Computer Underground Digest Volume 3, Issue #3.09 (March 19, 1991)

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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 3, Issue #3.09 (March 19, 1991) ** **************************************************************************** MODERATORS: Jim Thomas / Gordon Meyer (TK0JUT2@NIU.bitnet) ARCHIVISTS: Bob Krause / Alex Smith / Bob Kusumoto RESIDENT GAEL: Brendan Kehoe USENET readers can currently receive CuD as Back issues are also available on Compuserve (in: DL0 of the IBMBBS sig), PC-EXEC BBS (414-789-4210), and at 1:100/345 for those on FIDOnet. Anonymous ftp sites: (1) (or (back up and running) and (2) E-mail server: COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. CuD material may be reprinted as long as the source is cited. Some authors, however, do copyright their material, and those authors should be contacted for reprint permission. It is assumed that non-personal mail to the moderators may be reprinted unless otherwise specified. Readers are encouraged to submit reasoned articles relating to the Computer Underground. Articles are preferred to short responses. Please avoid quoting previous posts unless absolutely necessary. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 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. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ CONTENTS THIS ISSUE: File 1: "Hollywood Hacker" or More Media and LE Abuse? File 2: Computer Publication and the First Amendment ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ---------------------------------------------------------------------- ******************************************************************** *** CuD #3.09, File 1 of 2: Hollywood Hacker or Media Hype? *** ******************************************************************** From: Jim Thomas / CuD Subject: "Hollywood Hacker" or More Media and LE Abuse? Date: March 20, 1991 In CuD 3.08 we asked for information on the Hollywood Hacker. Here's what we've learned so far. Stuart Goldman, a freelance investigative reporter, was raided on March 8, 1990, by Secret Service agents and the Los Angeles Police. According to news stories in the Los Angeles Times and elsewhere, Goldman was working on an expose of "sleaze-tv" shows such as Current Affair and Hard Copy, shows for which he had also provided written material. According to the news accounts, Goldman was caught attempting to access Fox computers in New York and Los Angeles containing files relevant to Current Affair. He was charged with the usual litany of allegations (fraud, theft, etc) under Section 502(c)(2) of the California Penal Code. Section 502(c)(2) is sufficiently vague to make any number of acts a felony: s 502 (c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense: (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data. (2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network. Conviction carries the following: (d) (1) Any person who violates any of the provisions of paragraph (1), (2), (4), or (5) of subdivision (c) is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in the county jail not exceeding one year, or by both that fine and imprisonment. WHAT IS THE CASE ABOUT? Piecing together the various news accounts and info from some of the legal documents we have obtained, the following seems to be the gist of the matter: --Goldman had contributed material both to Fox's Current Affair and Paramount's Hard Copy, two competitors in the "sleaze-tv" school of journalism. --According to various news articles, he was an articulate gadfly, specializing in "expose" pieces for both tv and hardcopy media. He was working on a story about tabloid tv, including the content and practices of Hard Copy and Current Affair when arrested. --As near as can be interpreted from the search affidavit and news accounts, it appears that Goldman possessed access to a computer account at Fox, which he may or may not have had legitimate (or believed he had legitimate) access to. If we are interpreting the public information correctly, it appears that no password was required to access the accounts, only the log-on id. Tracey Miller, of KFI's Live Line in Los Angeles, described Goldman as some one who "had managed to infiltrate the world of tabloid journalism and then got caught up in a sting operation involving Fox Television computers." --The search affidavit indicates that Paul Smirnoff, of Fox tv in New York, noticed attempted logins to the Fox computer in New York used by Current Affair writers. The account had a null password (meaning no password is required to gain access to the system) and the person to whom the account belonged indicated that she had not changed the password "for sometime." Smirnoff directed that a "bait" story be left in the LA computer. Using a phone trap and caller logs, investigators gathered evidence for their allegations against Goldman. On March 8, 1990, local police and Secret Service agents burst into Goldman's apartment. However, unlike other raids, of which we have had second-hand