: Michael E. Tigar's "The Right of Property and the Law of Theft," 62 Texas Law Review 1443 (1984). Here's a relevant passage from that article, addressing the government's use of 18 USC 641 (theft of government property) in the Ellsberg and Truong cases: When Daniel Ellsberg took the Pentagon Papers, he was prosecuted uner section 641 for, among other things, stealing government property worth more than one hundred dollars. When David Truong was prosecuted for allegedly passing copies of State Department cable traffic to the Socialist Republic of Vietnam, the government's multicount indictment included a theft allegation. Neither theft charge relied directly upon the alleged national security character of the information in these papers; the government's theory would equally have applied to a "whistleblower" in the Environmental Protection Agency who gave a newspaper reporter a document outlining a plan to dismantle an agency program. The offense of stealing government property does not, in these cases, require that the information be sold, simply that it be "worth" more than one hundred dollars. The value is established not by the cost of the pieces of paper themselves, but by some valuation of the information on them. In the Ellsberg and Truong cases, one measure of value was supposedly that which a foreign intelligence service would attach to the information. In the EPA example, evidence that news-paper reporters sometimes pay for "leads" or "leaks" would presumably be admissible. But neither Ellsberg, nor Truong, nor the hypothetical EPA employee has dispossessed the government of its information, even momentarily; the documents were simply copies of originals left in the file. Indeed, given the bureaucratic penchant for making multiple copies of everything, it is hard to imagine a case in which taking a document would so deprive the government. We know why the government wants to prosecute the three leakers, and its reason has nothing to do with loss of information: it wants to warn those with access to government files that serious consequences attend unauthorized use. Yet there is no United States criminal statute that expressly proscribes such use. (Page 1462) Tigar is a law professor at the University of Texas. I don't know about you, but it's hard to read that statute without thinking 1) that AT&T and Bell neither lost any property nor were at risk of losing any property in the so-called "thefts" for which Neidorf and Riggs are being prosecuted, and 2) the government's valuation of the E911 text file as being "worth" $70,000 or so seems designed to be the predicate for a major theft prosecution *and for no other purpose.* (Who'd *pay* $70K for that file? It's not offered on any market for that price. Valuing it at the number of AT&T employee hours it took to create it might make sense if AT&T or Bell were deprived of its use ... but they *weren't*. Heck, they weren't even deprived of their *exclusive* use of the E911 file, since neither Neidorf nor Riggs was ever able to use the file for any purpose other than to prove that someone, somewhere, had had access to an AT&T or Bell computer.) **Mike =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END THIS FILE + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+= *************************************************************** *** CuD #1.22, File 6 of 6: EFF Documents *** *************************************************************** The following three files are the initial releases and statements issued by the ELECTRONIC FRONTIER FUND on July 10, 1990, to announce the founding of the group. The files include: 1. Mission Statement 2. Initial Press Release 3. Legal Overview: The Electronic Frontier and the Bill of Rights The entire packet of six files (about 950 lines) can be obtained from either the CuD archives or the FTP site. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ FOR IMMEDIATE RELEASE Contact: Cathy Cook (415) 759-5578 NEW FOUNDATION ESTABLISHED TO ENCOURAGE COMPUTER-BASED COMMUNICATIONS POLICIES Washington, D.C., July 10, 1990 -- Mitchell D. Kapor, founder of Lotus Development Corporation and ON Technology, today announced that he, along with colleague John Perry Barlow, has established a foundation to address social and legal issues arising from the impact on society of the increasingly pervasive use of computers as a means of communication and information distribution. The Electronic Frontier Foundation (EFF) will support and engage in public education on current and future developments in computer-based and telecommunications media. In addition, it will support litigation in the public interest to preserve, protect and extend First Amendment rights within the realm of computing and telecommunications technology. Initial funding for the Foundation comes from private contributions by Kapor and Steve Wozniak, co-founder of Apple Computer, Inc. The Foundation expects to actively raise contributions from a wide constituency. As an initial step to foster public education on these issues, the Foundation today awarded a grant to the Palo Alto, California-based public advocacy group Computer Professionals for Social Responsibility (CPSR). The grant will be used by CPSR to expand the scope of its on-going Computing and Civil Liberties Project (see attached). Because its mission is to not only increase public awareness about civil liberties issues arising in the area of computer-based communications, but also to support litigation in the public interest, the Foundation has recently intervened on behalf of two legal cases. The first case concerns Steve Jackson, an Austin-based game manufacturer who was the target