Computer underground Digest Sun Apr 17, 1994 Volume 6 : Issue 34 ISSN 1004-042X Editors: J

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Computer underground Digest Sun Apr 17, 1994 Volume 6 : Issue 34 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe Archivist Le Grande: Stanton McCandlish Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Suspercollater: Shrdlu Nooseman CONTENTS, #6.34 (Apr 17, 1994) File 1--Bruce Sterling's Remarks at CFP '94 File 2--"When Copying Isn't Theft" (Internet World/M. Godwin Rprnt) File 3--NII & Service to the Poor (fwd) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. CuD is available as a Usenet newsgroup: comp.society.cu-digest Or, to subscribe, send a one-line message: SUB CUDIGEST your name Send it to LISTSERV@UIUCVMD.BITNET or LISTSERV@VMD.CSO.UIUC.EDU The editors may be contacted by voice (815-753-0303), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115, USA. 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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: Mon, 4 Apr 1994 16:07:11 -0700 From: Bruce Sterling Subject: File 1--Bruce Sterling's Remarks at CFP '94 Bruce Sterling bruces@well.sf.ca.us LITERARY FREEWARE: NOT FOR COMMERCIAL USE Remarks at Computers, Freedom and Privacy Conference IV Chicago, Mar 26, 1994 I've been asked to explain why I don't worry much about the topics of privacy threat raised by this panel. And I don't. One reason is that these scenarios seem to assume that there will be large, monolithic bureaucracies (of whatever character, political or economic) that are capable of harnessing computers for one-way surveillance of an unsuspecting populace. I've come to feel that computation just doesn't work that way. Being afraid of monolithic organizations especially when they have computers, is like being afraid of really big gorillas especially when they are on fire. The threat simply doesn't concur with my historical experience. None of the large organizations of my youth that compelled my fear and uneasy respect have prospered. Let me just roll off a few acronyms here. CCCP. KGB. IBM. GM. AEC. SAC. It was recently revealed that the CIA has been of actual negative worth -- literally worse than useless -- to American national security. They were in the pockets of the KGB during our death struggle with the Soviet Union -- and yet we still won. Japanese zaibatsus -- Japan Inc. -- the corporate monoliths of Japan -- how much hype have we heard about that lately? I admit that AT&T has prospered, sort of -- if you don't count the fact that they've hollowed themselves out by firing a huge percentage of their personnel. Suppose that, say, Equifax, turned into an outright fascist organization and stated abusing privacy in every way they could. How could they keep that a secret? Realistically, given current employment practices in the Western economies, what kind of loyalty could they command among their own personnel? The low level temps have no health insurance and no job security; the high level people are ready to grab their golden parachutes and bail at any time. Where is the fanatically loyal army of gray flannel organization men who will swear lifelong allegiance to this organization, or *any* organization in this country with the possible exception of the Mafia? I feel that the real threat to our society isn't because people are being surveilled but because people are being deliberately ignored. People drop through the safety nets. People stumble through the streets of every city in this country absolutely wrapped in the grip of demons, groping at passersby for a moment's attention and pity and not getting it. In parts of the Third World people are routinely disappeared, not because of high-tech computer surveillance but for the most trivial and insane reasons -- because they wear glasses, because they were seen reading a book -- and if they survive, it's because of the thin thread of surveillance carried out by Amnesty International. There may be securicams running 24 hours a day all around us, but mechanical surveillance is not the same as people actually getting attention or care. Sure, rich people, like most of us here, are gonna get plenty of attention, probably too much, a poisonous amount, but in the meantime life has become so cheap in this society that we let people stagger around right in front of us exhaling tuberculosis without treatment. It's not so much information haves and have-nots and watch and watch-nots. I wish I could speak at greater length more directly to the topic of this panel. But since I'm the last guy to officially speak at CFP IV, I want the seize the chance to grandstand and do a kind of pontifical summation of the event. And get some irrepressible feelings off my chest. What am I going to remember from CFP IV? I'm going to remember the Chief Counsel of NSA and his impassioned insistence that key escrow cryptography represents normality and the status quo, and that unlicensed hard cryptography is a rash and radical leap into unplumbed depths of lawlessness. He made a literary reference to BRAVE NEW WORLD. What he said in so many words was, "We're not the Brave New World, Clipper's opponents are the Brave New World." And I believe he meant that. As a professional science fiction