reports, there was an added twist to this one: FOX TELEVISION WAS PRESENT WITH REPORTERS AND CAMERA CREW! HACKING OR MEDIA HYPE? Why was Fox tv present on this raid? The Secret Service has been surprisingly reticent about their procedures to the point of revealing little information in interviews, let alone allowing video tapes to be made. We are repeatedly told that the time and dates of raids are "secret." Yet, not only was Fox present, but they seemed to have full cooperation from the agents present. Is collusion in media events a standard practice between law enforcement and the media? Were other news agencies invited? How does Fox rate? If CuD asked to participate and report on a raid, my guess is that the response would be less than enthusiastic. The video was hyped on Fox on March 8 and shown on the news, teasing the audience with sensationalistic promos and dubbing Goldman "The Hollywood Hacker." In the current climate of media hyperbole and so-called crackdowns, this strikes us has highly prejudicial. The news broadcast of the tape comes across like a segment from "COPS" or a Geraldo Rivera segment. There are the usual teases "Its not military espionage and it's not corporate spying," and the caption "HOLLYWOOD HACKER" graphically frames for the audience how to interpret the events: This is not simply a suspect, it is....THE HOLLYWOOD HACKER. Not "alleged" HH, but the real McCoy! The tape opens with agents outside a door in bullet proof vests with guns drawn, hanging menacingly in a "hacker's might be dangerous so we'd better be ready to blow the suck fuck away" position. Granted, this was not as dramatic as the tapes of the magnum-force beating of a Black LA motorist, but the sources of such violence are more readily understandable when the force of a raid is graphically depicted. One wonders whether Keating, Ollie North, and others more preferentially situated stared down a phallus surrogate when they were arrested. LE agents tell us drawn weapons are standard procedure, because they never know what may lie on the other side of the door. But, in case after case of hacker raids, one wonders how many computerists shot it out with the cops? And, if the situation was so dangerous, one wonders why the tv crowd was allowed to charge in amidst the officers. On the tape, loud voices can be heard yelling: "Open the Door!!!!" several times, and police and camera crowd enter, police with guns drawn, Fox Folk with cameras rolling. Agents are yelling "Hands up!! Against the Wall!" several times. The cameras are panning around and focus on Goldman sitting on a couch, reading the arrest warrant. Goldman's face was not, as it seems to be in shows such as COPS, blocked out, and from all appearances, he could pass for an IBM senior executive in his mid 40s. WHY SHOULD THE CU CARE? As with so many of the so-called hacker raids in the past year, it is neither guilt nor innocence, but the questions raised by procedure that should bother us: 1. The role of the media in inflaming public conceptions of hacking seems, in this case, to exceed even the cynical view of sensationalistic vested interests. The presence of a Fox news team and the subsequent hacker hyperbole for what the indictment suggests is a trivial offense at worst, makes one wonder whether some other motive other than computer access might not have led to the raid. We have seen from the events of 1990 that "victims" of computer intruders tend to grossly over-state losses. Only further inquiry will reveal whether Fox had motives for challenging an investigative journalist doing exposes on the type of tabloid tv they have made popular. It is worth noting that the Secret Service was involved in part because of a claim of a "federal interest computer," but, according to news accounts, they withdrew from the case almost immediately. Given the tenacity with which they have pursued other cases on less evidence (such as Steve Jackson Games, where part of the "evidence" was an employing explaining in a BBS post that Kermit is a 7-bit protocol), one wonders why they apparently ducked this case so quickly? 2. A second issue of relevance for the CU is the definition of "hacker." By no stretch of the imagination can the acts of whoever allegedly accessed the Fox computers be called hacking. From the few legal documents we have obtained and from media accounts, the action seems more akin to a graduate student using the account of another grad student without "official" authorization. We do not defend computer trespass, but we do strongly argue that there must be some distinction between types of trespass and what is done once a trespass occurs. 