Weltanschauung Magazine (The WorldView) Editor

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Weltanschauung Magazine (The WorldView) %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% % % % Editor: The Desert Fox D E R % % Co-Editor: Rev. Scott Free % % % % W E L T A N S C H A U U N G % % % %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% April 4, 1991 Vol. 1, Issue 1. (*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*) Material Written By Computer And Telecommunications Hobbyists World Wide Promoting the publication of Features, Editorials, and Anything Else.... To submit material, or to subscribe to the magazine in hardcopy, send a SASE to: WorldView 11504 Hughes #124 ĝ Weltanschauu¤g Distribution Site: Houston, Texas U.S.A. 77089 Rivendell BBS ******************************************* (713)333-XXXX * Please submit articles and comments to: * 3/12/2400 Bps * INTERNET - Fox@nuchat.sccsi.com * (The New BBS will be ******************************************* up May 1, 1991) If Possible...Otherwise, Mail Or Call! ****************************************************************** *IN THE NEXT ISSUE *** Unix features, More On Robert Morris, Info* *On The New Rivendell BBS Including The New Phone Number, An * *Editorial By The Reverand Scott Free, Plus Much More... * ****************************************************************** Table Of Contents: I. The Shockwave Rider: A mini-biography on Robert T. Morris, the creator of the Internet Worm. II. Wordless: An editorial by Homer Mandril III. The State Of National Security: An editorial by The Desert Fox and Lord Macduff IV. The complete explination of BEER*NET V. Torts: Some handy information on laws governing the world of communications, by James J. Spinelli VI. HR 4070 [The story behind Homer Mandrill's Editorial] VII. Editor's Comments Title: The Shockwave Rider. (background on Robert T. Morris Jr., author of the Internet 'worm') Author: Unknown Summary: A profile of Robert T. Morris Jr, author of the 'worm' program which caused major system crashes on the Internet network in Nov 1988, is presented. Morris is the son of Robert Tappan Morris Sr, the chief computer scientist of the National Security Agency's Computer Security center and a master cryptographer. Morris junior ('RTM') identified with the protagonist of John Brunner's science fiction novel 'The Shockwave Rider,' a social rebel who outsmarts computer security measures and is forced to make a controversial decision. Some hackers view RTM as a 'freedom fighter,' but some say he is placing freedom of information at risk. The younger Morris was known for computer pranks while an undergraduate at Harvard and worked on graphics problems as a Cornell University graduate student. He was allegedly bored and created the Internet worm as an experiment; it was designed to replicate itself throughout the umbrella Internet network and exploited well-known bugs in the Unix operating system. It struck academic, military and commercial scientific research sites, consuming memory and causing machines to grind to a halt. Many computer security experts argue that RTM should not be punished, but many worry about the social implications of computer security: more and more systems will require cumbersome 'locks' which will make it difficult for legitimate users to access information. The Shockwave Rider "ONCE YOU RELEASED this worm, did you have any ability to control it?" the defense attorney asked the defendant. "No. Once I released it, I had essentially no contact with it at all. I couldn't control it," said the young man, facing the jury in the Syracuse, New York, courtroom. "After it started, it was pretty much doing its own thing." Robert Tappan Morris, the creator of the Internet computer worm, patiently told the courtroom packed with TV and newspaper reporters how his secret experiment had gone terribly awry. In the front row of the courtroom sat a slender man holding a copy of Livy's History of Rome. The man's suit was worn, his shoes untied, his gray beard unkempt. But he just happened to be an internationally known computer security expert, master cryptographer, and the National Security Agency's top computer scientist. His name: Robert Morris, Sr. "It was a mistake, and I am sorry for it," said the younger Morris, his large, watery eyes focused on the jury. Minutes later, at the lunch break, the prosecutor walked past the defendant, and the young hacker couldn't suppress a smile. His soft, pale checks seemed to rise into a smirk. Was he giggling? "The work of a bored graduate student," was Morris senior's explanation to The New York Times after his son released the most virulent worm the world had ever seen. Indeed, the younger Morris did seem bored at Cornell, where he was only a few weeks into his graduate studies. Two weeks before the worm's release, Peter McIlroy, a childhood friend, had visited Morris. "He liked some classes and not others," McIlroy remembers. "Some he seemed to be blowing off." But Morris seemed to be getting along in Ithaca. He had taken to rock-climbing and was playing intramural hockey. "There was no inkling he was about to write a computer worm," recalls his friend. Except, perhaps, for one clue. McIlroy, also a techie, had casually mentioned to his friend that he believed the Unix operating system was pretty secure. "No! It's unbelievably insecure!" Morris snapped. "It's unbelievable how many holes there are!" McIlroy was caught off-guard by Morris's fervor. "It bothered and surprised him that the holes would never get fixed." Was it as simple as that? Bored by his courses, had the son of the nation's leading computer security expert taken things into his own hands? Had the "attack" merely been a well-intended but bungled attempt to shore up computer security and teach the world a valuable, relatively safe lesson? Theories on the worm and its author's motivations consume several chapters of popular books and countless articles. Some have hypothesized that the worm was a high-tech, father-son spat played out on a global scale, while one book blithely concluded that father and son had jointly launched the attack under the auspices of the National Security Agency. Hackers saw a broader political motivation. The trial of Robert Morris became the trial of an entire generation and philosophy of computers and information. To many hackers, Morris became a freedom fighter, a symbol of electronic free speech, a voice against the power that centralized computers wield over individuals. But more than a few hackers wondered if the coup was misguided, if Morris was not placing at risk the very freedom of information that his supporters angrily demanded. At the center of the debate stood two elite hackers, the very sort of wizards we have come to expect to guard us against computer saboteurs. But that was before Morris stepped over the line and plunged into a digital no-man's land. Under provisions of the untested 1986 Computer Fraud and Abuse Act, Robert Tappan Morris, Jr., was indicted for trespass. His offense? Unauthorized computer access. THE STORY OF ROBERT TAPPAN MORRIS begins with his father and the hauntingly powerful electronic world he helped to create. In the early 1970s, when Bell Laboratories began designing the universal operating system called Unix, it was Morris senior who imbued the virgin software with security. "The scheme for encrypting passwords was very heavily influenced by him, the interest in low-grade cryptography--the things we think of as absolutely routine," says Douglas McIlroy, Peter's father and one of the designers of Unix at Bell Labs' Murray Hill, New Jersey, facility. The elder Morris helped bar snoopers by making it difficult for anyone to become a "super user"--a person with the power to use or abuse a system. "There was this constant game of trying to figure out how to circumvent the best security measures we had," McIlroy recalls. "You had to be able to out-think the most devious minds." That was the dilemma Morris senior faced: to protect, he had to know how to destroy. Morris senior often seemed locked in an elusive battle with the equally brilliant and eccentric Ken Thompson, a legend in the computer industry and widely respected as one of the inventors of Unix. "Each would try to outdo the other in a friendly, but mean-spirited, way," McIlroy says. Morris thrived in the daily skirmishes. One of the cryptic scientist's most revealing feats occurred during tests on the first working copy of the Multix operating system. He walked into the laboratory and typed two characters--two specific characters he had a hunch the system could not compute. The machine crashed. "It was dramatic," says McIlroy. "He always liked to put on an air of mystery." First Bell and then other companies invited Morris to break into their computer centers to test their defenses. Hired by one defense contractor to discover its computer system's Achilles' heel, Morris dressed himself as a security guard, walked in, and watched someone type a password. While this tactic was an exception (Morris usually broke systems with his encyclopedic knowledge of encryption, cryptography, and computer security), it demonstrated his dramatic side. "Bob had a certain amount of flair," recalls McIlroy. "He definitely enjoyed his prowess." By the 1980s, the chain-smoking, shabbily dressed scientist had developed into a master cryptographer and a world expert in protecting electronic information. He designed a Navy computer that tracked enemy submarines by spotting anomalies in the masses of data gleaned by ocean sensors. At the time it was the world's largest computer. Morris senior's stage broadened in 1986, when he became the chief scientist at the National Computer Security Center of the National Security Agency and assumed responsibility for protecting sensitive computer-based data worldwide. Friends reported that he dove into the mysterious intelligence underworld with a passion. His office was outfitted with a "Tempest" computer, encased in lead to prevent the interception of radio emissions, and visitors say his blackboard was covered with Russian words. Years later, in the tumultuous days following the Internet attack, Morris senior's sense of mystery and drama had not waned. Newspaper and TV reporters camped in front of his new home in Arnold, Maryland. Inside, his son was quiet, talking little even to his Harvard buddies who had driven through the night to support their friend. It was his father who spoke to the press, telling The New York Times, "I know a few dozen people in the country who could have [created the worm]. I could have done it, but I'm a darned good programmer." Perhaps it was not surprising that after the press left, Morris senior placed the puzzling deed in historical focus. "Let's find out where this all started," he said to his son's friends, pulling down a book by John Brunner titled The Shockwave Rider. In a scholarly tone, Morris senior explained that the 1976 science fiction classic, one of his son's favorites, popularized the idea of computer worms. What he didn't explain was that the book's protagonis was remarkably similar to himself. And to his son. Like both Morrises, the Shockwave Rider outsmarted computer security measures with the cunning of a secret agent and, like Robert Morris, Jr., the Shockwave Rider was forced by his genius to make a difficult, controversial decision. Having spent his youth expanding his computer powers, the Shockwave Rider pondered the true test of wisdom: "What a wise man can do, that can't be done by someone who's merely clever, is make a right judgment in an unprecedented situation." YOUNG MORRIS MAY HAVE BEEN CHARGED with the crime of the future, but he grew up in a world closer to the last century than the next. The Morris family lived in a 250-year-old farmhouse on nine rambling acres of spruce, pine, and swamp alongside the Passaic River near the quaint town of Millington, New Jersey. The children cared for the farm animals and Robert tended the family's sheep. "They wanted to keep the old ways," recalls the current owner of the house. "They lived very simply. They didn't have material things." The family grew vegetables in a 50-by-100-foot garden, and if they needed something more than the earth and animals could supply, Morris senior would bring home a cast-off to salvage, like the giant-size freezer he repaired to store their freshly slaughtered meat. The family cut firewood for themselves and in winter dragged it by sleds over the ice-bound river. There was something untamed about the Morris clan. "I don't think the Morrises even knew how many cats they had," recalls a friend, who says 20 or more cats roamed the property while three or four big furry black dogs ruled the hearth. Inside the old farmhouse, unnecessary elements were eliminated. A mantle considered "too ornamental" was hacked out, a closet was torn out to squeeze in yet another bookcase, and a bathroom was ripped out to create another bedroom. The ceiling sagged and the plaster was cracked, but the "unbelievable mess," as a friend calls it, held an unusual collection of quirky wartime coding devices, including the mysterious Nazi Enigma machine. Named from the Greek word for puzzle, the Enigma was a mesh of gears and rotors that controlled an electronic drum rimmed by the letters of the alphabet and fed by a typewriter. Considered a foolproof scrambler, the battery-powered Enigma served as the Third Reich's top coder in World War II. But in 1939, an elite British team of cryptanalysts and mathematicians cracked the coder and gained a tremendous edge over Hitler's forces throughout the war. With the Enigma's secrets unlocked, the Allied commanders could read the Fuhrer's orders often before his own generals received them. Almost everything at the Morris house had a story behind it, no matter how obscure it might appear. The house was overflowing with puzzle sculpture pieces, magazines, and more books than you'd find in most small libraries. And not just any books. Morris senior had been a brilliant mathematician at Harvard, but he also loved the classics and learned to read Greek and Latin. His wife, Anne Morris, counted the vast family collection one day and, after tossing out duplicates, logged 7,000 volumes. Morris junior began reading at the age of four. The curious toddler created working scale models out of paper, file folders, and paper clips--cars with wheels that turned when you moved the steering wheel and revolvers with bullets and chambers that turned. At nine he read stacks of Scientific American. His father had a ham radio license, and before long the boy began assembling and disassembling radios and a variety of other electronic equipment. By the time he reached his early teens, his reading list had expanded to include the classics, history, economics, political science, and science fiction. But downstairs, in the old kitchen, in front of an unused Dutch oven, was a machine like no other. From a distance, it looked like a huge mechanical typewriter stretched over a desk, but what were those protruding rods and cables? The strange-looking device, which had been in the house since the mid-1960s, when Morris junior was born, was a computer terminal. As a top scientist at Bell Labs, Morris senior was one of a few employees with a home computer terminal during an era when electric typewriters were still rare. "Everybody lined up behind one another to get their computer time," recalls Anne Morris of the Digital Equipment terminal. But her children were not all alike. Soon her daughter lost interest, and the younger boy rebelled. (He now works as a tree surgeon.) Only Robert, the older boy, remained captivated by the clanking, screenless terminal. Each time he struck a key on the machine, mechanical rods shifted like the trackers of a pipe organ, forming the eight bits that made their way over the terminal's modem to Bell's central computer. Frequent lubrication was needed to keep the machine's rods from sticking, and after a long session, Robert would often emerge with oily knees. When Peter McIlroy visited the Morris farmhouse, he noticed his friend wasn't merely playing the computer's math and guessing games. "By the sixth grade, he was finding holes [in the operating system]," recalls McIlroy. "But he wasn't a snoop. It was much more of an intellectual game." Not yet in his teens, Morris junior already knew his way around the huge, complex Unix operating system. He created multiuser games to chat with his friends simultaneously and a surprisingly sophisticated Unix interface shell. The Unix code was online, and nearly every day after school Robert studied it the way other boys studied girls. His girlfriend, the daughter of another Bell employee, was online, and the budding hacker zapped love notes to her. By his mid-teens, the young Morris showed Peter McIlroy how, by logging on to one terminal, he could masquerade as a legitimate user on any computer in Bell's network. "He found it, played with it, and fixed it," says McIlroy. "I think they [Bell officials] were impressed." Bell officials say that while Morris did modify some files, no serious damage was done. "He was told to stop and that was that," says Bell's Fred Grampp. But Morris was allowed to visit his father's office and continue his poking, and in December 1982, Grampp invited him to give a talk about tightening security on a Unix communications program. Soon Morris was working part-time at the lab after school and full-time for the next two summers, writing his first scientific paper, "A Security Flaw in Berkeley . . . Unix," in January 1983. His initiation into the rites of super-hacking couldn't have been more pure. In the elite, challenging research environment of Bell Labs, the teenager learned "to spot and repair security holes" at the feet of the very people who had created Unix. But Morris was far from a one-dimensional, stereotypical hacker. At nearby Delbarton, a preparatory school run by Benedictine monks, he excelled in a broad range of courses, swam the breaststroke on the school swim team, sang with the abbey's chorus, and was, according to the Delbarton credo, "encouraged to become an independent seeker of information and take responsibility for gaining both knowledge and judgment." Yet years later, his parents proudly announced that it was he who was featured in a 1982 Smithsonian magazine article as a "quiet, polite young man" who "has broken into password files" and read "supposedly private" computer mail. "I never told myself that there was nothing wrong with what I was doing," the boy was quoted as saying, adding that he was driven by the challenge of testing computer security. It was a family preoccupation that Morris shared with his fictional double, the shockwave Rider: "I guess my daddy was a 'phone phreak' and I inherited the gene." The following year, Morris senior wrote in his 25th anniversary Harvard report: "I promised myself that I would learn to read Greek, learn in some detail how the planets move in their orbits, and learn how to decipher secret codes. I have gone a long way toward keeping all three promises." But it was secret codes--not Greek or the heavens--that captivated his teenage son, and he was soon fast at work on his first paid computer security project at Bell. The security crusade didn't end at the laboratory. At the farmhouse, father and son often discussed Unix and computer security. "I'm very sure he got hints from his father," says Douglas McUlroy, "but I doubt he got much detailed help. I think his father wanted to generate self-reliance." The young Morris told a friend that his father created games to develop his programming skills, once even making him program without GOTO commands--something like playing basketball with only your left hand. "His father was always challenging him," recalls Roy Horton, Morris junior's music teacher and a close family friend. "They were of similar minds." The next year Morris senior and Grampp wrote and, with some trepidation, published the definitive paper on Unix security. In the footnotes was a reference to Morris junior's paper, and in the introduction, a warning: "There is a fine line between helping administrators protect their systems and providing a cookbook for bad guys." Morris junior seemed to understand the dangers. In his second published scientific paper, he sounded every bit the seasoned computer security expert. "The old uucp [Unix to Unix copy procedure] was designed on small machines with light traffic and little concern for security," wrote the confident 18-year-old. "Times have changed. With many hundreds of machines running uucp, one cannot assume that no uucp requests will be malicious." "AREN'T YOU THIS FAMOUS, GREAT HACKER?" asked an impressionable fellow Harvard student. "No," said Morris, his boyish face betraying embarrassment and a slight smile. "That's my roommate." Morris continued the playful deception for several minutes. The Shockwave Rider, too, had many identities, many lives woven through the electronic net: "An individual could rewrite him or herself via any terminal connected to the federal data banks . . . this was the most precious of all freedoms . . . freedom to become the person you chose to be instead of the person remembered by the computers . . . it was the enchanted sword, the invulnerable shield, the winged boots, the cloak of invisibility. It was the ultimate defense." Morris had several identities at Harvard. The story goes that as a freshman he walked in, brought down the system, and hacked his first identity, an unauthorized Harvard account. Whether that initial act of mastery be myth or fact, in a matter of months Morris had hacked and cultivated a fistful of computer credit accounts. His log-on name became his identity, both online and among his friends: RTM. As a freshman, RTM began hanging around Harvard's graduate computer science department, Aiken Lab, an ugly slab of concrete built in the 1940s and named after one of the inventors of the modern computer. It was here, behind a glass wall, opposite the antiquated vacuum-tube computer, that RTM spent most of his waking hours. "He'd fix things for free," recalls Paul Graham, a computer science graduate student and close friend. "There was no question that he was the most technical person." RTM's breadth of knowledge was exceptional: Unix, networking, hardware, graphics, and several other languages. Andrew Sudduth, Aiken's system manager, hired RTM, and like many who employed him on campus, Sudduth found that RTM was too busy chasing the latest computer problem to punch a time clock or do his class work. "A professor would say, 'Wouldn't it be nice if we had this?'" he recalls. "And Robert would go and do it." He began by pacing the halls. There was no evidence he was working on the problem. After sufficient gestation, he settled in at a terminal, preferably "a lousy one," with a black and white display, a throwback, says Graham, to his days on his father's mechanical, screenless terminal. There were no distractions, no interruptions, and once he began, the pace was fierce, for TRM could program as fast as he could type. Rail-thin, RTM ate little, and when classmates invited him to lunch, two hours later he would still be hunched over his keyboard, typing furiously. Friends would stand over him, calling out his name, but the transfixed programmer seemed to hear nothing. When a few nights of intense programming finally gelled, RTM would snap out of his spell. "He would jump up and rub his hands when he figured something out," says Sudduth. Not all of his achievements were altruistic. RTM could do "anything he wanted" when friends were logged on to a Sun workstation, according to Graham and others. One of his most playful pranks was creating a subliminal message that would flash for less than half a second on the screen of an unsuspecting user. Graham said he saw the fleeting message, "Help, I'm being held prisoner within a VAX 750!" and then wondered if he'd imagined it all. Occasionally RTM took the game further, demanding a response to his whimsical intrusions. Classmates sometimes found their work interrupted by a sage called The ORacle. "Ask me a question and I will answer you," asked RTM, The Oracle. "But first you must answer me." Some of his pranks tested a user's technical knowledge. On a lark, RM reverse-engineered the Harvard network into an older, defunct interface. Everything worked, but the commands were different, and "true" hackers seemed to enjoy the challenge. Roommate Greg Kuperberg, a nationally ranked college mathemaician (also prone to feverish pacing) who befriended RTM and collaborated with him on an elaborate graphics program, says his friend's forays into Harvard's computers were exagerrated and misunderstood. RTM was simply inquisitive, says Kuperberg, and his experiments were not much different from those of a young chemist who occasionally mixed the wrong chemicals. But RTM's experiments were not without side effects, and there were some who didn't consider it good, clean fun. One night, Robert Ziff, a Harvard engineering student, watched the program he was working on slow to a snail's pace. He complained to the deparmtent's system manager, who checked to see who was tying up the computer's resources and exclaimed, "Oh God! It's Robert Morris." RTM had programs simultaneously running off his accounts on the engineering and robotics computers--in addition to Aiken's. It wasn't the first time he had "hogged" computer time. Ziff was instructed to warn RTM that "if it happens again, they'll take you off the account." Ziff was by no means the only one at Harvard who was unhappy with RTM and his experiments. A few were "mistrustful of Robert because he was smarter and better," says a friend. To those individuals, RTM sometimes sent commands that mysteriously crept onto their computer screens. There was never any doubt who had sent the ominous commands. Only RTM knew the secret security holes. And there was never any doubt that he would keep his dark knowledge secret. "He wouldn't tell them how he did it," says the friend. "He didn't trust them." Instead, RTM left his enemies hanging, wondering whether he might just decide to execute the REMOVE FILE commands he dangled on their screens. "I did in fact break into other people's computers [at Harvard]," Morris later admitted in court, "but I ... knew that they wouldn't mind." In one sense, RTM was no different from other hackers. The first commandment of hacking is to not waste computer time, to push and pull every electron's worth of processing might. It is a boy's pursuit, a masculine display of virtuosity. Test pilots call it "pushing the envelope." No longer protected by his father or the understanding researchers at Bell Labs, RTM began testing his wings, and, like the Shockwave Rider, he thrived in his new environment: "Meantime, taking advantage of the corporation's status, he could gain access to data nets that were ordinarily secure. That was the whole point of coming to KC. He wanted--more, he needed--data..." RTM never did carry out the ominous threats, and at the same time he was building professional credentials as a dedicated computer security expert. "The Unix software is very flexible and convenient, but it places too much trust in a protocol that provides very little security," he warned in a 1985 Bell Labs paper that described how to attack "trusting" host on the vast national computer network known as Internet. Two years later, while still at Harvard, RTM delivered several long talks on his extensive knowledge of computer security at the National Computer Science Security Center and the Naval Research Lab. During his summers he hacked for computer companies on both coasts. As he became more technically accomplished, his two personas--the mischievous RTM and the dedicated computer security expert, Robert Morris, Jr.