writer I remember being immediately struck by the deep conviction that there was plenty of Brave New World to go around. I've been to all four CFPs, and in my opinion this is the darkest one by far. I hear ancestral voices prophesying war. All previous CFPs had a weird kind of camaraderie about them. People from the most disparate groups found something useful to tell each other. But now that America's premiere spookocracy has arrived on stage and spoken up, I think the CFP community has finally found a group of outsiders that it cannot metabolize. The trenchworks are going up and I see nothing but confrontation ahead. Senator Leahy at least had the elementary good sense to backpedal and temporize, as any politician would when he saw the white-hot volcano of technological advance in the direct path of a Cold War glacier that has previously crushed everything in its way. But that unlucky flak-catcher the White House sent down here -- that guy was mousetrapped, basically. That was a debacle! Who was briefing that guy? Are they utterly unaware? How on earth could they miss the fact that Clipper and Digital Telephony are violently detested by every element in this community -- with the possible exception of one brave little math professor this high? Don't they get it that everybody from Rush Limbaugh to Timothy Leary despises this initiative? Don't they read newspapers? The Wall Street Journal, The New York Times? I won't even ask if they read their email. That was bad politics. But that was nothing compared to the presentation by the gentleman from the NSA. If I can do it without losing my temper, I want to talk to you a little bit about how radically unsatisfactory that was. I've been waiting a long time for somebody from Fort Meade to come to the aid of Dorothy Denning in Professor Denning's heroic and heartbreaking solo struggle against twelve million other people with email addresses. And I listened very carefully and I took notes and I swear to God I even applauded at the end. He had seven points to make, four of which were disingenuous, two were half-truths, and the other was the actual core of the problem. Let me blow away some of the smoke and mirrors first, more for my own satisfaction than because it's going to enlighten you people any. With your indulgence. First, the kidporn thing. I am sick and tired of hearing this specious blackwash. Are American citizens really so neurotically uptight about deviant sexual behavior that we will allow our entire information infrastructure to be dictated by the existence of pedophiles? Are pedophiles that precious and important to us? Do the NSA and the FBI really believe that they can hide the structure of a telephone switch under a layer of camouflage called child pornography? Are we supposed to flinch so violently at the specter of child abuse that we somehow miss the fact that you've installed a Sony Walkman jack in our phones? Look, there were pedophiles before NII and there will be pedophiles long after NII is just another dead acronym. Pedophiles don't jump out of BBSes like jacks in the box. You want to impress me with your deep concern for children? This is Chicago! Go down to the Projects and rescue some children from being terrorized and recruited by crack gangs who wouldn't know a modem if it bit them on the ass! Stop pornkidding us around! Just knock it off with that crap, you're embarrassing yourselves. But back to the speech by Mr. Baker of the NSA. Was it just me, ladies and gentlemen, or did anyone else catch that tone of truly intolerable arrogance? Did they guy have to make the remark about our missing Woodstock because we were busy with our trigonometry? Do spook mathematicians permanently cooped up inside Fort Meade consider that a funny remark? I'd like to make an even more amusing observation -- that I've seen scarier secret police agencies than his completely destroyed by a Czech hippie playwright with a manual typewriter. Is the NSA unaware that the current President of the United States once had a big bushel-basket-full of hair? What does he expect from the computer community? Normality? Sorry pal, we're fresh out! Who is it, exactly, that the NSA considers a level-headed sober sort, someone to sit down with and talk to seriously? Jobs? Wozniak? Gates? Sculley? Perot -- I hope to God it's not Perot. Bob Allen -- okay, maybe Bob Allen, that brownshoe guy from AT&T. Bob Allen seems to think that Clipper is a swell idea, at least he's somehow willing to merchandise it. But Christ, Bob Allen just gave eight zillion dollars to a guy whose idea of a good time is Microsoft Windows for Spaceships! When is the NSA going to realize that Kapor and his people and Rotenberg and his people and the rest of the people here are as good as people get in this milieu? Yes they are weird people, and yes they have weird friends (and I'm one of them), but there isn't any normality left for anybody in this society, and when it comes to computers, when the going got weird the weird turned pro! The status quo is *over!