3. We have not yet contacted Ralph Greer, the apparent attorney of record in this case, so we can only surmise on a few possible issues. We wonder if the case is being treated as a typical criminal case or whether it is recognized that there are issues here that extend far beyond the "normal" crime of "theft," "fraud," and other metaphoric definitions brought to bear on computer cases? We also wonder if, like some others, there is any pressure to "cop a plea" because of the lack of a creative defense that Sheldon Zenner, The EFF and others have introduced in some other cases? Again, for us the concern is not who is or is not guilty in this case, but with the problem of defending against charges that seem far in excess of the act. 4. The matter of defense also raises the issue of California law. Parts of Section 502 and 502.7, as we (and others) have argued previously, see overly vague, excessively punitive, and could make even the most trivial form of trespass a felony. To non-lawyers such as ourselves, it seems that the alleged acts would, in most states, at worst be a misdemeanor and not subject a potential offender to three or more years in prison. 5. We have argued long and loud against the current tactics employed by agents on computer raids. Yes, we recognize that there are standard procedures and we recognize that police do face potential danger in raids. However, to raid an alleged computer offender in the same way that a crack house is raided seems over-kill and dangerous. There are many ways to arrest suspects, and raids, although dramatic, do not seem justified in any single case of which we are aware. The tv tape suggests that, if the suspect made an improper move (especially in the confusion of everybody yelling at once, the suspect perhaps responding to one set of commands and ignoring another, tv camera people in the thick of things), a tragic consequence could have occured. We should all be concerned with the "police state" mentality in such instances. Yes, there may be times when caution and full operative procedures on computer criminals is justified, but suspected hackers are not your typical computer criminals. One wonders what the response will be if a young teenager makes a "furtive gesture" and is blown away. One credible teenager once told us that when he was arrested, the police burst into his room with guns drawn. He was at the keyboard of his computer, and the agent in charge, perhaps to impress her male colleagues, allegedly pointed the gun to his head and said, "Touch that keyboard and die!" 6. The search warrant for Goldman's apartment authorizes seizure of a variety of material that seems--as it has in other cases--far in excess of what could even by a computer illiterate be used for any related offenses. This raises the issue of what constitutes "evidence" in such cases. We have seen from other raids that posters, personal letters unrelated to computers, news clippings, telephones, video tapes, science fiction books, research notes, and other artifacts were taken. Law enforcement agents readily justify this, but when raiding forgers, car thiefs, or even drug dealers, the scope of seized equipment is much narrower. Police, to our knowledge, do not confiscate all the spoons in the house, the matches, or the stove, when arresting suspected junkies. Yet, this is the mentality that seems to guide their seizures of equipment in computer cases. In a recent issue of RISKS Digest, moderator Peter G. Neumann observed "that there is still a significant gap between what it is thought the laws enforce and what computer systems actually enforce." I interpret this to mean simply that the law has not caught up to changing technology, and old, comfortable legal metaphors are inappropriately applied to new, qualitatively different conditions. Calling simple computer trespass (even if files are perused) a heavy-duty felony subjecting the offender to many years in prison does not seem productive. The point seems to be that emerging computer laws are archaic. Neither those who write the laws nor those who implement them have a clear understanding of what is involved or at stake. When mere possession (not use, but possession) of "forbidden knowledge" can be a felony (as it is in California), we must begin to question what the law thinks it's enforcing. Few objected to the enactment of RICO laws, and fewer still to the laws allowing confiscation of property of drug suspects. The attitude seemed to be that harsh measures were justified because of the nature of the problem. Yet, those and similar laws have been expanded and applied to those suspected of computer abuse as we see in the cases of Steve Jackson Games, RIPCO BBS, the "Hollywood Hacker," and others have been raided under questionable circumstances. I'm wondering: What does law think it's enforcing? What is the appropriate metaphor for computer trespass? What distinctions should be made between types of offense? Please remember, nobody is justifying trespass, so continual harangues on its dangers miss the point. I am only suggesting that there is a greater risk from misapplication of law, which--like a virus--has a historical tendency to spread to other areas, than from computer hackers. It's easier to lock out hackers than police with guns and the power of the state behind them, and we have already seen the risks to people that result from over-zealous searches, prosecution, and sentencing. And, at the moment, I