of the Secret Service's Operation Sun Devil. The EFF has pressed for a full disclosure by the government regarding the seizure of his company's computer equipment. In the second action, the Foundation intends to seek amicus curiae (friend of the court) status in the government's case against Craig Neidorf, a 20-year-old University of Missouri student who is the editor of the electronic newsletter Phrack World News (see attached). "It is becoming increasingly obvious that the rate of technology advancement in communications is far outpacing the establishment of appropriate cultural, legal and political frameworks to handle the issues that are arising," said Kapor. "And the Steve Jackson and Neidorf cases dramatically point to the timeliness of the Foundation's mission. We intend to be instrumental in helping shape a new framework that embraces these powerful new technologies for the public good." The use of new digital media -- in the form of on-line information and interactive conferencing services, computer networks and electronic bulletin boards -- is becoming widespread in businesses and homes. However, the electronic society created by these new forms of digital communications does not fit neatly into existing, conventional legal and social structures. The question of how electronic communications should be accorded the same political freedoms as newspapers, books, journals and other modes of discourse is currently the subject of discussion among this country's lawmakers and members of the computer industry. The EFF will take an active role in these discussions through its continued funding of various educational projects and forums. An important facet of the Foundation's mission is to help both the public and policy-makers see and understand the opportunities as well as the challenges posed by developments in computing and telecommunications. Also, the EFF will encourage and support the development of new software to enable non-technical users to more easily use their computers to access the growing number of digital communications services available. The Foundation is located in Cambridge, Mass. Requests for information should be sent to Electronic Frontier Foundation, One Cambridge Center, Suite 300, Cambridge, MA 02142, 617/577-1385, fax 617/225-2347; or it can be reached at the Internet mail address ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ELECTRONIC FRONTIER FOUNDATION MISSION STATEMENT A new world is arising in the vast web of digital, electronic media which connect us. Computer-based communication media like electronic mail and computer conferencing are becoming the basis of new forms of community. These communities without a single, fixed geographical location comprise the first settlements on an electronic frontier. While well-established legal principles and cultural norms give structure and coherence to uses of conventional media like newspapers, books, and telephones, the new digital media do not so easily fit into existing frameworks. Conflicts come about as the law struggles to define its application in a context where fundamental notions of speech, property, and place take profoundly new forms. People sense both the promise and the threat inherent in new computer and communications technologies, even as they struggle to master or simply cope with them in the workplace and the home. The Electronic Frontier Foundation has been established to help civilize the electronic frontier; to make it truly useful and beneficial not just to a technical elite, but to everyone; and to do this in a way which is in keeping with our society's highest traditions of the free and open flow of information and communication. To that end, the Electronic Frontier Foundation will: 1. Engage in and support educational activities which increase popular understanding of the opportunities and challenges posed by developments in computing and telecommunications. 2. Develop among policy-makers a better understanding of the issues underlying free and open telecommunications, and support the creation of legal and structural approaches which will ease the assimilation of these new technologies by society. 3. Raise public awareness about civil liberties issues arising from the rapid advancement in the area of new computer-based communications media. Support litigation in the public interest to preserve, protect, and extend First Amendment rights within the realm of computing and telecommunications technology. 4. Encourage and support the development of new tools which will endow non-technical users with full and easy access to computer-based telecommunications. The Electronic Frontier Foundation One Cambridge Center Cambridge, MA 02142 (617) 577-1385 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ LEGAL OVERVIEW THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS Advances in computer technology have brought us to a new frontier in communications, where the law is largely unsettled and woefully inadequate to deal with the problems and challenges posed by electronic technology. How the law develops in this area will have a direct impact on the electronic communications experiments and innovations being devised day in and day out by millions of citizens on both a large and small scale from coast to coast. Reasonable balances have to be struck among: % traditional civil liberties % protection of intellectual property % freedom to experiment and innovate % protection of the security and integrity of computer systems from improper governmental and private interference. Striking these balances properly will not be easy, but if they are struck too far in one direction or the other, important