Computer underground Digest Fri, Feb 21, 1992 Volume 4 : Issue 08 Editors: Jim Thomas and

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Computer underground Digest Fri, Feb 21, 1992 Volume 4 : Issue 08 Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Associate Editor: Etaion Shrdlu CONTENTS, #4.08 ( Feb 21, 1992) File 1--"Computer down-underground Digest (CDUGD) File 2--CuD articles on Craig Neidorf's legal expenses File 3--Update Of Info. In 2/5/92 Newsbytes Article On BBS Phone Rates File 4--FULL TEXT: Calif. data-priv/comp.crime bill Issues of CuD can be found in the Usenet alt.society.cu-digest news group, on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of LAWSIG, and DL0 and DL12 of TELECOM, on Genie, on the PC-EXEC BBS at (414) 789-4210, and by anonymous ftp from ftp.cs.widener.edu (147.31.254.132), chsun1.spc.uchicago.edu, and ftp.ee.mu.oz.au. To use the U. of Chicago email server, send mail with the subject "help" (without the quotes) to archive-server@chsun1.spc.uchicago.edu. NOTE: THE WIDENER SITE IS TEMPORARILY RE-ORGANIZING AND IS CURRENTLY DIFFICULT TO ACCESS. FTP-ERS SHOULD USE THE ALTERNATE FTP SITES UNTIL FURTHER NOTICE. 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 do copyright their material, and they 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. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ---------------------------------------------------------------------- Date: Sun Feb 16 08:28:41 1992 GMT From: aaron@NACJACK.GEN.NZ Subject: "Computer down-underground Digest" (CDUGD) Hello from New Zealand! A few friends and I are starting up an electronic publication similar to CuD to be called 'Computer - Down - Under Ground Digest' (CDUGD). Its content will be similar to that of CuD, but it will mainly deal with computing issues in New Zealand. Since there has been some interest from outside of New Zealand, CDUGD will be available for reading on the alt.hackers Usenet newsgroup. Please send any suggestions/comments to: aaron@nacjack.gen.nz Aaron Schiff Editor, CDUGD ((Moderators' note: Aaron asked if we minded the similarity between the title of his project and CuD. We have no objections, and wish him well in his endeavor)). ------------------------------ Date: Tue, 18 Feb 92 22:13:31 EST From: Keith Moore Subject: CuD articles on Craig Neidorf's legal expenses I have read repeated pleas on various networked discussion groups for readers to help defray Craig's legal expenses. While I sympathize with his position and am in fact willing to help, I'm sure many of the readers would like to know what all of that money was spent for. I want to help Craig, but I don't like the idea of giving over money to lawyers. The high price of legal help is arguably as much of the problem as the reckless disregard for law and due process demonstrated by the government. Also, why are we asked to send money directly to the law firm that defended Craig, and not to Craig himself? I'm sure I'm not the only one among your readership with these kinds of questions, and would appreciate it if you could address them in a future issue of CuD. Perhaps the computer underground, realizing how much we are at the mercy of both lawyers and the government, would find it in its interest to act to curtail their powers. ------------------------------ Date: Wed, 12 Feb 92 11:10:29 PDT From: lorbit!walter_s@UCBVAX.BERKELEY.EDU(Walter Scott) Subject: Update Of Info. In 2/5/92 Newsbytes Article On BBS Phone Rates If you do not recall, or are otherwise unaware, there is a complaint (docket #UC-205) filed before the Oregon Public Utility Commission intended to prevent US West from reclassifying BBS phone lines to business rates. SysOp Tony Wagner filed the complaint back in October. On 2/5/92, Dana Blankenhorn of Newsbytes Magazine released a story, subsequently published in Newsbytes, that covered the Wagner complaint. What follows is my own efforts to update Blankenhorn's information. Herein, find corrections of some items reported by Blankenhorn or simply left out of his article. Over the weekend of 2/8/92, I managed to conduct a short interview with Tony Wagner of Portland, Oregon and First Choice Communications BBS. I learned that Wagner's BBS is still online. This is contrary to my understanding of the 2/5/92 Newsbytes story by Dana Blankenhorn. Wagner's BBS is available at: 503-297-0278 503-297-0279 503-297-0343 [RESTRICTED ACCESS] Wagner mentions his dispute with US West in bulletin #1 on his system. Here is full text of that bulletin. ======================= TEXT BEGINS =============================== Well The U.S. West phone company has decided that ALL Phone lines that have modems on them Should be classed As Business Lines.. I have run a FREE Bulletin Board System for years out of my own pocket with out ever asking users to help pay the Cost of running the system.. This will have to change if U.S. West has their way So please leave me mail as to how you feel about this better yet Call the Phone Company and tell them how you feel.. If this happens I will do something like a Pay system that will cost around $1.00-3.00 Per hour depending on what parts of the BBS you want to use The Advantage to you will be unlimited Time on NO Time Limits If it get to busy I will add more lines Wildcat can handle 250 Lines :-) I may then even add a bunch of Doors with Games Etc. ========================== TEXT ENDS ============================== Wagner's legal expenses were not dealt with in the manner implied by Newsbytes on 2/5/92. Although an investigation of Wagner's "Pacific Northwest