--struck an uneasy balance. The same friends who detail how RTM inspired fear in his enemies remember him as a person who believed in the importance of "character" and who hacked out favors at a moment's notice. But in his professional role, Morris increasingly found that the real world was not nearly as responsive to security concerns as the Bell Laboratories of his childhood. he discovered that if he reported a security bug, companies often did nothing, or they waited for months before issuing patches. He worried that unscrupulous hackers would take advantage of his discoveries. He began to keep the secret openings to himself. When RTM was taking graduate mathematics and computer science courses in 1985, the combination of his freelance projects, his generosity, and the "difficulty and the boredom" of graduate work became too much for him. RTM did not excel in every course, as his father had. So he dropped out and went to work at the Convex Computer Corporation, in Richardson, Texas. The young hacker's education began to have more in common with that of the Shockwave Rider: "Shortly thereafter, he began to concentrate on data processing techniques at the expense of his other study subjects." The following year, Morris junior returned to his Harvard studies eager to learn. Friends remember his pacing about their homes or apartments, picking up things to see how they worked. Often his excitement bubbled over. "He was always breaking things," says Graham. "And he was insatiably curious." The love of the classics his father had inspired had not diminished. "He might be interested in medieval art, English history (a poster of English kings adorned his dorm room), Homer, the Renaissance, or Greek art," recalls a Harvard classics professor RTM helped with some computing problems. "His knowledge was pretty encyclopedic." But the serious topics didn't keep the Harvard student from classic adventure stories like the Norse sagas and one of his favorites, The Three Musketeers. Something of an adventurer himself, RTM and a classmate spent a week buying copies of The Racing Form at six in the morning and entering "tons of data about correlations of past performances." Then the budding computer bookies took in their first horse race at nearby Suffolk Downs. "It was so depressing," says RTM's friend about the crowd of retired, alcoholic pensioners. Deciding it "criminal" to beat such sorry bettors, the two abandoned their get-rich-quick scheme. Computer graphics became a new infatuation. With Kuperberg, RTM created an advanced ray-tracing graphics program. When he found that higher mathematics were not enough to create beautiful forms, he turned to the ancients, studying the works of Vitruvius, the inventor of proportion standards for classical columns. One of RTM's finest creations was of a temple standing in the middle of a blue sea. Excited by their success, the talented duo entertained the idea of launching a computer graphics firm. "We had this picture of a kid running a lemonade stand who one day turned into Donald Trump," says Kuperberg, who, like his friend, had a "default plan" of graduate school. BACK AND FORTH, BACK AND FORTH. It was the way RTM entertained an idea, as if by the movement of his light steps he might nudge the completed thought from his brain. But this time he seemed more driven than usual. He had come the nearly 300 miles from his graduate computer science studies at Cornell to pore over the Unix source code at Harvard's Aiken Lab and visit his friend, Paul Graham. "He had discovered a big hole and he had to tell someone," recalls Graham. Excitedly, RTM paced the small office, telling Graham how he had isolated holes in Unix that could enable him to be a super user--not at Cornell or Harvard, but across the country and around the world. Both of the bugs were communications holes, but RTM explained how the FTP (File Transfer Protocol) bug could conceivably grant an invader root privileges--the ability to read or delete anything on a compromised machine. "It was an experiment," Morris later testified. "I had never heard of anything like it before ... to see if I could write a program that would spread as widely as possible in Internet." His friend was similarly entranced. "I thought it was the greatest idea," says Graham, "All over the world. A big living organism. No one had ever done it before." Of course, it had been done before by the Shockwave Rider: "This is indeed the father and mother of a tapeworm. You'll have noticed how much use it makes of terminology derived from the study of living animals. And with reason. Not for nothing is a tapeworm called a tapeworm. It can be made to breed ... my newest--my masterpiece--breeds by itself." To Graham, the worm was not only an incredible creation, it was a bold strike for freedom, and later in court he would compare RTM to Mathias Rust, the West German pilot who landed in Moscow's Red Square in May 1987. Encouraged by his starry-eyed friend, RTM paced, describing how he wanted every computer on the Internet to receive one innocuous probe, one worm that would wriggle its way into each computer's memory. Finally, the excitement grew too great for Morris. "RTM, you're on his desk," said Graham, as he watched RTM's feet pad by on top of their colleague's desk. "Oh," said RTM, for the first time aware of his rise in elevation. This behavior was typical of Morris when he was absorbed in thought. Later, on that cool October night in 1988, RTM and Graham continued talking about the probe as they stood in front of a Boston seafood restaurant waiting for Sudduth, a champion rower, whom they would toast as a winner of the annual Head of the Charles regatta. As they waited, Graham suggested that the worm write something to the computers it wriggled its way into. "No, no, we can't do writes," his friend said, explaining that any writes, no matter how well-intended, might be dangerous. What the two couldn't figure out was how to protect a single worm on each machine. "It would have been very simple for someone to write a program that just acted as if it was a worm [an antiworm]," tricking new worms into believing a computer had already been penetrated and stopping "my worm from growing at all," Morris testified. And so, he decided it might be all right to have two, or maybe three, worms per machine. But neither knew much about population growth, and if RTM had any technical shortcoming, it was his ambivalence toward higher mathematics. There on the sidewalk, the two decided that the second worm to invade a machine should have a one-in-seven rate of survival. No particular formula was used, Morris later told a jury. "It was based on the intuition I had on how rapidly it would spread." He figured a new worm might appear once every few hours. As the Shockwave Rider explained, everything was under control: "And, no, it can't be killed. It's indefinitely self-perpetuating so long as the net exists ... incidentally, though, it won't expand to indefinite size and clog the net for other use. It has built-in limits." When Sudduth arrived at the restaurant, the two collaborators abruptly changed the subject. "When we were on a project," says Graham, "it was understood that it was secret." But RTM couldn't keep everything under his hat. Without hinting that he planned an attack, he excitedly told Sudduth about the bugs he had uncovered. And at first, in the ensuing days, it seemed that RTM's wild idea might go the way of his racetrack betting and computer graphics schemes. For several days after RTM had returned to Cornell, Graham heard nothing from his friend. The two had an old practice of sending elliptical messages over Internet--for security's sake. "Any news on the brilliant project?" Graham asked in his electronic message. There was no response. RTM HAD BEEN BUSY. More than a week before his visit to Harvard, he had created a wish list for his worm on his university computer. It was strangely appropriate that he began the work at Cornell. Officials would later say it was his reputation as a hacker that gained him admittance to the university's prestigious graduate school in computer science. RTM's list was divided into the two main goals he had for his worm: attack and defense. The target was Internet, an umbrella of three national communication networks, including ARPAnet, run by the Department of Defense to link research computers at military sites and universities; MILnet, used by military and civilian researchers to send routine, unclassified communications; and NSFnet, a National Science Foundation network. In the beginning, RTM and Graham used the popular term virus to describe the worm, but as the creation took shape it came to resemble the prehistoric worm. Viruses exist by invading and altering their host cells, and their computer counterparts are similar. They cannot "live" or run without attaching themselves to other programs. But a computer worm is independent. Self-propagating and self-running, worms can exist without directly endangering a network or its users. Some early computer worms were actually loosed to perform network management tasks. The Shockwave Rider's worm had a higher social and moral goal: "The primary my worm is designed to invade is that privacy under whose cover justice is not done and injustice is not seen." RTM designed his worm to clone itself, spreading throughout the net. Searching out new nesting locations, the worm scanned address lists of computers, selecting the most directly linked machines, such as gateways, and then began cycling through its attacks. If one method failed, the tireless invader quickly picked another from its arsenal. The attacks fell into three categories: nooking a foothold through a security hole, taking advantage of "trusting" computers, and cracking passwords. RTM playfully named his worm's attack engine the "cracksome" routine. Footholds could be gained through either of two techniques. One involved a utility designed to elicit such information as a user's full name, office, and phone number. It was fittingly named Fingered. The worm overflowed the program's small buffer and tricked unsuspecting machines into downloading, compiling, and running a tiny source code "grappling hook"--the worm's scout. Once ensconced within the target computer, the hook called the original worm and "pulled" back sections of a new version of the original worm compiled to run on either a VAX or a Sun workstation, the two most common computers on the network (if the hook guessed wrong, it pulled over the other version). Finally, the hook linked the sections together and the new worm began running. By compiling his worm for the two machines in advance, RTM avoided the risk of sending an easily decipherable source code copy of the program. Only the tiny "grappling hook" was written in source code, to ensure that the first cast would draw a bite. The drawback, of course, was that the worm could successfully invade only VAX or Sun workstations. A similar attack was launched on an electronic mail program called Sendmail. RTM had discovered that the program's seldom-used debugging utility allowed users to send a set of commands instead of a user's address. Through the gaping security hole went the worm's grappling hook, and, as in the Fingerd attack, in less than a minute a new, fully functioning copy of the worm was running on the target machine. The worm made another attack, not so much on a security hole but on the network's community of trust. Once a machine was invaded, the worm attempted to connect with remote machines that "trusted" the invaded machine and didn't require a password. The techniques were similar to what RTM had described as a teenager in a Bell Labs paper he wrote about a "weakness" in security that allows "users on untrusted and possibly very distant hosts to masquerade as users on trusted hosts." These were the cracked windows, loose hinges, and open doors upon which the worm directed its principal attacks. But the worm also tried to find keys lying around, checking to see if an account had no password, and then attempting simple heuristics using a combination of words from a user's account, including names, nicknames, and names spelled backward. If these attacks failed, the worm would try its internal dictionary of 432 passwords. But the task of cracking new passwords was a time-consuming process. The only passwords publicly available were encrypted. To figure out the true password behind its encrypted double, the worm had to encrypt its own internal list of probable passwords against those it attempted to crack. If two encrypted passwords matched, the worm knew that its original password (before the worm encrypted it) was identical to the password it was trying to crack. Since virtually every target password was encrypted under a different key, each target password forced the worm to re-encrypt its list of possible passwords. After trying this strategy for a few seconds, the worm tried words from Unix's online dictionary, using the same tedious encryption method. Cycling through its arsenal of attacks, the worm continually camouflaged and transformed itself. Immediately upon arriving in a new computer, the worm deleted the disk copy of itself and ran only in memory under the alias of an innocuous command interpreter, the kind often used in shell scripts or automatic commands. Every three minutes, the worm forked, splitting into a dead parent and a child. The child started off "fresh," using to apparent resources such as processing time or memory usage. The short dashes made the worm more difficult to seize, even if it happened to be spotted. THE WORM LEFT FEW CLUES. It read all its support files into memory, deleting file system copies that might be noticed. And by turning off the generation of core files, if the worm made a mistake and accidentally died, it left no corpse behind. Once every 15 infections, the worm attempted to connect to a Berkeley computer. RTM had hoped the "red herring," as he called it, might by itself shift suspicion onto the computer center, but it never actually made the connection. Finally, if the worm, or parts of it, were somehow captured, the binary (near machine-level) program would require many hours of complex decompilation before its nuts and bolts could be understood. For nearly three weeks RTM worked sporadically on the worm, increasing the number and complexity of its potential assaults. Its diverse collection of attack strategies gave it a character more like that of a bulky battleship than a sleek submarine, and one friend and security expert later called it "everything but the kitchen sink." RTM collected password files form computers at Stanford, Harvard, Berkeley, and other universities around the country; he found the fast encryption routine he needed in a program written at Bell Labs; he incorporated password-breaking techniques his father had discussed in his classic paper on Unix security. RTM didn't want to omit anything, and he feverishly threw a decade of security training into the worm. There was little time to check for errors; besides, the Shockwave Rider didn't make mistakes: "'How the hell were you able to build a tapeworm this complicated"' It's a talent, like a musician's or a poet's. I can play a computer read-in literally for hours at a time and never hit a wrong note." Everything seemed to be going exactly as planned. On Wednesday, November 2, 1988, RTM logged on to his terminal at Cornell's Upson Hall at a little after 10 a.m. and worked until lunch. In the afternoon, the trouble began. RTM noticed a posting from Keith Bostic, of Berkeley: a patch to the FTP bug he had discovered on his fateful visit to Harvard. RTM quickly typed out an electronic mail message to Sudduth, asking whether he had been the source of the leak. "I didn't think it was a good idea to spread information about random security holes," Morris later testified. Sudduth sensed panic in his friend. "Maybe he worried that the [other] bugs would be patched before he sent his worm." At 8 p.m. EST, sitting at his Upson Hall terminal, RTM copied the worm to an account at MIT known to be frequented by hackers. "I wanted to start it out so it wouldn't be obvious that I had started the worm myself," Morris testified. (The final version of the worm did not include attacks on the now patched FTP bug.) For the next 20 minutes, RTM tried to track the worm's path, but as far as he could tell, "it wasn't working right. It seemed to have been getting bogged down, not really doing very much." And so, having begun his experiment, RTM left his terminal and walked home. ON INTERNET, THE WORM WAS AWAKENING. One hour and 24 minutes after its release, the worm squirmed its way across the country and into the computers of a Santa Monica defense contractor, the Rand Corporation. In two hours it hit the major gateway at the University of California, Berkeley; the Lawrence Livermore Laboratories, in Berkeley and Livermore; and the Los Alamos National Laboratory, in New Mexico. Very quickly it became apparent that something had gone terribly wrong. Individual machines became infected by not one or two but several worms. Then, the infection erupted. Since university and military computers are rarely used so late at night, they generally register only a 1 or 2 load average of a possible 100. But by 9:21 p.m. PST, computers at the University of Utah had already documented a load of 5. Twenty minutes later, the load reached 7; in another 20 minutes, 16; and incredibly, in just another five minutes, the system topped out at 100, choking to a standstill. Of course, as his lawyer later argued, RTM had been careful to ensure that his worm not read, delete, or in any way damage targeted computers. But he hadn't counted on a more insidious risk. Simply by reproducing, the worm was sucking the oxygen out of Internet the way algae strangle a dying sea. RTM's birth control wasn't working quite the way he had planned. Only the first virus on a machine listened for others. Subsequent worms didn't hear each other and didn't submit to the killer dice roll. And those few worms that lost the roll were allowed to continue their efforts to propagate new copies of themselves on other machines, even after they'd received death sentences. Emergency teams at Berkeley, MIT, and other computer centers worked frantically to stop the invader. Though the worm didn't appear to be directly damaging files, the rescue workers desperately searched for hidden trap doors, Trojan horses, or time bombs. By midnight EST, NASA's Ames Research Center, in Silicon Valley, had shut off all communications with outside researchers, stranding 52,000 computer users. Minutes earlier, one of the Berkeley scientists on the front line had sent out an electronic S.O.S. over the net: "We are under attack from an Internet virus..." "No. We can't stop it! There's never been a worm with that tough a head or that long a tail. It's building itself, don't you understand? Already it's passed a billion bits and it's still growing ... and now it's so goddamn comprehensive that it can't be killed. Not short of demolishing the net!" While computer experts across the country raced to salvage what they could of the worm's wreckage, RTM sat dazed. When he telephoned Sudduth, his voice was deathly quiet. Sudduth passed the receiver to Graham, who listened to the barely audible voice and wondered whether Morris had broken up with his girlfriend. "I really F_____ed up," said Morris as he quietly described how his worm was reproducing like a virulent cancer, jamming Internet with resource-sapping copies of itself. Graham was stunned. He had thought the project was far off in the future. "RTM, you idiot!" he yelled, angry at his friend for "blowing" such a great idea. Then he asked, "How did this happen?" "Well, you remember the number I picked?" The two worked on possible cures. It was nearly midnight, and the worm had been racing through Internet for four hours. Graham suggested that they create a Pac-Man cannibal worm to gobble up the worms. "I didn't do that, because I had messed up with the first one," Morris later testified. The two couldn't agree on a strategy, and the conversation ended. Graham went to Sudduth's office practically bursting with his secret. "Something really big is up. I can't tell you." "F_____k you, Paul!" shot back the Olympic rower. "Well ... Robert wrote this virus," Graham said, "and it's taking over every computer in the country!" Sudduth punched out an e-mail message. Though surprised that Morris wasn't doing more to stop the worm, he guessed his friend was finding it hard to admit that "something he created was out of control!" Morris phoned back and told Sudduth how to stop the worm from spreading on Harvard's computers. Later, at about 1:30 a.m., Morris called Sudduth from his home phone. The two decided that Sudduth should publish the worm antidotes on Internet--anonymously. "I was scared," Morris later testified. "I knew people would be annoyed about this because it was causing problems, and I wasn't particularly eager to catch the blame for this at that time." Why didn't Morris send the warning? "Well, I was at home," testified the driven programmer, who had been known to work till dawn. "I don't have computer access at home. I suppose I could have walked back to Cornell at 2 in the morning ... but even then I wasn't sure I could get access to the network." Critics later questioned why Morris didn't simply telephone computer experts at Berkeley or MIT, but somehow, after having grown up online, in the electronic net, that direct, non-computer solution seemed to have escaped him. Friends have a simpler explanation. Morris, quite unlike his hero, the Shockwave Rider, was simply "frightened out of his wits." "'Precipice is going to be attacked with nukes at 0130!' [The Shockwave Rider] launched into a burst of furious activity, punching his board with fingers that flew faster than a pianist's. '... Run like hell--because this may not work'" SUDDUTH WORKED TO GET THE WORD OUT. By now, the system was clogged. the only connection he could find was to a bulletin board at Brown University, hardly a center for Unix or Internet. The tired system manager typed out the antidote, describing how to close the holes and protect against new attacks, ending with the odd phrase, "I hope this helps, but even more, I hope it's a hoax." At about 4 a.m., Sudduth finally dragged himself to bed. Computer centers around the nation were in the process of shutting down the relay centers that might pass the worm--and its antidote. His friend had already been fast asleep for two hours. The next morning, Morris worked on some school-work he had neglected and "just generally tried to relax." In the evening he went to choir practice. Almost 24 hours had passed since he'd released the worm. When he returned to Upson Hall, he logged on to read his mail. The system seemed to be working fine. Morris read several Cornell notices about a "loose virus" that seemed under control, although users were warned to "be careful"; some notices from Keith Bostic about patching security holes that the worm had used; and a message from Paul Graham asking him to call. There was something else Morris did at Upson Hall on November 3: "Yes, I believe I cleaned up some of my files." "By 'cleaned up,' you mean you deleted some of the files?" probed the prosecution. "I deleted some of my files, yes." "And that copy of the virus you left on your account, that was encrypted, that was in an encrypted form, wasn't it? "It was. Yes." Once again, Morris left Upson Hall and returned home to make a phone call. Graham excitedly informed him that the worm and disclosure of its staggering impact "was about to get into newspapers, and that it might be a big sort of media event." Morris "screwed up" his courage and called his father, the computer security expert, because he "felt that he ought to know." Morris senior was not amused. He told his son to go home and not to talk to anybody. "So then I went to bed and I left Cornell the next day," Morris testified. But the true Shockwave Rider never abandoned the front line. With a nuclear bomber zeroing in, he bravely hacked out the commands to avert the attack: "And you did it in less than ten minutes?" "Looking back on it, I feel I had all the time in the world." MEANWHILE, MORRIS WAS RETREATING, though not as smoothly as planned. One of his friends had inadvertently let RTM's log-on and nickname slip to John Markoff, a reporter from The New York Times who happened to have written extensively on computer security and who counted among his friends one of the nation's leading computer security experts, Robert Morris, Sr. The reporter used an Internet account to "Fingerd" RTM, and the program faithfully flashed the name Robert T. Morris. When the reporter called Morris senior and noted the similarity of their names, the elaborate "experiment" unraveled. Morris junior's secret trail of anonymous accounts, red herrings, and encrypted files suddenly became the machinations of an adolescent playing war games. Officials at MIT estimated that 6,000 of the nation's 60,000 Internet computers had been invaded. The country's top computer experts spent several sleepless days and nights battling and cleaning up after the attack, while tens of thousands of military and university researchers went without computer power. (Blocked at the relay point, Sudduth's antidote had not been delivered for two days.) The tab for the wasted time and resources was estimated at $15 million. Three days after the attack, The New York Times began a series of front-page stories about the missing Internet attacker, Robert Tappan Morris. While Morris maintained a public silence ordered first by his father and then by his Washington, D.C., attorney, the FBI began an investigation, and government and university officials harshly criticized the hacker. Old Bell Labs colleagues like Douglas McIlroy were puzzled by their progeny's slip. "What I don't understand is the secrecy part of it. All of the juvenile tricks, encrypting source files to launch from some other machine, encrypting the program," says the scientist. "That's not consonant with a fun-loving kid." Yet many computer security experts--some of them friends and former associates of Morris senior--rose to Morris junior's defense. They said his experiment was a harmless, overdue warning of gross gaps in computer security, and argued that Morris should be cheered, not convicted. "When all is said and done, this kid is going to come down as a folk hero," Peter Neuman, a computer security expert at SRI international (one of Morris junior's former employers) told The New York Times. Of course, the hacker is the hero--in fiction. The Shockwave Rider liberates the masses from a corrupt, computer-controlled government with a freedom-fighting worm, risks his life to foil a nuclear attack, wins his girl's heart, and is praised by the world. But Morris had no such righteous intentions. He had no social or moral agenda, and never intended to expose Internet's well-known security limitations. His worm had no other purpose than to spread as far and wide as possible, and if it had spread as planned, slowly, innocuously, most say the response would have been even greater panic. The world that Morris's worm entered was far removed from his boyhood computer security training in the hallowed research halls of Bell Labs. In the decade since his code-cracking childhood, computers leapt into the mainstream to become the foundation of business and commerce. Assaults on computers became assaults on industry, and by the mid-1980s terrorist computer attacks and malicious break-ins revealed the dark side of hacking, forever ending the playful era of his father, when hacking was a rite of passage. Therein lay the irony and tragedy of the trial of Robert Morris. He was being tried for what he was taught by his father, his institutions, and his generation: access, unauthorized. The trouble was, as the would-be security expert wrote in one of his early papers, "Times have changed." Some were not prepared for the change. On the day before the verdict, a Harvard professor warned that "if Robert had wanted to do damage, there would have been nothing left! All the computers would have gone up in smoke!" Another Harvard friend suggested that if Morris were "unjustly punished," it might inspire a less restrained, less idealistic hacker to "do it right." The reasoning was similar to Morris's main line of defense. "Was it your intention to have the worm program destroy or damage any files?" asked the defense attorney. "No, it was not." "Was it possible for you to do that?" "It would have been easy to do that." The implication was ominous, and at least one close friend of Morris's was not convinced that everything was OK just because his bored buddy hadn't pulled the trigger. "On some level I know why he did this, and on some level I don't," says Kuperberg, glancing away and pacing like the old roommate he struggle to defend. "On some level [Morris senior's explanation of boredom] is not satisfactory." No answer seemed likely to come from the one person who might know. After the guilty verdict was issued in his trial, Morris and his attorney walked past the jostling TV crews and newspaper reporters and into the winter night. His father held back. The press surrounded him and the TV lights shone eerily on his face. "What do you feel, Mr. Morris? What do you feel?" He chose his words carefully, stiffly stating that the trial had been fair, though he was not happy with the verdict. The question came again, and this time he spoke with conviction: "It's perfectly obvious that there is not a fraudulent or dishonest bone in his body." IN THE WORM'S WAKE, there has been no great improvement in security, but fresh concern that future computer communication tools used by the average citizen may have to be weighed down by cumbersome locks and chains. For, as Morris senior wrote in his treatise on Unix security, "It is easy to run a secure computer system. You merely have to disconnect all dial-up connections and permit only direct-wired terminals, put the machine and its terminals in a shielded room, and post a guard at the door." Such is the bleak reality of total computer security, and if history is any lesson, computers, too, will move through cycles, bringing periods of cold war as well as openness. In the end, security is trust, which must be nurtured and cultivated like any other human quality. Morris wanted to be a hero, yet he lacked the patience and vision to forge a new direction. "What would have been great is if he had shut the holes after himself. That would have been a coup," says Peter McIlroy. "If he had thought of that, I think he would have done it." But RTM wanted nothing of the sort. In the private war he waged it was his duty to hold on to the holes, to wield them in the way he "knew they wouldn't mind." And Robert Tappan Morris? He was just a kid. "He might have been trained to display such powers of judgment; he might have been specially bred to possess them. One thing was sure: he hadn't lived long enough to grow into them." Jonathan Littman is the author of Once Upon a Time in ComputerLand (Simon & Schuster, 1990). A journalist who covers Silicon Valley and the high-technology industry, he lives in Sonoma, California. ************************************************************************* WORDLESS By Homer Mandrill The new era is rapidly upon us, folks, just like it always has been since the beginning of time. With every passing moment, with every exhalation, with every beat of our hearts the potential for this new era is conceived, disregarded, and thrown away. The new era of which I write will not be heralded by a great battle. Neither will it be heralded by rapture, discernment, the rise of the Anti-Christ, bill HR 4079 (which EVERYONE needs to learn about REAL quick), or the arrival of aliens from Planet X. It will be ushered in by some random but seemingly 'composed' event. Neither I nor anyone else know what it will be, and there in lies its power. It will not have been manufactured by any ego, collective or individual. Neither will it be 'perceived' as a prophecy, 'as it is written'. In this way, it will catch us unawares; we will stand as a world, jaws