Computer underground Digest Tue Jan 30, 1996 Volume 8 : Issue 09 ISSN 1004-042X Editors: J

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Computer underground Digest Tue Jan 30, 1996 Volume 8 : Issue 09 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, #8.09 (Tue, Jan 30, 1996) File 1--Bernie S. 1/26 hearing File 2--Default gateway to .fidonet.org going down (fwd) File 3--The "Space" of Cyberspace (fwd) File 4--Privacy in the Workplace File 5--Cu Digest Header Info (unchanged since 16 Dec, 1995) CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN THE CONCLUDING FILE AT THE END OF EACH ISSUE. --------------------------------------------------------------------- Date: Tue, 30 Jan 1996 05:50:36 -0500 (EST) From: Emmanuel Goldstein Subject: File 1--Bernie S. 1/26 hearing The events of 1/26/96 were about as unbelievable as the events that have transpired throughout this case. The only positive development is that more people are slowly starting to realize what's happening. Two and a half hours after the sentencing was to be held, the judge arrived in the courtroom. His demeanor seemed significantly more upbeat and open than his previous appearances. Perhaps this had to do with the fact that Ed's lawyer and members of the press were in attendance. The judge allowed everyone involved in the case to speak: Probation Officer Scott Hoak, Haverford Township Detective John K. Morris, Secret Service Agent Thomas L. Varney, Ed's attorney (Ken Trujillo), and Ed himself. Throughout the hearing, the main issue was whether or not Cummings was a threat to the community. Varney was adament in his assessment of Cummings as a danger but when pressed by Trujillo could come up with nothing more substantive than the books found in Cummings' home. These books came from publishers like Loompanix and dealt with such things as making bombs and establishing false identities. The other damning evidence was a list of Secret Service frequencies (from an issue of Monitoring Times), a copy of a magazine article that listed Secret Service codenames for President Reagan (dated 1983), and a material that the Secret Service had suspected was C4 but which later turned out not to be. For some reason they feel compelled to mention this at each hearing as if C4 had actually been found when in fact the substance was something dentists use to mold dentures (the owner of the house was a dentist). Trujillo successfully managed to get Varney to admit that no guns or explosives of any sort were found. No evidence was presented to indicate that Cummings was ever a threat of any sort to anybody. What's more, Cummings proved his responsibility by immediately getting a job after the Secret Service locked him up for most of last year and also by dutifully showing up for each hearing that was scheduled in Easton, even though the threat of more prison time loomed. Cummings apologized to the court for his "odd curiosity" of the past, insisting that he merely collected books and information and never caused harm to anyone. His lawyer pleaded with the judge to allow Cummings to pick up the pieces of his life and not be subjected to any more inhumane treatment. In the end, the judge was not interested in whether or not Cummings posed a threat. He saw a probation violation and therefore withdrew the probation. Sentencing was postponed to March 5th. But the judge showed some compassion. He lowered the $250,000 bail to $100,000. Currently Cummings is imprisoned in the maximum wing of the prison where people with the highest bail are kept. He's with murderers and rapists. Conditions are appalling. One of the prisoners is on death row - his name is Joseph Henry and he bit off a woman's nipples and clitoris before strangling her with a slinky. These are the kinds of people the Secret Service has condemned Cummings to be with. When Cummings was originally put on probation years ago, the probation officer told him he thought the whole thing was a big waste of time. The only thing he was accused of, after all, was taking batteries out of a tone dialer that a cop was questioning him about. And the really ironic part was that Cummings wasn't even the person who took the batteries out - it was one of his friends. But he was not about to turn a friend in for something so absurd. After all, this was a very minor thing - he paid a fine of nearly $3,000 and was put on probation and that was it. When the Secret Service threw Cummings in prison for possession of a red box in early 1995, they knew he could be screwed again when he finally got out since being arrested is a probation violation. And Special Agent Thomas Varney spent a great deal of effort to see that this is exactly what happened. He made multiple trips to Easton and convinced the local authorities to lock Cummings up as if he were the most sadistic of killers. On Friday, Cummings' probation officer did an aboutface and told the court that he thought Cummings represented a very great danger to the community. Outside the courtroom, he and the other local law enforcement people crowded around Varney like kids surrounding a rock star. He was their hero and maybe one day they would be just like him. It would be good to say that the press showed up and the rest of the world finally got to see one of the greatest injustices perpetrated by the Secret Service. But the only headlines to come out of this charade said things like "Judge Hangs Up On Phone Hacker - Bail Revoked After He Continues To Commit Telecom Fraud". Not only has Cummings never been convicted of any kind of fraud - he's never even been accused of it. This is a case based entirely on perceptions and a sick vendetta by a government agency that has turned into a genuine threat against free thinking people everywhere. When Cummings is sentenced on March 5th, he could be put into prison for years. This is what the Secret Service will attempt to ensure. They have to be stopped and they have to be held accountable for what they've already done. We need to be able to protect individual rights against this kind of abuse and so far we have all failed miserably. We have little more than a month to get it right. ------------------------------ From: "David