Computer underground Digest Sun Nov 12, 1995 Volume 7 : Issue 89 ISSN 1004-042X Editors: J

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Computer underground Digest Sun Nov 12, 1995 Volume 7 : Issue 89 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU Archivist: Brendan Kehoe Shadow Master: Stanton McCandlish Field Agent Extraordinaire: David Smith Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Cu Digest Homepage: http://www.soci.niu.edu/~cudigest CONTENTS, #7.88 (Sun, Nov 12, 1995) FIle 1--Religious Right Threatens to Shut Down Net: Call NOW FIle 2--VTW BillWatch #23: Digital Telephony overview FIle 3--FW: RE: letter to Congress FIle 4--Cu Digest Header Info (unchanged since 5 Nov, 1995) CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN THE CONCLUDING FILE AT THE END OF EACH ISSUE. --------------------------------------------------------------------- Date: Mon, 6 Nov 1995 13:43:13 -0500 From: ACLUNATL@AOL.COM Subject: FIle 1--Religious Right Threatens to Shut Down Net: Call NOW Here are the advocacy instructions for individuals opposed to the Federal Online Indecency Legislation that we promised last week. ======================================================================== CAMPAIGN TO STOP THE EXON/COATS COMMUNICATIONS DECENCY ACT (SEE THE LIST OF CAMPAIGN COALITION MEMBERS AT THE END) Update: -Latest News: The Christian Coalition is pushing Congress to censor the net more heavily than even Sen. J.J. Exon ever imagined. There is the very real possibility that they may succeed. You should be very worried. We are. -What You Can Do Now: Follow the directions below and call House Speaker Gingrich and Senate Leader Dole. Implore them to allow parents to make choices for their children, instead of government censors. Volunteer to join the fight by helping organize in your home town. CAMPAIGN TO STOP THE UNCONSTITUTIONAL COMMUNICATIONS DECENCY ACT Nov 2, 1995 PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT WITH THIS BANNER INTACT REDISTRIBUTE ONLY UNTIL December 1, 1995 REPRODUCE THIS ALERT ONLY IN RELEVANT FORUMS ________________________________________________________________________ CONTENTS The Latest News What You Can Do Now The letter from Ed Meese and the Christian Right Chronology of the CDA For More Information List Of Participating Organizations ________________________________________________________________________ THE LATEST NEWS Since the very first day that Senator J.J. Exon (D-NE) proposed censorship legislation for the Internet, the Christian Right has pushed for the most restrictive regulations they could think of. The Religious Right (which does not necessarily speak for all religious people concerned with this issue) recently tipped their hand in a letter to Sen. Larry Pressler (R-SD) and Rep. Thomas Bliley (R-VA) requesting a new and more restrictive net censorship proposal. There are essentially three new dangerous elements of their campaign to shut down cyberspace: INTERNET PROVIDERS, ONLINE SERVICES, AND LIBRARIES CRIMINALLY LIABLE FOR EXPRESSION ONLINE The Religious Right has proposed to hold anyone who provides access to the Internet or other interactive media, including online services providers, ISP's, BBS's, Libraries, and Schools, criminally liable for all speech carried on the network. In order to avoid liability under this provision, service providers would be forced to monitor user's electronic communications to be assured that no "indecent" material is transmitted across their networks. This proposal is MORE RESTRICTIVE than the Exon Communications Decency Act, or any other net censorship legislation currently in Congress. In their letter to Congress, the Religious Right says: [Providers] would simply be required to avoid KNOWING violations of the law. [emphasis added] However, the "knowing" standard is vague enough that the mere knowledge that such material exists could be sufficient to trigger criminal liability. A single complaint or even a news report could force a service provider to take down a web page, remove posts to chat rooms or other discussion forums, or shut down listservs in order to avoid going to jail and facing huge fines. A STANDARD FOR INDECENCY The proposals pushed by the Christian Coalition relies on the unconstitutional "indecency standard". Like the Exon Communications Decency Act, the Christian Coalition seeks to regulate all indecent speech online. Indecency is a broad category that includes everything from George Carlin's "seven dirty words" to such classic novels and "The Catcher in the Rye" and "Lady Chatterly's Lover". The Supreme Court has ruled that restrictions on indecent speech are Constitutional only if they rely on the "least restrictive means". Broad indecency restrictions on interactive media do not satisfy the "least restrictive means" test, because interactive media allows users and parents tremendous control over the information they receive. Any legislation which attempts to apply an indecency restriction to the Internet is unconstitutional on its face. The Christian Coalition's proposal that relies on an indecency restriction contemplates dumbing down every conversation, web page, newsgroup, and