lowered, gasping, trying to conceive of words that apply to the situation. Each individual on the planet will be caught in that breathless Moment of confusion; a tugging on the compassion of every human alive, simultaneously. A hole in our collective chest cavity where once beat our hearts, we will all, simultaneously be forced to come to terms with something none of us had counted on. We will all be out of our depth. This Gasp will be felt by everyone, everywhere. This event will transcend religion, politics, race; no one will be immune to its effects/affects. It will be universal. And words won't do it justice. A billion trillion dollars/yen/deutchmarks/pounds/gold/ frankenscence/myrhh, the cold right hand of fundamentalism made into a fist, the hopes and prayers of trillions of people of all races, the actions of every amassed army, ever, the commercial exploitation of every nation ever to have existed and which will ever exist, the shaping and moulding of justice and liberty, the simultaneous reduction and expansion of freedom around the planet; these things are not the ends to which civilization aspires, but rather the tools of our collective psyche, simultaneously raising our standard of living and raining on our parade. All these things are representative of our greatest accomplishments and our greatest folly, and they are the raw materials of the Moment of the Gasp. Just as the artist forms the clay into something of sublime beauty, so that Moment will form our perceptions of ourselves into something we are not ready to understand. We will stand in the gallery and look at the work of art that is the culmination of all humanity throughout the ages encapsulated in that Moment, and we will find ourselves unable to judge that which is before us. The Moment of the Gasp has no analog, no metaphor, no preconception, no 'safe zone'. The white man will not be able to blame the black man. The black man will not be able to blame the white man. The Christians will not be able to blame the Jews, the Atheists will not be able to blame the Believers, the Right will not be able to blame the Left, I will not be able to blame you and you will not be able to blame me. The very concept of blame will become obsolete, our internal systems of judgement, already built of flimsy material, will be dashed to bits on the hard edge of the Moment. The cynic will be unable to discount the facts before him. The idealist will see the cold face of reality. The ascetic will be filled with compassion for those around him. Every step we will take to run away from the truth will be met with more evidence, every word we say will crawl out of our mouth like a salted slug. "Q: When will this Moment come? Is it upon us?" My answer can only be that no one knows. As I mentioned earlier, it can not be anticipated. And to do so would ruin its effect/affect. Being practical for a moment, it seems to be rapidly approaching. But again, we cannot anticipate the Moment. It will fall down like a bird dropping from a bright blue cloudless birdless sky. Who's to say? "Q: What will come after the Moment of the Gasp?" This is the crucial question, because the answer lies within the it. Since we can't determine what the event will be, we can't predict what will come afterward. "A: It all depends." This is the frightening realization that has been at the back of our collective minds for thousands of years. We really DON'T know what the future holds, and whatever it is, we in fact are totally unprepared for it. So we listen to Nostradamus, we re-read Revelations, we consult the Tarot and I Ching... to what end? We wish to control the future... When these temporal Holders-Of-The-Power wax poetic of the New World Order, they are not speaking of what is to come after the Moment of the Gasp. They are just covering their tracks. This war in Iraq made some among us humans gasp, but it was not THE Gasp. I certainly felt cheated by the system I'd been brought up to 'love and obey, or else'. But once more, The Gasp will be total, universal, and undeniable. Even George Bush will feel it. When that Moment comes and we have floundered and wallowed and died to our sanity, hopefully we will pick ourselves up and learn the lesson of that Moment. Q:What is the lesson? A: What kind of bird dropped that turd on us from the cloudless birdless sky? When we find ourselves in the Moment, and all we can do is Gasp, the time for change is at hand. Hope springs eternal, but then again, the circumstances of the Moment may kill us one and all. Who's to say? ************************************************************************* THE STATE OF NATIONAL SECURITY -- HOW MUCH WE (DON'T) KNOW November 11, 1990 Re-Release April 3, 1991 By The Desert Fox Transcribed and Edited by Lord Macduff I have been a member of the modem community for about seven years. During that time period, I have watched literally hundreds of bulletin boards go up and go down. A great majority of these systems were based on a public message and file exchange. But a few of these systems were dedicated to the exchange and distribution of information... Information that was not usually available on a regular basis. In my day, I have seen files on VAX/VMS, phone switching systems, hacking, phreaking, and anything else that one could dream of. But one thing that constantly has me pondering at all hours of the night is the state of our national defense. How close and how often do we come to pressing the button? Defined as DEFCON-1, the state of panic which is actually sub-defined as World War III, is something that has not been reached... yet. There are five levels of International Status. DEFCON-5 is what we'd all like to be at... unless you're a real nut case and have absolutely no hope for the future of mankind. DEFCON(s) 4-1 are lesser states of "panic". A dumb reference, yet a valid one, is the movie "Wargames". Although a liberal dose of fiction was mixed in as far as the actual methods of hacking and such, it makes one think "Just how often DO hackers break into systems like that and cause problems possibly leading to the destruction of the world?" [Editor's Note -- Not as often as certain federal agencies would like to think. Go catch some REAL criminals instead of picking on us modem users...] Another question that comes to mind is "How often do Soviet troop movements or something of that nature cause a defcon decrease to bring us to the brink of global extermination... and the public never knows about it?" During the Kennedy Administration, this country was brought to what is the equivalent of DEFCON-2 when the Soviets brought their missiles into Cuba in the early 1960's. From what transcripts say about the incident, we were seconds away from DEFCON-1... what a pisser, huh? Although that happened seven years before I was born, my generation would have taken it with a grain of salt and looked at it as a chance to get a tan. (A real good one, I might add...) Our country goes seconds from World War III and we never found out until years later. How often does this happen? Personally, I'd like to know when Vodka is going to replace Coca-Cola as the national beverage. I'd also like to know when fish eggs are going to be put on the menu at fast food joints. At this very moment [4:27 AM on Sunday, November 11, 1990 if anyone is curious... -Ed.] United States and Allied troops are in the Middle East preparing for war. The media reports that all the troops are over there just sitting around bored to death. [Yet another Editor's Note -- Due to a time control problem, I will finish this essay instead of Sir Lawrence... Apologies for the interruption.] It's very possible we could have another Vietnam on our hands. Hell, Saddam Hussain is not going to stop with the invasion of Kuwait... There's a very interesting parallel between Hussain and a short German guy who started World War II... I'm not so sure why everyone's worried about German Reunification -- It's the Iraqis we SHOULD be worrying about! Hussain insists that the American citizens that he is holding hostage in various hotels in Baghdad are "Guests". We might do well to round up every last Iraqi citizen in this country who has a visa or green card and stick 'em all in ONE Motel 6 somewhere in the midwest. Let Tom Bodett deal with them for a while... Perhaps the CIA could go blow up some of their planes or important buildings... Goodness knows they've done the same to us enough times to make the average citizen want to puke. If we hurry up and storm the place NOW, before Saddam figures out how to put together that mail-order nuclear bomb, we could take the whole place over in a matter of days. We could use that oil. The weapons manufacturers would make a fortune, perhaps even create new jobs. Our economy could USE a boost, with the gas prices what they are. [Sidenote: Who's to say that Exxon isn't financing Saddam Hussain?] Sell the entire country to Russia for them to use as parking, for that matter. The projected costs for Operation Desert Shield are in the billions, while it has accomplished virtually nothing. Truly another case of YOUR TAX DOLLARS AT WORK. But who's to say if this is for real? This may be a conspiracy by the oil companies (who secretly own the government) to make more money. The government controls the media, which is our only source if information from over there. Small wonder they want to supress publications like PHRACK... They aren't from the government-controlled media. SUPRESSION BREEDS REVOLUTION ************************************************************************* :======================================================: | A Brief Explanation of Beer*Net | | 10/16/90 | | | | Written by Toxic Sock @beernet01 | | | | Further information availible on the | | | | +-------------------------------------------------------------+ | following | | | Beer*Net | | | systems: | Apocalyptic Funhouse (713) 531 -*- 1139 | | | Sysop: Nuclear Gerbil/Chris 40 megs/2400/1200 | | | | | | The Magic Window (713) 356 -*- 7150 | | | Sysop: Zen Master/Mark 30 megs/2400/1200 | | | | | | Malacology Unlimited (713) 356 -*- 6004 | :===============| Sysop: Dr. Goodnight/Craig 80 megs/2400/1200 | | | | Split Infinity (713) FEW -*- BUGS | | Sysop: Strider Arcadian/Will 40 megs/2400/1200 | | | | Rawhide Palace (713) 383 -*- 3961 | | Sysop: Gurn Blanston/Ron 80 megs/2400/1200 | +-------------------------------------------------------------+ Why Beer*Net? ------------- Houston is famed for its intolerance of basic rights and the opinions of others on its bulletin board systems. This is not surprising in a city where the most common activity is the proverbial leechline activity, but is distressing nonetheless to intelligent users who want to make their opinions known without living in fear of mysterious account modifications, deletions or message removal. At times the oppression has been so blatant that users have made the transition from user to sysop and have run "free speech" systems that broke all of the established (and stupid) rules and allowed the open expression of intelligence. They have always met with opposition from the petty tyrants who run their own digital kingdoms for the gratification of having power, no matter how unconnected to reality it is. And, since these types generally invest a good deal of money in their systems, they are the ones who have what the common user covets - file transfers - and use this as the basis of their power. When something threatening such as a board with free speech allowed or a no ratio file transfer system appears, they often band together and assault the sysop, especially if he is a minor, where they know they can sufficiently confuse his parents into forcing them to remove the offending bulletin board system. This has happened to more than one reputable user-turned-sysop, and with the emergence of Beer*Net, will hopefully be eradicated. Free Speech ----------- Simply put, "free speech" is the right to say whatever the user pleases without any immediate repercussions other than the responses of fellow users. On a free speech BBS, a user may say whatever he wishes without trepidation, because the sysop is honor bound not to take action against the user. This is not easy for a sysop, especially when said user espouses neanderthal beliefs such as racism or bigotry. However, the overall outlook is much better for a BBS that allows intellectual development and interesting posts through free speech than for a squeaky-clean and silent BBS. This is a basic right we hold to be necessary, and we, the Beer*Net sysops, are committed to defend it. We agree that by allowing free speech we are exempting the users from action taken by the sysop against them for what they say publicly or privately on a BBS, with the exception of illegal activity such as passing long distance codes or passwords. We also agree that we will not read private mail, nor will we ever use a user's account for our own purposes. Any change in access level, change in user information or deletion of a part or the whole of the user's account in response to user posting is considering a violation, as are passing on to any other sysop, user or official all or part of a user's information and confronting anyone but the user himself with details of a supposed infraction. In addition, we are committed to helping others interested in maintaining free speech on bulletin board systems. If we hear of a case where unwarranted harrassment is being delivered by other sysops, we are pledged to combat it by whatever means necessary. Rights must be preserved above all. The Systems ----------- The systems listed on the file header are all committed to the Beer*Net ideals and have implemented them. They do not support blacklisting, and do not pass on user information between systems or to other users. Moreover, the sysops will NOT call up parents or deal with anyone besides the user himself regarding the user's conduct. The sysops do reserve the right to preserve in copy buffer form all or part of any chats, posts, or e-mail directed to the sysop or in a public area. These policies are implemented at the verification of this file by all of the sysops involved. History ------- Beer*Net was an idea developed in part by the sysops of TURD (the "original" true free speech system), namely Royal Flush, Vile Scent (Toxic Waste, Yeast Infection) and Captain Crapp (Vehicular Slaughter, Nuclear Gerbil) and in part by Zen Master, an original user on TURD and now sysop of the Magic Window. TURD had its origins in the Apple II community, where the sysops observed that more than the normal amount of petty didactic types reigned, and committed themselves to do something about it. Today, the remnants of TURD are to be found in Apocalyptic Funhouse (713-531-1139), as are parts of the Metal Hell and Dead Animal Pickup. Malacology Unlimited and Magic Window are later additions to the free speaking world, but are viable systems worthy of investigation by any user. They are running Hermes on the Macintosh and TAG on a clone, respectively. All are open systems. Attribution ----------- The credit for the impetus and ideas behind Beer*Net go to the following people: Yeast Infection: part of original brainstorm project Myself: Captain Crapp had to be involved... Zen Master: stimulated us to further develop the idea Dr. Goodnight: for helping to break the power of didactic sysops in Houston Jesse Helms: For proving that pro-rights people are smarter... ************************************************************************* THE LAW OF TORTS James J. Spinelli The Activity Bulletin Board Service - ABBS - (914) 779-4273 ===================================================================== This paper is NOT intended as a substitute for a lawyer NOR as a do-it-yourself kit. It provides basic information to help you under- stand certain legal principles. In any serious situation or when you are in doubt, there is no substitute for competent professional legal advice. Trying to act as your own lawyer can be costly and, in some in- stances, dangerous. The author assumes no responsibility, accountabil- ity or liability whatsoever in the use or misuse of any information presented herein. The information herein is of a general nature. ===================================================================== Most of us are generally aware of what crimes are (murder, arson, theft, for example) but are vague about what the law refers to as torts. There's a good reason: leading legal writers agree that no one has satisfactorily defined a tort. This is partly because torts are so common, so widespread and so varied. You are far more likely to be the victim of a tort than a crime, and you are also far more likely to com- mit a tort than a crime. The purposes of this paper are sevenfold: 1. To explain torts; 2. To show how they differ from crimes; 3. To stress the importance, in the law of torts, of negligence, intent and liability; 4. To indicate what relief is available to you when a tort has been committed against you or your property; 5. To show you how to seek that relief by starting a lawsuit; 6. To explain how such a suit is tried; 7. To relate all of the above purposes to a specific classification of circumstances, i.e., how they relate to the role and responsibilities of a systems operator (Sysop) of an electronic bulletin board service (BBS). TORTS VERSUS CRIMES - A tort is a civil wrong against an individual. A crime, on the other hand, is an offense against the public at large, or the state. For example, an automobile driver who carelessly bumps into your car in a parking lot and crumples the fender has committed a tort against your property. Because the law recognizes your legal right to freedom from injury to your property caused by other people's careless- ness, you are entitled to sue the driver and be awarded damages for his breach of your tight. But, he has committed no crime. Once again, a tort is an act that violates your private or personal rights. Unless the act that is a tort is also a crime, the state will do nothing about it. If you believe someone has violated your personal rights -- but has not acted against the interests of the public as a whole -- it is entirely up to you to seek relief by suing the person in the civil courts. If the person who you believe has legally aggrieved you is found liable -- that is, the judge or jury finds that the person did in fact injure you or your property -- the person may be required to: 1. give you relief by paying you "damages" for the injury or property loss you suffered, 2. discontinue the wrongful acts, or 3. restore to you what was taken from you. In some cases the person may be imprisoned. If the tort is also a crime, two separate legal actions confront the wrongdoer: your's and the state's. A tort is usually committed when someone injures you physically, dam- ages or misuses your property, attacks your reputation arbitrarily or takes away your liberty and freedom of action without just cause. To recover damages for a tort you must prove either that the act was com- mitted with deliberate intent (as when someone spreads false accusa- tions about you) or that it was the result of negligence. In most cases you must prove that the act inflicted actual damage or injuries. A malicious act that does you no harm is not sufficient cause for legal action. A person who is proved to have committed a tort will be held respon- sible for all the damages proved to have resulted from the act, includ- ing damages to "third parties." WHO IS RESPONSIBLE FOR COMMITTING A TORT - Generally speaking, any per- son, young or old, mentally competent or not, is responsible for his/her torts, i.e., for the consequences of the actions to others in- jured by those actions. Here is an interesting distinction between torts and crimes. Children below a certain age not usually liable for crimes they commit, on the ground that children of their age really do not understand the significance of their actions. For basically the same reason, persons who have been adjudged mentally incompetent are not liable for their crimes. BUT, these SAME persons may be liable for their torts, whether they are deliberate or the result of carelessness. Intent is an essential element in such torts as libel and trespass. Al- most all employers are liable for the torts of their employees if the employee committed the harmful act during the course of employment. (This also applies to "agent" and "principal" relationships.) The point to keep in mind is that the law usually holds an employer liable for what happens when his employee is carrying out instructions and/or working on behalf on the employer. But, not all employers -- especially not governmental ones. The doctrine of sovereign immunity -- that the state cannot be sued except by its own consent -- severely limits your right to sue governments and governmental bodies for the torts of their employees. However, the US government and the government of many states have in recent years passed laws that do permit such suits to be brought against them. In some instances separate courts, usually called courts of claims, have been established to handle these actions. Some people may not be held liable in tort actions. Among them are hus- bands and wives, who are not considered responsible for each other's torts, and parents, who are not usually liable for the torts of their children. The situation changes, however, if the parent knows that the child has developed what lawyers call a vicious propensity to commit acts that injure other people or their property. In addition, some states have passed laws that do make the parents responsible for will- ful damage caused by their minor children. Of course, if it can be established that the husband or wife or parent or other adult actually thought up the tortious action, planned it and coerced or persuaded the spouse or child into committing it, than that adult or spouse WILL be held responsible for the act and liable for the damage it caused. Except for so-called acts of God, any interference with your personal or property rights, whether intentional or through negligence, is a tort. When it comes to personal rights, torts typically deal with one or more of the following intentional violations: (negligence comes later) 1. Interference with your freedom of movement 2. Misuse of the legal process 3. Interference with your person 4. Interference with your peace of mind 5. Interference with your privacy 6. Interference with your reputation For our purposes, we shall examine only items 4, 5 and 6 -- interfer- ence with your peace of mind, your privacy and your reputation. INTERFERENCE WITH YOUR PEACE OF MIND - The growth in the sciences of medicine and psychology has brought about an expansion of the idea of freedom from fear or apprehension. You may have an action against some- one who intentionally inflicts mental suffering on you. You have a right to freedom from the consequences of mentally abusing malicious acts, and the courts protect that right by awarding damages -- nominal, or small, if the harm is slight; punitive, or large, if the damage is great or the act particularly outrageous. Consider the mental anguish if you are worried that someone will come into your home and cause dam- age, or that someone will "attack" your computer system while you are not around to protect it. The more expensive the equipment (your prop- erty), the more punitive the damages. At times, the intent alone, par- ticularly if shown to be an act of vengeance or malice, can be suffi- cient to award punitive damages that are considerably greater than the cost or value of property, depending on the mental anguish suffered. If such an act disrupts a business, the mental anguish can be quite se- vere, and the tort may be punishable by stiff fines and/or a jail term. In some cases, such torts can be classified as a crime, which then ne- cessitates the state to step in, since some states view the mental an- guish to be associated with acts of violence that concern the public at large. This applies since other businesses may be subjected to similar malfeasance. INTERFERENCE WITH YOUR PRIVACY - This is another right protected by the courts -- your right to be let alone. Such interference can take many forms, some obvious, others not so obvious. One of the not-so-obvious, or less direct violations to privacy, is the objectionable publicity to private information about you. INTERFERENCE WITH YOUR REPUTATION - As important as any freedom to which you are entitled is freedom from unwarranted, untruthful attacks on your character. This kind of attack, if made in the presence of other people, constitutes defamation, for which you are entitled to nominal or punitive damages, as the case may be. If you are defamed orally, you have been slandered. If the defamation is in writing and shown to or seen by someone else, you have been libeled. Slander is the less serious of the two torts because it is fleeting. The spoken words of defamation exist only as they are uttered and then disappear for- ever. Libel is permanent, and the damages awarded are therefore usually larger. Generally speaking, defamatory statements made over radio and television, and via computer are now considered libelous rather than slanderous. You can recover damages for slander or libel without proving actual fi- nancial loss if you are accused of something considered serious. The reason is that, since the good reputation of a professional person is essential to his/her ability to make a living, the law assumes that such accusations will diminish that ability and will therefore damage the individual. This kind of attack slander or libel is called slander or libel per se. Spreading lies about others, especially when the lies affect their ability to make a living or may hurt them in their family or public relationships, constitutes slander if spoken to others and libel if written or transmitted to others. With property rights, torts are generally concerned with the following intentional violations: (negligence comes later) 1. Nuisances 2. Keeping others off your property 3. Misuse of your personal property 4. Interference with your contractual and business relationships 5. Fraud, deceit and misrepresentation For our purposes, we shall examine items 3, 4 and 5 above, i.e., misuse of your personal property, interference with contractual/business rela- tionships, and fraud, etc. MISUSE OF YOUR PERSONAL PROPERTY - You have the right to the unre- stricted and uninterrupted enjoyment of your personal property. The law provides remedies for the intentional interruption of your right or in- terference with it. Interference with your personal property is called the tort of conversion. It can be conduct intended to affect your per- sonal property or conduct that, even though not intentionally wrong, is inconsistent with your right of ownership. Examples of conversion are: 1. Someone intentionally alters the property 2. Someone uses your property in a manner inconsistent with your wishes or requirements In both of these cases, your control of your property has been inter- fered with, and you are entitled to sue for the tort of conversion. INTERFERENCE WITH YOUR CONTRACTUAL AND BUSINESS RELATIONSHIPS - You have a right to freedom from interference by others with the contrac- tual relationships you have entered into. This applies even when, after the contractual or business relationship, admission of errors are ac- knowledged by the offending party. (Remember, contracts occur into com- mon forms: oral and written. NOTE: The law of contracts is beyond the scope of this paper, and will only be referred to as sufficient to re- late to torts as defined herein.) Damages can be punitive if you can convince the court that the defendant specifically set out to interfere with the relationship or set out to ruin your reputation within the confines of your relationship. Proof need only be beyond a reasonable doubt and not necessarily overwhelmingly convincing. Potential disrup- tion also is considered, since business relationships can be both short- and long-term. FRAUD, DECEIT AND MISREPRESENTATION - You have a right to freedom from being improperly induced or persuaded to do something, or not to do something, by someone's trickery. What is involved in this tort is: 1. A conscious or knowing false statement made to you, 2. by someone who knew the statement was false, 3. with the intention that you would rely on it, 4. followed by your actual reliance on it, and 5. your "suffering" as a result. The main thing here is for the person suing to establish that he/she was consciously tricked and that if the correct information had been given, the suing person would not have acted as he/she did. We now move onto the Law of Torts as it applies to the accidental in- terference with your personal or property rights. This is typically classified under the general heading of NEGLIGENCE. Earlier, we were concerned with the intentional interferences with your various rights as a member of society. In each of the torts presented the harm was intended or the result of an intended act. But, there is a large area of the law of torts that is basically different -- the area of civil wrongs or torts that are the result of negligence, or mere carelessness. In our increasingly complex society, wrongs resulting from carelessness are becoming more numerous than intentional torts. In any case, there is a major difference between the two kinds of wrong: to recover from someone's negligent conduct toward you, you must prove actual damages -- you must establish that the person really did injure your person or your property. By contrast with intentional torts, such as trespass, you are entitled to some damages just by proving the tort was commit- ted. Unintentional interference can result either from negligence or from accident. WHAT IS NEGLIGENCE - Legal actionable negligence exists when: 1. You have a legal duty or obligation to conform to a certain standard of conduct to protect others against unreasonable risk; 2. You fail to conform to that standard; 3. Your