* Wake up to it! Get used to it! Where in hell does a crowd of spooks from Fort Meade get off playing "responsible adults" in this situation? This is a laugh and a half! Bobby Ray Inman, the legendary NSA leader, made a stab at computer entrepreneurism and rapidly went down for the third time. Then he got out of the shadows of espionage and into the bright lights of actual public service and immediately started gabbling like a daylight-stricken vampire. Is this the kind of responsive public official we're expected to blindly trust with the insides of our phones and computers? Who made him God? You know, it's a difficult confession for a practiced cynic like me to make, but I actually trust EFF people. I do; I trust them; there, I've said it. But I wouldn't trust Bobby Ray Inman to go down to the corner store for a pack of cigarettes. You know, I like FBI people. I even kind of trust them, sort of, kind of, a little bit. I'm sorry that they didn't catch Kevin Mitnick here. I'm even sorry that they didn't manage to apprehend Robert Steele, who is about one hundred times as smart as Mitnick and ten thousand times as dangerous. But FBI people, I think your idea of Digital Telephony is a scarcely mitigated disaster, and I'll tell you why. Because you're going to be filling out your paperwork in quintuplicate to get a tap, just like you always do, because you don't have your own pet court like the NSA does. And for you, it probably is going to seem pretty much like the status quo used to be. But in the meantime, you will have armed the enemies of the United States around the world with a terrible weapon. Not your court-ordered, civilized Digital Telephony -- their raw and tyrannical Digital Telephony. You're gonna be using it to round up wiseguys in streetgangs, and people like Saddam Hussein are gonna be using it to round up democratic activists and national minorities. You're going to strengthen the hand of despotism around the world, and then you're going to have to deal with the hordes of state-supported truckbombers these rogue governments are sending our way after annihilating their own internal opposition by using your tools. You want us to put an axe in your hand and you're promising to hit us with only the flat side of it, but the Chinese don't see it that way; they're already licensing fax machines and they're gonna need a lot of new hardware to gear up for Tiananmen II. I've talked a long time, but I want to finish by saying something about the NSA guy's one real and actual argument. The terrors of the Brave New World of free individual encryption. When he called encryption enthusiasts "romantic" he was dead-on, and when he said the results of spreading encryption were unpredictable and dangerous he was also dead-on, because people, encryption is not our friend. Encryption is a mathematical technique, and it has about as much concern for our human well-being as the fact that seventeen times seventeen equals two hundred and eighty-nine. It does, but that doesn't make us sleep any safer in our beds. Encrypted networks worry the hell out of me and they have since the mid 1980s. The effects are very scary and very unpredictable and could be very destabilizing. But even the Four Horsemen of Kidporn, Dope Dealers, Mafia and Terrorists don't worry me as much as totalitarian governments. It's been a long century, and we've had enough of them. Our battle this century against totalitarianism has left terrible scars all over our body politic and the threat these people pose to us is entirely and utterly predictable. You can say that the devil we know is better than the devil we don't, but the devils we knew were ready to commit genocide, litter the earth with dead, and blow up the world. How much worse can that get? Let's not build chips and wiring for our police and spies when only their police and spies can reap the full benefit of them. But I don't expect my arguments to persuade anyone in the NSA. If you're NSA and I do somehow convince you, by some fluke, then I urge you to look at your conscience -- I know you have one -- and take the word to your superiors and if they don't agree with you --*resign.* Leave the Agency. Resign now, and if I'm right about what's coming down the line, you'll be glad you didn't wait till later. But even though I have a good line of gab, I don't expect to actually argue people out of their livelihood. That's notoriously difficult. So CFP people, you have a fight on your hands. I'm sorry that a community this young should have to face a fight this savage, for such terribly high stakes, so soon. But what the heck; you're always bragging about how clever you are; here's your chance to prove to your fellow citizens that you're more than a crowd of net-nattering MENSA dilettantes. In cyberspace one year is like seven dog years, and on the Internet nobody knows you're a dog, so I figure that makes you CFP people twenty-eight years old. And people, for the sake of our society and our children you had better learn to act your age. Good luck. Good luck to you. For what it's worth, I think you're some of the best and brightest our society has to offer. Things look dark but I feel hopeful. See you next year in San Francisco. ------------------------------ Date: Sun, 17 Apr 1994 22:51:01 CDT From: CuD Moderators Subject: File 2--"When Copying Isn't Theft" (Internet World/M. Godwin Rprnt) From: Internet World, Jan./Feb. 1994 When Copying Isn't Theft: How the Government Stumbled in a "Hacker" Case By Mike Godwin As more