mailing list on the Internet to the level of what is not offensive to children. What kind of discussions between adults are possible in an arena where everything has been reduced to the level of the Lion King? UNPRECEDENTED CONTROL OVER ONLINE SPEECH FOR THE FCC The Christian Coalition would give the FCC broad jurisdiction over cyberspace. It would allow the FCC jurisdiction over your online speech, and over the design Internet software, such as web browsers and filtering programs that parents can use to control their children's access to the Internet. The Internet has developed from a government project to a market-driven economic boom for thousands of businesses. Giving the FCC authority over this medium would significantly hinder the growth of this new industry. ________________________________________________________________________ WHAT YOU CAN DO NOW 1. The proposals from the Religious Right will literally destroy online speech as we know it. The odds of stopping this are not certain. There is a very real chance that this legislation will pass, and we will experience a period of uncertainty and chilling of speech while an appropriate test case attempts to reach the Supreme Court (should it even get there!) The Religious Right has a strong grass-roots network. We need to counter their energy and ensure cyberspace is not lost due to them. IMMEDIATELY CALL House Speaker Gingrich (R-GA) and Senate Leader Dole (R-KS) and urge them to oppose the Christian Coalition's proposal. Name, Address, and Party Phone Fax ======================== ============== ============== R GA Gingrich, Newt 1-202-225-4501 1-202-225-4656 R KS Dole, Robert 1-202-224-6521 1-202-224-8952 If you're at a loss for words, try one of the following: Please oppose the recent proposal from the Religious Right to censor the Internet. The only effective way to address children's access to the Internet is through parental control tools outlined by the Cox/White/Wyden approach. or As a religious person and a parent, I oppose the Religious Right's attempts to censor the Internet. I am the best person to monitor my child's access to the Internet using parental control tools as outlined in the Cox/White/Wyden approach. 2. Join the online fight by becoming a volunteer for your district! Check to see if you're legislator is in the list below. If they are not, consult the free ZIPPER service that matches Zip Codes to Congressional districts with about 85% accuracy at: URL:http://www.stardot.com/~lukeseem/zip.html The conference committee legislators are: House: Barr (R-GA), Barton (R-TX), Berman (R-CA), Bliley (R-VA), Boucher (D-VA), Brown (D-OH), Bryant (D-TX), Buyer (R-IN), Conyers (D-MI), Dingell (D-MI), Eshoo (D-CA), Fields (R-TX), Flanagan (R-IL), Frisa (R-NY), Gallegly (R-CA), Goodlatte (R-VA), Gordon (D-TN), Hastert (R-IL), Hoke (R-OH), Hyde (R-IL), Jackson-Lee (D-TX), Klug (R-WI), Lincoln (D-AR), Markey (D-MA), Moorhead (R-CA), Oxley (R-OH), Paxon (R-NY), Rush (D-IL), Schaefer (R-CO), Schroeder (D-CO), Scott (D-VA), Stearns (R-FL), White (R-WA) Senate: Burns (R-MT), Exon (D-NE), Ford (D-KY), Gorton (R-WA), Hollings (D-SC), Inouye (D-HI), Lott (R-MS), McCain (R-AZ), Pressler (R-SD), Rockefeller (D-WV), Stevens (R-AK) If your legislator is on the conference committee, you have a chance to influence their vote on this issue with your power as a constituent. Volunteer to help educate your legislator by sending mail to volunteer@vtw.org. A coalition volunteer will be in touch with you. You can starting working to help spread the word in your district by sending this letter to five friends. Ask them to call Dole and Gingrich as well. 3. The People for the American Way (PFAW) and the American Civil Liberties Union are organizing a letter from ORGANIZATIONS to the Conference Committee to oppose the censorship provisions. If you are a representative of an organization that would like to signon to this letter, you should contact jlesser@pfaw.org IMMEDIATELY. 4. We can't suggest relaxing at this point. The stakes are too high, and the risk is too great. Everything now hangs in the balance. ________________________________________________________________________ THE LETTER FROM ED MEESE AND THE CHRISTIAN RIGHT October 16, 1995 The Honorable Thomas J. Bliley, Jr. Chairman Committee on Commerce United States House of Representatives Washington, DC 20515 The Honorable Larry Pressler, Chairman Committee on Commerce, Science, and Transportation United States Senate Washington, DC 20510 Re: Computer Pornography Provisions in Telecommunications Bill Dear Mr. Chairmen: We are writing to urge the conference committee seeking to reconcile the telecommunications bills passed by the House and Senate include in the final bill the strongest possible criminal law provisions to address the growing and immediate problem of computer pornography without any exemptions, defenses, or political favors of any kind accorded to those who knowingly participate in the distribution of obscenity to anyone or indecency to children. While there is no perfect solution to the problem of computer pornography, Congress could not hope to solve this problem by holding liable only some who are