conduct is so closely related to the resulting injury that it can be said to have caused it -- to have been its proximate cause, and 4. Actual damages results from your conduct. If these four elements are present in a situation in which you are in- volved, you may be sued and you will find it hard to defend yourself. These elements of negligence are reasonably clear. But, you should rec- ognize that the existence of "a legal duty or obligation" to others may depend on the circumstances of the case in which you are being sued. You have a legal duty to others only if the court or a statute says you do. You have no obligation if the court finds none. When a tort suit is tried, the standard of care expected of the defen- dant is defined by the judge (or the jury). The judge (or the jury, if there is one) determines the facts of the case and applies them in light of his/her (or their) definition. In groping around for guidelines as to whether you do or do not have a duty to act a certain way, and in deciding whether your conduct meets the required standard, the courts compare your conduct with the pre- sumed conduct of a reasonable or prudent man. If this imaginary reason- able or prudent man would have acted a certain way, the person who does is liable. You are supposed to do what the prudent man would do, and you are not supposed to do what the prudent man would not do. As A.P. Herbert, the English legal humorist, put it: He is an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen... He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or a bound...who never swears, gambles or loses his temper; who uses nothing except in moderation....In all that mass of authorities which bears upon this branch of the law there is no single mention of a reasonable woman. A key element in a successful negligence suit is the connection between what was done and the injury that supposedly resulted from the act. The person suing must prove that the defendant caused injury to his/her person or property. Some courts in trying to decide whether an act was the proximate cause of subsequent damage have applied what is called the "foreseeability test." They hold that the negligence is not the proximate cause unless the consequence was one that, in the light of all circumstances, our reasonably prudent man could have foreseen as a probably result of his actions or his failure to act. (NOTE: There is modification to the prudent man rule when professionals or experts in given fields are involved. Here, the court views the facts in light of the nature of the knowledge of the expert. For ex- ample, a computer programmer is not viewed the same way as a casual computer user. Actions attributable to an expert are viewed in terms of how the typical expert in that field would have acted or would not have acted. If a casual computer user unintentionally damaged your computer system, it would not be given the same consideration as if an "expert" did the same thing. Remember, we are dealing with reasonableness, and expertise or skills above the "ordinary person" can weigh heavily in determining the final outcome of a tort-based lawsuit. Other circumstances can apply, particularly if a business transaction occurs and/or a contract is in force.) YOUR DUTY TO OTHERS WHO COME ONTO YOUR PROPERTY - If you own property (any kind of property, not just real estate, e.g., computer bulletin board systems), you have definite responsibilities to persons coming onto that property legally or otherwise. Even to a trespasser, someone entering your property illegally, you have an obligation to give warn- ing of any genuinely dangerous (or injurious/harmful) condition known only to you. If you hobby is a computer bulletin board, you'd be wise to post a warning sign (or disclaimer) so that casual trespassers real- ize that there may be a danger in wandering around your property. (NOTE: You must be able to prove that the warning was in fact in such a place, state or condition that it could not have been bypassed or mis- interpreted. A warning (or disclaimer) that people cannot easily view or is not reasonably obvious is no warning at all. For example, a typical news item that can be bypassed on a bulletin board log-on is not considered a reasonable posting of a warning because it can be by- passed -- is not necessarily obvious to all.) You owe a stricter responsibility to trespassing children (minors) be- cause they are children and unlikely to realize or care about the fine points of the law of trespass. To protect young trespassers and to com- pensate them for injuries they may suffer in behaving like children, the courts have thrown over them a mantle called the attractive nui- sance doctrine. This doctrine requires the property owner who maintains on his property anything attractive to young children, and dangerous to them because of their immaturity and unawareness of possible risks, to exercise reasonable care in protecting them against the dangers of the attraction. (Think about this should you be carrying pornographic material on your bulletin board, or other such attractions that children can be harmed from. Computer games may become a potential source of difficulty given the current lawsuit against the manufacturers and distributors of Dun- geons & Dragons -- the "game" being blamed as a teenager's cause for committing a crime. As "ludicrous" as it may sound, the case is going to court.) There is a group of people called licensees who may come onto your property with your implied permission. They are different from tres- passers who have no permission, and you have a somewhat stronger obli- gation to protect them. You have a duty to warn them of dangerous or hazardous or harmful conditions they may not anticipate or easily see. (The law regarding your obligation to casual guests in your computer system is specialized and evolving.) Invitees are the people coming onto your property to whom you owe the maximum duty of protection, not only against risks you actually do know about, but also against dangers that you should know about if you exer- cised reasonable care. Invitees are persons who enter your property upon your business and upon your express or implied invitation. As in most tort cases, the court and the jury will carefully consider the facts in each situation before coming to a decision about whether or not the defendant was negligent. One rule commonly applied is that the standard of care required of the property owner is greater to the degree that the presence of people on his property is helpful or prof- itable to the property owner. In other words, a bulletin board sysop, who gains a benefit from your visiting his/her system, has a greater duty to you than does a friend who invites you to his/her home as a so- cial guest. (Note: the benefit need NOT be monetary.). The application of general rules is up to the court. The liability to trespassers, invitees and licensees is the owner's or that of the person in legal possession. (For example, if you lend your computer system to someone, and harm is done, the liability belongs to the person in legal posses- sion, which may or may not be your's., depending on the nature of the possession and of the restrictions thereof.) Torts frequently occur under circumstances in which, although it is im- possible to prove negligence on anyone's part, what happens is so ex- traordinary that negligence is presumed. As the courts say, the thing speaks for itself: res ipsa loquitur. The doctrine of res ipsa loquitur may also be invoked where damage is caused by the breakdown of a device that is under the complete owner- ship and control of the defendant. THE IMPORTANCE OF LIABILITY - Underlying all of this is your right to recover for injuries you suffer from interference with your right to be free from a variety of wrongs, some well established and others just becoming established. If you feel that you have been wronged, you should carefully consider still another factor that will influence your decision whether or not to sue. This is the question, which only your lawyer should decide, of whether there is any liability on the part of the person who has wronged you. He will be liable, and your legal action against him will succeed, only if he/she has actually violated a legal duty which is owed to you as an individual. Forgetting momentarily the question of your responsibility for what happened, you can recover only where what was done or failed to be done violated the course of conduct that the reasonably prudent man would have done. If the conduct of the person you want to sue has not, judged by the presumed conduct of the reasonably prudent man, violated a duty to you, the chances are you have no action. Liability is essential: you can win your suit only if the person you are suing acted or failed to act in such a way as to make the person liable. Liability results from conduct that violates or interfers with one of your rights that the law recog- nizes. If there is no such conduct there is no liability, no matteer how aggrieved you may feel. However, remember that the "prudent man" standard can also vary. Pro- fessionals, i.e., doctors, lawyers, computer specialists, and the like, are not your "ordinary" layperson. As such, the standards that govern their conduct are viewed as a prudent practioner within the area of speciality. These standards are gauged at a higher level than the ordi- nary citizen's. RIGHTING THE WRONG - Let's say that your lawyer has decided that, on the basis of the facts you have given, the person who has wronged you had a duty not to do so and that a court can therefore find the person liable for violation of that duty. The question of which remedy you should seek becomes all-important. Underlying the answer to this ques- tion is the subject of damages. Also, keep in mind that many inten- tional torts are or can be crimes. Someone, for example, breaks into your computer system and destroys all of the information you had stored there. It would take you weeks, if not months, if at all, to be able to restore that information. However, in the process you are severely compromised for work that you were per- forming for someone for a fee. What is the "cost" of the damage? You need to decide whether what you've lost is worth the expense of suing. Also, is the person you are suing "judgment-proof?" That is, is the person being sued broke or without assets? Sure you can sue, but if you can't recover anything, you've gained nothing. You've lost the expense of the legal action. You may, therefore, decide to sue on principle. Provided you have the funds to take legal action, and do not care very much about recovering money damages, you may continue your efforts. In this example, some states would view the action as a crime. If so, "punishment" may no longer be simply "monetary" in nature. You are not limited to asking for money damages when you have been de- prived of your property. You may try to get back the property itself, or a reasonable facsimile. Let's say that someone causes damage to your equipment. You may sue to get back equipment of equal value. There are certain other torts for which money damages are not the re- lief you want. If you are bothered by the neighbor who persists in walking across your property despite all your requests that he stop, money damages don't help you much. What you want in such a case is a court order that he stop. Such an order is called an "injunction." Now, let's apply all of this to the BBS environment. ABBS wishes to thank Frank Levine, Attorney at Law and Co-Sysop at ABBS, for the following. We are uncertain as to its origin, but know that it has come from another bulletin board system. This and our paper on the Law of Torts, represent our efforts to provide information to fellow Sysops/BBS operators in hopes to enlighten and contribute toward the growth and success of the services we all provide and the communities we all serve. James J. Spinelli Sysop, ABBS (914) 779-4273 ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986 H.R. 4952 Some of its provisions are important to BBS sysops and users. The following is an excerpt from the House Report ( 99-647). CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTION RECORDS ACCESS Section 2701. Unlawful access to stored communications (a) Offense.--Except as provided in subsection 9c) of this section whoever-- (1) intentionally accesses without authorization a facility through which an electronic communiation service is provided; or (2) intentionally exceeds an authorization to ac- cess that facility and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section. (b) Punishment.-- The punishment for an offense under sub section (a) of this section is-- (1) if the offense is committed for purposes of commercial advantage, malicious destruction or damages, or private commercial gain-- (A) a fine of not more than $250,000 or imprisonment for not more than one year, or both, in the case of a first offense under this subparagraph; and (B) a fine under this title or imprison- ment for not more than two years or both for an subsequent offense under this subparagraph; and (2) a fine of not more than $5,000 or imprisonment for not more than six months, or both in any other case. Section 2702. Disclosure of Contents (a) Prohibitions.--Except as provided in subsection (b)-- (1) a person or entitle providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and (2) a person or entity providing remote computing service to the public shall not knowingly di- vulge to any person or entity the contents of any communication which is carried or main- tained on that service-- (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service; and (B) solely for the purpose of providing storage or computer processing ser- vices to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of pro- viding any services other than storage or computer processing. (b) Exceptions.--A person or entity may divulge the con- tents of a communication --- (1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient; (2) as otherwise authorized in section 2516, 2511(2)(a) or 2703 of this title; (3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service; (4) to a person employed or authorized or whose fa- cilities are suited to forward such communication to its destination; (5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that ser- vice; or (6)to a law enforcement agency, if such contents-- (A) were inadvertently obtained by ser- vice provider; and (B) appear to pertain to the commission of a crime. REPORT LANGUAGE Proposed section 2701 provides a new criminal offense. The offense consists of either: (1) intentionally accessing, without authorization, a facility through which an electronic communication service is provided or (2) intentionally exceeding the authorization of such facility. In addition, the offense requires that the offender must, as a result of such conduct, obtain, alter, or prevent unauthorized access to a wire or electronic communication while it is in electronic storage in such a system. The term electronic storage is defined in section 2510(17) of Title 18. Electronic storage means any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof and the storage of such communication by an electronic communications service for the purpose of back-up protection of such communication. Section 2701(a) makes it an offense intentionally to access without authorization, or to exceed an authorization to ac- cess, an electronic communication service and thereby obtain, or prevent authorized access to a wire or electronic communication while it is in electronic storage in such sys- tem. This provision addresses the growing problem of unautho- rized persons deliberately gaining access to, and sometimes tampering with, electronic or wire communication that are not intended to be available to the public. The Committee recognizes however that some electronic com- munication services offer specific features, sometimes known as computer "electronic bulletin boards," through which interested person may communicate openly with the public to exchange computer programs in the public domain and other types of information that may be distributed without legal constraint. It is not the intent to hinder the development or use of "electronic bulletin boards" or other comparable services. The Committee believes that where communciations are readily accessible to the general public, the sender has, for purposes of Section 2701(a), extended an "authorization" to the public to access those communications. A person may reasonably conclude that a communication is readily acces- sible to the general public if the telephone number of the system and other means of access are widely known, and if a person does not, in the course of gaining access, encounter any warnings, encryptions, password requests or other indicia of intended privacy. To access a communication on such a system should not be a violation of the law. Some communcation systems offer a mixture of services, some, such as bulletin boards, which may be readily accessible to the general public, while others--such as electronic mail--may be intended to be confidential. Such a system typically has two or more distinct levels of security. A user may be able to access electronic bulletin boards and the like merely with a password he assigns to himself, while access to such features as electronic mail ordinarily entails a higher level of security (i.e., the mail must be addressed to the user to be accessible specifically). Section 2701 would apply differently to the different services. These wire or electronic communications which the service provider attempts to keep confidential would be protected, while the statute would impose no liability for access to feature configured to be readily accessible to the general public. Section 2702 specifies that a person or entity providing wire or electronic communication service to the public may divulge the contents of a communication while in electronic storage by that service with the lawful consent of the originator or any addressee or intended addressee or intended recipient of such communication. The committee emphasizes that "lawful consent" in this context, need not take the form of a formal written document of consent. A grant of consent electronically would protect the service provider from liability for disclosure under section 2702. Under various circumstances, consent might be inferred to have arisen from a course of dealing between the service provider and the customer or subscriber--e.g. where a history of transactions between the parties offers a basis for a reasonable understanding that a consent to disclosure attaches to a particular class of communications. Consent may also flow from a user having had a reasonable basis for knowing that disclosure or use may be made with respect to a communications, and having taken action that evidences acquiescence to such disclosure or use--e.g., continued use of such an electronic communication system. Another type of implied consent might be inferred from the very nature of the electronic transaction. For example, a subscriber who places a communication on a computer "electronic bulletin board," with a reasonable basis for knowing that such communications are freely made available to the public, should be considered to have given consent to the disclosure or use of the communication. If conditions governing disclosure or use are spelled out in the rules of an electronic communication service, and those rules are available to users or in contracts for the provision of such services, it would be appropriate to imply consent on the part of a user to disclosures or uses consistent with those rules. Section 2702(a) specifies that a person or entity providing a wire or electronic communication service or remote computer services to the public shall not knowingly divulge the contents of any communication while in electronic storage by that service to any person or entity other than the addressee or intended recipient of such communication or an agent of such addressee or intended recipient of the communications. Under some circumstances, however, a customer or subscriber to a wire or electronic communication service may place a communication on the service without specifying an addressee. The Committee intends, in that situation, that the communica- tion at a minimum be deemed addressed to the service provider for purposes of Section 2702(b). Because an addressee may consent to the disclosure of a communication to any other person, a service provider or system operator, as implied addressee, may disclose the contents of an unaddressed communcation. A person may be an "intended recipient" of a communication, for purpose of section 2702, even if he is not individually identified by name or otherwise. A communication may be addressed to the members of a group, for example. In the case of an electronic bulletin board, for instance, a communication might be directed to all members of a previously formed "special interest group" or, alternatively, to all members of the public who are interested in a particular topic of discussion. In such an instance, the service provider would not be liable for disclosure to any person who might reasonably be considered to fall in the class of intended recipients. COMMENTS The entire document has to be read and studied to draw final conclusions on a number of important issues. However, the following observations can be made: 1. SYSOPS are to be considered providers of an electronic communications service. In other words, whenever a BBS goes up, it becomes an electronic communication service subject to the requirements of the law. 2. Users of the BBS are protected and may have grounds to take action against or ask that criminal charges be brought if their communications are improperly disclosed. 3. SYSOPs do have added protection against hackers, and federal law enforcement is available. 4. Any "general" messages addressed to all members of the board, provided the board is open to the general public, may be disclosed and are not protected. 5. However: a. It is unclear whether a sysop may legally read pri- vate mail on his board addressed to another user, un- less sysop discloses in a warning message that he/she may read such messages. b. Conferences that are not generally open to the pub- lic may create an expectation of privacy and there will be limited rights to disclose information. c. Major changes in security procedures may require user consent, or their messages may have to be re- moved. 6. It would be prudent to have a major disclaimer in the in- troduction of each BBS session, stating that there is no ex- pectation of privacy and that anything left on the board may be read or disclosed by the sysop. Next, we present the "LEGAL" view. We wish to thank our friend, Ruel Hernandez, for the information in this section of our report. COMPUTER_ELECTRONIC_MAIL_AND_PRIVACY INTRODUCTION Four years ago, Congress introduced legislation which sought to provide federal statutory guidelines for the privacy protection of electronic communications, including electronic mail (e-mail) found on commercial computer-based services and on other remote computer systems such as electronic bulletin board systems (BBS). The old federal wiretap law only gave protection to normal audio telephone communications. Before the legislation culminated into the Electronic Communications Privacy Act of 1986 (ECPA), which went into effect on January 20, 1987, there was no contemplation of computer-based electronic communications being transmitted across telephone lines and then being stored on disk for later retrieval by or forwarding to its intended recipient. Federal law did not provide guidelines for protecting the transmitted electronic messages once they were stored on these computer-based communications services and systems. QUESTIONS (1) Whether electronic mail and other intended private material stored on an electronic computer communications service or system have Fourth Amendment privacy protection? (2) Should private electronic mail and other such material be accorded federal statutory protection guidelines such as those enjoyed by the U.S. Mail? PROBLEM Law enforcement seeks criminal evidence stored as e-mail either on a commercial computer service, such as CompuServe, GEnie or The Source, or on a hobbyist-supported BBS. (Note, this situation is equally applicable to personal, private data stored on a remote system for later retrieval, such as with CompuServe's "personal file" online storage capabilities.) For example, a computer user calls up a computer communication system. Using the electronic mail function, he leaves a private message that can only be read by an intended recipient. The message is to inform the recipient of a conspiracy plan to violate a federal or state criminal statute. Law enforcement gets a tip about the criminal activity and learn that incriminating evidence may be found on the computer system. In 1982, such a situation occurred. (Meeks, Life_at_300_Baud:_Crime_on the_BBS_Network, Profiles, Aug. 1986, 12-13.) A Detroit federal grand jury, investigating a million-dollar cocaine ring, issued a subpoena ordering a commercial service, The Source, to hand over private subscriber data files. The files were routinely backed up to guard against system crashes. The grand jury was looking for evidence to show that the cocaine ring was using The Source as a communications base to send messages to members of the ring. With such evidence, the grand jury could implicate and indict those suspected of being part of the cocaine ring. The Source refused to obey the subpoena on the basis of privacy. The prosecution argued The Source could not vicariously assert a subscriber's privacy rights. Constitutional rights are personal and could only be asserted by the person whose rights are invaded. Additionally, since the files containing messages were duplicated by the service, any user expectation of privacy would be extinguished. A court battle ensued. However, before a ruling could be made, the kingpin of the cocaine ring entered a surprise preemptive guilty plea to federal drug trafficking charges. The case against The Source was discontinued. Publicly posted messages and other public material may be easily retrieved by law enforcement. It is the private material, such as e-mail, which posed the problem. Law enforcement's task was then to gather enough evidence to substantiate a criminal case. Specifically, they would want the e-mail, or other private files, transmitted by suspected criminals. In opposition, the provider or systems operator of a computer communications service or system, in his assumed role as keeper of transmitted private electronic messages, would not want to turn over the private data. INADEQUACY OF OLD LAW Meeks noted that as of August, 1986, "no ... protection exist[ed] for electronic communications. Any law enforcement agency can, for example, confiscate a local BBS and examine all the message traffic," including all private files and e-mail. (Id.) CASE LAW There is little case law available on computer communications and Fourth Amendment constitutional problems. (See_generally M.D. Scott, Computer Law, 9-9 (1984 & Special Update, Aug. 1, 1984).) If not for the preemptive guilty plea, the above described Detroit case may have provided some guidance on computer-based communications and privacy issues. Of the available cases, there are those which primarily dealt with financial information found in bank and consumer credit organization computers. In U.S._v._Davey, 426 F.2d 842, 845 (2 Cir. 1970), the government had the right to require the production of relevant information wherever it may be lodged and regardless of the form in which it is kept and the manner in which it may be retrieved, so long as it pays the reasonable costs of retrieval. In a California case, Burrows_v._Superior_Court, 13 Cal. 3d 238, 243, 118 Cal. Rptr. 166, 169 (1974), a depositor was found to have a reasonable expectation that a bank would maintain the confidentiality of both his papers in check form originating from the depositor and the depositor's bank statements and records of those checks. However, in U.S._v. Miller, 425 U.S. 435, 96 S.Ct. 1619 (1976), customer account records on a bank's computer were held to not be private papers of the bank customer, and, hence, there was no Fourth Amendment problem when they are subpoenaed directly from the bank. Although these cases have more of a business character in contrast to personal e-mail found on computer systems such as CompuServe or a hobbyist- supported BBS, they would hold that there would be very little to legally stop unauthorized access to computer data and information. Under the old law, a prosecutor, as in the Detroit case, may try to analogize duplicated and backed up e-mail to business situations where data on business computer databases are also backed up. Both types of computer data are stored on a system and then later retrieved. The provider or systems operator of a computer electronic communications system would counterargue that the nature of computers always require the duplication and backup of any computer data, whether the data files be e-mail or centrally- based financial or credit data. Data stored on magnetic media are prone to possible destruction. Duplication does not necessarily make e-mail the same as financial or credit data stored in business computers. Centrally-based business information is more concerned with the data processing. That information is generally stored and retrieved by the same operator. E-mail is more concerned with personal communications between individuals where the sender transmits a private message to be retrieved only by an intended recipient. The sender and the recipient have subjective expectations of privacy that when viewed objectively are reasonable. Therefore, there would be a constitutionally protected expectation of privacy under Katz_v._U.S., 389 U.S. 347, 88 S.Ct. 507 (1967). However, the prosecution