social and legal values surely will be sacrificed. Helping to see to it that this important and difficult task is done properly is a major goal of the Electronic Frontier Foundation. It is critical to assure that these lines are drawn in accordance with the fundamental constitutional rights that have protected individuals from government excesses since our nation was founded -- freedom of speech, press, and association, the right to privacy and protection from unwarranted governmental intrusion, as well as the right to procedural fairness and due process of law. The First Amendment The First Amendment to the United States Constitution prohibits the government from "abridging the freedom of speech, or of the press," and guarantees freedom of association as well. It is widely considered to be the single most important of the guarantees contained in the Bill of Rights, since free speech and association are fundamental in securing all other rights. The First Amendment throughout history has been challenged by every important technological development. It has enjoyed only a mixed record of success. Traditional forms of speech -- the print media and public speaking -- have enjoyed a long and rich history of freedom from governmental interference. The United States Supreme Court has not afforded the same degree of freedom to electronic broadcasting, however. Radio and television communications, for example, have been subjected to regulation and censorship by the Federal Communications Commission (FCC), and by the Congress. The Supreme Court initially justified regulation of the broadcast media on technological grounds -- since there were assumed to be a finite number of radio and television frequencies, the Court believed that regulation was necessary to prevent interference among frequencies and to make sure that scarce resources were allocated fairly. The multiplicity of cable TV networks has demonstrated the falsity of this "scarce resource" rationale, but the Court has expressed a reluctance to abandon its outmoded approach without some signal from Congress or the FCC. Congress has not seemed overly eager to relinquish even counterproductive control over the airwaves. Witness, for example, legislation and rule-making in recent years that have kept even important literature, such as the poetry of Allen Ginsberg, from being broadcast on radio because of language deemed "offensive" to regulators. Diversity and experimentation have been sorely hampered by these rules. The development of computer technology provides the perfect opportunity for lawmakers and courts to abandon much of the distinction between the print and electronic media and to extend First Amendment protections to all communications regardless of the medium. Just as the multiplicity of cable lines has rendered obsolete the argument that television has to be regulated because of a scarcity of airwave frequencies, so has the ready availability of virtually unlimited computer communication modalities made obsolete a similar argument for harsh controls in this area. With the computer taking over the role previously played by the typewriter and the printing press, it would be a constitutional disaster of major proportions if the treatment of computers were to follow the history of regulation of radio and television, rather than the history of freedom of the press. To the extent that regulation is seen as necessary and proper, it should foster the goal of allowing maximum freedom, innovation and experimentation in an atmosphere where no one's efforts are sabotaged by either government or private parties. Regulation should be limited by the adage that quite aptly describes the line that separates reasonable from unreasonable regulation in the First Amendment area: "Your liberty ends at the tip of my nose." As usual, the law lags well behind the development of technology. It is important to educate lawmakers and judges about new technologies, lest fear and ignorance of the new and unfamiliar, create barriers to free communication, expression, experimentation, innovation, and other such values that help keep a nation both free and vigorous. The Fourth Amendment The Fourth Amendment guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In short, the scope of the search has to be as narrow as possible, and there has to be good reason to believe that the search will turn up evidence of illegal activity. The meaning of the Fourth Amendment's guarantee has evolved over time in response to changing technologies. For example, while the Fourth Amendment was first applied to prevent the government from trespassing onto private property and seizing tangible objects, the physical trespass rationale was made obsolete by the development of electronic eavesdropping devices which permitted the government to "seize" an individual's words without ever treading onto that person's private property. To put the matter more concretely, while the drafters of the First Amendment surely knew nothing about electronic databases, surely they would have considered one's database to be as sacrosanct as, for example, the contents of one's private desk or filing cabinet. The Supreme Court responded decades ago to these types of technological challenges by interpreting the Fourth Amendment more broadly to prevent governmental violation of an individual's reasonable expectation of privacy, a concept that transcended the narrow definition of one's private physical space. It is now well established that an individual has a reasonable expectation of privacy, not only in his or her home and business, but also in private communications. Thus, for example: % Government