responsible for the problem. The recent Justice Department prosecution project targeting those who violated federal child pornography law using America On-Line is instructive in this regard. More than ninety individuals were targeted for prosecution although many others, perhaps as many as 3,000 according to one press report, were originally targeted by the Department of Justice as potential violators of child pornography laws. Apparently due to a shortage of investigative and prosecutorial resources, the project was limited. Since there are insufficient resources to investigate and prosecute but a fraction of those that are trafficking in child pornography by computer, then there will likely be even fewer resources available to investigate and prosecute those involved in obscenity and indecency. Thousands of individuals both in this country and abroad are regularly placing obscenity and indecency on the Internet. It is not possible to make anything more than a dent in the serious problem of computer pornography if Congress is willing to hold liable only those who place such material on the Internet while at the same time giving legal exemptions or defenses to service or access providers who profit from and are instrumental to the distribution of such material. The Justice Department normally targest the major offenders of laws. In obscenity cases prosecuted to date, it has targeted large companies which have been responsible for the nationwide distribution of obscenity and who have made large profits by violating federal laws. Prosecution of such companies has made a substantial impact in curbing the distribution of obscenity, with many such offenders going out of business altogether. So too will prosecution of access providers which _knowingly_ traffic in obscenity have a substantial impact, a far greater impact than just the prosecution of a person who places one or a few prohibited images on the Internet. Such a person could not traffic in pornography without the aid or facilitation of the service or access providers. Indeed, if Congress includes provisions protecting access or service providers in whatever bill is finally passed, it is likely that most in this country who are trafficking in indecency to children or obscenity would continue to do so since the threat of prosecution would be minuscule, given the numbers of those currently involved in this activity. It is also likely that those outside our country who are engaged in these activities would continue to do so since it would be nearly impossible to extradite them to the United States for prosecution. Thus, unless all who knowingly participate in such matters are subject to the law, the Internet will remain the same and Congress will have failed in its responsibilities to the children and families of America. Federal law has traditionally assigned equal liability both for those who commit a crime and those who aid and abet a crime. See Title 18 U.S.C. Code Section 2: "(a) whoever [sic] commits an offense against the United States or aids, abets, councils [sic], commands, induces, or procures its commission, is punishable as a principle [sic]." Service or access providers who knowingly participate in the distribution of indecency to children or in obscenity to anyone are aiders and abettors in the commission of those crimes and thus should have liability under any law Congress passes. Current federal law on child pornography provides no no exemption or defense for access providers. Thus, the child pornography law provides a strong deterrent against trafficking in child pornography for those who would otherwise knowingly participate in its distribution by computer whether pedophile or access provider. The changes in law which we support would not hold an access provider criminally liable for all illegal pornography on the Internet which their services may be used to obtain. Nor would it require that access providers check all communications to ensure that no violations of the law are occurring. They would simply be required to avoid knowing violations of the law. This is an obligation imposed on all citizens. Technology exists today for access providers, through a simple process, to target or flag and remove files containing objectionable material. We support the House-passed language insofar as it addresses obscenity by amendment Title 18, Sections 1462, 1465, and 1467 of the United States Code. The provision restricting transmission of indecency in the House-passed bill, an amendment to Section 1465, is inadequate, and we urge that it be substantially revised. Attached is the specific language we support which includes the House passed language on obscenity and includes revisions on both the House passed language on indecency, which would amend Title 18 and the Senate-passed language on indecency, which would amend Title 47. The combination of these provisions, we believe, would provide effective laws to curb obscenity and indecency on the Internet by establishing that all who knowingly participate in the distribution or facilitation of obscenity to anyone or indecency to children would be subject to the law. Thank you for your concern and