Gersic" Date: Sat, 27 Jan 1996 22:45:21 CDT Subject: File 2--Default gateway to .fidonet.org going down (fwd) --- (fwd) --- *** The Free Ride is Over! *** ===================== Effective March 1, 1996, the Internet Gateway at 1:1/31 will be *shutting down*. At that point, there will be NO MORE "default" gateway for E-Mail coming INbound from the Internet for Zone-1. The reasons for this termination of service are numerous ... o Most recently, an excommunicated SysOp has gone on a rampage of forging subscription messages to subscribe numerous FidoNet addresses to numerous unwanted Internet mailing-lists in a deliberate attempt to "break" the FidoNet routing structure and the gateway structure. Many of the other gateways have already shut down operations. o Many of the *C routing systems have taken it upon themselves to either "bounce" (many doing it improperly addressed) or to deliberately "bit-bucket" NetMail coming from the gateway. I can no longer deal with the voluminous NetMail being received from End-Nodes querying what has happened to their inbound E-Mail coming thru the gateway. o The gateways systems and the "f###.n###.z#.fidonet.org" address syntax was designed for "casual mail", not for subscribing to massive mailing-lists and such. Many people have found ways to deliberately by-pass the controls at the gateways and subscribe to mailing-lists, forcing the inbound traffic to route in thru the gateways and clogging up the FidoNet routing structures. These days, it is fairly easy and inexpensive to get an account with any of the many Internet Service Providers thoughout the country. Those that really need to subscribe to mailing-lists should go that route. o The original intent of setting up the .fidonet.org domain was to have gateways situated geographically close to the Nodes they serve so that the load would be distributed and routing problems on the FidoNet side would be reduced. As of this writing, there are only 34 Nets out of the 431 Nets in Zone-1 which have their INbound E-Mail coming in via gateways other than the "default" gateway. The existing gateway operators and gateway software authors have always been willing to help a new gateway with their setup. The *Cs at the Net level just haven't done their part to strive for getting local gateways in place in their Nets. It just doesn't seem fair to me to keep relying on ONE gateway and the Backbone routing structure to handle over 90% of the Zone's traffic, does it? o People have been writing software which does NOT conform to proper addressing specs which have severly impacted operations of the gateway without even consulting me or even letting me know that their programs exist. o I find that I no longer have the time nor inclination to keep supporting a gateway where folks continue to break the rules of its use and bypass the controls. FidoNet in general has taken this service for granted for far too long. People seem to feel that Free use of Internet E-Mail is something they get automatically when they are granted a Node Number in FidoNet. o The I.E.E.E., the organization who has been providing the resources and bandwidth for the flow of all this traffic can no longer support the endeavor. Some services *will* CONTINUE to be provided ... o The Domain-Name-Service, which tells the Internet world where to send traffic for destinations within the .fidonet.org domain (and which defines which addresses are 'valid') will continue to be operated. However, the "default MX-record" which sent all undefined traffic for those Nets which did not otherwise have another gateway declared, will be DELETED! o We will continue to operate the DNS until such time as the InterNIC removes the .fidonet.org domain. Since the InterNIC will expect and annual service fee of $50.00 for the domain in March, it is possible that the .fidonet.org domain may dissappear. I do not plan on paying this fee out of my own pocket. o We will continue to operate the gateway at 1:13/10 (our other gateway address) on a REGISTERED-ONLY basis. This means that there will be a process whereby INDIVIDUAL Zone-1 Nodes will be able to Register to use the gateway and have an Internet address assigned. Incoming E-Mail for all REGISTERED systems will be packed on HOLD and must be picked up by direct Poll. NOTHING will be routed via the Backbone (except Bounces back to UNregistered Nodes). (Please see instructions below for Registering to use 1:13/10) How to Register to use the Gateway at 1:13/10 --------------------------------------------- To register your system to use the gateway services at 1:13/10, simply send a File-Request for REGISTER to 1:13/10. This will pass your Primary address into a function process that will dynamically re-configure the related configuration files and routing during the next hourly update process. After that, you should be able to use the gateway and any E-Mail coming INbound from the Internet will be packed on *HOLD* at 1:13/10 for your system to pickup. Note that your system is assigned a special address, which is NOT in the old 'f###.n###.z#.fidonet.org' syntax. Do NOT advertise that address as it will NOT be valid. Point systems may NOT register and may NOT use this gateway. Burt Juda Postmaster/Hostmaster (Feel free to distribute this as widely as possible) ------------------------------ Date: Sat, 02 Dec 95 15:32:15 From: Jim Thomas Subject: File 3--The "Space" of Cyberspace (fwd) --- fwd message --- Date--Tue, 28 Nov 1995 21:21:00 -0600 From--lemaitre monique j Subject--The "Space" of Cyberspace This is a very long text, so you may want to press the "D" button (the author's name and address appear at the end.) I thought it was relevant to several themes which appeared briefly on the list such as the "gender-lessness" of the NET...It also brought back echoes of Gilles Deleuze whose untimely death a few weeks ago was never mentioned on this list...Saludos!ML. THE "SPACE" OF CYBERSPACE: Body Politics, Frontiers and Enclosures The following comments were prompted by the reading of Laura Miller "Women and Children First: Gender and the Settling of the Electronic Frontier", one of the essays in James Brook and Iain A. Boal, RESISTING THE VIRTUAL LIFE: The