Phone's" conference (the location on Wagner's system of the FidoNet PNWBELL echo) would indicate that the subject of others chipping in to pay for legal services was broached, Wagner informed me that no group of SysOps or users ever paid for, or attempted to pay Richard Samuels (Wagner's original attorney). Richard Samuels withdrew from Wagner's complaint filing at the Oregon Public Utility Commission shortly before a December 10 hearing date. Wagner represented himself at that hearing. The "Pacific Northwest Phone's" conference on First Choice Communications additionally reveals an important item of interest. It is apparent that US West and SouthWestern Bell are sharing information about disputes with BBS operators in their respective operating jurisdictions. Such is illustrated in the following message pulled from the "Pacific Northwest Phone's" conference on First Choice Communications. =========================== TEXT BEGINS ============================== From : SCOTT LENT Number : 223 of 241 To : ALL Date : 01/10/92 11:56am Subject : a note Reference : NONE Read : [N/A] Private : NO Conf : 505 - Pacific Northwest Phone's That may or may not be of interest to those of you serviced by US West: A group of sysops in Missouri met with representatives from Southwestern Bell on 01/07/92 in St. Louis for the second in a series of negotiations. At the meeting, William Bailey, District Manager-Rate Administration, divulged that he had been in contact with "someone from US West," and that their conversation included discussion of their respective telephone tariffs. Specifically, he made reference to your (Oregon's) tariff wording that refers to "domestic use." This information is two-fold. First, you now know that your RBOC people are in contact with others about tariff wording. Secondly, your RBOC people are aware that other RBOCs are negotiating with their consumers over regulations that affect the modeming community. Scott --- DB B1056/004017 * Origin: GKCSA-the ultimate bal...er...Bell buster (1:280/310) =========================== TEXT ENDS ================================= Wagner has retained attorney Kevin Myles to represent him in his complaint case at the Oregon Public Utility Commission. Myles has until March 3, 1992 to file a brief. A round of reply briefs, from the opposing parties in the complaint, is also possible. Walter Scott -- "Lightfinger" Rayek's Friendly Casino: 206/528-0948, Seattle, Washington. ------------------------------ Date: Mon, 17 Feb 92 19:19:18 PST From: autodesk!megalon!jwarren@FERNWOOD.MPK.CA.US(Jim Warren) Subject: FULL TEXT: Calif. data-priv/comp.crime bill This includes the full text of legislation that was introduced Feb. 10th in the California State Senate by a senior member of that body, the Chair of the Senate Judiciary Committee, Senator Bill Lockyer of Southern Alameda County. This copy of the bill plus staff background comments is being uploaded within days of its availability in Senate offices. SB1447 TOPICS Sec.1: "Privacy Act of 1992", Senate Bill 1447 (Lockyer, Privacy) Sec.2: Driver's licenses: Use of human-readable and magstripe information Sec.3: Privacy: Rights of employees and prospective employees Sec.4: Computer crime laws: Modifications Sec.5: Automatic vehicle identification [AVI] systems: Control of uses CONTENTS OF THIS MESSAGE [words/chars] Introductory comments and details of notation conventions [757/5191] Reformatted verbatim text of the Feb. 10th bill [3227/21285] Background notes prepared by Sen. Lockyer's assistant [2465/15546] If printed, this would take approximately 12 pages. REPORTEDLY A LEGISLATIVE "FIRST" This effort in "electronic democracy" may be the first time that state legislation has been distributed online, for access by the general public, at the same time it becomes available to legislators and their staff. A senior member of the Senate computer system's technical staff reportedly said they have never-before down-loaded a machine-readable copy of initial legislation onto a personal computer for redistribution on public computer networks. Furthermore, Sen. Lockyer's Legislative Assistant responsible for the bill said he knows of no prior instance where legislative staff have gone online on public nets to seek citizen input and discussion about new legislation. SOURCES OF ORIGINAL DOCUMENTS & INFORMATION Mr. Ben Firschein is the Legislative Assistant to Sen. Lockyer who is handling this bill: Office of Senator Bill Lockyer Room 2032, State Capitol Sacramento CA 95814 Mr. Firschein/916-445-6671, main number/916-445-5957, email/** Formatted, binary, machine-readable versions of this text will be available on the WELL, the Whole Earth 'Lectronic Link. The WELL is a public teleconferencing system located in Sausalito, California, accessible via the Internet; voice/415-332-4335, 2400-baud data/7-E-1/415-332-6106. For read- only access instructions, SEND A REQUEST TO: jwarren@well.sf.ca.us. ** -- Mr. Firschein will be online on the WELL within a week or so. You may request his email address, also, from jwarren@well.sf.ca.us. There will be four read-only files: A. The original file that was down-loaded from the Senate's legislative computer system in WordPerfect format on a PC-compatible diskette. B. The above file, converted to a Word-5.0 Macintosh format, with pagination approximating the printed copies of the bill available from the legislative offices. C. Background information, explanations and mention of some alternatives, prepared by Mr. Firschein, in original WordPerfect format for PC-compatibles. D. That