attention to this matter. [signed] Edwin Meese III Ralph Reed Christian Coalition Donald E. Wildmon American Family Association Alan Sears, Former Executive Director Atty General's Commission on Pornography Phyllis Shafly Eagle Forum Beverly LaHaye Concerned Women for America Reverend Louis P. Sheldon Traditional Values Coalition Jay Sekulow American Center for Law and Justice Paul Weyrich Free Congress Foundation Paul McGeady Morality in Media Len Munsil National Family Legal Foundation Robert Peters Morality in Media Kenneth Sukhia Former United States Attorney, N.D., FL Former Chairman, Atty General's Advisory Committee Subcommittee on Child Exploitation and Obscenity -------------------------- Section 1465 of Title 18, United States Code, is amended to punish distribution by computer of indecent material to minors by adding at the end the following: Whoever knowingly communicates, transmits, or makes available for communication or transmission, in or effecting interstate or foreign commerce an indecent communication by computer to any person the communicator or transmitter believes has not attained the age of 18 years of age, knowing that such communication will be obtained by a person believed to be under 18 years of age, shall be fined under this title or imprisoned not more than five years, or both. TITLE IV -- OBSCENE, HARASSING, AND WRONGFUL UTILIZATION OF TELECOMMUNICATIONS FACILITY SEC. 401. SHORT TITLE This title may be cited as the "Communications Decency Act of 1995". Sec. 402. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934 Section 223 (47 U.S.C. 223) is amended -- (1) by striking subsection (a) and inserting in lieu of [sic]: ``(a) Whoever-- ``(1) in the District of Columbia or in interstate or foreign communications -- ``(A) by means of telecommunications device knowingly-- ``(i) makes, creates, or solicits, and ``(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; ``(B) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communication; ``(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or ``(D) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication; ``(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years, or both.''; and (2) by adding at the end the following new subsections: ``(d) Whoever-- ``(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any indecent communication in any form including any comment, request, suggestion, proposal, or image, to any person under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; or ``(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years or both. ``(e) Defenses to subsections (a) and (d), restrictions on access, judicial remedies respecting restrictions for persons providing information services and access to information services-- "(1) It is a defense to prosecution that a person has complied with regulations designed to restrict access to indecent communications to those 18 years old or older as enacted by the Federal Communications Commission which shall prepare final regulations within 120 days of the passage of this bill. Until such regulations become effective, it is a defense to prosecution that the person has blocked or restricted access to indecent communications to any person under 18 years of age through the use of verified credit card, adult access code, or adult personal identification number (PIN). Nothing in this subsection shall be construed to treat enhanced information services as common carriage." "(2) No cause of action may be brought in any court or any administrative agency against any person on account of any activity which is not in violation of any law punishable by criminal or civil penalty, which activity the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. (f) Nothing in this subsection shall preclude any State or local government from enacting and enforcing laws and regulations which do not result in the imposition of inconsistent obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by subsection (d)(2)." (g) Nothing in subsection (a), (d), or (e) or in the defenses to prosecution under (e) shall be construed to affect or limit the application or enforcement of any other Federal law. (h) The use of the term 'telecommunications device' in this section shall not impose new obligations on (one-way) broadcast radio or (one-way) broadcast television operators licensed by the Commission or (one-way) cable services registered with the Federal Communications Commission and covered by obscenity and indecency provisions elsewhere in this Act. Sec. 403. OBSCENE PROGRAMMING ON CABLE TELEVISION. Section 639 (47 U.S.C. 559) is amended by striking "10,000" and inserting "$100,000" Sec. 404. BROADCASTING OBSCENE LANGUAGE ON THE RADIO. Section 1466 of Title 18, United States Code, is amended by striking out "$10,000" and inserting "$100,000". Sec. 405 SEPARABILITY "(a) If any provision of this Title, including amendments to this Title of [sic] the application thereof to any person or circumstance is held invalid, the remainder of this Title and the application of such provision to other persons or circumstances shall not be affected thereby." ________________________________________________________________________ CHRONOLOGY OF THE COMMUNICATIONS DECENCY ACT Sep 26, '95 Sen. Russ Feingold urges committee members to drop Managers Amendment and the CDA from the Telecommunications Deregulation bill Aug 4, '95 House passes HR1555 which goes into conference with S652. Aug 4, '95 House votes to attach Managers Amendment (which contains new criminal penalties for speech online) to Telecommunications Reform bill (HR1555). Aug 4, '95 House votes 421-4 to attach HR1978 to Telecommunications Reform bill (HR1555). Jun 30, '95 Cox and Wyden introduce the "Internet Freedom and Family Empowerment Act" (HR 1978) as an alternative to the CDA. Jun 21, '95 Several prominent House members publicly announce their opposition to the CDA, including Rep. Newt Gingrich (R-GA), Rep. Chris Cox (R-CA), and Rep. Ron Wyden (D-OR). Jun 14, '95 The Senate passes the CDA as attached to the Telecomm reform bill (S 652) by a vote of 84-16. The Leahy bill (S 714) is not passed. May 24, '95 The House Telecomm Reform bill (HR 1555) leaves committee in the House with the Leahy alternative attached to it, thanks to Rep. Ron Klink of (D-PA). The Communications Decency Act is not attached to it. Apr 7, '95 Sen. Leahy (D-VT) introduces S.714, an alternative to the Exon/Gorton bill, which commissions the Dept. of Justice to study the problem to see if additional legislation (such as the CDA) is necessary. Mar 23, '95 S314 amended and attached to the telecommunications reform bill by Sen. Gorton (R-WA). Language provides some provider protection, but continues to infringe upon email privacy and free speech. Feb 21, '95 HR1004 referred to the House Commerce and Judiciary committees Feb 21, '95 HR1004 introduced by Rep. Johnson (D-SD) Feb 1, '95 S314 referred to the Senate Commerce committee Feb 1, '95 S314 introduced by Sen. Exon (D-NE) and Gorton (R-WA). ________________________________________________________________________ FOR MORE INFORMATION Web Sites URL:http://www.vtw.org/exon/ URL:http://epic.org/ URL:http://www.eff.org/pub/Alerts/ URL:http://www.cdt.org/cda.html URL:http://outpost.callnet.com/outpost.html FTP Archives URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech/00-INDEX.FREESPEECH URL:ftp://ftp.eff.org/pub/Alerts/ Gopher Archives: URL:gopher://gopher.panix.com/11/vtw/exon URL:gopher://gopher.eff.org/11/Alerts Email: vtw@vtw.org (put "send alert" in the subject line for the latest alert, or "send cdafaq" for the CDA FAQ) cda-info@cdt.org (General CDA information) cda-stat@cdt.org (Current status of the CDA) ________________________________________________________________________ LIST OF PARTICIPATING ORGANIZATIONS In order to use the net more effectively, several organizations have joined forces on a single Congressional net campaign to stop the Communications Decency Act. American Civil Liberties Union * American Communication Association * American Council for the Arts * Arts & Technology Society * Association of Alternative Newsweeklies * biancaTroll productions * Boston Coalition for Freedom of Expression * Californians Against Censorship Together * Center For Democracy And Technology * Centre for Democratic Communications * Center for Public Representation * Citizen's Voice - New Zealand * Cloud 9 Internet *Computer Communicators Association * Computel Network Services * Computer Professionals for Social Responsibility * Cross Connection * Cyber-Rights Campaign * CyberQueer Lounge * Dutch Digital Citizens' Movement * ECHO Communications Group, Inc. * Electronic Frontier Canada * Electronic Frontier Foundation * Electronic Frontier Foundation - Austin * Electronic Frontiers Australia * Electronic Frontiers Houston * Electronic Frontiers New Hampshire * Electronic Privacy Information Center * Feminists For Free Expression * First Amendment Teach-In * Florida Coalition Against Censorship * FranceCom, Inc. Web Advertising Services * Friendly Anti-Censorship Taskforce for Students * Hands Off! The Net * Inland Book Company * Inner Circle Technologies, Inc. * Inst. for Global Communications * Internet On-Ramp, Inc. * Internet Users Consortium * Joint Artists' and Music Promotions Political Action Committee * The Libertarian Party * Marijuana Policy Project * Metropolitan Data Networks Ltd. * MindVox * MN Grassroots Party * National Bicycle Greenway * National Campaign for Freedom of Expression * National Coalition Against Censorship * National Gay and Lesbian Task Force * National Public Telecomputing Network * National Writers Union * Oregon Coast RISC * Panix Public Access Internet * People for the American Way * Republican Liberty Caucus * Rock Out Censorship * Society for Electronic Access * The Thing International BBS Network * The WELL * Voters Telecommunications Watch (Note: All 'Electronic Frontier' organizations are independent entities, not EFF chapters or divisions.) ------------------------------ Date: Mon, 06 Nov 1995 23:11:31 -0500 From: shabbir@VTW.ORG(Shabbir J. Safdar, VTW) Subject: FIle 2--VTW BillWatch #23: Digital Telephony overview (MODERATORS' NOTE: Another in the insightful commentaries from Shabbir Safdar of VTW BillWatch. To obtain full issues of Billwatch, see the URL at the end of this post)). EXTRACTED