Culture and Politics of Information, San Franciso: City Lights, 1995. Miller's essay is the first and only one I have read after buying the book. I was drawn to it by the circumstance that I have been revising an essay of my own on the terrain of electronic communication in the Zapatista struggle for autonomy and democracy. In my own writing I had used the metaphor of the "frontier" and for that reason was curious about Miller's essay. Miller's essay critiques the metaphor of "frontier" as part of a discussion of how the assumption that traditional gender roles are simply reproduced in cyberspace might help provide a rationale for state regulation. Her point of departure is the word "frontier" in the name of the "Electronic Frontier Foundation", a well-known institution that argues for self-regulation and fights against government interference in cyberspace. She makes two arguments which interest me. First, she argues that the adoption of the metaphor of "frontier" is a problematic extension of the traditional American spacial concept to what is actually a non-spacial phenomena: The Net. Second, she warns that applying traditional American notions of the "frontier" --such as those embodied in classical Western narratives-- risks an unconscious reproduction of the social roles (gender) characteristic of those notions. Spaceless cyberspace? With respect to the first of these arguments, she writes: "The Net on the other hand, occupies precisely no physical space (although the computers and phone lines that make it possible do). It is a completely bodiless, symbolic thing with no discernable boundaries or location. . . . Unlike land, the Net was created by its pioneers." (p. 51) She also refers to the Net as "an artifact" (p. 51) and as "incorporeal" (p. 57). While this concept of the Net fits in nicely with the title of the book in which the essay appears (Resisting the Virtual Life), the rest of her essay demonstrates how its formulation misleads. The problem with the characterization is that it treats the Net as if it were a system of machines (computers and phone lines) whereas it has only existed and only continues to exist in the communicative actions of the humans who created and continue to recreate it. This particular system of machines is just like any other system of machines: a moment of human social relationships. While the machine system is truly an "artifact so humanly constructed", the machine system is not "the Net"; it is only the sinew or perhaps the nervous system of a Net constituted by human interactions. As an evolving series of human interactions the Net occupies precisely the space of those participating human beings. Humans as corporeal beings always occupy space and their personal and collective interactions structure and restructure that space. One of the things that discussion of cyberspace requires is a recognition of its "body politics" --something Miller clearly understands in the later part of her essay although she doesn't bring it to bear in this characterization of the Net. While arguing against the overstatement of women's vulnerability to aggression on line, she points to important differences between "cyber-rapists" and real rapists. "I see my body", she writes, "as the site of my heightened vulnerability as a woman. But on line --where I have no body and neither does anyone else-- I consider rape to be impossible." But of course, she does have a body and when she is on line her body is seated in front of a computer terminal, alone or in company, comfortably or uncomfortably, with her fingers punching a mouse button or banging on a keyboard, her eyes more or less glued to the screen and her mind flickering back and forth from the images on the screen to the rest of her physical existence. The very real "corporality" not only of the Net but of all computer work has been pointed out by all those concerned with the various ways in which the use of computers has involved very real bodily harm. (This issue is apparently treated in the same book in a separate essay by Dennis Hayes on "Digital Palsy".) The most immediately salient aspect of Miller's body's situation, however, is that it cannot be touched physically by any would-be cyber-rapists --except through the mediation of typed words and her reception of them, which she considers ought to be and are in fact under her control. In her vigorous argument that a great many women are quite able to hold their own in "the rough and tumble of public discourse" --and that women who can't should learn to-- she suggests ways in which women's activities on the Net are actually "blurring" and thus overcoming crippling gender divisions rather than reproducing them. Thus in the very midst of her central argument about gender, Miller's argument implicitly recognizes that the Net constitutes a set of interrelationships among bodies, a mediated and relatively "safe" set, but a set of relationships among bodies nevertheless. Herein can be found one obvious source of the appeal of spacial concepts such as cyber"space" or "frontier". In as much as the Net only exists as active human interactions, humans necessarily experience their activity on the Net in terms of their own sensual activity (which only exists in space) interacting in a mediated way with that of others. The immediate "space" of the Net is not even all that hard to define. It consists of the local spaces of participation in the Net and everything that connects them, not just the telecommunications technologies but the interactions themselves. The form of the interaction matters in understanding its character, its advantages and limitations, but that is true in ALL forms of human interaction as those who study them are well aware. Those local spaces and even those connections can quite definitely be "locatable" in time and space. The problem of "boundaries" appears only when we begin to study the "space" of the Net as including not only those who participate directly but those who participate indirectly: those working in the computer and telecommunications industry, those influencing or influenced by the participants of the Net, those standing "outside" of it but worrying about