would note under California_v._Ciraolo, -- U.S. --, 106 S.Ct. 1809 (1984), users would have to protect their electronic mail from any privacy intrusion. The provider or operator of the service or system has ultimate control over it. He has complete access to all areas of the system. He could easily examine the material. The prosecution would note the user could not reasonably protect his private data from provider or operator invasion. This "knot-hole," where an observer can make an observation from a lawful position, would exclude any reasonable expectation of privacy. If there is no privacy, there can be no search and therefore no Fourth Amendment constitutional violation. Law enforcement can retrieve the material. The Justice Department noted the ambiguity of the knothole in a response to Senator Leahy's question whether the then existing wiretap law was adequate to cover computer communications. (S. Rep. No. 541, 99th Cong., 2d Sess. 4 reprinted_in 1986 U.S. Code Cong. & Ad. News 3558.) It was "not always clear or obvious" whether a reasonable expectation of privacy existed. (Id.) FEDERAL WIRETAP STATUTES The old federal wiretap statutes protected oral telephone communications from police interceptions. This protection was made during 1968 in response to electronic eavesdropping conducted by government. (Cohodas, Congress_Races_to_stay_Ahead_of_Technology, Congressional Quarterly Weekly Report, May 31, 1986, 1235.) Although e-mail appears to come under the old 18 U.S.C. sec. 2510(1) definition of "wire communication," it was limited to audio transmissions by wire or cable. The old 18 U.S.C. sec. 2510(4) required that an interception of a wire communication be an oral acquisition of the communication. By being "oral," the communication must be "heard." There would be a problem as to whether an electronic communication could be "heard." Data transmissions over telephone lines generally sound like unintelligible noisy static or high pitched tones. There would certainly be no protection after a communication has completed its transmission and been stored on a computer. The communication's conversion into computer stored data, thus no longer in transmission until later retrieved or forwarded as transmission to another computer system, would clearly take the communication out of the old statutory protected coverage. "Eighteen years ago ... Congress could not appreciate - or in some cases even contemplate - [today's] telecommunications and computer technology...." (132 Cong. Rec. S7992 (daily ed. June 19, 1986) (statement of Sen. Leahy).) COMPARISON WITH U.S. MAIL PROTECTION A letter sent by first class mail is given a high level of protection against unauthorized intrusion by a combination of federal and U.S. Postal Service statutes and regulations. For instance, the unauthorized taking out of and examining of the contents of mail held in a "depository for mail matter" before it is delivered to the mail's intended recipient is punishable by fine, imprisonment, or both. (18 U.S.C. sec. 1702.) In comparison, under the old law, electronic communications had no protection. Federal protection for U.S. Mail provided a suggested direction as to how electronic communications should be protected when it was no longer in transmission. SOLUTION - THE NEW LAW There are two methods towards a solution: (1) court decisions; or (2) new legislated privacy protection. COURT DECISIONS Courts may have chosen to read computer communications protection into the old federal wiretap statute or into existing state law. However, they were reluctant to do so. Courts "are in no hurry to [revise or make new law in this area] and some judges are openly asking Congress for help.... [F]ederal Appeals Court Judge Richard Posner in Chicago said Congress needed to revise current law, adding that 'judges are not authorized to amend statutes even to bring them up-to-date.'" (Cohodas, 1233.) NEW STATUTE On October 21, 1986, President Reagan signed the new Electronic Communications Privacy Act of 1986 amending the federal wiretap law. ECPA went into effect during the beginning of 1987. (P.L. 99-508, Title I, sec. 111, 100 Stat. 1859; P.L. 99-508, Title II, sec. 202, 100 Stat. 1868.) ECPA created parallel privacy protection against both interception of electronic communications while in transmission and unauthorized access to electronic communications stored on a system. The new ECPA first provides privacy protection for any 'electronic communication' ... [by] any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce...." (18 U.S.C. secs. 2510(12), 2511.) The Senate Report noted examples of electronic communications to include non-voice communications such as "electronic mail, digitized transmissions, and video teleconferences." (S. Rep. No. 541, 99th Cong., 2d Sess. 14 reprinted_in 1986 U.S. Code Cong. & Ad. News 3568.) Electronic communication is defined in terms of how it is transmitted. So long as the means by which a communication is transmitted affects interstate or foreign commerce, the communication is covered ECPA. (18 U.S.C. sec. 2510(12).) Generally, that would include all telephonic means including private networks and intra-company communications. (S. Rep. No. 541, 99th Cong., 2d Sess. 12 reprinted_in 1986 U.S. Code Cong. & Ad. News 3566.) Second, ECPA protects the electronic communication when it has been stored after transmission, such as e-mail left on an electronic computer communication system for later pickup by its intended recipient. (18 U.S.C. sec. 2510(17).) The legislation makes it a federal criminal offense to break into any electronic system holding private communications or to exceed authorized access to alter or obtain the stored communications. (18 U.S.C. sec. 2701(a).) The legislation would protect electronic computer communication systems from law enforcement invasion of user e-mail without a court order. (18 U.S.C. secs. 2517, 2518, 2703.) Although the burden of preventing disclosure of the e-mail is placed on the subscriber or user of the system, the government must give him fourteen days notice to allow him to file a motion to quash a subpoena or to vacate a court order seeking disclosure of his computer material. (18 U.S.C. sec. 2704(b).) However, the government may give delayed notice where there are exigent circumstances as listed by the Act (18 U.S.C. sec. 2705.) Recognizing the easy user destruction of computer data, ECPA allows the government to include in its subpoena or court order the requirement that the provider or operator retain a backup copy of electronic communications when there is risk of user destruction. (18 U.S.C. sec. 2704(a).) The legislation gives a civil cause of action to the provider or operator, subscriber, customer or user of the system aggrieved by an invasion of an electronic communication in the system in violation of the ECPA. (18 U.S.C. secs. 2520, 2707.) If the provider or operator has to disclose information stored on his system due to a court order, warrant, subpoena, or certification under ECPA, no cause of action can be brought against him by the person aggrieved by such disclosure. (18 U.S.C. sec. 2703(e); see_also 18 U.S.C. secs. 2701(c), 2702(b), 2511(2)(a)(i), 2511(3)(b)(iii) where the systems operator or provider is not held criminally liable, may observe a private communication while performing employment duties or according to authorization, etc., may intercept private communication while making quality control checks or during the course of forwarding communications to another system.) SYSTEMS COVERED Clearly, the national commercial services in the United States, including CompuServe, MCI Mail or a company using a contracted e-mail service, such as GE QUIK-COM (See S. Rep. No. 99-541, 99th Cong., 2d Sess. 8 reprinted_in 1986 U.S. Code Cong. & Ad. News 3562) are covered by ECPA. However, there may be some confusion as to whether ECPA would protect electronic communications found on a mere user-supported BBS. For instance, language in ECPA does not expressly state the term "bulletin board." Nonetheless, ECPA would indeed cover electronic bulletin boards. What are electronic bulletin boards? Generally, they are personal computers provided for and maintained by computer users out of their own personal resources. These systems traditionally allow free access to computer/modem-equipped members of local communities and provide for both public and private electronic mail exchange. Some sophisticated systems, such as the ProLine system written for Apple II computers, provide callers with personal user areas where they may keep private files much like the CompuServe personal file areas. Augmenting the single stand-alone BBS, there are networks of bulletin boards linked together, often with the assistance of university mainframes, with other bulletin boards or mainframe computers by sophisticated "mail routing" systems (such as ARPAnet and FIDOnet). These networks use sophisticated message addressing instructions and computer automation where networked computers make calls to other networked computers to exchange "net-news" or private mail between users of the different bulletin boards. Given the proper address routing instructions, a user may communicate with another user on a cross-town BBS or on a BBS in another part of the country. Although there is some delay with messages being routed through a network, these networks help to reduce or eliminate the computer user's need to make direct toll or long distance calls to faraway systems. (Note, there are also network exchange systems and "gateways" between commercial services.) Businesses have been turning to the use of BBS's and BBS mailing networks for increased productivity, paperwork reduction, improved client contact and the elimination of "telephone tag." (See Keaveney, Custom-Built_Bulletin_Boards, Personal Computing, Aug. 1987, 91.) A number of these corporate BBS's are open to the public with restricted access to business and client system areas. Examples of such systems include (a) two Washington D.C. area boards run by Gannet Company Inc. ("[f]or all Gannet/USA Today employees and other computer users"), Issue Dynamics Inc. (catering to the consulting company's clients), and (b) A Westchester County (NY) area board run by VITRON Management Consulting, Inc. (catering to the general business community). ECPA language would show protection for bulletin boards. 18 U.S.C. sec. 2510(15) provides that "'electronic communication service' means any service which provides to users thereof the ability to send or receive wire or electronic communications". A "remote computing service" was defined in the Act as an electronic communications system that provides computer storage or processing services to the public. (18 U.S.C. sec. 2710(2).) Intra-company communications systems, corporate BBSes, would also be protected. (S. Rep. No. 541, 99th Cong., 2d Sess. 12 reprinted_in 1986 U.S. Code Cong. & Ad. News 3566.) Language in ECPA refers to "the person or entity providing the wire or electronic communication service," such as in 18 U.S. secs. 2701(c)(1) and 2702(a)(1). Such language would indicate the inclusion of individuals and businesses who operate bulletin board systems. The Senate report, in addition to defining "electronic mail," gave a separate definition of "electronic bulletin boards": Electronic "bulletin boards" are communications networks created by computer users for the transfer of information among computers. These may take the form of proprietary systems or they may be commercial, or noncommercial systems operating among computer users sharing special interests. These systems may [or may not] involve fees covering operating costs and may require special "passwords" which restrict entry to the system. These bulletin boards may be public or semi-public in nature, depending on the degree of privacy sought by users, operators or organizers of such systems. (S. Rep. No. 541, 99th Cong., 2d Sess. 8-9 reprinted_in 1986 U.S. Code Cong. & Ad. News 3562-3563.) ECPA, as enacted, takes note of the different levels of security found on user-supported BBS's, i.e. the difference between configured system areas containing private electronic mail and other areas configured to contain public material. (18 U.S.C. sec. 2511(2)(g)(i).) The electronic communications which a user seeks to keep private, through methods provided by the system, would be protected by ECPA. In contrast, there would be no liability for access to features configured by the system to be readily accessible by the general public. An indicia of privacy on the system, with no notice to show otherwise, would trigger ECPA coverage. An indicia of privacy may include passwords and prompts asking if a message is to be kept private. House Representative Kastenmeier noted that there was an unusual coalition of groups, businesses and organizations interested in ECPA. (Kastenmeier, Communications_Privacy, Communications Lawyer, Winter 1987, 1, 24.) Among those interested included the BBS community. Reporters in the BBS community noted how Senator Leahy and others were receptive to their concerns. They report Leahy to have been "soliciting [users and BBS operators'] comments and encourag[ing] sensitivity to the needs of BBS's in the legislation.... [Senators and congressional members] are ... willing to listen to our side of things." (BBSLAW02.MSG, dated 07/24/85, information from Chip Berlet, Secretary, National Lawyers Guild Civil Liberties Committee, transmitted by Paul Bernstein, SYSOP, LAW MUG, Chicago, Illinois regarding Federal Legislation Affecting Computer Bulletin Boards, deposited on The Legacy Network in Los Angeles, California.) ESCAPING COVERAGE There are at least two possible ways to escape ECPA coverage. The first is to provide adequate notice that all material on a service or system may be publicly accessible even though methods of providing privacy remain. The bulletin board system maintained by DePaul University College of Law Chicago, Illinois, provides an example of an electronic notice (displayed upon user access): PURSUANT TO THE ELECTRONIC AND COMMUNICATIONS PRIVACY ACT OF 1986, 18 USC 2510 et. seq., NOTICE IS HEREBY GIVEN THAT THERE ARE NO FACILITIES PROVIDED BY THIS SYSTEM FOR SENDING OR RECEIVING PRIVATE OR CONFIDENTIAL ELECTRONIC COMMUNICATIONS. ALL MESSAGES SHALL BE DEEMED TO BE READILY ACCESSIBLE TO THE GENERAL PUBLIC. Do NOT use this system for any communication for which the sender intends only the sender and the intended recipient or recipients to read. Note, although the DePaul notice states otherwise, user-operated message privacy toggles remain on the board. The second possible method to escape ECPA coverage would be to merely not provide any means of privacy. One way of foiling the intent of a government subpoena or court order requirement to keep duplicate copies of private electronic communications would be the use of passworded private e-mail. For instance, the private e-mail capabilities of GEnie Mail and GE QUIK-COM include user-toggled passwording which utilizes an encryption technique that no one, not even the provider, knows how to decipher. Bill Louden, General Manager of GEnie (General Electric Network for Information Exchange), noted how GEnie Mail and GE QUIK-COM passworded e-mail cannot be read by anyone who did not know the password. "[N]ot even our 'god' number could ever read the [passworded] mail." (Message from Bill Louden, GEnie, Legacy RoundTable (LAW), category 1, topic 7, message 6 (May 15, 1987).) The writer of the encryption software has since left General Electric and no one has had success in breaking the code. (Message from Bill Louden, GEnie, Legacy RoundTable (LAW), category 1, topic 7, message 10 (May 17, 1987).) CONCLUSION With ECPA, e-mail and other private electronic communications stored on computer communication systems have privacy protection. Unfortunately, before ECPA, federal statutory guidelines for such protection were not articulated. Case law also did not provide any helpful guidance. The peculiarities of computers and computer storage were not addressed by the old wiretap laws. Electronic communications privacy could not stand up against constitutional privacy law as defined by the United States Supreme Court. The then existing law was "hopelessly out of date." (S. Rep. No. 541, 99th Cong., 2d Sess. 2 reprinted_in 1986 U.S. Code Cong. & Ad. News 3556 (statement of Sen. Leahy).) Fortunately, a legislative solution to bring privacy law up to date with the advancing computer communication and information technology was provided for in ECPA. OBSERVATIONS One should note that ECPA was designed as a statutory solution to fill a loop-hole in federal constitutional law where computer-communication messages (e.g., email) are not protected. Under traditional Fourth Amendment Search and Seizure law, email and similar computer-communication material are not considered to have any constitutional privacy protection against government intrusion. ECPA provides statutory privacy protection where there is no constitutional protection. Generally, a BBS may fall under the coverage of ECPA if there is some indicia of privacy found on the BBS. There are various degrees of privacy found on a BBS ranging from the opening login password to the sending of a private message via UUCP. Under ECPA, a sysop or online service employee may not be found civilly liable for intercepting (i.e., reading/viewing) private information or private messages between users who call in to a BBS so long as he is performing "quality control checks" or other similar duties. This may include passive maintenance activity and intermail or echomail forwarding. ECPA thus provides some protection for a sysop from civil liability if his system is found to fall under ECPA coverage. To escape coverage from ECPA, a BBS sysop may place a disclaimer at the "front door" or throughout his system (such as an automatic notice whenever if the caller wishes to send private email) giving the caller adequate notice that the system has no privacy privileges. (Note: what I mean by privileges, in the legal sense, is much broader than mere privacy toggle commands found on a BBS.) Giving such notice would work to negate any indicia of privacy that may be found on the system. For instance, the sysop may say that he has access to all private email, he will read all private email, and he will disclose all improper or criminal information left on his system to the appropriate authorities even if there are privacy toggle commands found on the system -- and suggest the caller try another system if he/she wishes to send secure private messages. The sysop may then stand a better chance of not being found liable under ECPA. The DePaul University College of Law BBS Disclaimer: ---------------------------------------------------- This type of disclaimer, dealing with communications, should not be found to be applicable to private login passwords -- in other words, passwords should maintain their privileged private status. (Note, some attorney may try to argue that passwords are messages and therefore are excluded from ECPA by the disclaimer and may be disclosed.) Note, ECPA is primarily first a statutory solution to providing statutory protection against government intrusion into private computer communications in order to be more in tune with traditional Fourth Amendment Search and Seizure law. Generally, in order for police or other government authorities to intrude into private computer communications, a court order, subpeona, or warrant must be obtained. A sysop may be ordered to provide copies of particular information -- the warrant should particularly describe what is sought, such as the author of the message, subject matter, etc. The author of the private information may also be given 14 days notice of the search unless there are exigent circumstances, e.g., the author has the ability to destroy the information. Note, although there may be the possibility that a sysop may be held in contempt of court for not providing copies, this does not necessarily mean the sysop has the affirmative duty to make and keep copies of all information kept on his system if it is not reasonable for him to do so, e.g., the system program does not keep backups, old messages are automatically destroyed after a certain period of time such as on an HBBS system, etc. -- he may only have to provide copies when ordered to do so and if reasonable (my interpretation). Although a sysop may not be found liable under the federal ECPA statute, there may be alternative liability found under state law. Generally, at the state level, there is either state statutory or common law protection against INVASION OF PRIVACY. In particular, this would include (1) public disclosure of private facts and (2) intrusion upon seclusion. A possible situation would include not only public disclosure of private email, but also public discussion or private system passwords. A good attorney may be able to make good arguments to find liability under either one of the two tort law causes of action -- particularly when a sysop holds himself or herself out as a provider of private or semi-private information exchange. Note, under either the federal ECPA or state invasion of privacy laws, a sysop or caller to a system may be able to sue users who break into the closed or private areas of the system. Of course, evidence would have to be obtained to prove causation and liability and evidence is a completely different issue problem.... Finally, there are several issues that are currently being reviewed for possible statute inclusion. Such issues involve, but are not limited to: 1. The dissemination and distribution of elements contributing to the delinquency or corruption of minors: - pornography - advocacy of games of chance (gambling) 2. The maintenance of the integrity of electronically stored data and information within communication systems, including electronic bulletin boards. These issues are the subject of a subsequent paper. In addition, they are topics that represent areas of discussion within the potential PCBRelay Legal conference. We at VITRON (and ABBS) would greatly appreciate your feedback and input regarding this paper. If you have any questions, comments, observations or suggestions, please leave us a message. Your message will receive as prompt a reply as is feasible (usually within 24 to 48 hours). ************************************************************************* Subject: HR 4079 is for REAL! Date: 29 Jun 90 20:04:36 GMT (Thant Tessman) writes: >A new bill, HR 4079 [...] This posting bothered me enough even after dismissing the alarming rhetoric that I placed a call to my Representative's local office. Two days later I received a copy of HR 4079 in the mail. (I recommend others do the same - it is too long for a lousy typist such as me to enter). I found some errors in the claims made about it - but it is pretty bad stuff anyway! Some notes follow: >[...] would open the way for American concentaration camps to be built, It does. It calls for housing prisoners in "tent housing or other shelters placed on available military bases and at other suitable locations." [P10L3-5] It does not restrict the prisoners to those convicted of drug crimes. In case that is insufficient, it calls for "any property that is determined to be excess to the needs of a Federal agency that may be suitable for use as a correctional facility shall be made available for such use..." [P15L5-7] Oh, yes, it also says, "a Federal court shall not hold prison or jail crowding unconstitutional under the eighth amendment except to the extent that an individual plaintiff proves that the crowding causes the infliction of cruel and unusual punishment of that inmate." [P8L14-18] The remedy? "(2) The relief in a case described in paragraph (1) shall extend no further than necessary to remove the conditions that are causing the cruel and unusual punishment of the plaintiff inmate." [P8L19-22] >and thereafter permit the state to round up suspected drug users This one is a little difficult. Maybe I missed it, but it still requires conviction. However, it does say, "Evidence which is obtained as a result of a search or seizure shall not be excluded in a proceeding in a court of the United States on the ground that the search or seizure was in violation of the fourth amendment to the Constitution of the United States, if the search or seizure was carried out in circumstances justifying a reasonably objective belief that is was in conformity with the fourth amendment." [P35L25-P36L7] This is followed by (and this has been mentioned before): "The fact that evidence was obtained pursuant to and within the scope of a warrant constitutes prima facie evidence of the existence of such circumstances." [P36L7-9] >so they can be forced to work without compensation for the state. This is wrong. On Page 27, "Subtitle C - Mandatory Work Requirements for Prisoners, Withholding Federal Benefits, and Drug Testing of Prisoners", it does say "It is the policy of the Federal Government that convicted prisoners confined in Federal prisons, jails, and other detention facilities shall work." [P27L7-9] However, it also says, "(2) Prisoners shall be paid a share of funds generated by their labor conducted pursuant to this section." [P28L10-11] >"The Drug Crime Emergency Act" drips with patriotism as Gingrich tries to >vaguely connect the freedom movement in eastern Europe with America falling >deeper and deeper into "the slavery of drug addiction." I didn't find anything even remotely resembling this. >The bill proposes suspending the Constitution for five years so millions of >illegal drug users can be held by the state in concentration camps. All >internees will be forced to work and if anyone is caught with drugs in the >camps they will have one year added to their sentence each time - with no >right to appeal. One small nit, there are exceptions listed to "All internees". >HR 4079 calls for the declaration of a five year national state of >emergency - in essence, martial law. It proposes reopening the >concentration camps of WWII, using active and inactive military bases as >prisons, and a new privately owned prison system as well. To aid in >accomplishing this, the 4th Amendment, the 8th Amendment, and habeas corpus >are either superseded, redefined, or disallowed. The 4th and 8th have been mentioned. There is a lengthy section called the "Strom Thurmond Habeus Corpus Reform Initiative" [P37-43] which I cannot reasonably comment on. >A provision has been built in to allow the government to purchase goods >manufactured by prison slave labor. To insure the duration of this labor >force, all previous maximum sentences would be changed to minimum sentences. Just to clarify: This is a sentencing change - those already sentenced would not be affected by this section. >New mandatory sentences would be established, and probation, parole, and >suspension of sentences revoked. True. >To provide an even greater pool to draw from, mandatory drug testing of >just about everyone above junior high school level has been included. The >resolution carefully avoids addressing the funding necessary. It says "no institution of higher education shall be eligible to receive funds or any other form of financial assistance under any Federal program, including participation in any federally funded or guaranteed student loan program, unless it certifies to the Secretary that it has adopted and has implemented a program to prevent the use of illicit drugs and the abuse of alcohol by students and employees that, at a minimum, includes - (1) the annual distribution to each student and employee of - (A-E) [...information...] (2) provisions for drug testing; and (3) a biennial review by the institution of its program to - [...]" [P57L19-P59L5] It repeats essentially the same as above for "local educational agency". [P60L13-P63L20] >Even after 30 press releases were sent to all the national and local news >outlets by Maryland LP members, there has been practically no mention of >the bill in the media. The state evidently is hoping to sweep this bill >into law right under our noses while we are all preoccupied with other >events taking place around the world. Surprisingly, the response from >libertarians as well as mainstream folks has been one of complacency. There is even more in this bill than the authors of the quoted newsletter mentioned. For example, it calls for: -revoking the driver's license of those convicted of drug crimes, -expansion of the "war on drugs" to include alcohol abuse, -the RICO-like seizure of property alleged to be used in or obtained through profits from drug crimes (with the burden upon victim/defendant to *prove* that it was not - could you *prove* you didn't buy your car with profits from illicit transactions?) -division of "profits" from such seizures, upon conviction, to be shared between the state and individuals who provided information leading to the conviction... >Everyone needs to make phone calls and write letters. Direct your >correspondence to the media and your representatives, as well as Gingrich >and Gramm. If they don't think you care about this bill becoming law - it >will! Act now or cry behind the barbwire later. -- ~~ From: bill@flash.UUCP (bill) Newsgroups: alt.conspiracy Subject: Bye, bye, 6th Summary: another "right" going down the drain Keywords: public defenders, 6th Amendment, Bill of Rights, War on Drugs, Sh*t Date: 13 Jul 90 15:42:04 GMT Organization: Prodisestablishmentarianism, Inc. :-) (Andrew Duane): > DRUG SUSPECTS BARRED FROM PUBLIC DEFENDERS >Danbury, CT. - A judge has said he will not appoint free legal aid >lawyers for people arrested on drug charges who say they cannot >afford lawyers. > "I don't appoint public defenders to people in drug cases," >Judge Joseph Sylvester of Superior Court told a defendant on Tuesday >at his arrignment. [...] Lawyers at the courthouse said 60 suspects >had been denied public defenders. >[...] >The judge has also denied public defenders in drunken-driving cases. >[ End of Article ] > >Well, there goes the sixth amendment. [...] >Does anyone else find this as scary as me? Yes! (and thank you, Andrew, for posting this!) >What is his rationale disallowing use of public defenders in drug cases? What else can it be but that "this problem has become so serious we must take special measures!"