FROM: Issue #23, Date: Sun Nov 5 20:44:08 EST 1995 End VTW BillWatch Issue #23, Date: Sun Nov 5 20:44:08 EST 1995 VTW BillWatch #23 VTW BillWatch: A weekly newsletter tracking US Federal legislation affecting civil liberties. BillWatch is published at the end of every week as long as Congress is in session. (Congress is in session) Do not remove this banner. See distribution instructions at the end. .................. COMMENTARY ON FBI WIRETAP PROPOSALS You'd have to be living without television, newspapers, or radio not to have seen all the flap over the FBI's proposal for wiretap funding. There has been a tremendous amount of misinformation in the press and on the net, so we'd like to take this opportunity to put all of this into perspective. Having opposed this legislative measure last year, we are painfully well- informed on the nature of the debate. The wiretapping plan you're seeing debated now is actually the funding phase of last year's "Digital Telephony" bill, now known as CALEA (Communications Assistance for Law Enforcement Act) Sponsored by Sen. Leahy (D-VT) and Rep. Edwards (previously D-CA), the bill was extremely controversial among civil liberties groups, but received very little mainstream press, and a moderate amount of debate on the Hill. The FBI had strongly suggested that advancing changes in technology would make it impossible for them to carry out court-authorized communications interceptions. Although they never produced public proof of a foiled interception, the general feel in Congress was to grant them the benefit of the doubt and give them a bill that would accomodate their needs. A bill was written that would require the telecommunications industry to build in wiretap functionality into their products, such as telephone switches. This is where the debate in the civil liberties community began. The Electronic Frontier Foundation used their connections and their position to hack up the bill to remove several provisions. The ability for any detective to issue an administrative subpoena (doesn't require a judge) to get transactional information such as who you called and for how long was removed, now requiring the approval of a judge. In addition, any inclusion of Internet services was removed. This meant that Netscape would not have to build in special wiretapping code should you fall under an a court-authorized interception order during an investigation. In addition, the FBI would now be forced to state publicly its requirements for wiretapping, and the justifications for the amount of wiretapping they wanted to do, so they could tell the communications companies what sorts of capability to build into their products. This probably seemed like a good compromise for the FBI at the time. They reduce the resistance to their bill, in exchange for which they had to publish some information that was probably semi-public anyway. They're probably kicking themselves now. The logic at the EFF was that Congress was going to pass such a bill this year anyway, so wouldn't we rather have one that improved privacy in some places and limited its scope in others, rather than let them get everything they want by working with legislators that are not privacy-savvy. Sort of an "enemy you know is less dangerous than one you don't" argument. Other groups disagreed. The Electronic Privacy Information Center (EPIC) and the Voters Telecommunications Watch both led an online campaign to fight the bill. In the end, the bill was passed without much floor debate and very little media attention. One stickler in all of this was the cost. The telecommunications industry said, rightfully so, that these additional features weren't market-driven (unless you're a Third World dictator buying telecommunications hardware to spy on your people) so they were basically being taxed unfairly. The FBI responded by saying that before any changes would be expected, the Federal Government would authorize the spending of US$500 million as reimbursement for their loss. This funding phase brings us to the present time. On Monday October 16 1995, the FBI published in the Federal Register it's requirements for wiretapping capacity. Civil liberties advocates salivated, knowing that for the first time in history, this backroom process that never saw any public accountability was going to be scrutinized in the light of day. Many civil liberties advocates hoped the media would finally report this as newsworthy, assuming that should the American people hear about it, they would be appalled. The media responded in spades, with paranoia about Big Brother and wiretapping abuses making front page news throughout the country. This couldn't have come at a worse time for the Administration. Reeling from the media flap over Waco and Ruby Ridge, law enforcement is not having its best public relations year. Civil liberties advocates went on the attack, deconstructing the published wiretap requirements and asking the FBI exactly what they needed all these wiretaps for. The root of the issue lies in a subtlety that no one anticipated. Civil liberties advocates thought the FBI, having previously conducted around 1,000 interceptions per year, would