and more private individuals and private companies connect to the Internet, more and more of them will generate or use their intellectual property there. And since not everyone is familiar with the legal distinctions between so-called "intellectual property" and everyday tangible property, there will be more and more discussion of how infringement of intellectual property amounts to "online theft." But the law of intellectual property is not so simple as Usenet discussions may lead you to believe. Assuming that your information is "property" (when in fact it may not be property at all) may lead you to a false sense of security about how much the law protects your interest in that information. This article discusses one computer-crime case, United States v. Riggs, that illustrates how even well-trained federal prosecutors can grow confused about how to apply intellectual-property law--especially the law of trade secrets. In particular, it shows what can happen when prosecutors uncritically apply *intellectual* property notions in prosecuting a defendant under laws passed to protect *tangible* property. Big Phrack Attack In the recent case of U.S. v. Riggs, the Chicago U.S. Attorney's office prosecuted two young men, Robert Riggs and Craig Neidorf, on counts of wire fraud (18 U.S.C. 1343), interstate transportation of stolen property (18 U.S.C. 2314) and computer fraud (18 U.S.C. 1030). Of these statutes, only the last was passed specifically to address the problems of unauthorized computer intrusion; the other two are "general purpose" federal criminal statutes that are used by the government in a wide range of criminal prosecutions. One element of the wire-fraud statute is the taking (by fraudulent means) of "money or property," while the interstate-transportation-of-stolen-property (ITSP) statute requires, naturally enough, the element of "goods, wares, merchandise, securities or money, of the value of $5,000 or more." (I don't discuss here the extent to which the notions of "property" differ between these two federal statutes. It is certain that they do differ to some extent, and the interests protected by the wire-fraud statute were expanded in the 1980s by Congress to include Rthe intangible right to honest services.S 18 U.S.C. 1346.. Even so, the prosectuion in the Riggs case relies not on 1346, but on intellectual-property notions, which are the focus of this article.) The computer-intrusion counts against Neidorf were dropped in the governmentUs June 1990 superseding indictment, the indictment actually used at NeidorfUs trial in July 1990. Probably this was due to the government's realization that it would be hard to prove beyond a reasonable doubt that Neidorf had any direct involvement with any actual computer breakin. The Riggs case is based on the following facts: Robert Riggs, a computer "hacker" in his early '20s, discovered that he could easily gain access to an account on a computer belonging to Bell South, one of the Regional Bell Operating Companies (RBOCs). The account was highly insecure--access to it did not require a password (a standard, if not always effective, security precaution). While exploring this account, Riggs discovered a word-processing document detailing procedures and definitions of terms relating the Emergency 911 system ("E911 system"). Like many hackers, Riggs had a deep curiosity about the workings of this country's telephone system. (This curiosity among young hackers is a social phenomenon that has been documented for more than 20 years. See, e.g., Rosenbaum, "Secrets of the Little Blue Box," Esquire, October 1971; and Barlow, "Crime and Puzzlement: In Advance of the Law on the Electronic Frontier," Whole Earth Review, September 1990.) Riggs knew that his discovery would be of interest to Craig Neidorf, a Missouri college student who, while not a hacker himself, was an amateur journalist whose electronically distributed publication, Phrack, was devoted to articles of interest to computer hackers. Riggs sent a copy of the E911 document to Neidorf over the telephone, using computer and modem, and Neidorf edited the copy to conceal its origin. Among other things, Neidorf removed the statements that the information contained in the document was proprietary and not for distribution. Neidorf then sent the edited copy back to Riggs for the latter's review; following RiggsUs approval of the edited copy, Neidorf published the E911 document in the February 24, 1989, issue of Phrack. Some months following publication of the document in Phrack, both Riggs and Neidorf were contacted and questioned by the Secret Service, and all systems that might contain the E911 document were seized pursuant to evidentiary search warrants. Riggs and Neidorf were indicted under the statutes discussed above; Riggs, whose unauthorized access to the BellSouth computer was difficult to dispute, later pled guilty to wire fraud for that conduct. In contrast, Neidorf pled innocent on all counts, arguing, among other things, that his conduct was protected by the First Amendment, and that he had not deprived Bell South of property as that notion is defined for the purposes of the wire fraud and ITSP statutes. The two defenses are closely related. Under the First Amendment, the presumption is