? Sooo... if you're *accused* of drug offences, you no longer have a Sixth Amendment right to the assistance of counsel. What issue of easy political popularity will be next, I wonder: child abuse cases? Crimes against women or the elderly? Flag desecration? [And people wonder at my concern that we have passed the point where the Bill of Rights is used to enumerate specifically the rights of the people, as opposed to the idea expressed in the Tenth that: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people."] -- ~~ Subject: Re: stoke up the ovens Date: 13 Jul 90 16:08:59 GMT Organization: Prodisestablishmentarianism, Inc. :-) (Michael Carr) writes: >>The Senate proposes the death penalty for the following crimes: >>Destruction of aircraft (better not crash that plane ) >>Destruction of motor vehicle (this surely warrants the death penalty) I'd be pretty sure that "destruction" means "as with a bomb", not your typical highway accident or plane crash. >>Espionage >>Arson of federal property (watch those campfires in the Natl. forests) >>Arson of property in interstate commerce Arson is most likely deliberate arson, again not accidents (but I'd sure like to see the actual text of the bill, whatever it is). >>Wrecking a train >>Mailing of injurious articles (better not mail a pack of cigarettes) Probably letter bombs and the like. >>Bank robbery >>Treason (don't talk bad about the good old USA) Treason: The offence of *attempting* by overt act to overthrow the government, or (Art. III section 3 US Constitution), "only in levying war against them [the States], or in adhering to their enemies, giving aid and comfort to them." Well, maybe you got a point. >>Kidnapping >>Hostage taking >>Major crime by drug kingpin (what major crimes aren't covered in this list >>already??) >>Attempted homicide by drug kingpin while seeking to obstruct justice >>Unintentional killing by drug felon involving aggravated recklessness >>(does this include drunk drivers??) >>Use of a firearm in violent crime or drug trafficking >>Murder of family member of federal official >>Murder of member of congress, cabinet, or Supreme court >>Murder of nuclear regulatory inspector,federal official,federal witness, >>horse inspector,meat inspector, poultry inspector, egg products inspector, >>foreign official, Agriculture dept. official Hmmm... note how the Ruling Class now gets special "privileges" under the law... Oligarchy, here we come. > This is serious??!!! How much of this was in that bullshit crime bill >that just passed in the Senate? Is this it? This is way out of hand. I also would a pointer to the source of that posting... > I've only listed what I thought were some of the more outrageous ones >( I'm against the death penalty in general, but don't want to start that war >again ). BTW, what the hell constitutes "treason" ??? This country is getting >scarier every day. > Does anyone know how close this is to being law? All the congress- >critters are wetting their pants trying to look tough on crime for the >upcoming elections so this kind of dangerous stuff is probably going to >pass. > Argghh, you just ruined my day! :-( See you on death row! > Mike Carr carr@cs.unc.edu > >OK, so maybe I'm a little alarmist, but if we don't fight back we'll wake up >some morning with the FBI/CIA in our face, it seems sometimes. I'm a big alarmist (I outmass most of my friends :-), but you are correct. This stuff doesn't go away by wishful thinking, nor when you close your eyes. Recommended reading: _They thought they were free; the Germans, 1933-45_ by Milton Mayer. (1955, U. of Chicago Press). (excerpts from an earlier posting) "What no one seemed to notice, ... was the ever widening gap ... between the government and the people. ... And it became always wider. ... "... the whole process of its coming into being, was above all *diverting*. It provided an excuse not to think for people who did not want to think anyway. ... Nazism gave us some dreadful, fundamental things to think about ... and kept us so busy with continuous changes and 'crises' and so fascinated ... by the machinations of the 'national enemies,' without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us. ... "Each step was so small, so inconsequential, so well explained or, on occasion, 'regretted,' that ... unless one understood what the whole thing was in principle, what all these 'little measures' ... must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. ... "... Each act ... is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join with you in resisting somehow. You don't want to act, or even talk, alone; you don't want to 'go out of your way to make trouble.' ... And it is not just fear ... that restrains you; it is also genuine uncertainty. "... And you *are* an alarmist. You are saying that *this* must lead to *this*, and you can't prove it. ... "But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes. *That's* the difficulty. ... "... The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves; when everyone is transformed, no one is transformed. ... "... You have accepted things you would not have accepted five years ago, a year ago, things that your father ... could not have imagined. Cheers. -- ~~ Subject: Full text of H.R. 4079, very long (3,122 lines) Date: 7 Aug 90 15:22:43 GMT Here again is the full text of House Resolution 4079. To answer some questions I have seen since I posted it the first time: You can get copies of bills by asking your Congressional representatives for them. You can locate your representatives by looking in local phone books under "United States" or by calling Washington, D.C., information at 1-202-555-1212. And, yes, this was typed by hand, not scanned in. -- edp (Eric Postpischil) "Always mount a scratch monkey." 101st Congress 2d Session H.R. 4079 To provide swift and certain punishment for criminals in order to deter violent crime and rid America of illegal drug use. ------------------------------------------------ IN THE HOUSE OF REPRESENTATIVES February 22, 1990 Mr. Gingrich (for himself, Mr. Armey, Mr. Hunter, Mr. Smith of New Hampshire, Mr. Hansen, Mr. Hiler, Mr. Ireland, Mr. Kyl, Mr. Barton of Texas, Mr. McEwen, Mr. Bliley, Mr. Condit, Mr. Weldon, Mr. Fields, Mr. Stearns, Mr. Schuette, Mr. Douglas, Mr. Livingston, Mr. Oxley, Ms. Ros-Lehtinen, Mr. Hancock, Mr. Schaefer, Mr. Bartlett, Mr. Shumway, Mr. Inhofe, Mr. Nielson of Utah, Mr. Donald Lukens, Mr. Paxon, Mr. Herger, Mr. Robinson, Mr. Lagomarsino, Mr. Sensenbrenner, Mr. James, Mr. Upton, Mr. Bilirakis, Mr. Ritter, Mr. Dornan of California, Mr. Baker, Mr. DeLay, Mr. Hyde, Mr. Grandy, Mr. Hefley, Mr. Coughlin, Mr. Craig, Mr. Shaw, Mr. Dreier of California, Mr. Solomon, and Mr. McCollum) introduce the following bill; which was referred jointly to the Committees on the Judiciary, Energy and Commerce, Public Works and Transportation, Education and Labor, and Armed Services ------------------------------------------------ A BILL To provide swift and certain punishment for criminals in order to deter violent crime and rid America of illegal drug use. _Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled,_ SECTION 1. SHORT TITLE. This Act may be cited as the "National Drug and Crime Emergency Act". SEC. 2. TABLE OF CONTENTS. Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings and declaration of a national drug and crime emergency. Sec. 4. Definitions. TITLE I--ELIMINATION OF CRIME WITHOUT PUNISHMENT Subtitle A--National Drug and Crime Emergency Policies Sec. 101. Judicial remedies for prison crowding. Sec. 102. Temporary prison facilities and expanded capacity. Sec. 103. Elimination of early release from prison. Subtitle B--Imposition of Mandatory Minimum Sentences Without Release Sec. 111. Increased mandatory minimum sentences without release for criminals using firearms and other violent criminals. Sec. 112. Life imprisonment without release for criminals convicted a third time. Sec. 113. Longer prison sentences for those who sell illegal drugs to minors or for use of minors in drug trafficking activities. Sec. 114. Longer prison sentences for drug trafficking. Sec. 115. Mandatory penalties for illegal drug use in Federal prisons. Sec. 116. Deportation of criminal aliens. Sec. 117. Encouragement to States to adopt mandatory minimum prison sentences. Subtitle C--Mandatory Work Requirements for Prisoners, Withholding Federal Benefits, and Drug Testing of Prisoners Sec. 131. Mandatory work requirement for all prisoners. Sec. 132. Repeal of constraints on prison industries. Sec. 133. Employment of prisoners. Sec. 134. Withholding prisoners' Federal benefits to offset incarceration costs. Sec. 135. Drug testing of Federal prisoners. Sec. 136. Drug testing of State prisoners. Subtitle D--Judicial Reform To Protect the Innocent and Punish the Guilty Sec. 151. Good faith standards for gathering evidence. Sec. 152. Strom Thurmond habeas corpus reform initiative. Sec. 153. Proscription of use of drug profits. Sec. 154. Jurisdiction of special masters. Sec. 155. Sentencing patterns of Federal judges. TITLE II--ACHIEVING A DRUG-FREE AMERICA BY 1995 Sec. 201. Findings. Sec. 202. Payment of trial costs and mandatory minimum fines. Sec. 203. Withholding of unearned Federal benefits from drug traffickers and users who are not in prison. Sec. 204. Revocation of drug users' driver's licenses. Sec. 205. Accountability and performance of drug treatment facilities. Sec. 206. Drug-free schools. Sec. 207. Drug-free transportation. Sec. 208. Financial incentives and citizen involvement in the war against drugs. TITLE III--MISCELLANEOUS Sec. 301. Authorization of appropriations. Sec. 302. Severability. SEC. 3. FINDINGS AND DECLARATION OF NATIONAL DRUG AND CRIME EMERGENCY. (a) FINDINGS.--The Congress makes the following findings: (1) Next to preserving the national security, protecting the personal security of individual Americans, especially children, by enacting and enforcing laws against criminal behavior is the most important single function of government. (2) The criminal justice system in America is failing to achieve this basic objective of protecting the innocent and punishing the guilty. (3) Reform is needed to ensure that criminals are held accountable for their actions, that they receive swift and certain punishment commensurate with their crimes, and that the protection of innocent citizens takes priority over other objectives. (4) The principle of individual accountability should also dictate policies with respect to drug users. Users should face a high probability of apprehension and prosecution, and those found guilty should face absolutely certain measured response penalties. (5) According to the Uniform Crime Reports issued in 1989 by the Federal Bureau of Investigation (FBI), violent crime known to law enforcement reached an unprecedented high in 1988. A violent crime occurred ever 20 seconds. (6) The Department of Justice estimates that 83 percent of Americans will be victimized by violent crime during their lifetime. (7) The Federal Bureau of Investigation reports that violent crime in America rose by 23 percent during the period 1984-1988. (8) The National Drug Control Strategy reports that in certain large cities more than 80 percent of the men arrested have tested positive for illegal drug use. (9) According to the Department of Justice, the total number of Federal and State prisoners grew by 90 percent from 1980 to 1988. The growth rate of the total prison population during the first 6 months of 1989 exceeded the largest annual increase ever recorded in 64 years of recordkeeping. The 6-month growth rate translates to a need of almost 1,800 additional prison beds per week. (10) In 1985, 19 States reported the early release of nearly 19,000 prisoners in an effort to control prison populations, according to the Bureau of Justice Statistics. (11) According to the United States Bureau of Justice Statistics, 63 percent of State inmates were rearrested for a serious crime within 3 years of their discharge from prison. (12) The criminal justice system is overloaded and does not deliver swift and certain penalties for violating the law. In America today, there exists crime without punishment. Such conditions imperil the public safety, jeopardize the rule of law and undermine the preservation of order in the community. (b) DECLARATION OF NATIONAL DRUG AND CRIME EMERGENCY.--(1) Guided by the principles that energized and sustained the mobilization for World War II, and in order to remove violent criminals from the streets and meet the extraordinary threat that is posed to the Nation by the use and trafficking of illegal drugs, the Congress declares the existence of a National Drug and Crime Emergency beginning on the date of enactment of this Act and ending on the date that is 5 years after the date of enactment of this Act. (2) During the National Drug and Crime Emergency declared in paragraph (1), it shall be the policy of the United States that-- (A) every person who is convicted in a Federal court of a crime of violence against a person or a drug trafficking felony (other than simple possession) shall be sentenced to and shall serve a full term of no less than 5 years' imprisonment without release; (B) prisoners may be housed in tents, and other temporary facilities may be utilized, consistent with security requirements; and (C) the Federal courts may limit or place a "cap" on the inmate population level of a Federal or State prison or jail only when an inmate proves that crowding has resulted in cruel and unusual punishment of the plaintiff inmate and no other remedy exists. SEC. 4. DEFINITIONS. For the purposes of this Act-- (1) the term "crime of violence against a person" means a Federal offense that is a felony and-- (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense; and (C) for which a maximum term of imprisonment of 10 years or more is prescribed by law; and (2) the term "drug trafficking crime," (other than simple possession) means any felony punishable under the Coetrolled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.) or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), other than a felony constituting a simple possession of a controlled substance for which the maximum term of imprisonment of 10 years or more is prescribed by law. TITLE I--ELIMINATION OF CRIME WITHOUT PUNISHMENT Subtitle A--National Drug and Crime Emergency Policies SEC. 101. JUDICIAL REMEDIES FOR PRISON CROWDING. (a) PURPOSE.--The purpose of this section is to provide for reasonable and proper enforcement of the eighth amendment. (b) FINDINGS.--The Congress finds that-- (1) the Federal courts are unreasonably endangering the community by sweeping prison and jail cap orders as a remedy for detention conditions that they hold are in conflict with the eighth amendment; and (2) eighth amendment holdings frequently are unjustified because of the absence of a plaintiff inmate who has proven that detention conditions inflict cruel and unusual punishment of that inmate. (c) AMENDMENT OF TITLE 18, UNITED STATES CODE.--(1) Subchapter C of chapter 229 of part 2 of title 18, United States Code, is amended by adding at the end thereof the following new section: "Section 3626. Appropriate remedies with respect to prison crowding. "(a)(1) During the period of the National Drug and Crime Emergency, a Federal court shall not hold prison or jail crowding unconstitutional under the eighth amendment except to the extent that an individual plaintiff proves that the crowding causes the infliction of cruel and unusual punishment of that inmate. "(n) The relief in a case described in paragraph (1) shall extend no further than necessary to remove the conditions that are causing the cruel and unusual punishment of the plaintiff inmate. "(b)(1) A Federal court shall not place an inmate ceiling on any Federal, State, or local detention facility as an equitable remedial measure for conditions that violate the eighth amendment unless crowding itself is inflicting cruel and unusual punishment on individual prisoners. "(2) Federal judicial power to issue equitable relief other than that described in paragraph (1), including the requirement of improved medical or health care and the imposition of civil contempt fines or damages, where appropriate, shall not be affected by paragraph (1). "(c) Each Federal court order seeking to remedy an eighth amendment violation shall be reopened at the behest of a defendant for recommended alteration at a minimum of two-year intervals.". (2) Section 3626 of title 18, United States Code, as added by paragraph (1), shall apply to all outstanding court orders on the date of enactment of this section. Any State or municipality shall be entitled to seek modification of any outstanding eighth amendment decree pursuant to that section. (3) The table of sections for subchapter C of chapter 229 of title 18, United States Code, is amended by adding at the end thereof the following new item: "3626. Appropriate remedies with respect to prison overcrowding.". SEC. 102. TEMPORARY PRISON FACILITIES AND EXPANDED CAPACITY. (a) IN GENERAL.--In order to remove violent criminals from the streets and protect the public safety, the Attorney General shall take such action as may be necessary, subject to appropriate security considerations, to ensure that sufficient facilities exist to house individuals whom the courts have ordered incarcerated. During the period of the National Drug and Crime Emergency, these facilities may include tent housing or other shelters placed on available military bases and at other suitable locations. The President may direct the National Guard and the Army Corps of Engineers to design and construct such temporary detention facilities. (b) USE OF MILITARY INSTALLATIONS.--(1)In order to provide facilities for incarceration authorized by subsection (a), the Secretary of Defense, the Commission on Alternative Utilization of Military Facilities, and the Director of the Bureau of Prisons shall-- (A) identify military installations that could be used as confinement facilities for Federal or State prisoners; and (B) examine the feasibility of using temporary facilities for housing prisoners with a specific examination of the successful use of tent housing during the mobilization for World War II. (2) Not later than 90 days after the date of enactment of this Act, the Director of the Bureau of Prisoners shall submit to the Congress a description and summary of the results of the examination conducted pursuant to paragraph (1). (c) PRIORITY FOR DISPOSAL OF CLOSED MILITARY INSTALLATIONS.--Section 204(b)(3) of the Defense Authorization Amendments and Base Closure and Realignment Act (10 U.S.C. 2687 note) is amended to read as follows: "(3)(A) Notwithstanding any provision of this title and any other law, before any action is taken with respect to the disposal or transfer of any real property or facility located at a military installation to be closed or realigned under this title the Secretary shall-- "(i) notify the Attorney General and the Governor of each of the territories and possessions of the United States of the availability of such real property or facility, or portion thereof; and "(ii) transfer such real property of facility or portion thereof, as provided in subparagraph (B). "(B) Subject to subparagraph (C), the Secretary shall transfer real property or a facility, or portion thereof, referred to in subparagraph (A) in accordance with the following priorities: "(i) If the Attorney General certifies to the Secretary that the property or facility, or portion thereof, will be used as a prison or other correctional institution, to the Department of Justice for such use. "(ii) If the Governor of a State, the Mayor of the District of Columbia, or the Governor of a territory or possession of the United States certifies to the Secretary that the property or facility, or portion thereof, will be used as a prison or other correctional institution, to that State, the District of Columbia, or that territory or possession for such use. "(iii) To any other transferee pursuant to the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471 et seq.). "(C) Within each priority specified in clauses (i) and (ii) of subparagraph (B), the Secretary shall give a priority for the transfer of any real property or facility referred to in that subparagraph, or any portion thereof, to any department, agency, or other instrumentality referred to in such clauses that agrees to pay the Department of Defense the fair market value of the real property, facility, or portion thereof. "(D) In this paragraph, the term 'fair market value' means, with respect to any real property or facility, or any portion thereof, the fair market value determined on the basis of the use of the real property or facility on December 31, 1988.". (d) REVIEW OF CURRENT STANDARDS OF PRISON CONSTRUCTION.--(1) The Director of the Bureau of Prisons (referred to as the "Director") shall-- (A) review current construction standards and methods used in building Federal prisons; and (B) examine and recommend any cost cutting measures that could be employed in prison construction (consistent with security requirements), especially expenditures for air conditioning, recreational activities, color television, social services, and similar amenities. (2) Not later than 90 days after the date of enactment of this Act, the Director shall submit to Congress a description and summary of the results of the review conducted pursuant to paragraph (1). (e)(1) Chapter 301 of title 18, United States Code, is amended by adding at the end thereof the following new section: "Section 4014. Private construct and operation of Federal prisons "(a) IN GENERAL.--The Attorney General may contract with private persons to-- "(1) construct, own, and operate Federal prison facilities; or "(2) construct or operate Federal prison facilities owned by the United States, including the provision of subsistence, care, and proper employment of United States prisoners. "(b) COOPERATION WITH STATES.--The Attorney General shall consult and cooperate with State and local governments in exercising the authority provided by subsection (a). "(c) FINANCING OPTIONS FOR PRISON CONSTRUCTION AND OPERATION.--(1) To the greatest extent possible, the Attorney General shall utilize creative and cost-effective private financing alternatives and private construction and operation of prisons. "(2) Operating cots of privately-operated prisons shall be covered through rent charged to participating units of Government placing inmates in a prison. "(3) The Attorney General may finance the construction of facilities through lease or lease-purchase agreements. "(4) In order to gain full costs advantages from economies of scale and specialized knowledge from private innovation, the Attorney General may contract with consortia or teams of private firms to design, construct, and manage, as well as finance, prison facilities.". (2) The table of sections for chapter 301 of title 18, United States Code, is amended by adding at the end thereof the following new item: "4014. Private construct and operation of Federal prisons.". (f) SURPLUS FEDERAL PROPERTY.--(1) For the purpose of expanding the number of correctional facilities, the Administrator of the General Services Administration, in consultation with the Attorney General, shall, not later than 1 year after the date of enactment of this Act, identify and make available a list of not less than 20 parcels of surplus Federal property, which the Attorney General has certified are not needed for Federal correctional facilities but which may be suitable for State or local correctional facilities. (2) During the National Drug and Crime Emergency declared in section 3(b)(1), notwithstanding any other law, any property that is determined to be excess to the needs of a Federal agency that may be suitable for use as a correctional facility shall be made available for such use, in order of priority, first, to the Attorney General, and second, to a State, the District of Columbia, or a local government. (g) STATE AND LOCAL GOVERNMENT USE OF FACILITIES.--State and local governments shall be permitted to use Federal temporary incarceration facilities, when they are not needed to accommodate Federal prisoners, for the purpose of incarcerating prisoners at a per diem fee to be paid to the Bureau of Prisons. SEC. 103. ELIMINATION OF EARLY RELEASE FROM PRISON. During the National Drug and Crime Emergency declared in section 3(b)(1), notwithstanding any other law, every person who is convicted in a Federal court of committing a crime of violence against a person or a drug trafficking crime (other than simple possession), shall be sentenced to and shall serve a full term of no less than 5 years' imprisonment, and no such person shall be released from custody for any reason or for any period of time prior to completion of the sentence imposed by the court unless the sentence imposed is greater than 5 years and is not a mandatory minimum sentence without release. Subtitle B--Imposition of Mandatory Minimum Sentences Without Release SEC. 111. INCREASED MANDATORY MINIMUM SENTENCES WITHOUT RELEASE FOR CRIMINALS USING FIREARMS AND OTHER VIOLENT CRIMINALS. (a) USE OF FIREARMS.--Section 924(c)(1) of title 18, United States Code, is amended to read as follows: "(c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States-- "(A) possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for 10 years without release; "(B) discharges a firearm with intent to injure another person, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for 20 years without release; or "(C) possesses a firearm that is a machinegun, or is equipped with a firearm silencer or firearm muffler shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for 30 years without release. In the case of a second conviction under this subsection, a person shall be sentenced to imprisonment for 20 years without release for possession or 30 years without release for discharge of a firearm, and if the firearm is a machinegun, or is equipped with a firearm silence or firearm muffler, to life imprisonment without release. In the case of a third or subsequent conviction under this subsection, a person shall be sentenced to life imprisonment without release. If the death of a person results from the discharge of a firearm, with intent to kill another person, by a person during the commission of such a crime, the person who discharged the firearm shall be sentenced to death or life imprisonment without release. A person shall be subjected to the penalty of death under this subsection only if a hearing is held in accordance with section 408 of the Controlled Substances Act (21 U.S.C. 848). Notwithstanding any other law, a court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used. No person sentenced under this subsection shall be eligible for parole, nor shall such person be released for any reason whatsoever, during a term of imprisonment imposed under this paragraph.". SEC. 112. LIFE IMPRISONMENT WITHOUT RELEASE FOR CRIMINALS CONVICTED A THIRD TIME. Section 401(b) of the Controlled Substances Act is amended by striking "If any person commits a violation of this subparagraph or of section 405, 405A, or 405B after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release" and inserting "If any person commits a violation of this subparagraph or of section 405, 405A, or 405B or a crime of violence as defined in section 924(c)(3) of title 18, United States Code, after two or more prior convictions for a felony drug offense or for a crime of violence as defined in section 924(c)(3) of that title or for any combination thereof have become final, such person shall be sentenced to a mandatory term of life imprisonment without release.". SEC. 113. LONGER PRISON SENTENCES FOR THOSE WHO SELL ILLEGAL DRUGS TO MINORS OR FOR USE OF MINORS IN DRUG TRAFFICKING ACTIVITIES. (a) DISTRIBUTION TO PERSONS UNDER AGE 21.--Section 405 of the Controlled Substances Act (21 U.S.C. 845) is amended-- (1) in subsection (a) by striking "Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment under this subsection shall be not less than one year." and inserting "Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment under this subsection shall be not less than 10 years without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the preceding sentence and such person shall not be released during the term of such sentence."; and (2) in subsection (b) by striking "Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment under this subsection shall be not less than one year." and inserting "Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment under this subsection shall be not less than 20 years without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the preceding sentence and such person shall not be released during the term of such sentence.". (b) EMPLOYMENT OF PERSONS UNDER 18 YEARS OF AGE.--Section 405B of the Controlled Substances Act (21 U.S.C. 845b) is amended-- (1) in subsection (a) by striking "Except to the extent a greater minimum sentence is otherwise provided, a term of imprisonment under this subsection shall be not less than one year." and inserting "Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment under this subsection shall be not less than 10 years without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the preceding sentence and such person shall not be released during the term of such sentence"; and (2) in subsection (c) by striking "Except to the extent a greater minimum sentence is otherwise provided, a term of imprisonment under this subsection shall be not less than one year." and inserting "Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment under this subsection shall be not less than 20 years without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the preceding sentence and such person shall not be released during the term of such sentence.". SEC. 114. LONGER PRISON SENTENCES FOR DRUG TRAFFICKING. (a) SCHEDULE I AND II SUBSTANCES.