simply publish a number that gave them some "growing room" given some assumption that crime was generally increasing. Instead, the FBI published percentages. The report in the Federal Register said that if a telephone switch can accomodate X number of subscribers, then the switch must be capable of performing X * Y% of interceptions SIMULTANEOUSLY, where Y% has a minimum amount of .05%, but can rise as high as 1% if you live in a geographic area with lots of crime. Here is where the debate begins, and the misinformation seeps in. When you look at the number of subscribers, that number may be much different depending on how you interpret it. Assume that the phone switch that serves your area has 1,000,000 subscribers on it, and you live in a high crime area, such as VTW's birthplace, New York City. The math is simple, 1% of 1,000,000 subscribers is 10,000 simultaneous wiretaps. Isn't this a little high? Not only have there been only about 1,000 wiretaps authorized in recent years, but they weren't all at once, and all within the same neighborhood! To their credit, the FBI says they were misinterpreted. A close look at the announcement in the Federal Register shows them to be right. However you should be just as alarmed. The FBI claims that just because a telephone switch can accomodate 1,000,000 people doesn't mean they can all pick up the phone and dial a friend at once. If you look closely at the notice in the Federal Register, it says: the percentage is applied to the engineered subscriber capacity of a switch Presumably, if they had meant total subscribers, they would have said total subscribers. It would be uncharacteristic of the FBI is ask for less than what they need. However this doesn't actually make the numbers so much better than you should be unconcerned. The number is still appalling higher than anything previously requested, and you should be very concerned. Take the phone switch in our previous example. Assume that only half the subscribers can actually pick up their handsets and make a call simultaneously. That cuts the actual number of simultaneous required interceptions to 5,000, and that's just in New York. It's unreasonable for our government to fund such an activity without the FBI explaining their reasons for needing this much capacity. Has there been a great leap in the last few years of crimes for which interceptions are the only available tool? The Electronic Privacy Information Center is fond of pointing out that interceptions in the last few years have been primarily for drugs and gambling. EPIC asserts that not one wiretap has been authorized in the investigation of domestic terrorism such as the World Trade Center or Oklahoma City bombings. The second misinterpretation of these figures is the common printing of the fact that the FBI wishes to wiretap every 1 in 400 or 1 in 100 telephones. We're not really sure how anyone came up with these numbers, as that would apply to specific geographic areas only, not the country as a whole. To blanketly print these numbers without actually talking about the area they apply to is to resort to unnecessary hysteria. The FBI's proposal is chilling enough that we don't need that much hyperbole to justify public concern. Two groups are conducting high profile campaigns on this issue. We urge you to follow them and stay informed. Here is an alphabetical list: The Center for Democracy and Technology (CDT) is a new organization staffed by many of the people who previously worked on this issue at the EFF. CDT is attempting to answer such questions as: * Has the FBI met all the public accountability and oversight criteria required by the statute? and * Does the requested capacity accurately reflect the needs of law enforcement? You can monitor their work by checking out their World Wide Web page at URL:http://www.cdt.org/ The Electronic Privacy Information Center (EPIC) is conducting a campaign to deny funding for the bill, a continuation of last-year's campaign to prevent the passage of the bill itself. You can monitor their work by checking out their World Wide Web page at: URL:http://www.epic.org/ ............. You can receive BillWatch via email, fax, gopher or WWW: BillWatch can be found on the World Wide Web at http://www.vtw.org/billwatch/ BillWatch can be found in Gopherspace at: gopher -p1/vtw/billwatch/ gopher.panix.com ((BillWatch administrative info snipped by CuD editors for parsimony--jt)) ------------------------------ Date: Tue, 7 Nov 95 23:31:14 PST From: jblumen@interramp.com Subject: FIle 3--FW: RE: letter to Congress Here is a copy of a letter I sent to all the conference committee members considering the CDA. Dear : : I am extremely concerned about the First Amendment implications of the Communications Decency Act and the similar manager's mark amendments that were passed by the House. I am an attorney and software company executive who first became involved with on-line legal issues in 1984. In 1987, I wrote Syslaw: The Sysop's Legal Manual, the first book on the law of cyberspace. With my colleague Mark Mangan, I am writing a book on the regulation of the Internet which will be published by Henry Holt in February. I believe