that information is free, and that it can readily be published and republished. For this reason, information "becomes property" only if it passes certain legal tests. This means that law enforcement cannot simply assume that whenever information has been copied from a private computer system a theft has taken place. But in Neidorf's case, as it turns out, this is essentially what the Secret Service and the U.S. Attorney's office did assume. And this assumption came back to haunt the government when it was revealed during trial that the information contained within the E911 document did not meet any of the relevant legal tests to be established as a property interest. How information becomes stealable property. In order for information to be stolen property, it must first be property. There are only a few ways that information can qualify as a property interest, and two of these--patent law and copyright law--are entirely creations of federal statute, pursuant to an express Constitutional grant of legislative authority. (U.S. Constitution, Article I, Sec. 8, clause 8.) Patent protections were clearly inapplicable in the Neidorf case; the E911 document, a list of definitions and procedures, did not constitute an invention or otherwise patentable process or method. Copyright law might have looked more promising to Neidorf's prosecutors, since it is well established that copyrights qualify as property interests in some contexts (for example, your uncle's copyright interest in his novel can be bequeathed to you as "personal property" through a will). Unfortunately for the government, the Supreme Court has explicitly stated that copyrighted material is not property for the purposes of the ITSP statute. In Dowling v. United States, 473 U.S. 207 (1985), the Court held that interests in copyright are outside the scope of the ITSP statute. (Dowling involved a prosecution for interstate shipments of pirated Elvis Presley recordings.) In reaching its decision, the Court held, among other things, that 18 U.S.C. ' 2314 contemplates "a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods." Unauthorized copies of copyrighted material do not meet this "physical identity" requirement. The Court also reasoned that intellectual property is different in character from property protected by generic theft statutes: "The copyright owner, however, holds no ordinary chattel. A copyright, like other intellectual property, comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections." The Court went on to note that a special term of art, "infringement," is used in reference to violations of copyright interests--thus undercutting any easy equation between unauthorized copying and "stealing" or "theft." It is clear, then, that in order for the government to prosecute the unauthorized copying of computerized information as a theft, it must rely on other theories of information-as-property. Trade-secret law is one well-established legal theory of this sort. Another is the breach-of-confidence theory articulated recently by the Supreme Court in Carpenter v. United States, 108 S.Ct. 316 (1987). I will discuss each theory in turn below. Trade Secrets Unlike copyrights and patents, trade secrets are generally created by state law, and most jurisdictions have laws that criminalize the violations of a trade-secret holder's rights in the secret. There is no general federal definition of what a trade secret is, but there have been federal cases in which trade-secret information has been used to establish the property element of a federal property crime. In the 1966 case of United States v. Bottone (365 F.2d 389, cert denied, 385 U.S. 974 (1966)), for example, the Second Circuit Court of Appeals affirmed ITSP convictions in a case involving a conspiracy to steal drug-manufacturing bacterial cultures and related documents from a pharmaceutical company and sell them in foreign markets. But the problem in using a trade secret to establish the property element of a theft crime is that, unlike traditional property, information has to leap several hurdles in order to be established as a trade secret. Trade secret definitions vary somewhat from state to state, but the varying definitions typically have most elements in common. One good definition of "trade secret" is outlined by the Supreme Court in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974): "a trade secret may consist of any forumula, pattern, device or compilation of information which is used in one's business, and which gives one an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers." The Court went further and listed the particular attributes of a trade secret: * The information must, in fact, be secret--"not of public knowledge or of general knowledge in the trade or business." * A trade secret remains a secret if it is revealed in confidence to someone who is under a contractual or fiduciary obligation, express or implied, not to reveal it. * A trade secret is protected against those who acquire via unauthorized disclosure, violation of contractual duty of confidentiality, or through "improper means." ("Improper means" includes such things as theft, bribery, burglary, or trespass. The Restatement of Torts at 757 defines such means as follows: "In general they are