backgrounder file, converted to Word-5.0 Macintosh format. REPRESENTING LEGISLATION-IN-PROGRESS: A NOTATION PROBLEM In the California Senate, printed legislation-in-progress uses the following conventions: When stating new legislation, *plain-text* states PROPOSED law. When *amending* current law, *plain-text* states the CURRENT law, and *strike-thru text* indicates current law to be deleted while *underscored* or *italicized* text represents wording to be added to those current statutes. Deletions and additions represented by strike-thru and underlining or italics *amend* current law. But, the basic ASCII character-set -- and a great many older terminals and computer printers -- have no strike-thru, italics or underlining. So, here is how that unavailable notation is represented in this document: [[ annotation ]] -- explanatory comments by "uploader" Jim Warren all capitals -- originally bold-face text; no legislative meaning Unless stated as amending current law: plain-text -- text of new legislation, proposed to be new law When stated as amending current law: plain-text -- text of current law to remain unchanged << strikethru >> -- text in current law, proposed for deletion {{ underscore }} -- text proposed to be added to current law. THE BEGINNING ... The introduction of this legislation in the Senate is the beginning of a lengthy process or review and revision by amendment, prior to its possible passage into law. Please send your comments and suggestions about the legislation -- and about the Senate staff's active cooperation in making it publicly available, online -- to Mr. Firschein and Sen. Lockyer. --Jim Warren, 345 Swett Rd., Woodside CA 94062; voice/415-851-7075, fax/415-851-2814, email/jwarren@well.sf.ca.us -or- jwarren@autodesk.com [ for identification purposes, only: contributing editor, MicroTimes; Chair, First Conference on Computers, Freedom & Privacy (March, 1991); and member, Board of Directors, Autodesk, Inc.; blah blah blah ] ===================== verbatim text of the legislation ===================== "THE PRIVACY ACT OF 1992" -- CALIFORNIA STATE SENATE BILL No. 1447 Introduced by Senator Lockyer February 10, 1992 An act to add Section 1799.4 to the Civil Code, to add Section 2805 to the Labor Code, to amend Section 502 of the Penal Code, and to amend Section 27565 of the Streets and Highways Code, relating to privacy. LEGISLATIVE COUNSEL'S DIGEST [[**** The Legislative Counsel's Digest is NOT part of the bill. It is only a summary prepared by the legislature's legal counsel. ****]] SB 1447, as introduced, Lockyer. Privacy. (1) Existing law prohibits the disclosure of specified information by business entities which perform bookkeeping services and by persons providing video cassette sales or rental services. This bill would provide that a business entity that obtains information from a consumer's driver's license or identification card shall not sell the information or use it to advertise goods or services, without consent. (2) Existing law prohibits employers from making or enforcing rules or policies forbidding or preventing employees from engaging or participating in politics, and from controlling the political activities or affiliations of employees. This bill would provide that any employer shall be liable to an employee or prospective employee for damages caused by subjecting the employee to discipline or discharge, or denying employment to a prospective employee, on account of the exercise by that person of privacy rights guaranteed by the California Constitution. (3) Existing law sets forth definitions and penalties for specified computer-related crimes. This bill would require the owner or lessee of any computer, computer system, computer network, computer program, or data, as specified, to report to a local law enforcement agency any known violations of the provisions described above. The bill would also provide that any person who recklessly stores or maintains data in a manner which enables a person to commit acts leading to a felony conviction under the provisions described above, shall be liable to each injured party for a specified civil penalty. The bill would make related changes. (4) Existing law requires the Department of Transportation to develop and adopt functional specifications and standards for an automatic vehicle identification system to be used in toll facilities, as specified. This bill would provide that a vehicle owner shall have the choice of being billed after using the facility, or of prepaying tolls, in which case the department or any privately owned entity operating a toll facility shall issue an account number to the vehicle owner which is not derived from the vehicle owner's name, address, social security number, or specified other sources, and would prohibit the keeping of any record of this information. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. This act shall be known and may be cited as the Privacy Act of 1992. SEC. 2. Section 1799.4 is added to the Civil Code, to read: 1799.4. A business entity that obtains information from a consumer's driver's license or identification card for its business records or for other purposes shall not sell the information or use it to advertise goods or services, without the written consent of the consumer. SEC. 3. Section 2805 is added to the Labor Code, to read: 2805. (a) Any employer, including any state or local governmental entity or instrumentality thereof, shall be liable to an employee or prospective employee for damages caused by either of the following: (1) Subjecting the employee to discipline or discharge on account of the exercise by the employee of privacy rights guaranteed by Section 1 of Article I of the California Constitution, provided the activity does not substantially interfere with the employee's bona fide job performance or working relationship with the employer. (2) Denying employment to a prospective employee on account of the prospective employee's exercise of privacy rights guaranteed by Section 1 of Article I of the California Constitution. (b) Damages awarded pursuant to this section may include punitive damages, and reasonable attorney's fees as part of the costs of the action. If the court decides that an action for damages was brought without substantial justification, the court may award costs and reasonable attorney's fees to the employer. SEC. 4. Section 502 of the Penal Code is amended to read: [[**** Note that this would AMEND current law. ****]] 502. (a) It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data. The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data. (b) For the purposes of this section, the following terms have the following meanings: (1) "Access" means to gain entry to, instruct, or communicate with the logical, arithmetical, or memory function resources of a computer, computer system, or computer network. (2) "Computer network" means any system which provides communications between one or more computer systems and input/output devices including, but not limited to, display terminals and printers connected by telecommunication facilities. (3) "Computer program or software" means a set of instructions or statements, and related data, that when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions. (4) "Computer services" includes, but is not limited to, computer time, data processing, or storage functions, or other uses of a computer, computer system, or computer network. (5) "Computer system" means a device or collection of devices, including support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, one or more of which contain computer programs, electronic instructions, input data, and output data, that performs functions including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control. (6) "Data" means a representation of information, knowledge, facts, concepts, computer software, computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. (7) "Supporting documentation" includes, but is not limited to, all information, in any form, pertaining to the design, construction, classification, implementation, use, or modification of a computer, computer system, computer network, computer program, or computer software, which information is not generally available to the public and is necessary for the operation of a computer, computer system, computer network, computer program, or computer software. (8) "Injury" means any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by the access. (9) "Victim expenditure" means any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by the access. (10) "Computer contaminant" means any set of computer instructions that are designed to modify, damage, destroy, record, or transmit information within a computer, computer system, or computer network without the intent or permission of the owner of the information. They include, but are not limited to, a group of computer instructions commonly called viruses or worms, which are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network. (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. (3) Knowingly and without permission uses or causes to be used computer services. (4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network. (5) Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network. (6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section. (7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network. (8) Knowingly introduces any computer contaminant into any computer, computer system, or computer network. (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. (2) Any person who violates paragraph (3) of subdivision (c) is punishable as follows: (A) For the first violation which does not result in injury, and where the value of the computer services used does not exceed four hundred dollars ($400), 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. (B) For any violation which results in a victim expenditure in an amount greater than five thousand dollars ($5,000) or in an injury, or if the value of the computer services used exceeds four hundred dollars ($400), or for any second or subsequent violation, 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. (3) Any person who violates paragraph (6), (7), or (8) of subdivision (c) is punishable as follows: (A) For a first violation which does not result in injury, an infraction punishable by a fine not exceeding two hundred fifty dollars ($250). (B) For any violation which results in a victim expenditure in an amount not greater than five thousand dollars ($5,000), or for a second or subsequent violation, 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. (C) For any violation which results in a victim expenditure in an amount greater than five thousand dollars ($5,000), 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. [[**** Use of << STRIKETHRU >> and {{ UNDERSCORE }} begins, hereafter. ****]] (e) (1) In addition to any other civil remedy available, {{ any injured party, including but not limited to }} the owner or lessee of the computer, computer system, computer network, computer program, or data may bring a civil