the Congress is making a serious error by attempting to apply indecency law to the Internet. Both versions of the bill are over-inclusive and would throw out the baby with the bathwater. The Internet, especially the World Wide Web, is a medium for serious discussion of a wide variety of social issues including politics, ethics and law. Like much of the contents of any bookstore, these publications on the Internet might qualify as "indecent" under the extremely broad definition in both versions of the bill. Information resources and critical discussions relating to AIDS, rape, and pornography are just three examples. Please note that these bills make no exception for material which has serious political, literary, or scientific value; ironically, a polemic against pornography, if it describes what it opposes, is barred by the legislation as completely as an essay on the pleasures of pornography would be. If you pass this legislation unaltered, thousands of newsletters, documents, compilations of useful information and even works of literature will have to be removed from the Internet in order to avoid any risk of liability for the people who maintain them there. If you are not personally familiar with the Internet, you may think of it as the "porn shop" one Senator called it in the June debate on the CDA. Nothing could be further from the truth. The amount of pornography on the Internet is miniscule compared to the amount of serious, intellectual material that would have to be deleted if the legislation passes. In the 1957 case of Butler v. Michigan, the Supreme Court admonished the state that it could not legally set the level of public discourse to include only what is fit for children. That is exactly what the legislation will do to the Internet. Both the CDA and the manager's mark amendment are based on language derived from the laws pertaining to broadcast communications and telephony. Justice Cardozo said years ago that, in making new laws, we must proceed by history and analogy. The history of telecommunications law reveals that the rationale for government involvement in this arena is the scarcity of broadcast bandwidth and the phone company's historical status as a common carrier. Neither of these is the appropriate analogy for the Internet. The Net should be regarded as a constellation of printing presses and bookstores--computers used to create letters, essays, and compilations for people to read, and other computers used to store these works so that people may find and read them. As such, the Internet should be granted the full range of First Amendment protection to which print publications are entitled. Please let me recommend a book that may help you in the difficult task you have ahead of you. Written in 1983, Ithiel de Sola Pool's Technologies of Freedom (Harvard University Press) is a remarkably prescient analysis of the problems and pitfalls involved in regulating electronic communications. Pool says, "The onus is on us to determine whether free societies in the twenty-first century will conduct electronic communications under the conditions of freedom established for the domain of print through centuries of struggle, or whether that great achievement will become lost in a confusion about new technologies." Please think about the fact that the legislation--either version-- would bar from the Internet any discussion, no matter how intellectual or serious, not considered fit for television or radio. Now, walk into your local bookstore and consider what percentage of the books there would need to be censored before they could appear on the Internet. In 1643, the English Parliament ordained a system of licensing printing presses and books and the great poet John Milton appealed for a return to reason. The order, he said, rather than suppressing scandalous and seditious literature, would "be primely to the discouragement of all learning, and the stop of Truth....he who destroys a good book, kills treason itself, kills the image of God, as it were, in the eye." Even bad books, he pointed out, serve their purpose, in that "they to a discreet and judicious reader serve in many respects to discover, to confute, to forewarn, and to illustrate." And this, of course, is the classic truth underlying our First Amendment: the antidote for bad speech is good speech, not censorship. The Congress, if it passes the indecency legislation before it, places itself on the wrong side of freedom of speech, just like that Parliament. I would encourage you to call me if I can answer any questions or provide further insight. I would particularly welcome the opportunity to take you and your colleagues on a tour of serious, legitimate Internet resources that would have to shut down to avoid the brunt of the legislation. Sincerely yours, Jonathan Blumen jblumen@interramp.com http://www.spectacle.org ------------------------------ Date: Sun, 5 Nov 1995 22:51:01 CDT From: CuD Moderators Subject: FIle 4--Cu Digest Header Info (unchanged since 5 Nov, 1995) 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@VMD.CSO.UIUC.EDU DO NOT SEND SUBSCRIPTIONS TO THE MODERATORS. 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