it, commenting on it, trying to ignore it, and so on. The treatment of the Net as "incorporeal" just won't do. The complexity of the space which it constitutes calls for analysis as well as body and social politics. Miller knows this even if she doesn't like the spacial metaphors; her essay is a form of participation in those social politics. I would just argue that such metaphors ARE helpful. Like any metaphor they have their limitations --which is why we use so many different ones. But, by focusing our attention on many of the very real, quite material aspects of the Net, they help us think about this new fluctuating set of human activities, their interactions, dangers and opportunities. Frontiers The second aspect of her argument, in which she critiques the treatment of historical, geographical frontiers in American popular culture, I read as essentially an argument about ideology. She wants us to think about how the old Western frontier was perceived and conceptualized in order to get us to think more deeply about the use of the concept "frontier" vis a vis the Net. While I find her critique a rich and useful one, I also think that beyond the issue of ideological representations there is the question of other, non-ideological, historical parallels between the Western frontier and current "frontiers" in cyberspace. Her first concern is the image of the frontier as space of freedom. She writes "The frontier, as a realm of limitless possibilities and few social controls, hovers, grail-like, in the American psyche, the dream our national identity is based on, but a dream that's always, somehow, just vanishing away. . . . For central to the idea of the frontier is that it contains no (or very few) other people --fewer than two per square mile according to the nineteeth-century historian Frederick Turner. The freedom the frontier promises is a liberation from the demands of society . . ." (pp. 50-51) She then goes on to argue that the Net is so full of people that it "has nothing but society to offer" (p. 51) and therefore the use of the concept of frontier to talk about the Net is inappropriate. The problem with this conceptualization is that it is a very culturally biased misrepresentation of the Western frontier. It's not that Turner was wrong about population density but that the characterization ignores the social dynamics of the frontier. In the first place, as Miller mentions, the frontier was a "frontier" only for the European invaders; it was already inhabited by the indigenous peoples of the Americas. Moreover, as historical works on their cultures have made clear, the frontier was densely inhabited --given the character of their ways of life. With hunting and gathering and shifting agriculture much larger physical space is required on a per capita basis than in human societies based on sedentary agriculture and urbanized trade and industry. The view of the frontier as "empty" space was definitely that of the invaders moving West out of an increasingly urbanized capitalist society and was a view that either failed to understand the indigenous culture or dismissed it as invalid. If the indigenous would "sell" the land and move out quietly the market would serve. More frequently, the armed might of the state was used to drive them out. Beyond this question of perspective (European versus indigenous), the material underpinnings of the view of the frontier as an "empty" space into which one can escape "from the demands of society" requires more analysis than Miller gives it. It was more than an ideological construct. It might be seen as expressing the views of individuals, either anti-social or just adventurous, who did "go West" to escape various "demands of society". For the individual trapper or hunter, for instance, the land might well have appeared "empty". However, it seems more likely that such lone wanderers frequently met and interacted with the existing indigenous peoples and one of the reccurrent themes of both history and myth is how they often crossed over to participate in these very different cultures. This was apparently as true of gauchos in the Argentine pampas as it was of mountain men in North America. In colonial language, they "went native". Even Hollywood has repeately woven this theme into its cinemagraphic treatments of the frontier; a film like Dances with Wolves being a recent example. Setting aside this source of the view of the frontier as "emptiness", we should recognize that the colonization of the frontier by invaders from the East was very much a social process. The vast majority of people who "went West" did so in groups --in families, in wagon trains, by the boatload, or trainfull--with the object not only of getting land, but of building and participating in new communities. The totally isolated trapper or homesteading family was the exception, not the rule. Even when farms or ranches were large, the local neighbors and town formed a social context for family activity. After the very first "settlers", the vast majority of those who colonized "the frontier" took land immediately adjacent to that which was already taken, not in the midst of some lost, pristine wilderness. The classic Western narratives that Miller refers us to have often portrayed just such sociality. The usual experience of the pioneer colonizer of the West was not of "emptiness" but of collective activity, of people working together to found new communities. When Miller writes "Unlike real space, cyberspace must be shared.", she is misrepresenting the reality of the frontier in which much of the social dynamics of the Westward movement involved the sharing of space, not with the indigenous for the most part, but among the colonizers themselves. More to the point, perhaps, with respect to the Western frontier as with the electronic frontier, is the notion of "escaping" from the "demands of society". When taken at a social rather than individual level, the history of the European colonization of the West can be seen to have involved a great deal of movement "away from" the hardships, repression and exploitation of capitalism which emerged in the Atlantic basin. American ideology celebrates escape from