action against any person convicted under this section for compensatory damages, including {{ consequential or incidental damages. In the case of the owner or lessee of the computer, computer system, computer network, computer program, or data, damages may include, but are not limited to,}} any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. << For >> [[**** Yes, that was a struck-thru "For" ending that paragraph. ****]] {{ (2) Any person who recklessly stores or maintains data in a manner which enables a person to commit acts leading to a felony conviction under this section shall be liable to each injured party for a civil penalty of ten thousand dollars ($10,000), up to a maximum of fifty thousand dollars ($50,000). Failure to report a previous violation of this section to a local law enforcement agency pursuant to subdivision (f) may constitute evidence of recklessness }} {{ (3) For }} the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code. << (2) >> {{ (4) }} In any action brought pursuant to this subdivision the court may award reasonable attorney's fees to a prevailing party. << (3) >> {{ (5) }} A community college, state university, or academic institution accredited in this state is required to include computer-related crimes as a specific violation of college or university student conduct policies and regulations that may subject a student to disciplinary sanctions up to and including dismissal from the academic institution. This paragraph shall not apply to the University of California unless the Board of Regents adopts a resolution to that effect. (f) {{ The owner or lessee of any computer, computer system, computer network, computer program, or data shall report to a local law enforcement agency, including the police, sheriff, or district attorney, any known violations of this section involving the owner or lessee's computer, computer system, computer network, computer program, or data. The reports shall be made within 60 days after the violations become known to the owner or lessee. }} {{ (g) }} This section shall not be construed to preclude the applicability of any other provision of the criminal law of this state which applies or may apply to any transaction, nor shall it make illegal any employee labor relations activities that are within the scope and protection of state or federal labor laws. << (g) >> {{ (h) }} Any computer, computer system, computer network, or any software or data, owned by the defendant, which is used during the commission of any public offense described in subdivision (c) or any computer, owned by the defendant, which is used as a repository for the storage of software or data illegally obtained in violation of subdivision (c) shall be subject to forfeiture, as specified in Section 502.01. << (h) >> {{ (i) }} (1) Subdivision (c) does not apply to any person who accesses his or her employer's computer system, computer network, computer program, or data when acting within the scope of his or her lawful employment. (2) Paragraph (3) of subdivision (c) does not apply to any employee who accesses or uses his or her employer's computer system, computer network, computer program, or data when acting outside the scope of his or her lawful employment, so long as the employee's activities do not cause an injury, as defined in paragraph (8) of subdivision (b), to the employer or another, or so long as the value of supplies and computer services, as defined in paragraph (4) of subdivision (b), which are used do not exceed an accumulated total of one hundred dollars ($100). << (i) >> {{ (j) }} No activity exempted from prosecution under paragraph (2) of subdivision << (h) >> {{ (i) }} which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs. << (j) >> {{ (k) }} For purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction. << (k) >> {{ (l) }} In determining the terms and conditions applicable to a person convicted of a violation of this section the court shall consider the following: (1) The court shall consider prohibitions on access to and use of computers. (2) Except as otherwise required by law, the court shall consider alternate sentencing, including community service, if the defendant shows remorse and recognition of the wrongdoing, and an inclination not to repeat the offense. SEC. 5. Section 27565 of the Streets and Highways Code is amended to read: [[** NOTE: This is another amendment, with strikethrus and underscores. **]] 27565. (a) The Department of Transportation, in cooperation with the district and all known entities planning to implement a toll facility in this state, shall develop and adopt functional specifications and standards for an automatic vehicle identification system, in compliance with the following objectives: (1) In order to be detected, the driver shall not be required to reduce speed below the applicable speed for the type of facility being used. (2) The vehicle owner shall not be required to purchase or install more than one device to use on all toll facilities, but may be required to have a separate account or financial arrangement for the use of these facilities. (3) The facility operators shall have the ability to select from different manufacturers and vendors. The specifications and standards shall encourage multiple bidders, and shall not have the effect of limiting the facility operators to choosing a system which is able to be supplied by only one manufacturer or vendor. (b) {{ The vehicle owner shall have the choice of prepaying tolls, or being billed after using the facility. If the vehicle owner