suggest that it's law enforcement agents who are the greatest danger to the computer world, not hackers. Why? Because "there is still a significant gap between what it is thought the laws enforce and what computer systems actually enforce." As Edmund Burke once (presumably) said, the true danger is when liberty is nibbled way for expedience and by parts. ******************************************************************** >> END OF THIS FILE << *************************************************************************** ------------------------------ Date: Thu, 28 Feb 91 09:53:50 EST From: "Brian J. Peretti" Subject: Computer Publication and the First Amendment ******************************************************************** *** CuD #3.09: File 2 of 2: Computers & First Amendment *** ******************************************************************** Computer Publication and The First Amendment Copyright Brian J. Peretti Computers and the Law Since their introduction, personal computers have had a tremendous impact on society. Computer, printers and their software have replaced accountants, secretaries and even typewriters in many offices across the United States. With the advent of this new way to gather, process and distribute information, new problems, many that could never have been perceived by the Framers of the Constitution, have developed. The Constitution is the basis of law in the United States. Although created in 1787, it still governs the manner in which legal decisions are made with very few changes. It, along with the Bill of Rights and other amendments, has established what may or may not be done to a person, group, organization or business without infringing on its rights. The broad language was created so that the Constitution would be able to change and expand with the times. Although the founding fathers did have an idea of what the press was in their day, it has been expanded to cover television and radio. This coverage should be expanded to encompass the new media of computer publications. By deciding that computer publications will have the same rights under the first amendment as newspapers, information will be dispersed throughout the nation in a more efficient manner so that the goal of the first amendment will become reality. I. What is a computer publication Computer publications can take many forms. It has been argued that bulletin boards should be considered computer publications. The reason is that since the people who are in contact with the bulletin boards must communicate with the boards through the written word, that these communications should thus be considered publications. This paper is concerned with publications that are created exclusively on a computer or computer system. There have been only a few such computer publications.1 There has not been a definition defining what is a computer publication. However, there are many similarities between the various newsletters that will give us a definition of what one is. First, all of the material which makes up the publication must have been created on a computer. This is to say, that although the information may have been written on paper as rough drafts or may have been gleaned from printed books or newspaper, the articles that compose the publication must have been written IN FINAL FORM ON THE COMPUTER. The production of the newsletter must also occur exclusively on the computer. This includes the editing, the check for spelling and formatting errors and the actual production of what the newsletter will look like, including the letterhead of the publication, if there is to be one. The transportation of the material that is to be contained in the newsletter must occur via a computer network2 or by an exchange of magnetic disk3, magnetic tape4, electrical impulses or other non-print media. This includes not only the gathering of the stories, but also the distribution of the newsletter to its subscribers. The computer magazines or newsletters that have existed in the past also had a common denominator in that they almost exclusively were published by computer users, for computer users and concerned computer topics. Although this could be a criteria, it would be to restrictive. It is very likely, with the continued proliferation of computers in our society, that publications with a much different orientations will emerge. If computer publications are to be protected, the topic of their publication should not be determinative of whether they fall under the definition of a computer publication. There are other publications that address the same issues that have been published in "Phrack". An example is 2600 on Long Island, New York which publishes material in printed form concerning generally the same information.5 However, it is the form in which "Phrack" was published and not the content of the magazine that is the issue of this paper. II. Phrack6 Craig Neidorf is a student at the University of Missouri. At sixteen, he and a friend started to publish Phrack7. The way in which he went about creating