wiretapping and electronic eavesdropping are now limited by state and federal statutes enacted to effectuate and even to expand upon Fourth Amendment protections. % More recently, the Fourth Amendment has been used, albeit with limited success, to protect individuals from undergoing certain random mandatory drug testing imposed by governmental authorities. Advancements in technology have also worked in the opposite direction, to diminish expectations of privacy that society once considered reasonable, and thus have helped limit the scope of Fourth Amendment protections. Thus, while one might once have reasonably expected privacy in a fenced-in field, the Supreme Court has recently told us that such an expectation is not reasonable in an age of surveillance facilitated by airplanes and zoom lenses. Applicability of Fourth Amendment to computer media Just as the Fourth Amendment has evolved in response to changing technologies, so it must now be interpreted to protect the reasonable expectation of privacy of computer users in, for example, their electronic mail or electronically stored secrets. The extent to which government intrusion into these private areas should be allowed, ought to be debated openly, fully, and intelligently, as the Congress seeks to legislate in the area, as courts decide cases, and as administrative, regulatory, and prosecutorial agencies seek to establish their turf. One point that must be made, but which is commonly misunderstood, is that the Bill of Rights seeks to protect citizens from privacy invasions committed by the government, but, with very few narrow exceptions, these protections do not serve to deter private citizens from doing what the government is prohibited from doing. In short, while the Fourth Amendment limits the government's ability to invade and spy upon private databanks, it does not protect against similar invasions by private parties. Protection of citizens from the depredations of other citizens requires the passage of privacy legislation. The Fifth Amendment The Fifth Amendment assures citizens that they will not "be deprived of life, liberty, or property, without due process of law" and that private property shall not "be taken for public use without just compensation." This Amendment thus protects both the sanctity of private property and the right of citizens to be proceeded against by fair means before they may be punished for alleged infractions of the law. One aspect of due process of law is that citizens not be prosecuted for alleged violations of laws that are so vague that persons of reasonable intelligence cannot be expected to assume that some prosecutor will charge that his or her conduct is criminal. A hypothetical law, for example, that makes it a crime to do "that which should not be done", would obviously not pass constitutional muster under the Fifth Amendment. Yet the application of some existing laws to new situations that arise in the electronic age is only slightly less problematic than the hypothetical, and the Electronic Frontier Foundation plans to monitor the process by which old laws are modified, and new laws are crafted, to meet modern situations. One area in which old laws and new technologies have already clashed and are bound to continue to clash, is the application of federal criminal laws against the interstate transportation of stolen property. The placement on an electronic bulletin board of arguably propriety computer files, and the "re-publication" of such material by those with access to the bulletin board, might well expose the sponsor of the bulletin board as well as all participants to federal felony charges, if the U.S. Department of Justice can convince the courts to give these federal laws a broad enough reading. Similarly, federal laws protecting against wiretapping and electronic eavesdropping clearly have to be updated to take into account electronic bulletin board technology, lest those who utilize such means of communication should be assured of reasonable privacy from unwanted government surveillance. Summary The problem of melding old but still valid concepts of constitutional rights, with new and rapidly evolving technologies, is perhaps best summed up by the following observation. Twenty-five years ago there was not much question but that the First Amendment prohibited the government from seizing a newspaper's printing press, or a writer's typewriter, in order to prevent the publication of protected speech. Similarly, the government would not have been allowed to search through, and seize, one's private papers stored in a filing cabinet, without first convincing a judge that probable cause existed to believe that evidence of crime would be found. Today, a single computer is in reality a printing press, typewriter, and filing cabinet (and more) all wrapped up in one. How the use and output of this device is treated in a nation governed by a Constitution that protects liberty as well as private property, is a major challenge we face. How well we allow this marvelous invention to continue to be developed by creative minds, while we seek to prohibit or discourage truly abusive practices, will depend upon the degree of wisdom that guides our courts, our legislatures, and governmental agencies entrusted with authority in this area of our national life. For further information regarding The Bill of Rights please contact: Harvey Silverglate Silverglate & Good 89 Broad Street, 14th Floor Boston, MA 02110 617/542-6663 =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END THIS FILE + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=


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