religious persecution, but that was interwoven with other persecutions. A great many of those who "went West", whether across the ocean or across the American continents, did so because their lands had been stolen by others. That theft was accomlished to a considerable degree through processes of "enclosure" of the land in which its one-time inhabitants were driven out. This was part of what Marxists call "primitive accumulation", i.e., the genesis of new class relations based on excluding the possibility of self-determination for most people so that they would be forced to prostitute themselves in the emerging capitalist labor market. Others emmigrated because the new conditions of both economic and political life in industrializing European (and then American) cities were so hard. Low wages and awful living conditions could drive families West for land. So too could political repression, such as that which followed the 1848 revolutions in Europe, lead people to seek elsewhere for better opportunities. The "demands of society" which such immigrants were escaping were not simply those of living together, but were the demands of an untamed capitalism for their life energies under oppressive conditions which often killed. This was part of the actual history of the "Western" frontier, not just an ideologically constructed myth. The dream of "limitless possibilities and few social controls" is certainly part of the enduring myths of the "American psyche". But the myth endures precisely because realization of the dream has demanded an open-ended social situation for which generations have fought and struggled. Although I have made no systematic study of the "classic Western narratives" to which Millar alludes, it seems to me rather rare that "the frontier is [portrayed as] a lawless society of men . . . [a] romance of individualistic masculinity". With the affirmation that Hollywood films and Western novels pay homage to "individualistic masculinity", I would agree. On the other hand, I find it difficult to think of films that deal purely with a "lawless society of men" --with the possible exception of Sergio Leone's spagetti Westerns. Even films like the Wild Bunch --in which the central group is both lawless and masculine-- such activity is situated within a larger social setting so that the Wild Bunch appear as pathological misfits. Miller juxtaposes the "frontier" and "civilization", associating the later with the arrival of women and children. But as indicated above, for the most part men and women and children arrived together. The "frontier" was the frontier OF civilization, its cutting edge, its invading intrusion into other people's life spaces. I also find her analysis of the portrayal of the gender dynamics of many Western narratives quite accurate: the presentation of women and children as victims or potential victims, needing to be protected (and dominated) by men. But in describing and analysing these relationships, Miller passes over to the analysis of social dynamics --especially between men and women-- and leaves the whole issue of the "emptiness" of the frontier behind. In terms of thinking about the process of pushing out the "frontiers" of cyberspacial civilization, I think the most important thing about the parallel with the Western frontier is the central process of creation. Miller notes that "Unlike land, the Net was created by its pioneers." Yet, one of the appeals of the metaphor of the frontier is just this myth --and reality-- of creation. In the case of the Western frontier, no new piece of the earth was created whole cloth. Those who went West because their own lands had been "enclosed" in the East, imposed a new set of enclosures on the land of Native Americans. Nevertheless, it was certainly true that from the point of view of the colonizers, they created a "new land". They did this by transforming the land from a state that supported hunting and gathering cultures to one that supported sedentary agriculture and urbanization. The "land" of capitalist civilization was not the same "land" as that of the indigneous people. A plowed and fertilized field is not a prairie. A town organized physically by fixed buildings is not a "camp" set up for a season by a geographically mobile tribe. The social and political life of fields and towns is clearly not the same as that of indigenous cultures. For good or bad, not only a new kind of land was created but also a new kind of society. The fact that this "creation" amounted to a "destruction" from the point of view of the indigenous doesn't wipe out the process of creation, it only critiques it. "The frontier", Miller writes, "exists beyond the edge of settled or owned land. As the land that doesn't belong to anybody (or to people who 'don't count' like Native Americans), it is on the verge of being acquired; currently unowned, but still ownable." This view of the frontier, which I take to be an aspect of "frontier" ideology to which Miller points (rather than her own point of view), clearly embodies a capitalist perspective not only on land but on society. Not only is it well known that many indigenous peoples had no notion of "owning" land, but the assertion of "ownership" by colonizers was one of those aspects of the frontier that made it the cutting edge of capitalist civilization. In the few cases where the new arrivals accepted the indigenous culture's value systems and merely exercised usufruct of the land, they were examples of "going native" and could hardly be considered part of the advancing Western capitalist civilization. There were also utopian communities created quite intentionally as something different, hopefully better, than the repressive capitalism from which their founders had fled. But these were exceptions, precisely because "going West" was a social process in which people brought the acquired habits and institutions of their past with them. However much they may have been fleeing adverse material conditions, those same conditions tended to catch up with them all too quickly --precisely because they carried the germs of those conditions with them, especially "ownership". The early pioneers of the Western frontier