prepays tolls: (1) The department or any privately owned entity operating a toll facility shall issue an account number to the vehicle owner. The account number shall not be derived from the vehicle owner's name, address, social security number, or driver's license number, or the vehicle's license number, vehicle identification number, or registration. (2) Once an account has been established and an account number has been given to the vehicle owner, neither the department nor the privately owned facility shall keep any record of the vehicle owner's name, address, social security number, or driver's license number, or the vehicle's license number, vehicle identification number, or registration. (3) The vehicle owner may make additional prepayments by specifying the account number and furnishing payment. }} {{ (c) }} Any automatic vehicle identification system purchased or installed after January 1, 1991, shall comply with the specifications and standards adopted pursuant to subdivision (a). {{ (d) Any automatic vehicle identification system purchased or installed after January 1, 1993, shall comply with the specifications and standards adopted pursuant to subdivisions (a) and (b). }} [[**** END OF SB 1447, DATED FEBRUARY 10, 1992 ****]] =============== background comments by legislative assistant =============== [[**** In this section, since underlining is for emphasis, only, and has no legal meaning, I changed Mr. Firschein's underlined text to all-caps. ****]] California State Senate Bill Lockyer Tenth Senatorial District Southern Alameda County State Capitol Sacramento, California 95814 (916)445-6671 TO: Interested parties FROM: Ben Firschein, Senator Lockyer's Office DATE: February 14, 1992 RE: BACKGROUND INFORMATION ON SB 1447 (LOCKYER, PRIVACY) You should have received a copy of SB 1447 (Lockyer, Privacy) in the mail recently. Senator Lockyer introduced the bill in an effort to address some of the concerns raised at the privacy hearing on December 10, 1991. This memorandum is intended to explain the intent of the various sections of the bill, but it is not a committee analysis. (A committee analysis will be forthcoming at a later date, when the bill is set for a hearing). We welcome suggestions as to how to clarify the language of the bill, or otherwise improve the bill. SECTION 1: CITATION The bill may be cited as the "Privacy Act of 1992" SECTION 2: INFORMATION OBTAINED FROM DRIVER'S LICENSES This section requires the written consent of a consumer for a business entity to (1) sell information obtained from the consumer's driver's license or (2) use such information to advertise goods or services. The section is intended to cover instances where a consumer presents a driver's license or identification card for identification purposes during a business transaction. The section is not intended to prevent businesses from using driver's license information for business record-keeping, or for other purposes related to the transaction (i.e. authorizing a transaction). The section is not intended to change existing law with respect to the ability of businesses to obtain driver's license information from other sources (such as DMV records). The need for this section is heightened by the new "magstripe" drivers license developed by the Department of Motor Vehicles. This license has a magnetic stripe on the back which contains much of the information on the front of the license. The stripe will enable a business entity to store information contained on a driver's license simply by scanning the card through a reader. A publication by the Department of Motor Vehicles dated May 1991 ("Department of Motor Vehicles Magnetic Stripe Drivers License/Identification Card") states that "using point of sale (POS) readers and printers, the business community can electronically record the DL [driver's license] /ID number on receipts and business records." The publication notes that "magnetic stripe readers are readily available, relatively low in cost, and are already available in many retail outlets." However, a merchant might access much more than the driver's license/ID number; the publication notes that "readers have been produced, and market available readers can be modified that will read the three tracks of information contained on the California card." According to the publication, the tracks contain information such as license type, name, address, sex, hair-color, eye-color, height, weight, restrictions, issue date. SECTION 3: DEPRIVATION OF THE RIGHT TO PRIVACY OF EMPLOYEES OR PROSPECTIVE EMPLOYEES This section provides that an employer shall be liable to an employee or prospective employee for damages caused by subjecting an employee to discipline or discharge or denying employment to a prospective employee, on account of the exercise by that person of privacy rights guaranteed by the California Constitution. This section is modeled after Connecticut Labor Code Section 31-51q. The Lockyer bill goes further than the Connecticut statute in that it applies to prospective as well as current employees. The bill would allow punitive damages and reasonable attorney's fees to be awarded pursuant to Section 3 (page 3 lines 10-12). The bill would specify that if the court decides that an action for damages was brought by an employee or a prospective employee without "substantial justification," the court may award costs and reasonable attorney's fees to the employer (page 3, lines 12-15). As with the Connecticut statute, an employee's cause of action would only exist if the activity for which the