his newsletter was to accept articles written by persons throughout the country. These articles would be left in his mailbox at the university or to retrieve articles written on computer bulletin boards. After he logged on to the system, he would then mail the articles from the mainframe computer to his person computer at his residence. If these articles would need to be edited, he would then do any necessary editing. Once he complied a large enough group of articles, he would then send the articles to the mainframe computer along with a heading and send it to his 250 subscribers. There was no charge for the newsletter.8 III. The Historic Rights of the Press In order to discover whether or not the protections afforded to the press in the first amendment should be extended to this new form of information distribution, a look to the past is essential. Originally, control of the press by government was total. However, as time passed, both the monarch of Great Britain and their rulers in the American Colonies allowed greater freedom to publish. A. The English Experience. At first, England was an absolute monarchy, in which the king could do as he pleased. In 1215, the Magna Carta was signed, whereby the lords of England put restrictions on the King, which he pledged not to violate.9 The document, although not seen as an admission of the King that there were civil right, he did acknowledge that there were some basic human rights.10 In 1275, the De Scandalis Magnatum was enacted which punished anyone who disseminated untrue information or "tales" that could disrupt the atmosphere between the king and his people.11 Over time this statute was gradually expanded. In 1378, it was broadened to cover "peers, prelates, justices and various other officials and in the 1388 reenactment, offenders could be punished "by the advice of said council."12 The first printing presses were established in Great Britain toward the end of the 15th century. When the De Scandalis Magnatum was reenacted in 1554 and 1559, "seditious words" were included as words that could bring punishment.13 This law, enforced by the Court of the Star Chamber, was a criminal statute to punish political scandal.14 Regulations placed upon printers soon followed. In 1585, the Star Chamber required that in order to print a book, the publisher would have to get a license.15 A monopoly was created in the Stationers' Company, which had 97 London stationers, that could seize the publications of all outsiders.16 A 1637 ordnance limited the number of printers, presses and apprentices.17 Punishment, at the time, was not limited to just printing, but also to "epigram[s] or rhyme[s] in writing sung and repeated in the presence of others . . . [or] an ignominious or shameful painting or sign."18 Although the Star Chamber had been abolished in 1641, the licensing system remained through the orders of 1642 and 1643.19 The Licensing Act of 1662 was a temporary statute which kept the licensing provisions until 1679, when it expired.20 During the reign of James II, licensing was renewed only to expire and not be reenacted in 1695.21 Having realized that licensing was not the answer, Queen Anne in 1711 enacted a Stamp Act, by which a duty was imposed on all newspapers and advertisements.22 The purpose was to both restrain the press and destroy all but the larger newspapers.23 Blackstone summed up the state of the law Great Britain concerning the press in his Commentaries by writing: The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.24 B. The Colonial Experience The first presses arrived at Harvard University in 1638 and were used to disseminate church information.25 Aside from this purpose the colonial governments, when still under the power of Great Britain did not look favorably upon the press. However, with power in the colony moving toward the people, the press gained more freedom from the strict control imposed by the government. Each colony treated the press differently, although each did restrict the press. In 1671, Governor Berkeley of Virginia wrote "But I thank God, there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!"26 In New York, until 1719, all governors "had been instructed to permit no press, book, pamphlets or other printed matter `without your especial leave & license first obtained.'"27 Gradually, state controls of the press gradually diminished.28 The Trial of John Peter Zenger, 17 Howell's St. Tr. 675 (1735) illustrates how much the colonists were opposed to restrictions on the press. Zenger had printed material in his New York Weekly Journal a satiric article critical of New York Governor William Cosby. The governor had Zenger charged with seditious liable by the Attorney General after neither a Grand Jury would indict nor the General Assembly take action.29 Although all the jury had to do was find him guilty was to declare that he published the paper, Zenger's attorney, Andrew Hamilton of Philadelphia argued a much larger issue. He put before the jury the argument that truth is a defense to liable, although the court