sought their own freedom in land enclosed from the indigenous. But when they took and then claimed ownership rights they instituted a property system in the frontier that would eventually overwhelm them. In a few years, or a few generations at most, their ownership would be lost to other owners. Powerful railroad or mining interests would drive them out or buy them out and usurp their property in land, or bankers and suppliers would take advantage of their debts during economic downturns, foreclose, evict them and seize their lands. Close on the heels of the pioneers of the frontier was the same class of lords of property from whom they had fled. The same was true of the frontier artisans and merchants who helped to build the towns and set up businesses there. Libertarians often celebrate such "entrepreneurs" just as they sometimes lament the arrival of monopolistic corporations that absorb or drive such entrepreneurs out of business. But as with the farmers who staked property claims in land, such independent businessmen and women carried with them the seeds of their own downfall. For the "entrepreneur", whether on the Western frontier or the electronic frontier is caught in a double bind. On the one hand, they may be dedicated and inventive workers plying their skills to create something new, whether a 19th Century blacksmithy or a late 20th Century software operation. But if they seek their independence within the framework of the rules of "private property", they are forced to work within the logic of the market. While a few may survive to become powerful capitalists in their own right, most have been and will continue to fall before the workings of those rules and that logic --according to which the stronger capitalist drives out or takes over the weaker. The thoroughly modern version of enclosure is the expropriation of businesses by businesses. Moreover, whether they succeed or fail, all who play by the rules lose their autonomy as each "frontier" is reduced to just another integrated section of the invading capitalist economy. This fundamental dynamic of the old West demonstrates one reason why the metaphor of the "frontier" is useful, even indispensible, for thinking about the socio-political dynamics of the Net and the rest of the informational society. The metaphor has been widely used vis a vis the Net not only because people, working sometimes alone but always within a social fabric of interconnections, have created and settled new electronic spaces but also because hard on their heels have come the lords of capital using all means possible to takeover, incorporate and valorize those spaces. The subordination of the Net to commercial and industrial profit has become the name of the game. The "dream" of "limitless possibilities and few social controls" doesn't just "somehow", "vanish away"; it has been repeatedly destroyed through corporate enclosure and complementary state repression. But just as pioneers on the Western frontier resisted the enclosure of their lands or the takeover of their small businesses by corporate interests, so too do the pioneers of cyberspace resist the commercialization of the Net. Like other free spirits (e.g., some musicians and artists) the pioneers of cyberspace can create new spaces for their own (very social) purposes (pleasure, politics, etc) as part of a process of self-valorization that at least initially threatens or transcends existing norms of capitalist society. Corporate capital then tries either to enclose their spaces by commercializing them if they look profitable, or to crush them with the state if they look dangerous. (If it just ignores them we can conclude either that their space is not profitable or that it is not dangerous to the capitalist game. Indeed, it may be playing a useful role --such as keeping workers off the streets and the market growing-- in ways compatible with the social logic of capitalist society.) One increasingly important zone on the electronic frontier has been that of the circulation of political struggles of various groups and movements fighting against exploitation and for new ways of being. These sub-spaces provide opportunities not only for the experimentation with alternatives to current institutions but also for attacking the larger capitalist system. One such group is the Zapatista Army of National Liberation whose uprising began in the mountains of Chiapas, the southernmost state of Mexico, but whose political message has spread around the globe through the electronic circulation of information. E-mail, soon complemented by gopher and web sites, both produced and then linked a highly effective international mobilization in support of the Zapatistas and against the Mexican government's attempts to belittle and attack them. When, in the wake of the peso crisis in December 1994, the Zapatistas were seen as threatening the interests of international investors in Mexico, some (e.g., Chase Manhattan Bank) called for their "elimination". The Mexican government, in point of fact, ordered an army force of 50,000 to invade Zapatista territory in Chiapas and wipe out the uprising. (It failed.) Others in the circuit of investment capital sought to tap the flow of information among the networks of solidarity for their own purposes. They sought out individuals within the Net who were involved in producing and circulating that information and offered them lots of money to redirect those flows to corporate investors who would pay for the "inside scoop" about the investment climate in Mexico and points South. The offers were refused so this autonomous "frontier" of resistance and discussion of the Zapatista alternative continues. Had those approached sold out, the autonomy of the activity would have become illusory as little by little the information being circulated became more geared to what investors need to know and less to what is needed to struggle against them. The metaphor of the frontier allows us to understand this dynamic in a way that appreciates both the energy and imagination of the pioneers and the dangers which beset them. Criticizing the comparison of the clipper chip (which would give government the ability to