means which fall below the generally accepted standards of commercial morality and reasonable conduct.") * A court will allow a trade secret to be used by someone who discovered or developed the trade secret independently (that is, without taking it in some way from the holder), or if the holder does not take adequate precautions to protect the secret. * An employee or contractor who, while working for a company, develops or discovers a trade secret, generally creates trade secret rights in the company. The holder of a trade secret may take a number of steps to meet its obligation to keep the trade secret a secret. These may include: a) Labelling documents containing the trade secret "proprietary" or "confidential" or "trade secret" or "not for distribution to the public;" b) Requiring employees and contractors to sign agreements not to disclose whatever trade secrets they come in contact with; c) destroying or rendering illegible discarded documents containing parts or all of the secret, and; d) restricting access to areas in the company where a nonemployee, or an employee without a clear obligation to keep the information secret, might encounter the secret. (See Dan Greenwood's Information Protection Advisor, April 1992, page 5.) Breach-of-confidence Even if information is not protected under the federal patent and copyright schemes, or under state-law trade-secret provisions, it is possible, according to the Supreme Court in Carpenter v. United States, for such information to give rise to a property interest when its unauthorized disclosure occurs via the breach of confidential or fiduciary relationship. In this case, R. Foster Winans, a Wall Street Journal reporter who contributed to the Journal's "Heard on the Street" column, conspired with Carpenter and others to reveal the contents of the column before it was printed in the Journal, thus allowing the conspirators to buy and sell stock with the foreknowledge that stock prices would be affected by publication of the column. Winans and others were convicted of wire fraud; they appealed the wire-fraud convictions on the grounds that had not deprived the Journal of any money or property. It should be noted that this is not an "insider trading" case, since Winans was no corporate insider, nor was it alleged that he had received illegal insider tips. The "Heard on the Street" column published information about companies and stocks that would be available to anyone who did the requisite research into publicly available materials. Since the information reported in the columns did not itself belong to the Journal, and since the Journal planned to publish the information for a general readership, traditional trade secret notions did not apply. Where was the property interest necessary for a wire-fraud conviction? The Supreme Court reasoned that although the facts being reported in the column were not exclusive to the Journal, the Journal's right--presumably based in contract--to Winan's keeping the information confidential gave rise to a property interest adequate to support a wire-fraud conviction. Once the Court reached this conclusion, upholding the convictions of the other defendants followed: even if one does not have a direct fiduciary duty to protect a trade secret or confidential information, one can become civilly or criminally liable if one conspires with, solicits, or aids and abets a fiduciary to disclose such information in violation of that person's duty. The Court's decision in Carpenter has received significant criticism in the academic community for its expansion of the contours of "intangible property," but it remains good law today. How the theories didn't fit With these two legal approaches--trade secrets and breach of confidence--in mind, we can turn back to the facts of the Riggs case and see how well, or how poorly, the theories applied in the case of Craig Neidorf. With regard to any trade-secret theory, it is worth noting first of all that the alleged victim, BellSouth, is a Regional Bell Operating Company--a monopoly telephone-service provider for a geographic region in the United States. Remember the comment in the Kewanee Oil case that a trade secret "gives one an opportunity to obtain an advantage over competitors who do not know or use it"? There are strong arguments that--at least so far as the provision of Emergency 911 service goes--BellSouth has no "competitors" within any normal meaning of the term. And even if BellSouth did have competitors, it is likely that they would both know and use the E911 information, since the specifications of this particular phone service are standardized among the regional Bells. Moreover, as became clear in the course of the Neidorf trial, the information contained in the E911 document was available to the general public as well, for a nominal fee. (One of the dramatic developments at trial occurred during the cross-examination of a BellSouth witness who had testified that the E911 document was worth nearly $80,000. Neidorf's counsel showed her a publication containing substantially the same information that was available from a regional Bell or from Bellcore, the Bells' research arm, for $13.to any member of the public that ordered it over an 800 number.) Under the circumstances, if