rejected it.30 He was able to win an acquittal of Zenger by requesting that the jury give a general verdict of not guilty instead of a special verdict, which the court requested, and which the jury did.31 C. The Adoption of the First Amendment "The struggle for the freedom of the press was primarily directed against the power of the licensor. . . . And the liberty of the press became initially a right to publish `without a license what formerly could be published only with one.' While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision."32 The purpose of the first amendment is "to prevent all such previous restraints upon publication as had been practiced by other government."33 The first amendment states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."34 It was originally proposed as part of twelve amendments to the United States Constitution during the first session of Congress in 1789. On December 15, 1791, the Bill of Rights, minus the first two amendments, became part of the Constitution. What the first amendment means as applied to the press has never been completely set forth. The only statement in Congress as to what the press and speech clause was to stand for was express by James Madison: "The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this government."35 This, however, will be of little help for us when considering whether computer publications should receive first amendment protections. IV. Does Computer Publications fall within the meaning of Press as stated in the first Amendment. Since the legislative history of the First Amendment will not lead to a discovery concerning what is covered under it, we must look to how it has been interpreted by the courts. An examination must be undertook to determine what the courts have decided concerning both the purpose of the amendment and whether any physical manifestation guidelines on what fall within the definition of the "press". By examining what the drafters of the first amendment thought that press was during their time, the only media which would receive first amendment protections the printed press, which would include newspapers, handbills and leaflets. However, the court has not held the clause so narrowly. The United States Supreme Court has taken a broad view in considering what is the "press".36 "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion."37 Thus, the Court has ruled that motion pictures38 also deserve such protection. Lower courts have held that the protection applies to doctor directories,39 college newspapers40 and computer bulletin boards.41 Computer publications satisfy the definition that the Court has given to what is to be covered by the first amendment. By their very nature, computer publications are a vehicle by which information can be disseminated. In Phrack's first issue, the purpose was to gather "philes [which] may include articles on telcom (phreaking/hacking), anarchy (guns and death & destruction) or kracking. Other (sic) topics will be allowed also to a certain extent."42 These articles were to be distributed to members of the community who wished to obtain information on the topics in the "newsletter-type project".43 Since this publication passes the Lovell test,44 because of it allows information to be distributed, these publication deserve the protection given to the media by the first amendment.45 VI. Freedom of Newspapers and Broadcasting Media46 Currently there can be called two separate first amendment doctrines. The first applies to newspapers. Newspapers can have only a few restrictions placed on them. The second applies to radio and television, which can have many types of controls placed upon them. Computer publications, because of their similarity to the former, should have the least amount of restriction necessary placed upon them. As stated, supra, the first amendment had no legislative history that came along with it. Courts have had to interpret how it should be applied to the "press" since they had no guidance from the Congress. Although not to be applied in an absolute sense, Breard v. City of Alexandria, La.,47 the Supreme Court has only set forth three exceptions where prior restraint of the newspapers are allowed. These restrictions, as stated in dictum in Near v. Minnesota48 are 1) when it is necessary in order that "a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops", 2) the requirements of decency to prevent publication of obscene materials, and 3) "[t]he security of the community life may be protected against incitement to acts of violence and the overthrow of force of orderly government." These exceptions, although not having the force of law when stated, have been the only exceptions allowed. In the electronic realm, the Supreme Court has allowed greater restraints to be placed on radio and television. Licenses, although never allowed on newspapers,49 possibly as a result of the English experience,50 have been allowed on broadcast communication.51 Broadcaster must be fair to all sides of an issue,52 whereas newspapers may be bias.53 