eavesdrop on all encrypted computer communications) with the imposition of barbed wire on the prairie, Miller suggests that the metaphor implies a necessary surrender to fate. But the metaphor survives such critique because it evokes not surrender but resistance. No matter how many frontiers have been taken over and subordinated, no matter how many pioneers have been forced or induced to surrendering their freedom, the metaphor lives on. It survives not just because ideology preserves the myth but because the dream lives and the struggle lives. Each time some new space and time of human endeavor is colonized and taken over by the work/profit logic of capital, there are always people who break away and create new spaces and new times where they can be freer to elaborate their own lives in the manner they see fit. The ability of capital to enclose (commercialize) or crush those new spaces is never assured. The consequences of each such confrontation remain open. And in a period in which there are an extraordinarily large number of breakaways and a multiplicity of acts of creation, the threat to the survival of the system grows and the potential to realize an array of alternatives is great. That is the excitment of any frontier and that is the reason the metaphor survives. Harry Cleaver Austin,Texas hmcleave@eco.utexas.edu http://www.eco.utexas.edu:80/Homepages/Faculty/Cleaver/index.html ------------------------------ Date: Thu, 28 Dec 1995 11:10:58 -0500 From: Galkin@AOL.COM Subject: File 4--Privacy in the Workplace *+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+ THE COMPUTER LAW REPORT *+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+ December 28, 1995 [#15] ===================================== GENERAL INFO: The Computer Law Report is distributed (usually) weekly for free and is prepared by William S. Galkin, Esq. The Report is designed specifically for the non-lawyer. To subscribe, send e-mail to galkin@aol.com. All information contained in The Computer Law Report is for the benefit of the recipients, and should not be relied on or considered as legal advice. Copyright 1995 by William S. Galkin. ===================================== ABOUT THE AUTHOR: Mr. Galkin is an attorney in private practice in Owings Mills, Maryland (which is a suburb of Baltimore). He has been an adjunct professor of Computer Law at the University of Maryland School of Law and has concentrated his private practice in the Computer Law area since 1986. He represents small startup, midsized and large companies, across the U.S. and internationally, dealing with a wide range of legal issues associated with computers and technology, such as developing, marketing and protecting software, purchasing and selling complex computer systems, and launching and operating a variety of online business ventures. He also enjoys writing about computer law issues! ===> Mr. Galkin is available for consultation with individuals and companies, wherever located, and can be reached as follows: E-MAIL: galkin@aol.com/TELEPHONE: 410-356-8853/FAX: 410-356-8804/MAIL: 10451 Mill Run Circle, Suite 400, Owings Mills, Maryland 21117. Articles in The Report are available to be published as columns in both print and electronic publications. Please contact Mr. Galkin for the terms of such usage. ^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^ *^*^ THIS WEEK'S SPONSOR *^*^ This week's sponsor is Challenge Press, publisher of the soon to be released "INTERNET CHALLENGE GUIDE TO COPYRIGHTS." This publication provides well-organized and detailed information essential for people either doing or thinking about doing business online, or who are advising or assisting others concerning doing business online. The price is only $45 plus $3.50 handling and shipping (in the U.S.). Reserve your copy now by calling Challenge Press at (800) 963-5297 or by sending e-mail to ChallengeP@aol.com, or by mail at P.O. Box 20862, Baltimore, MD 21209. ^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^*^ *+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+ ELECTRONIC PRIVACY RIGHTS: THE WORKPLACE *+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+*+ [This is the second of a series of articles discussing privacy rights in the digital age.] With the rise of technology there arose a fear of surveillance. However, George Orwell's 1984 passed us by without noticeable big brother control, and the national concern over espionage diminished with the demise of the U.S.S.R. These past threats were concerns over the use of technology by governments that had sufficient resources to use the technology for sinister purposes. The new threat is not technology in the hands of government, it is technology alone. What once required massive manpower, now requires merely a personal computer. Technology has made the power to monitor others widely available, whether to governments, private enterprise or individuals. This article discusses some of the laws applicable to the monitoring of employees in the private workplace. An employee, by the very nature of the employment relationship, must be subject to some level of monitoring by the employer. However, this monitoring has limits. Courts have held that it is a tortuous invasion of privacy for an employer to monitor employee telephone conversions. Similarly, mail carried through the U.S. postal service is granted a high level of protection. However, much employee communication now takes place over private and public networks via e-mail, or voice mail. These forms of communication are very different from telephone calls and letters. For example, after transmission and receipt, these communications are stored for an indefinite period of time on equipment under the exclusive control of the employer. Additionally, these communications can be examined without the knowledge of the communicators. As is often the case, the law has difficulty keeping pace with the issues raised by fast changing technology. Electronic Communications Privacy Act - In the federal sphere, only the Electronic Communications Privacy Act of 1986 (ECPA) directly prohibits the interception of e-mail transmissions. The ECPA prohibits the interception by (1) unauthorized