the Bells wanted to maintain the E911 information as a trade secret, they hadn't taken the kind of steps one might normally think a keeper of a secret would take. BellSouth had, however, taken the step of labelling the E911 document as "NOT TO BE DISCLOSED OUTSIDE OF BELLSOUTH OR ITS SUBSIDIARIES" (it was this kind of labelling that Neidorf attempted to remove as he edited the document for publication in Phrack). This fact may have been responsible for the federal prosecutors' oversight in not determining prior to trial whethe E911 document actually met the tests of trade-secret law. It is possible that prosecutors, unfamiliar with the nuances of trade-secret law, read the "proprietary" warnings and, reasonining backwards, concluded that the information thus labelled must be trade-secret information. If so, this was a fatal error on the government's part. In the face of strong evidence that the E911 document was neither secret nor competitively or financially very valuable, any hope the government had of proving the document to be a trade secret evaporated. (It's also possible that the government reasoned that the E911 information could be used by malicious hackers to damage the telephone system in some way. The trial transcript shows instances in which the government attempted to elicit information of this sort. It should be noted, however, that even if the information did lend itself to abuse and vandalism, this fact alone does not bring it within the scope of trade-secret law.) Nor did the facts lend themselves to a Carpenter-like theory based on breach of confidence; Neidorf had no duties to BellSouth not to disclose its information. Neither did Riggs, from whom Neidorf acquired a copy of the document. The Riggs case lacks the linchpin necessary for a conviction based on Carpenter--in order for nonfiduciaries to be convicted, there must be a breaching fiduciary involved in the scheme in some way. There can be no breach of a duty of confidence when there is no duty to be breached. Thus, when its trade-secret theory of the E911 document was demolished in mid-trial, the government had no fall-back theory to rely on with regard to its property-crime counts, and the prosecution quickly sought a settlement on terms favorable to Neidorf, dropping prosecution of the case in return for Neidorf's agreement to a pre-trial diversion on one minor count. The lesson to be learned from Riggs is that it is no easy task to establish the elements of a theft crime when the "property" in question is information. There are good reasons, in a free society, that this should be so--the proper functioning of free speech and a free press require that information be presumptively free, and that the publication of information be presumptively protected from regulation by the government or by private entities invoking the civil- or criminal-law property protections. The government in Riggs failed in its duty to recognize this presumption by failing to make the necessary effort to understand the intellectual property issues of the case. Had it done so, Neidorf might have been spared an expensive and painful trial, and the government might have been spared a black eye.* *See, e.g., "Score One for the Hackers of America," NEWSWEEK, Aug. 6 1990, page 48, and "Dial 1-800 ... for BellSouth 'Secrets'," COMPUTERWORLD, Aug. 6, 1990, page 8. =================================================================== Mike Godwin, a 1990 guaduate of the University fo Texas School of Law, is legal services counsel for the Electronic Frontier Foundation. EFF filed an amicus curiae brief in the Neidorf case, arguing that Neidorf's attempted publication of the E911 document was protected speech under the First Amendment. Godwin received a B.A. in liberal arts from the University of Texas at Austin in 1980. Prior to law school, Godwin worked as a journalist and as a computer consultant. ------------------------------ Date: Sun, 27 Mar 1994 23:21:55 -0800 (PST) From: "Arthur R. McGee" Subject: File 3--NII & Service to the Poor (fwd) Original Sender--"Karen G. Schneider" Date--Sun, 27 Mar 1994 20:06:59 -0500 Subject--NII & Service to the Poor The Poor Will Always Be With Us... I am a librarian in a "poor but proud" city--Newark, New Jersey. Every day we see poor people in this library. Some people are *obviously* poor--their personal appearance speaks for their situations. But many, many more people are impoverished in ways at once only subtly apparent yet highly pernicious: they are poorly educated, poorly skilled and poorly prepared for the massive changes in informtion-sharing behavior our world is now experiencing. These poor are the children growing up without exposure to computers--not at school, not at home, not even, for the most part, in our libraries. These poor are the adults with such weak educations and limited information-seeking skills that they passively accept the quality, quality and media of information we provide them, regardless of how limited or antiquated our services. These poor are the people who have never heard of the "information superhighway," who will not purchase computers with modems, who have never touched keyboards, who do not know what the Internet is. Those of you who believe that "everyone" is aware of the upcoming