Broadcaster are required to meet the need of their community.54 However no court has held that this may be applied to a newspaper.55 The main difference between these two groups is that "[u]nlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to government regulation."56 This reasoning has been followed by the court on many occasions.57 In the case concerning computer publishers, the less restrictive newspaper limitations should be used. A computer publisher does not send his information over a limited band or airwaves. Any individual or group can become a computer publish by obtaining a computer or access to a computer and a modem an information to publish. The amount of these newsletters are not limited by technology. Because of the large number of publications that can appear, there is no need to require that these publications be responsive to the public. The dissemination of the information can be terminated if the reader wants to by asking for his name to be removed from the subscription list, similar to that of a magazine or newspaper.58 V. Conclusion Computer based publications are a new development in the traditional way in which information is disseminated. The history of the United States and the first amendment has been against placing restrictions on the press. These new types of publications, because of their similarity to other types of media, should be granted first amendment protection. The rational for placing restrictions on radio and television should not apply to computer publications. Anyone who has access to this technology, which is becoming more prevalent in society, can publish in this manner. The least amount of restrictions on their publication, similar to those placed on newspapers, should be applied to this new media. BIBLIOGRAPHY Freedom of Speech and Press in America, Edward G. Hudon (Public Affairs Press, Washington, D.C. 1963) MacMillan Dictionary of Personal Computing & Communications Dennis Longley and Michael Shain, eds. (MacMillan Press Ltd, London 1986) Shaping the First Amendment: The Development of Free Expression, John D. Stevens (Sage Publications, Beverly Hills, 1982) Freedom of Speech and Press in Early American History: Legacy of Suppression, Leonard W. Levy (Harvard Press, Cambridge 1960) American Broadcasting and the First Amendment, Lucas A. Powe, Jr. (University of California Press, Berkeley 1987) Printers and Press Freedom: The Ideology of Early American Journalism, Jeffery A. Smith (Oxford University Press, New York 1988). Seven Dirty Words and Six Other Stories: Controlling the Content of Print and Broadcast, Matthew L. Spitzer (Yale University Press, New Haven 1986). Emergence of a Free Press, Leonard W. Levy (Oxford University Press, New York 1985). Computer Underground Digest, volume 2, Issue #2.12, file 1 (November 17, 1990). Endnotes 1. Phrack, see infra, CCCAN, a Canadian publication, The LEGION OF DOOM TECHNICAL JOURNAL, COMPUTER UNDERGROUND DIGEST AND VIRUS-L DIGEST ARE A FEW OF THE MANY PUBLICATIONS. 2. MacMillan Dictionary of Personal Computing & Communication (1986 ed) defines it as: "A network of computer systems that allow the fast and easy flow of data between the systems and users of the system." Id. at 68. 3. "[A] flat disk with a magnetizable surface layer on which data can be stored by magnetic recording." Id. at 215 4. "A plastic tape having a magnetic surface for storing data in a code of magnetized spots." Webster's NewWorld Dictionary of Computer Terms (1988 3 ed.) at 223. 5. Frenzy over Phrack; First Amendment concerns raised in computer hacker case, Communications Daily, June 29, 1990, at 6. 6. Information from this section was gathered in part from Dorothy Denning's paper The United States vs. Craig Neidorf: A Viewpoint on Electronic Publishing, Constitutional Rights, and Hacking." [hereinafter Denning] and Interview with Craig Neidorf, editor of Phrack (Oct. 16, 1990). 7. The name of the publication was derived from two words, phrack (telecommunication systems) and hack (from computer hacking). Denning. Hacking has been defined as "one who gains unauthorized, use non-fraudulent access to another's computer system." Webster's II New Riverside University Dictionary (1984) at 557. For other definitions, see United States v. Riggs, 739 F. Supp. 414, 423-24 (N.D. Ill. 1990). 8. Mr. Neidorf was indicted after he published a Bell South E911 document which was downloaded from the Bell South computer system in Atlanta, Georgia. Determining if Mr. Neidorf should be punished for publishing such information is beyond the scope of this paper. 9. John Stevens, Shaping the First Amendment: The Development of Free Expression at 27 (1982). [hereinafter Stevens] 10. Id. 11. Edward Hudon, Freedom of Speech and Press in America, 8-9 (1963). 12. Id. at 9. 13. Id. 14. Id. 15. Id. at 10. 16. Id. 17. Id. 18. Id. 19. Id. at 11. 20. Id. 21. Id. 22. Id. 23. Id. 24. Leonard Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression, 14 (1963) [hereinafter Levy] citing Sir William Blackstone, Commentaries on the Laws of England 2:112-113 (1936). 