employee was disciplined or discharged did not "substantially interfere with the employee's bona fide job performance or working relationship with the employer." (Page 3, lines 4-5). POSSIBLE AMENDMENT: The language in the bill covering prospective employees (page 3, lines 6-9) omits the "substantial interference" language contained in the section covering existing employees. Perhaps the bill should specify that a prospective employee lacks a cause of action if the prospective employer has a compelling business interest in rejecting someone because they engaged in certain acts (even though those acts were protected by the constitutional right to privacy). Such an amendment would be consistent with cases such SOROKA V. DAYTON HUDSON CORPORATION, 91 Daily Journal D.A.R. 13204 (1st Appellate District). The court in SOROKA found that a psychological screening test administered to Target Store security officer applicants violated the applicants' state constitutional right to privacy when it inquired about their religious beliefs and sexual orientation, because there was no compelling need for the test. POSSIBLE AMENDMENT # 2: One of the participants in the privacy hearing suggests language making it clear that the rights and remedies set forth in the section are not exclusive and do not pre-empt or limit any other available remedy. POTENTIAL ARGUMENTS AGAINST THIS SECTION: Some may argue that in light of cases such as Soroka, this statute is unnecessary, because these rights are already set forth in existing case law. They may also point out that the California Supreme Court held in WHITE V. DAVIS that the right to privacy is self-executing, meaning that every Californian has standing to sue directly under Article I, Section I of the California Constitution for a privacy violation. WHITE V. DAVIS (1975) 13 Cal.3d 757, 775. Given that the right to privacy is self-executing, why is a statute needed? The answer is that case law is in a state of flux, and there is no guarantee that future courts will construe Article I in such a liberal fashion. Also, the bill is an improvement over existing case law in that it specifically lists the types of damages that may be awarded, including punitive damages, and reasonable attorney's fees. SECTION 4. COMPUTER CRIMES Jim Warren (one of the witnesses at the hearing) posted the Leg Counsel draft of the bill on one of the networks and showed me some of the responses. This section generated most of the comments, some of which were quite vocal. First a word of caution to those uninitiated in the ways of the Legislature: MOST OF THE LANGUAGE IN THIS SECTION IS EXISTING LAW. Our proposed additions are contained in language that is in italics or underlined. IF IT IS NOT IN ITALICS OR UNDERLINES, IT IS EXISTING LAW. PROPOSED ADDITION #1 (page 7, line 25): Extend the existing computer crime statute [Penal Code Section 502] to allow civil recovery by any injured party against someone convicted under Section 502 of breaking into a computer. (The existing law just allows recovery by the owner or lessee of a computer system). For example, if someone is convicted under Section 502 of breaking into TRW's computers and altering credit records, the existing statute would allow TRW to recover against the hacker in a civil suit, but the statute would not allow someone whose credit history was injured by the hacker to sue the hacker under statute. PROPOSED ADDITION #2 (page 7, lines 30-33): Extend Penal Code Section 502 to allow civil recovery against a convicted hacker for more than just the cost of expenditures necessary to verify that a computer system was or was not altered, damaged, or deleted by the access. The proposed language would allow civil recovery for ALL CONSEQUENTIAL OR INCIDENTAL DAMAGES resulting from the intrusion. PROPOSED ADDITION #3 (page 7, lines 38-40 & page 8, lines 1-6): Create a cause of action against those who "recklessly store or maintain data in a manner which enables a person to commit acts leading to a felony conviction under this section." The section is intended to address the situation where someone stores information (e.g. credit data) in a manner which easily allows unauthorized access, and the person who is able to access the information as a result of the lack of safeguards injures a third party (e.g. a creditor, or a person whose credit history is altered). The source of the section is the case of PEOPLE V. GENTRY 234 Cal.App.3d 131 (1991). In that case, a hacker figured out that if he queried the credit databases of TRW, CBI, or Trans Union, about a nonexistent person, each system would create a new file for that non-existent person. The non- existent person would have an exemplary credit history, because there was no negative credit information in the new file. The hacker in the GENTRY case went into the business of rehabilitating people's credit history by having them change their name, and then creating credit files on these "new" people. The court stated in a footnote "we do not address the potential liability to innocent third parties who might be harmed by this feature of the software program. Although Gentry found a weakness in the program and exploited it, responsibility should not rest solely with the felon. Credit reporting companies should recognize that this flaw is needlessly risky and remedy it." (GENTRY, page 135, footnote 3). POTENTIAL CONCERNS: some people who have seen the bill worry that section 4 would apply to someone (e.g. a computer bulletin board operator) who stores information on a computer about how to commit a