--Section 401(b)(1)(C) of the Controlled Substances Act (21 U.S.C. 841(b)(1)(C)) is amended-- (1) in the first sentence by striking "of not more than 20 years" and inserting "which shall be not less than 5 years without release nor more than 20 years"; and (2) in the second sentence by striking "of not more than 30 years" and inserting "which shall be not less than 10 years without release nor more than 30 years". (b) MARIHUANA.--Section 401(b)(1)(D) of the Controlled Substances Act (21 U.S.C. 841(b)(1)(D)) is amended-- (1) in the first sentence by striking "of not more than 5 years" and inserting "not less than 5 years without release"; (2) in the second sentence by striking "of not more than 10 years" and inserting "which shall be not less than 10 years without release"; and (3) by adding the following new sentence at the end thereof: "Not withstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph, nor shall a person so sentenced be eligible for parole during the term of such a sentence.". (c) SCHEDULE IV SUBSTANCES.--Section 401(b)(2) of the Controlled Substances Act (21 U.S.C. 841(b)(2)) is amended-- (1) in the first sentence by striking "of not more than 3 years" and inserting "which shall be not less than 5 years without release"; (2) in the second sentence by striking "of not more than 6 years" and inserting "which shall be not less than 10 years without release"; and (3) by adding the following new sentence at the end thereof: "Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph, nor shall a person so sentenced be eligible for parole during the term of such a sentence.". (d) SCHEDULE V SUBSTANCES.--Section 401(b)(3) of the Controlled Substances Act (21 U.S.C. 841(b)(3)) is amended-- (1) in the first sentence by striking "of not more than one year" and inserting "which shall be not less than 5 years without release"; (2) in the second sentence by striking "of not more than 2 years" and inserting "which shall be not less than 10 years without release"; and (3) by adding the following new sentence at the end thereof: "Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph, nor shall a person so sentenced be eligible for parole during the term of such a sentence.". SEC. 115. MANDATORY PENALTIES FOR ILLEGAL DRUG USE IN FEDERAL PRISONS. (a) DECLARATION OF POLICY.--It is the policy of the Federal Government that the use or distribution of illegal drugs in the Nation's Federal prisons will not be tolerated and that such crime shall be prosecuted to the fullest extent of the law. (b) AMENDMENT.--Section 401(b) of the Controlled Substances Act (21 U.S.C. 841(b)) is amended by adding the following new paragraph and the end thereof: "(7)(A) In a case involving possession of a controlled substance within a Federal prison or other Federal detention facility, such person shall be sentenced to a term of imprisonment of 1 year without release in addition to any other sentence imposed for the possession itself. "(B) In a case involving the smuggling of a controlled substance into a Federal prison or other Federal detention facility or the distribution of a controlled substance within a Federal prison or other Federal detention facility, such person shall be sentenced to a term of imprisonment of 10 years without release in addition to any other sentence imposed for the possession or distribution itself. "(C) Notwithstanding any other law, the court shall not place on probation or suspend the sentence of a person sentenced under this paragraph. No person sentenced under this paragraph shall be eligible for parole during the term of imprisonment imposed under this paragraph.". SEC. 116. DEPORTATION OF CRIMINAL ALIENS. (a) DEPORTATION OF ALIENS CONVICTED OF CRIMES OF VIOLENCE.--Section 241(a)(14) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(14)) is amended by inserting after "convicted" the following: "of a drug trafficking crime or a crime of violence (as those terms are defined in paragraphs (2) and (3) of section 924(c) of title 18, United States Code), or". (b) REENTRY OF DEPORTED ALIENS.--Section 276(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1326(b)(2)) is amended to read as follows: "(2) whose deportation was subsequent to a conviction for a drug trafficking crime or a crime of violence (as those terms are defined in sections 924(c) (2) and (3) of title 18, United States Code), such alien shall be fined under such title and imprisoned for 20 years without release, and in the case of a second violation of subsection (a) shall be imprisoned for life without release. Notwithstanding any other law, the court shall not place on probation or suspend the sentence of any person sentenced under this paragraph and such person shall not be released during the term of such sentence.". SEC. 117 ENCOURAGEMENT TO STATES TO ADOPT MANDATORY MINIMUM PRISON SENTENCES. (a) PRIORITY.--Beginning on the date that is 2 calendar years after the date of enactment of this Act, a request for Federal drug law enforcement assistance funds from the Bureau of Justice Assistance Grant Programs by a State whose law provides for-- (1) mandatory minimum sentences equal to or greater than the sentences authorized in sections 111, 112, 113, 114, and 115 for the commission of crimes against the State that are equivalent to the Federal crimes punished in those sections; (2) elimination of early release from prison of persons convicted in a State court of committing a crime of violence against a person or drug trafficking crime (other than simple possession), equivalent to the requirements of section 103; and (3) payment of trial costs and mandatory fines equivalent to that imposed by section 202, shall receive priority over a request by a State whose law does not so provide. (b) REDISTRIBUTION.--Beginning on the data that is 2 calendar years after the date of enactment of this Act, the formula for determining the amount of funds to be distributed from the Drug Control and System Improvement Grant Program to state and local governments shall be adjusted by-- (1) reducing by 10 percent the amount of funds that would, except for the application of this paragraph, be allocated to States whose laws do not provide as stated in subsection (a); and (2) allocating the amount of the reduction pro rata to the other States. Subtitle C--Mandatory Work Requirements for Prisoners, Withholding Federal Benefits, and Drug Testing of Prisoners SEC. 131 MANDATORY WORK REQUIREMENT FOR ALL PRISONERS. (A) IN GENERAL.--(1) It is the policy of the Federal Government that convicted prisoners confined in Federal prisons, jails, and other detention facilities shall work. The type of work in which they will be involved shall be dictated by appropriate security considerations and by the health of the prisoner involved. Such labor may include, but not be limited to-- (A) local public works projects and infrastructure repair; (B) construction of new prisons and other detention facilities; (C) prison industries; and (D) other appropriate labor. (2) It is the policy of the Federal Government that States and local governments have the same authority to require all convicted prisoners to work. (b) PRISONERS SHALL WORK.--Medical certification of 100 percent disability, security considerations, or disciplinary action shall be the only excuse to remove a Federal prisoner from labor participation. (c) USE OF FUNDS.--(1) Subject to paragraph (2), any funds generated by labor conducted pursuant to this section shall be deposited in a separate fund in the Treasury of the United States for use by the Attorney General for payment of prison construction and operating expenses or for payment of compensation judgements. Notwithstanding any other law, such funds shall be available without appropriation. (2) Prisoners shall be paid a share of funds generated by their labor conducted pursuant to this section. SEC. 132. REPEAL OF CONSTRAINTS ON PRISON INDUSTRIES. (a) SUMNERS-ASHURST ACT.--(1) Chapter 85 of part 1 of title 18, United States Code, is repealed. (2) The table of chapters for part 1 of title 18, United States Code, is amended by striking the item for chapter 85 and inserting the following: "[85. Repealed.]". (3) The repeal made by this subsection shall not affect the performance to completion of the pilot projects authorized by section 1761(c) of title 18, United States Code, prior to enactment of this act. (b) FEDERAL PRISON INDUSTRIES.--(1) Section 4122(a) of title 18, United States Code, is amended to read as follows: "(a) Federal Prison Industries shall determine in what manner and to what extent industrial operations shall be carried on in Federal penal and correctional institutions for the product of commodities for consumption in such institutions or for sale to governmental departments and agencies and to the public.". (2) The first paragraph of section 4124 of title 18, United States Code, is amended to read as follows: "The several Federal departments and agencies and all other Government institutions of the United States may purchase such products of the industries authorized by this chapter as meet their requirements and may be available.". (3) The second sentence of section 4126(f) of title 18, United States Code, is amended to read as follows: "To the extent that the amount of such funds is excess to the needs of the corporation for such purposes, such funds may be transferred to the Attorney General for the construction or acquisition of penal and correctional institutions, including camps described in section 4125.". (c) WALSH-HEALY ACT.--Subsection (d) of the first section of the Act entitled "An Act to provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes", approved June 30, 1936, (41 U.S.C. 35(d)), is amended-- (1) by striking "and no convict labor"; and (2) by striking ", except that this section, or any law or Executive order contrasting similar prohibitions against purchase of goods by the Federal Government, shall not apply to convict labor which satisfies the conditions of section 1761(c) of title 18, United States Code". (d) LEGISLATIVE RECOMMENDATIONS.--The Attorney General shall submit to Congress a report making recommendations for legislation to-- (1) ensure that private businesses and labor do not suffer unfair consequences from the repeal in subsection (a); and (2) encourage greater private sector participation in prison industries and create incentives for cooperative arrangements between private businesses and prisons providing for such participation. SEC. 133. EMPLOYMENT OF PRISONERS. (a) IN GENERAL.--The Attorney General may enter into contracts with private businesses for the use of inmate skills that may be of commercial use to such businesses. (b) USE OF FEES AND PAYMENTS.--A portion of the fees and payments collected for the use of inmate skills under contracts entered into pursuant to subsection (a) shall be deposited in the fund described in section 131(c)(1), and a portion shall be paid to the prisoners who conduct the labor. (c) SECURITY REQUIREMENT.--In the case of contracts described in subsection (a) in which the provision of inmate skills would require prisoners to leave the prison-- (1) prisoners shall be permitted to travel directly to a work site and to remain at the work site during the work day and shall be required to return directly to prison at the end of each work day; and (2) only prisoners with no history of violent criminal activity and who are able to meet strict security standards to insure that they pose no threat to the public, shall be eligible to participate. SEC. 134. WITHHOLDING PRISONERS' FEDERAL BENEFITS TO OFFSET INCARCERATION COSTS. (a) IN GENERAL.--The Federal benefits received by any prisoner (not including those of a prisoner's spouse or dependents) who has been convicted of a crime of violence against a person or drug trafficking crime (other than simple possession) under Federal or State law and who is incarcerated in a Federal or State prison shall, during the period of the prisoner's incarceration, be withheld to offset the costs of-- (1) any victim compensation award against such prisoner; and (2) any incarceration costs of the prisoner incurred by the prison system. (b) PAYMENT.--(1) In the case of a Federal Prisoner, Federal benefits withheld for the purpose of subsection (a)(2) shall be paid into the fund established by section 131(c). (2) In the case of a State prisoner, Federal benefits withheld for the purpose of subsection (a)(2) shall be paid to the State. (c) EXCEPTION.--The withholding of Federal benefits of a prisoner with a spouse or other dependents under subsection (a) shall be adjusted by the court to provide adequate support to and to prevent the impoverishment of dependents. (d) DEFINITIONS.--As used in this section the term "Federal benefit" means the issuance of any payment of money, by way of grant, loan, or statutory entitlement, provided by an agency of the United States or by appropriated funds or trust funds of the United States but does not include a right to payment under a contract. SEC. 135. DRUG TESTING OF FEDERAL PRISONERS. (a) DRUG TESTING PROGRAM.--(1) Subchapter A of chapter 229 of title 18, United States Code, is amended by adding at the end thereof the following new section: "Section 3608. Drug testing of defendants on post-conviction release "(a) The Attorney General, in consultation with the Director of the Administrative Office of the United States Courts shall, as soon as is practicable after the effective date of this section, establish by regulation a program of drug testing of targeted classes of arrestees, individuals in jails, prisons, and other correctional facilities, and persons on conditional or supervised release before or after conviction, including probationers, parolees, and persons released on bail. "(b)(1) The Attorney General shall, not later than 6 months after the date of enactment of this section, promulgate regulations for drug testing programs under this section. "(2) The regulations issued pursuant to paragraph (1) shall be based in part on scientific and technical standards determined by the Secretary of Health and Human Services to ensure reliability and accuracy of drug test results. In addition to specifying acceptable methods and procedures for carrying out drug testing, the regulations may include guidelines or specifications concerning-- "(A) the classes of persons to be targeted for testing; "(B) the drugs to be tested for; "(C) the frequency and duration of testing; and "(D) the effect of test results in decisions concerning the sentence, the conditions to be imposed on release before or after conviction, and the granting, continuation, or termination of such release. "(c) In each district where it is feasible to do so, the chief probation officer shall arrange for the drug testing of defendants on a post-conviction release pursuant to a conviction for a felony or other offense described in section 3563(a)(4) of this title.". SEC. 136. DRUG TESTING OF STATE PRISONERS. (a) IN GENERAL.--Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the end of part E (42 U.S.C. 3750-3766b) the following: "DRUG TESTING PROGRAMS "SEC. 523. (a) PROGRAM REQUIRED.--No funding shall be provided under this part, whether by direct grant, cooperative agreement, or assistance in any form, to any State or any political subdivision or instrumentality of a State that has not formulated and implemented a drug testing program, subject to periodic review by the Attorney General, as specified in the regulations described in subsection (b), for targeted classes of arrestees, individuals in jails, prisons, and other correctional facilities, and persons on conditional or supervised release before or after conviction, including probationers, parolees, and persons released on bail. "(b) REGULATIONS.--(1) The Attorney General shall, not later than 6 months after the enactment of this section, promulgate regulations for drug testing programs under this section. "(2) The regulations issued pursuant to paragraph (1) shall incorporate the standards applicable to drug testing of Federal prisoners under section 3608 of title 18, United States Code. "(c) EFFECTIVE DATE.--This section shall take effect with respect to any State, subdivisions, or instrumentality receiving or seeking funding under this subchapter at a time specified by the Attorney General, but no earlier than the date of promulgation of the regulations required by subsection (b).". (b) AMENDMENT TO TABLE OF CONTENTS.--The table of contents of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is amended by inserting at the end of the item relating to part E the following: "Sec. 523. Drug testing program.". Subtitle D--Judicial Reform to Protect the Innocent and Punish the Guilty SEC. 151. GOOD FAITH STANDARDS FOR GATHERING EVIDENCE. (a) IN GENERAL.--Chapter 223 of title 18, United States Code, is amended by adding at the end thereof the following new section: "Section 3509. Admissibility of evidence obtained by search or seizure "(a) EVIDENCE OBTAINED BY OBJECTIVELY REASONABLE SEARCH OR SEIZURE.--Evidence which is obtained as a result of a search or seizure shall not be excluded in a proceeding in a court of the United States on the ground that the search or seizure was in violation of the fourth amendment to the Constitution of the United States, if the search or seizure was carried out in circumstances justifying an objectively reasonable belief that it was in conformity with the fourth amendment. The fact that evidence was obtained pursuant to and within the scope of a warrant constitutes prima facie evidence of the existence of such circumstances. "(b) EVIDENCE NOT EXCLUDABLE BY STATUTE OR RULE.--Evidence shall not be excluded in a proceeding in a court of the United States on the ground that it was obtained in violation of a statute, an administrative rule or regulation, or a rule of procedure unless exclusion is expressly authorized by a statute or by a rule prescribed by the Supreme Court pursuant to statutory authority. "(c) RULE OF CONSTRUCTION.--This section shall not be constructed to require or authorize the exclusion of evidence in any proceeding.". (b) TECHNICAL AMENDMENT.--The table of sections at the beginning of chapter 223 of title 18, United States Code, is amended by adding at the end the following: "3509. Admissibility of evidence obtained by search or seizure.". SEC. 152. STROM THURMOND HABEAS CORPUS REFORM INITIATIVE. (a) FINALITY OF DETERMINATIONS.--Section 2244 of title 28, United States Code, is amended by adding at the end thereof the following new subsections: "(d) When a person in custody pursuant to the judgment of a State court fails to raise a claim in State proceedings at the time or in the manner required by State rules of procedure, the claim shall not be entertained in an application for a writ of habeas corpus unless actual prejudice resulted to the applicant from the alleged denial of Federal right asserted and-- "(1) the failure to raise the claim properly or to have it heard in State proceedings was the result of State action in violation of the Constitution or laws of the United States; "(2) the Federal right asserted was newly recognized by the Supreme Court subsequent to the procedural default and is retroactively applicable; or "(3) the factual predicate of the claim could not have been discovered through the exercise of reasonable diligence prior to the procedural default. "(e) A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of the following times: "(1) the time at which State remedies are exhausted; "(2) the time at which the impediment to filing an application created by State action in violation to the Constitution or laws of the United States is removed, where the applicant was prevented from filing by such State action; "(3) the time at which the Federal right asserted was initially recognized by the Supreme Court, where the right has been newly recognized by the Court and is retroactively applicable; or "(4) the time at which the factual predicate of the claim or claims presented could have been discovered through the exercise of reasonable diligence.". (b) APPEAL.--Section 2253 of title 28, United States Code, is amended to read as follows: "Section 2253. Appeal "In a habeas corpus proceeding or a proceeding under section 2255 of this title before a circuit or district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had. "There shall be no right of appeal from such an order in a proceeding to test the validity of a warrant to remove, to another district or place for commitment or trial, a person charged with a criminal offense against the United States, or to test the validity of the person's detention pending removal proceedings. "An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, or from the final order in a proceeding under section 2255 of this title, unless a circuit justice or judge issues a certificate of probable cause.". (c) APPELLATE PROCEDURE.--Rule 22 of the Federal Rules of Appellate Procedure is amended to read as follows: "Rule 22. Habeas Corpus and Section 2255 Proceedings "(a) APPLICATION FOR AN ORIGINAL WRIT OF HABEAS CORPUS.--An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made to a circuit judge, the application will ordinarily be transferred to the appropriate district court. If an application is made to or transferred to the district court and denied, renewal of the application before a circuit judge is not favored; the proper remedy is by appeal to the court of appeals from the order of the district court denying the writ. "(b) NECESSITY OF CERTIFICATE OF PROBABLE CAUSE FOR APPEAL.--In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, and in a motion proceeding pursuant to section 2255 of title 28, United States Code, an appeal by the applicant or movant may not proceed unless a circuit judge issues a certificate of probable cause. If a request for a certificate of probable cause is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judgements of the court of appeals. If an appeal is taken by a State or the government or its representative, a certificate of probable cause is not required.". (d) STATE CUSTODY.--Section 2254 of title 28, United States Code, is amended-- (1) by amending subsection (b) to read as follows: "(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the applicant. An application may be denied on the merits notwithstanding the failure of the applicant to exhausted the remedies available in the courts of the States."; (2) by redesignating subsection (d), (e), and (f) as subsections (e), (f), and (g), respectively; (3) by inserting after subsection (c) the following new subsection: "(d) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that has been fully and fairly adjudicated in State proceedings."; and (4) by amending subsection (e), as redesignated by paragraph (2), to read as follows: "(e) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a full and fair determination of a factual issue made in the case by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting this presumption by clear and convincing evidence.". (e) FEDERAL CUSTODY.--Section 2255 of title 28, United States Code, is amended by striking the second paragraph and the penultimate paragraph thereof, and by adding at the end thereof the following new paragraphs: "When a person fails to raise a claim at the time or in the manner required by Federal rules of procedure, the claim shall not be entertained in a motion under this section unless actual prejudice resulted to the movant from the alleged denial of the right asserted and-- "(1) the failure to raise the claim properly, or to have it heard, was the result of governmental action in violation of the Constitution or the laws of the United States; "(2) the right asserted was newly recognized by the Supreme Court subsequent to the procedural default and is retroactively applicable; or "(3) the factual predicate of the claim could not have been discovered through the exercise of reasonable diligence prior to the procedural default. "A two-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of the following times; "(1) The time at which the judgment of conviction becomes final. "(2) The time at which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, where the movant was prevented from making a motion by such governmental action. "(3) The time at which the right asserted was initially recognized by the Supreme Court, where the right has been newly recognized by the Court and is retroactively applicable. "(4) The time at which the factual predicate of the claim or claims presented could have been discovered through the exercise of reasonable diligence.". SEC. 153. PROSCRIPTION OF USE OF DRUG PROFITS. (a) LIST OF ASSETS.--Section 511(d) of the Controlled Substances Act (21 U.S.C. 881(d)) is amended by-- (1) inserting "(1)" after (d)"; and (2) adding at the end thereof the following new paragraph: "(2)(A) Prior to sentencing a defendant on conviction in a Federal court of a felony under this title, the court shall compile a list of all assets owned by the defendant not subject to forfeiture. "(B) After the release of a defendant described in subparagraph (A), upon request of the Attorney General, the court shall required the defendant to provide proof that any asset owned by the defendant not listed on the list described in subparagraph (A) was legally obtained.". "(C) In order to prove that a defendant legally obtained an asset not listed on the list described in subparagraph (A), the defendant shall be required to produce documentation of the same nature as that required of a taxpayer by the Internal Revenue Service. "(D) Assets that a defendant does not prove were legally obtained under subparagraph (B) may be seized by the Attorney General through attachment and foreclosure proceedings, and the proceeds of such proceedings shall be deposited in the Department of Justice's Assets Forfeiture Fund and shall be available for transfer to the building and facilities account of the Federal prison system.". SEC. 154. JURISDICTION OF SPECIAL MASTERS. Notwithstanding any other law, a special master appointed to serve in a United States court to monitor compliance with a court order, including special masters who have been appointed prior to the date of enactment of this Act-- (1) shall be appointed for a term of no more than 1 year; (2) may be reappointed for terms of 1 year; (3) shall be given a clear and narrow mandate by the court and shall have no authority in any area where a specific mandate is not granted; and (4) shall not have jurisdiction to enforce any judicial order with respect to the management of prisons or jails. SEC. 155. SENTENCING PATTERNS OF FEDERAL JUDGES. (a) IN GENERAL.--Chapter 49 of title 28, United States Code, is amended by adding at the end thereof the following new section: "Section 757 Sentencing patterns "(a) The Administrative Office of the United States Courts shall annually publish a cumulative report on sentencing by United States District Judges. The report shall be compiled for the purpose of enabling the reader to assess criminal sentencing patterns among Federal judges and post-sentencing treatment to determine judicial accuracy of forecasting future responsible and lawful behavior by those whom they sentence. "(b) The report shall-- "(1) personally identify the judge that pronounced each criminal sentence; "(2) give a brief description of the crime or crimes perpetrated by the criminal and the prison, probation, parole, furlough, recidivism, and other history of the criminal that is reasonably available for compilation; and "(3) include such charts, profiles, and narratives as are necessary.". (b) TECHNICAL AMENDMENT.--The table of sections for chapter 49 of title 28, United States Code, is amended by adding at the end thereof the following: "757. Sentencing patterns.". TITLE II--ACHIEVING A DRUG-FREE AMERICA BY 1995 SEC. 201. FINDINGS. The Congress finds that-- (1) to make America drug-free by 1995 requires a concerted effort to hold drug users accountable for their actions, which sustain the drug trade and related criminal activities; and (2) the anti-drug policy of the 1990's must emphasize the principles of zero tolerance, user accountability, and measured user penalties. SEC. 202 PAYMENT OF TRIAL COSTS AND MANDATORY MINIMUM FINES. (a) FINE TO PAY COST OF TRIAL.--(1) A person who is convicted of a violation of section 404 of the Controlled Substances Act (21 U.S.C. 844) shall pay to the Treasury of the United States the cost of the trial in which the person is convicted, as determined by the court, out of the income of such person. (2) If a person convicted of drug possession has insufficient income and property to pay the cost of trial as required by paragraph (1), the court shall determine an appropriate amount that should be paid in view of the person's income and the cost of trial. (3) The amount that a person shall be required to pay out of the person's income to pay the cost of trial shall not exceed 25 percent of the person's annual income. (b) ADDITIONAL MANDATORY FINE.--In addition to the fines authorized in section 404 of the Controlled Substances Act (21 U.S.C. 844) and in subsection (a), a person who is convicted of section 404 of the Controlled Substances Act shall be assessed a mandatory fine of at least 10 percent of the person's income for a first offense and at least 25 percent of the person's income for a second or subsequent offense. (c) INCOME.--For the purposes of this section, a person's annual income shall be determined to be no less than the amount of income reported on the person's most recent Federal income tax filing. (d) FORFEITURE OF PROPERTY.