individuals or (2) individuals working for a government entity, acting without a proper warrant. The ECPA is mostly concerned with the unauthorized access by employees or corporate competitors trying to find out valuable information. However, while there is no specific prohibition in the ECPA for an employer to monitor the e-mail of employees, the ECPA does not specifically exempt employers. The ECPA has several exceptions to the application of the prohibition of interception of electronic communications. The three most relevant to the workplace are (1) where one party consents, (2) where the provider of the communication service can monitor communications, and (3) where the monitoring is done in the ordinary course of business. The first exception, consent, can be implied or actual. Several courts have placed a fairly high standard for establishing implied consent. For example one court held that "knowledge of the capability of monitoring alone cannot be considered implied consent." Accordingly, for an employer to ensure the presence of actual consent, it should prepare, with advice of counsel, a carefully worded e-mail Policy Statement which explains the scope of employer monitoring. This Policy Statement should be signed by the employees. One example of how this Policy Statement needs to be carefully written is that if it states that personal communications will be monitored only to determine whether there is business content in the communications, then this would probably not amount to consent to review the full text of personal communications. Additionally, notice that communications might be monitored may have a significantly different legal affect than a notice stating that communications will be monitored. The second exemption is that the ECPA exempts from liability the person or entity providing the communication service. Where this service is provided by the employer, the ECPA has been interpreted as permitting the employers broad discretion to read and disclose the contents of e-mail communications, without the employee's consent. However, employers should not rely on this exception, because it might not apply in all cases, such as to incoming (as opposed to internal e-mail) if the e-mail service is provided by a common carrier (e.g., America Online or MCI mail, which are not provided by the employer). Under the third exception, courts will analyze whether the content of the interception was business or personal and allow the interception of only business-content communications. State laws - State tort laws are often viewed as the primary sources of protection for privacy of electronic communications. The most common tort that would apply is the tort of invasion of privacy. This tort occurs where "one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." This tort does not require that personal information be actually acquired, disclosed or used. However, the intrusion must be intentional and highly offensive to a reasonable person. Additionally, there must be a reasonable expectation of privacy by the employee. Employees often believe that their communications are private because they have a password which they can select and change independently or because they are communicating through outside common carriers. Cases have often turned upon whether this belief was reasonable given the fact that the employer had the ability all along to access the files, though the employees were not aware of this. In determining the outcome, courts will weigh the reasonableness of the employee's expectation of privacy against the business interest of the employer in monitoring the communication. However, it is important to emphasize that in the final analysis courts have traditionally held that legitimate business interests permit employers to intercept communications. Additionally, state constitutions might provide some protection. A number of state constitutions provide a specific right of privacy. But, only California has specifically determined that its constitution provides a cause of action against nongovernmental entities. However, even in California, the courts will give significant weight to the business interests of the employer. Conclusion - As discussed, much of the law of privacy in the workplace turns on the reasonable expectation of privacy. When evaluating different situations, it is important to keep in mind that the law in this area is a moving target, as recently expressed by Professor David Post of Georgetown University Law Center (in The American Lawyer, October 1995) "until we have all spent more time in this new electronic environment, who can say what our expectations really are --let alone whether they are reasonable?" In the workplace, federal and state laws provide some protection to employee communications. However, this protection is quite limited. Until the law develops further, employers should prepare carefully drafted Policy Statements that explain how the employer intends to monitor employee communications. And employees, even in the absence of such Policy Statements, would be well advised to consider their communications available and accessible to the employer. Also, where privacy is an issue, employees and employers can create a more productive work environment if they work together to jointly develop a Policy Statement that balances the legitimate interests of both the employer and the employees. ------------------------------ Date: Sun, 16 Dec 1995 22:51:01 CDT From: CuD Moderators Subject: File 5--Cu Digest Header Info (unchanged since 16 Dec, 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 post with this in the "Subject:: line: SUBSCRIBE CU-DIGEST Send the message to: cu-digest-request@weber.ucsd.edu DO NOT SEND SUBSCRIPTIONS TO THE MODERATORS. 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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Readers are encouraged to submit reasoned articles relating to computer culture and communication. 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. ------------------------------ End of Computer Underground Digest #8.09 ************************************

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