25. Stevens, at 29. 26. Levy, at 21-22, quoting William Waller Hening, The Statutes at Large Being a Collection of All the Laws of Virginia (1619-1792) (Richmond, 1809-1823), 2:517. [emphasis in original] 27. Levy, at 24, quoting "Instructions to Governor Dongan," 1686, in E.B. O'Callaghan and B. Fernow, eds., Documents Relative to the Colonial History of the State of New York 3:375 (Albany, 1856-1887). 28. By 1721, Massachusetts effectively ended censorship by licensing. Levy, at 36. 29. Edward Hudson, Freedom of Speech and Press in America (1963) 19. 30. John D. Stevens, Shaping the First Amendment: The Development of Free Expression (1982), 31. 31. Hudson, at 19. 32. Lovell v. City of Griffen, Ga., 303 U.S. 444, 451-52 (1938) [footnotes omitted]. 33. Patterson v. Colorado, 205 U.S. 454, 462 (1907), quoting Commonwealth v. Blanding, 3 Pick. [Mass.] 304, 313-14. [emphasis in original] 34. U.S. Const. amend. I. 35. Leonard W. Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression (1960), quoting The Debates and Proceedings in the Congress of the United States (Washington, 1834 ff.) I:766, 1st Cong., 1st Sess. 36. "The Protection of the First Amendment, mirrored in the Fourteenth, is not limited to the Blackstonian idea that freedom of the press means only freedom from restraint prior to publication." Chaplinsky v. New Hampshire, 315 U.S. 572, n.3, (1941) citing Near v. Minnesota, 283 U.S. 697 (1931). 37. Lovell v. City of Griffin, Ga. 303 U.S. 444, 452 (1938). 38. "We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." 334 U.S. 131, 166 (1948). "Expression by means of motion pictures in included within the free speech and speech and free press guaranty of the First and Fourteenth Amendments." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). 39. "The propose directory [of physicians] contains information of interest to people who need physicians. The directory, therefore, is embraced by the term "press" as used in the first amendment." Health Systems Agency of Northern Virginia v. Virginia State Board of Medicine, 424 F. Supp. 267, 272 (E.D. Va. 1976). 40. "A campus newspaper is part of the "press" for the purpose of the First Amendment to the Constitution of the United States." Arrington v. Taylor, 380 F.Supp. 1348, 1365 (M.D.N.C. 1974). 41. Legi-Tech v. Keiper, 766 F.2d 728, 734-35 (2d Cir. 1985). 42. Phrack, volume 1, issue 1, phile 1, reprinted in Computer Underground Digest, volume 2, Issue #2.12, file 1 (November 17, 1990). 43. Id. 44. See, infra, note 35 and text. 45. This is not to say that publication of information in furtherance of a crime or criminal activity should receive the protection of the first amendment. 46. This section has been completed with the help of Spitzer, Seven Dirty Words and Six Other Stories (1986). 47. 341 U.S. 622, 642 (1951), "The First and Fourteenth Amendments have never been treated as absolutes." 48. 283 U.S. 697, 716. 49. Near v. Minnesota, 283 U.S. 697 (1931), New York Times Co. v. Sullivan, 403 U.S. 713 (1971), Minneapolis Star and Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983). 50. See, supra, notes 9 through 24 and text. 51. Communications Act of 1934. 47 U.S.C.  301 et. seq. (1988) (Requiring that radio stations and television stations obtain licenses). 52. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969). 53. See, e.g., Evans v. American Federation of Television and Radio Artists, 354 F.Supp 823, 838 (S.D.N.Y. 1973), rev'd on other grounds, 496 F.2d 305 (2nd Cir. 1974), cert. denied, 419 U.S. 1093. ("In editorial comment, the New York Times and the Washington Post may be unreservedly liberal, while the Indianapolis News or the Manchester Union Leader may be unremittingly conservative.") 54. 47 U.S.C.  309(a). Trinity Methodist Church v. Federal Radio Commission, 62 F.2d 850, (D.C. Cir. 1932), cert. denied, 288 U.S. 599 (1933). (holding that if radio broadcasts were not in the public interest, a license could be revoked and not violate the first amendment.) 55. Of course, if a newspaper is not responsive to its readers, it may lose subscribers and either be forced to change or go out of business. However, since in that hypothetical there would be no state action, there would be no first amendment issue. 56. National Broadcasting Co. v. United States, 319 U.S. 190, 226 (1943). The dissenting opinion also followed similar reasoning. "Owing to its physical characteristics radio, unlike the other methods of conveying information, must be regulated and rationed by the government." Id. at 319. 57. Red Lion Broadcasting v. Federal Communication Commission, 395 U.S. 367 (1969), and Federal Communication Commission v. League of Women Voters, 468 U.S. 364 (1984). 58. For the same reason, the fairness doctrine should not be applied to these types of publications. ******************************************************************** ------------------------------ **END OF CuD #3.09** ********************************************************************


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