information revolution do not work with the reality of poor inner-city lives. One of the quandaries of the information revolution is that those who are information-poor are unaware of it, so they are unable to participate in it. So far, the information revolution has been largely waged by highly educated and informed advocates, people who often have tremendous resources at their disposal. These advocates have spoken quite well on behalf of their own needs; some have attempted to speak to the needs of the information-poor (as, in essence, I am doing here). But the information-rich, however well-meaning, have largely determined and prioritized the issues of the information revolution according to their own visions and realities. So across our nation and the world, we hear of multimedia cable extended to private homes, but not to housing projects; we read about public kiosks in wealthy communities, but city schools lack computers; in academic communities, nearly everyone seems to have an Internet account, but in the middle of a poor city, there is not so much as a public-use computer available in the main library. Information access as a basic public service is broached only tentatively at the national level. There is much discussion of commercializing resources but little discussion about ensuring access for everyone, even with respect to basic community information. Communities with freenets can be lauded for their efforts in public computing, but the implementation of these projects invariably assumes a information-rich public proactively seeking and demanding such services. Who, then, will speak for the poor? The problem is (at minimum) two-fold. The information have-nots need advocates, guides, leaders and visionaries to help them understand what it is they are missing out on, and why it is important. We who wish to provide such advocacy, on the other hand, need information from our disenfranchised communities so we can better understand what *we* are missing out on, and why it is important--in other words, to understand what goods and services we need to provide; to tailor and temper our advocacy with a real-world understanding of what people need for survival and growth in tomorrow's culture. Here in Newark, we have several groups attempting to do just that: to reach out to the disenfranchised, draw them in, and empower them to shape tomorrow's information revolution. There are grass-roots community organizers speaking to small groups around the city, and Newark Public Library is beginning to reach out to both city leaders and community organizers to develop a coalition of information advocates for Newark. We dream of a network that will ensure that every Newark resident will have access to information--and by access we mean not only physical availability but *awareness of resources* and *resource relevance*--two stipulations which make our paradigm of access unusual and, in some ways, extremely progressive. We can only hope that other communities join us in repaving the information highway to meet the needs of not just its present but also its potential travellers. Our efforts demonstrate that unless things change, the information revolution will only aggravate the inequities underlying current policies for providing basic services in our country. Out of necessity, many of us now assume that the funds essential to maintaining this network will come from local (city and county) resources. (We are hopeful that we are eligible for a special infusion of funds to help us initiate this project, but experience teaches city workers that we cannot rely on federal resources for program maintenance.) This is not new for libraries; in our country, the vast majority of funds for public libraries are provided at the city or county level. If it is the de facto funding standard for the new information resources, however, it bodes poorly for our country's future with respect to equity in information access. Jonathon Kozol, in _Savage Inequalities_, spoke to the inherent unfairness of using local funds to pay for education; just as we will perpetuate information poverty if we do not provide people relevant information in ways they can access it, so too will we perpetuate poverty in all its forms if we persist in funding national policies with local taxes. We must not codify inequality for the next generation. The poor will always be with us--and, as working with the poor has taught me, they *are* us. The most elaborate networking scheme, the fastest computers, the most dazzling graphics are all for naught if they are really a private service for a specially-privileged population. It is incumbent on those in public service, particularly the public information services, and especially librarians, that we become aggressive participants in the information revolution--lobbying, writing, organizing, or whatever else it takes to become equal participants in the desing of the information superhighway and all it represents--or we, and those we represent, will be left behind as forgotten casualties of a silent battle. Karen G. Schneider kgs@panix.com * * * ------------------------------ End of Computer Underground Digest #6.34 ************************************

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