crime (e.g. information about how to break into a computer, or how to build a bomb) The section is intended to be limited to reckless storage of data in a manner which enables a person to commit acts LEADING TO A FELONY CONVICTION UNDER SECTION 503 (not other types of criminal acts). "Reckless storage" is intended to mean maintaining a system that lacks appropriate security safeguards; it is not intended to include storing information about how to commit crimes. Hopefully any potential ambiguities can be clarified through amendments. PROPOSED ADDITION #4: The bill requires the reporting to local law enforcement of violations of the computer crime statute (Penal Code Section 503) within 60 days after such violations become known to the owner or lessee of a computer system (page 8, lines 26-34). The bill states that "failure to report a previous violation of this section to a local law enforcement agency...may constitute evidence of [reckless storage of data]." This is intended to ensure that people report such crimes to law enforcement. There are anecdotal reports that some of these crimes are not being reported because people are concerned about bad publicity resulting from reports that their systems were broken into. POSSIBLE AMENDMENT: it has been suggested that the reporting requirement be limited to certain types of systems, or to a certain level of monetary loss. Objections have been raised that the bill would apply equally to someone who operates a home computer and to a business that operates a large mainframe. One could argue that the reporting requirement is more essential where a computer owner has a fiduciary or quasi-fiduciary duty to the people whose records are stored on the system (e.g. accounting or credit records). An accountant's or a credit company's failure to report a computer break-in is more serious than a computer game bulletin board operator's failure to report a break in. One possible objection to restricting the reporting requirement to a certain level of financial loss is that financial loss is hard to quantify. However, Section 503 already uses amount of financial loss to determine the type of criminal penalty to apply, so one could argue that amount of monetary loss could similarly be used as an indication of the need to report. SECTION 5. AUTOMATIC VEHICLE IDENTIFICATION SYSTEMS Existing law directs Caltrans to develop specifications for automatic vehicle tracking systems for toll facilities, such as those on bridges (Streets and Highways Code 27565). People will soon be able have a device installed in their car which allows them to drive through a toll facility without stopping. The device will send a signal to a computer, which will keep track of their use of the facility. At the end of the month, they will get a bill. Presumably there will continue to be booths that people can drive through and pay cash. At the December 10 privacy hearing, concern was expressed that the device offers potential for abuse. For example, if you know a particular vehicle is driving through the facility, why not program the system to: 1. Stop all people with outstanding warrants 2. Stop all people who have not paid their vehicle registration 3. Compile lists of all people who drove through the facility during a given month and sell the lists to the private sector. One could argue that uses 1 and 2 are legitimate uses of this technology, because people who have broken the law should expect to come into contact with the police when they drive on public roads and highways. But one could also argue that people have an expectation of privacy when they drive and are not breaking the law at the time they are stopped (e.g. they are not speeding, driving under the influence, or otherwise doing anything to attract the attention of the police). Use # 3 is harder to justify. Why should people have to reveal their personal lives to the private sector in order to use a device that will speed up their commute? WHAT THE BILL DOES: The bill allows people the option of prepaying their tolls, and then using the facility anonymously. People would continue to have the option of being billed, rather than prepaying tolls. Under the bill, people who prepaid their tolls would be given an identification number unrelated to the vehicle owner's name, address, social security number, or driver's license number, or the vehicle's license number, vehicle identification number, or registration (page 10, lines 34-40). When they drive through the facility, the facility would look at their account, and let them through if there was still money in the account. The bill provides that once a numbered account has been established, neither Caltrans nor a private facility shall keep any record of the vehicle owner's name, address, social security number, or driver's license number, or the vehicle's license number, vehicle identification number, or registration (Page 11, lines 1-7). The user could make additional prepayments under the bill by specifying the account number and furnishing payment (Page 11, lines 8-10). [[**** END OF MR. FIRSCHEIN'S BACKGROUNDER ON SB 1447 OF FEB. 14, 1992 ****]] ================================== [[**** Both of these documents were edited by word-processor, rather than by retyping most of the text. I believe it is faithful to the original. Any errors are mine; not those of Mr. Firschein nor Sen. Lockyer. --Jim Warren ****]] ------------------------------ End of Computer Underground Digest #4.08 ************************************

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