--If a person convicted of a drug crime has insufficient income to pay the fines imposed under subsections (a) and (b), the person's property, including wages and other earnings, shall be subject to forfeiture through attachment, foreclosure, and garnishment procedures. (e) The court may order payment of trial costs and fines imposed under this section in a single payment or in installments, as necessary to realize the greatest possibility that the entire amount of costs and fines will be paid. SEC. 203. WITHHOLDING OF UNEARNED FEDERAL BENEFITS FROM DRUG TRAFFICKERS AND USERS WHO ARE NOT IN PRISON. (a) DRUG TRAFFICKERS.--Section 5301(a) of the Anti-Drug Abuse Act of 1988 (21 U.S.C 853a(a)) is amended-- (1) by amending paragraph (1) to read as follows: "(1) Any individual who is convicted of any State offense consisting of the distribution of controlled substances (as such terms are defined for purposes of the Controlled Substances Act) who is not sentenced to a prison term or who serves a prison term of less than the time periods specified in subparagraph (A), (B), or (C) of this paragraph shall-- "(A) upon the first conviction for such an offense be ineligible for unearned Federal benefits for 5 years after such conviction; "(B) upon a second conviction be ineligible for all unearned Federal benefits for 10 years after such conviction; and "(C) upon a third or subsequent conviction for such an offense be permanently ineligible for all unearned Federal benefits."; and (2) in paragraph (2) by striking "there is a reasonable body of evidence to substantiate such declaration" and inserting "there is clear and convincing evidence to substantiate such declaration". (b) DRUG USERS.--Section 5301(b) of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 853a(b)) is amended-- (1) in paragraph (1) by amending subparagraphs (A) and (B) to read as follows: "(A) upon the first conviction for such an offense be ineligible for all unearned Federal benefits for 1 year after such conviction; "(B) upon a second and subsequent convictions be ineligible for all unearned Federal benefits for 5 years after such convictions; and (2) in paragraph (2) by striking "there is a reasonable body of evidence to substantiate such declaration" and inserting "there is clear and convincing evidence to substantiate such declaration". (c) SUSPENSION OF PERIOD OF INELIGIBILITY.--Subsection (c) of section 5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 853a(c)) is amended to read as follows: "(c) SUSPENSION OF PERIOD OF INELIGIBILITY.--A court may reduce the period of ineligibility referred to in subsection (b)(1)(A) to 3 months if the individual-- "(1) successfully completes a supervised drug rehabilitation program which includes periodic, random drug testing after becoming ineligible under this section; or "(2) completes a period of community service satisfactory to the court and passes period and random drug tests administered during the 3-month period of suspension.". (d) DEFINITIONS.--Subsection (d) of section 5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 853a(d)) is amended to read as follows: "(d) DEFINITIONS.--As used in this section-- "(1) the term 'earned Federal benefits' means programs and benefits that are earned through or by financial contributions or service, such as Social Security or veterans' benefits; and "(2) the term 'unearned Federal benefits' means all Federal benefits, including the issuance of any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States, but not including earned Federal benefits, such as Social Security and veteran's benefits. (e) MONITORING.--The Attorney General shall establish a system to monitor implementation of section 5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 853a). SEC. 204. REVOCATION OF DRUG USERS' DRIVER'S LICENSES AND PILOT'S LICENSES. (a) DRIVER'S LICENSES.--(1) Chapter 1 of title 23, United States Code, is amended by adding at the end thereof the following new section: "Section 159. Revocation of the driver's licenses of persons convicted of drug possession "(a) Beginning on the date that is 2 calendar years after the date of enactment of this section, a request for Federal drug law enforcement assistance funds from the Bureau of Justice Assistance Grant programs by a State whose law provides for revocation of drivers' licenses as provided in subsection (c) shall receive priority over a request by a State whose law does not so provide. "(b) Beginning on the date that is 2 calendar years after the date of enactment of this section, the formula for determining the amount of funds to be distributed from the Drug Control and System Improvement Grant Program to State and local governments shall be adjusted by-- "(1) reducing by 10 percent the amount of funds that would, except for the application of this paragraph, be allocated to States whose laws do not provide as stated in subsection (c); and "(2) allocated the amount of the reduction pro rata to the other States. "(c)(1) A State meets the requirements of this section if the State has enacted and is enforcing a law that requires in all circumstances, except as provided in paragraph(2)-- "(A) the mandatory revocation of the driver's license for at least 1 year of any person who is convicted, after the enactment of such law, of-- "(i) a violation of section 404 of the Controlled Substances Act (21 U.S.C. 844); or "(ii) any other Federal or State drug offense for which a person serves less than 1 year's imprisonment; and "(B) the mandatory denial of any request for the issuance or reinstatement of a driver's license to such a person if the person does not have a driver's license, or the driver's license of the person is suspended, at the time the person is so convicted. "(2) The State law referred to in paragraph (1) may provide that the driver's license of a first offender, but not of a second or subsequent offender, may be reinstated on performance of 3 months' community service and passes periodic drug tests administered during the period of community service.". "(d) For purposes of this section-- "(1) The term 'driver's license' means a license issued by a State to any person that authorizes the person to operate a motor vehicle on the highways. "(2) The term 'drug offense' means any criminal offense which proscribes the possession, distribution, manufacture, cultivation, sale, transfer, or the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, or transfer any substance the possession of which is prohibited under the Controlled Substances Act (21 U.S.C. 801 et seq.) and such offenses under State laws. "(3) The term 'convicted' includes adjudicated under juvenile proceedings.". (2) The table of contents for chapter 1 of title 23, United States Code, is amended by adding at the end thereof the following new item: "159. Revocation of the driver's licenses of persons convicted of drug offenses.". (b) PILOT'S LICENSES.--The Secretary of Transportation shall cause the Federal Aviation Administration to amend its regulations as necessary to cause the revocation of pilot's licenses on the terms and conditions prescribed for revocation of driver's licenses in subsection (a). SEC. 205. ACCOUNTABILITY AND PERFORMANCE OF DRUG TREATMENT FACILITIES. (a) STATEWIDE DRUG TREATMENT PLANS.--Title XIX of the Public Health Service Act is amended by inserting after section 1916A (42 U.S.C. 300x-4a) the following new section: "SEC. 1916B. STATEWIDE DRUG TREATMENT PLAN. "(a) NATURE OF PLAN.--To receive the drug abuse portion of its allotment for a fiscal year under section 1912A, a State shall develop, implement, and submit, as part of the application required by section 1916(a), an approved statewide Drug Treatment Plan, prepared according to regulations promulgated by the Secretary, that shall contain-- "(1) a single, designated State agency for formulating and implementing the Statewide Drug Treatment Plan; "(2) a description of the mechanism that shall be used to assess the needs for drug treatment in localities throughout the State including the presentation of relevant data; "(3) a description of a statewide plan that shall be implemented to expand treatment capacity and overcome obstacles that restrict the expansion of treatment capacity (such as zoning ordinances), or an explanation of why such a plan is necessary; "(4) a description of performance-based criteria that shall be used to assist in the allocating of funds to drug treatment facilities receiving assistance under this subpart: [sic] "(5) a description of the drug-free patient and workplace programs, that must include some form of drug testing, to be utilized in drug treatment facilities and programs; "(6) a description of the mechanism that shall be used to make funding allocations under this subpart; "(7) a description of the actions that shall be taken to improve the referral of drug users to treatment facilities that offer the most appropriate treatment modality; "(8) a description of the program of training that shall be implemented for employees of treatment facilities receiving Federal funds, designed to permit such employees to stay abreast of the latest and most effective treatment techniques; "(9) a description of the plan that shall be implemented to coordinate drug treatment facilities with other social, health, correctional and vocational services in order to assist or properly refer those patients in need of such additional services; and "(10) a description of the plan that will be implemented to expand and improve efforts to contact and treat expectant women who use drugs and to provide appropriate follow-up care to their affected newborns. "(b) SUBMISSION OF PLAN.--The plan required by subsection (a) shall be submitted to the Secretary annually for review and approval. The Secretary shall have the authority to review and approve or disapprove such State plans, and to propose changes to such plans. "(c) SUBMISSION OF PROGRESS REPORTS.--Each State shall submit reports, in such form, and containing such information as the Secretary may, from time to time, require, and shall comply with such additional provisions as the Secretary may from time to time find are necessary to verify the accuracy of such reports but are not overly burdensome to the State. "(d) WAIVER OF PLAN REQUIREMENT.--At the discretion of the Secretary, the Secretary may waive any or all of the requirements of this section on the written request of a State, except that such waiver shall not be granted unless the State implements an alternative treatment plan that fulfills the objectives of this section. "(e) DEFINITION.--As used in this section, the term 'drug abuse portion' means the amount of a State's allotment under section 1912A that is required by this subpart, or by any other law, to be used for programs or activities relating to drug abuse.". (b) REGULATIONS AND EFFECTIVE DATES.--(1) The Secretary of Health and Human Services shall promulgate regulations to carry out section 1916B of the Public Health Service Act (as added by subsection (a)) not later than 6 months after the date of enactment of this section. (2)(A)Sections 1916B(a) (4) and (5) of such Act (as added by subsection (a)) shall become effective on October 1 of the second fiscal year beginning after the date that final regulations under paragraph (1) are published in the Federal Register. (B) The remaining provision of such section 1916B shall become effective on October 1 of the first fiscal year beginning after the date final regulations under paragraph (1) are published in the Federal Register. SEC. 206. DRUG-FREE SCHOOLS. (a) ELEMENTARY AND SECONDARY EDUCATION.--(1) Title XII of the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.), is amended by inserting at the end thereof the following new section 1213: "DRUG AND ALCOHOL ABUSE PREVENTION "SEC. 1213. (a) Notwithstanding any other law, no institution of higher education shall be eligible to receive funds or any other form of financial assistance under any Federal program, including participation in any federally funded or guaranteed student loan program, unless it certifies to the Secretary that it has adopted and has implemented a program to prevent the use of illicit drugs and the abuse of alcohol by students and employees that, at a minimum, includes-- "(1) the annual distribution to each student and employee of-- "(A) standards of conduct that clearly prohibit, at a minimum, the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees on its property or as a part of any of its activities; "(B) a description of applicable legal sanctions under local, State, or Federal law for the unlawful possession or distribution of illicit drugs and alcohol; "(C) a description of the health risks associated with the use of illicit drugs and the abuse of alcohol; "(D) a description of any drug or alcohol counseling, treatment, or rehabilitation programs that are available to employees or students; and "(E) a clear statement that the institution will impose sanctions on students and employees (consistent with local, State, and Federal laws), and a description of those sanctions, up to and including expulsion or termination of employment and referral for prosecution, for violations of the standards of conduct required by paragraph (1)(A); "(2) provisions for drug testing; and "(3) a biennial review by the institution of its program to-- "(A) determine its effectiveness and implement changes to the program if they are needed; and "(B) ensure that the sanctions required by paragraph (1)(E) are consistently enforced. "(b) Each institution of higher education that provides the certification required by subsection (a) shall, upon request, make available to the Secretary and to the public a copy of each item required by subsection (a)(1) as well as the results of the biennial review required by subsection (a)(2). "(c)(1) The Secretary shall publish regulations to implement and enforce this section, including regulations that provide for-- "(A) the periodic review of a representative sample of programs required by subsection (a); and "(B) sanctions, up to and including the termination of any form of financial assistance, for institutions of higher education that fail to implement their programs or to consistently enforce their sanctions. "(2) The sanctions required by subsection (a)(1)(E) may include the completion of an appropriate rehabilitation program". (2) Paragraph (1) shall take effect on October 1, 1990. (b) DRUG AND ALCOHOL ABUSE PREVENTION.--(1) Part D of the Drug-Free Schools and Communities Act of 1986 (20 U.S.C. 3171 et seq.) is amended by adding at the end thereof a new section 5145 to read as follows: "CERTIFICATION OF DRUG AND ALCOHOL ABUSE PREVENTION PROGRAMS. "SEC. 5145. (a) Notwithstanding any other law, no local educational agency shall be eligible to receive funds or any other form of financial assistance under any Federal program unless it certifies to the State educational agency that it has adopted and has implemented a program to prevent the use of illicit drugs and alcohol by students or employees that, at a minimum, includes-- "(1) mandatory, age-appropriate, developmentally based drug and alcohol education and prevention programs (which address the legal, social, and health consequences of drug and alcohol use and which provide information about effective techniques for resisting peer pressure to use illicit drugs or alcohol) for students in all grades of the schools operated or served by the applicant, from early childhood level through grade 12; "(2) conveying to students that the use of illicit drugs and alcohol is wrong and harmful; "(3) standards of conduct that are applicable to students and employees in all the applicant's schools and that clearly prohibit, at a minimum, the possession, use, or distribution of illicit drugs and alcohol by students and employees on school premises or as part of any of its activities; "(4) a clear statement that sanctions (consistent with local, State, and Federal law), up to and including expulsion or termination of employment and referral for prosecution, will be imposed on students and employees who violate the standards of conduct required by paragraph (3) and a description of those sanctions; "(5) information about any available drug and alcohol counseling and rehabilitation programs that are available to students and employees; "(6) a requirement that parents, students, and employees be given a copy of the standards of conduct required by paragraph (3) and the statement of sanctions required by paragraph (4); "(7) notifying parents, students, and employees that compliance with the standards of conduct required by paragraph (3) is mandatory; "(8) provisions for drug testing; and "(9) a biennial review by the applicant of its program to-- "(A) determine its effectiveness and implement changes to the program if they are needed; and "(B) ensure that the sanctions required by paragraph (4) are consistently enforced. "(b) Each local educational agency that provides the certification required by subsection (a) shall, upon request, make available to the Secretary, the State educational agency, and the public full information about the elements of its program required by subsection (a), including the results of its biennial review. "(c) Each State educational agency shall certify to the Secretary that it has adopted and has implemented a program to prevent the use of illicit drugs and the abuse of alcohol by its students and employees that is consistent with the program required by subsection (a) of this section. The State educational agency shall, upon request, make available to the Secretary and to the public full information about the elements of its program. "(d)(1) The Secretary shall publish regulations to implement and enforce the provisions of this section, including regulations that provide for-- "(A) the periodic review by State educational agencies of a representative sample of programs required by subsection (a); and "(B) sanctions, up to and including the termination of any form of financial assistance, for local educational agencies that fail to implement their programs or to consistently enforce their sanctions. "(2) The sanctions required by subsection (a)(1) through (4) may included the completion of an appropriate rehabilitation program.". (2) The Drug-Free Schools and Communities Act of 1986 is further amended in section 5126(c)(2) by-- (A) striking subparagraphs (E), (F), and (G); and (B) redesignating subparagraphs (H) through (M) as subparagraphs (E) through (J), respectively. (3) Paragraphs (1) and (2) shall take effect on October 1, 1990. SEC. 207. DRUG-FREE TRANSPORTATION. (a) SHORT TITLE.--This section may be cited as the 'Transportation Employee Testing Act'. (b) FINDINGS.--The Congress finds that-- (1) alcohol abuse and illegal drug use pose significant dangers to the safety and welfare of the Nation; (2) millions of the Nation's citizens utilize transportation by aircraft, railroads, trucks, and buses, and depend on the operators of aircraft, railroads, trucks, and buses to perform in a safe and responsible manner; (3) the greatest efforts must be expended to eliminate the abuse of alcohol and the use of illegal drugs, whether on or off duty, by persons who are involved in the operation of aircraft, railroads, trucks, and buses; (4) the use of alcohol and illegal drugs has been demonstrated to affect significantly the performance of persons who use them, and has been proven to have been a critical factor in transportation accidents; (5) the testing of uniformed personnel of the Armed Forces has shown that the most effective deterrent to abuse of alcohol and use of illegal drugs is increased testing, including random testing; (6) adequate safeguards can be implemented to ensure that testing for abuse of alcohol or use of illegal drugs is performed in a manner that protects a person's right of privacy, ensures that no person is harassed by being treated differently from other persons, and ensures that no person's reputation or career development is unduly threatened or harmed; and (7) rehabilitation is a critical component of any testing program for abuse of alcohol or use of illegal drugs, and should be made available to persons, as appropriate. (C) AMENDMENT OF THE FEDERAL AVIATION ACT.--(1) Title VI of the Federal Aviation Act of 1958 (49 App. U.S.C. 1421 et seq.) is amended by adding at the end thereof the following: "ALCOHOL AND CONTROLLED SUBSTANCES TESTING "TESTING PROGRAM "SEC. 613. (a)(1) The Administrator shall, in the interest of aviation safety, prescribe regulations not later than 12 months after the date of enactment of this section. Such regulations shall establish a program that requires air carriers and foreign air carriers to conduct preemployment, reasonable suspicion, random, and post-accident testing of airmen, crewmembers, airport security screening contract personnel, and other air carrier employees responsible for safety-sensitive functions (as determined by the Administrator) for use, in violation of law, of alcohol or a controlled substances. The Administrator may also prescribe regulations, as the Administrator considers appropriate in the interest of safety, for the conduct of periodic recurring testing of such employees for such use in violation of law. "(2) The Administrator shall establish a program applicable to employees of the Federal Aviation Administration whose duties include responsibility for safety-sensitive functions. Such programs shall provide for preemployment, reasonable suspicion, random, an post-accident testing for use, in violation of law, of alcohol or a controlled substance. The Administrator may also prescribe regulations, as the Administrator considers appropriate in the interest of safety, for the conduct of periodic testing of such employees for such use in violation of law. "(3) In prescribing regulations under the programs required by this subsection, the Administrator shall require, as the Administrator considers appropriate, the suspension or revocation of any certificate issued to such a person, or the disqualification or dismissal of any such person, in accordance with this section, in any instance where a test conduct and confirmed under this section indicates that such person has used, in violation of law, alcohol or a controlled substance. "PROHIBITION OF SERVICE "(b)(1) No person may use, in violation of law, alcohol or a controlled substance after the date of enactment of this section and serve as an airman, crewmember, airport security screening contract personnel, air carrier employee responsible for safety-sensitive functions (as determined by the Administrator), or employee of the Federal Aviation Administration with responsibility for safety-sensitive functions. "(2) No person who is determined to have used, in violation of law, alcohol or a controlled substance after the date of enactment of this section shall serve as an airman, crewmember, airport security screening contract personnel, air carrier employee responsible for safety-sensitive functions (as determined by the Administrator), or employee of the Federal Aviation Administration with responsibility for safety-sensitive functions unless such person has completed a program of rehabilitation described in subsection (c). "(3) Any such person determined by the Administrator to have used, in violation of law, alcohol or a controlled substance after the date of enactment of this section who-- "(A) engaged in such use while on duty; "(B) prior to such use had undertaken or completed a rehabilitation program described in subsection (c) of this section; "(C) following such determination refuses to undertake such rehabilitation program; or "(D) following such determination fails to complete such a rehabilitation program, shall not be permitted to perform the duties relating to air transportation which such person performed prior to the date of such determination. "PROGRAM FOR REHABILITATION "(c)(1) The Administrator shall prescribe regulations setting forth requirements for rehabilitation programs which at a minimum provide for the identification and opportunity for treatment of employees referred to in subsection (a)(1) in need of assistance in resolving problems with the use, in violation of law, of alcohol or controlled substances. Each air carrier or foreign air carrier is encouraged to make such a program available to all of its employees in addition to those employees referred to in subsection (a)(1). The Administrator shall determine the circumstances under which such employees shall be required to participate in such a program. Nothing in this subsection shall preclude any air carrier or foreign air carrier from establishing a program under this subsection in cooperation with any other air carrier or foreign air carrier. "(2) The Administrator shall establish and maintain a rehabilitation program which at a minimum provides for the identification and opportunity for treatment of those employees of the Federal Aviation Administration whose duties include responsibility for safety-sensitive functions who are in need of assistance in resolving problems with the use of alcohol or controlled substances. "PROCEDURES "(d) In establishing the program required under subsection (a) of this section, the Administrator shall development requirements which shall-- "(1) promote, to the maximum extent practicable, individual privacy in the collection of specimen samples; "(2) with respect to laboratories and testing procedures for controlled substances, incorporate the Department of Health and Human Services scientific and technical guidelines dated April 11, 1988, and any amendments thereto, including mandatory guidelines which-- "(A) establish comprehensive standards for all aspects of laboratory controlled substances testing and laboratory procedures to be applied in carrying out this section, including standards that require the use of the best available technology for ensuring full reliability and accuracy of controlled substances tests and strict procedures governing the chain of custody of specimen samples collected for controlled substances testing; "(B) establish the minimum list of controlled substances for which persons may be tested; and "(C) establish appropriate standards and procedures for periodic review of laboratories and criteria for certification and revocation of certification of laboratories to perform controlled substances testing in carrying out this section; "(3) require that all laboratories involved in the controlled substances testing of any person under this section shall have the capability and facility, at such laboratory, of performing screening and confirmation tests; "(4) provide that all tests that indicate the use, in violation of law, of alcohol or a controlled substance by any person shall be confirmed by a scientifically recognized method of testing capable of providing quantitative data regarding alcohol or a controlled substance; "(5) provide that each specimen sample be subdivided, secured, and labeled in the presence of the tested person and that a portion thereof be retained in a secure manner to prevent the possibility of tampering, so that if the person's confirmation test results are positive the person has an opportunity to have the retained portion assayed by a confirmation test done independently at a second certified laboratory if the person requests the independent test within 3 days after being advised of the results of the confirmation test; "(6) ensure appropriate safeguards for testing to detect and quantify alcohol in breath and body fluid samples, including urine and blood, through the development of regulations as may be necessary and in consultation with the Department of Health and Human Services; "(7) provide for the confidentiality of test results and medical information (other than information relating to alcohol or a controlled substance) of employees, except that this paragraph shall not preclude the use of test results for the orderly imposition of appropriate sanctions under this section; and "(8) ensure that employees are selected for tests by nondiscriminatory and impartial methods, so that no employee is harassed by being treated differently from other employees in similar circumstances. "EFFECT ON OTHER LAWS AND REGULATIONS "(e)(1) No State or local government shall adopt or have in effect any law, rule, regulation, ordinance, standard, or order that is inconsistent with the regulations promulgated under this section, except that the regulations promulgated under this section shall not be construed to preempt provisions of State criminal law which impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to employees of an air carrier or foreign air carrier or to the general public. "(2) Nothing in this section shall be construed to restrict the discretion of the Administrator to continue in force, amend, or further supplement any regulations issued before the date of enactment of this section that govern the use of alcohol and controlled substances by airmen, crewmembers, airport security screening contract personnel, air carrier employees responsible for safety-sensitive functions (as determined by the Administrator), or employees of the Federal Aviation Administration with responsibility for safety-sensitive functions. "(3) In prescribing regulations under this section, the Administrator shall establish requirements applicable to foreign air carriers that are consistent with the international obligations of the United States, and the Administrator shall take into consideration any applicable laws and regulations of foreign countries. The Secretary of State and the Secretary of Transportation, jointly, shall call on the member countries of the International Civil Aviation Organization to strengthen and enforce existing standards to prohibit the use, in violation of law, of alcohol or a controlled substance by crewmembers in international civil aviation. "DEFINITION "(f) For the purposes of this section, the term "controlled substance" means any substance under section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)) specified by the Administrator.". (2) The portion of the table of contents of the Federal Aviation Act of 1958 relating to title VI is amended by adding at the end thereof the following: "Sec. 613. Alcohol and controlled substances testing. "(a) Testing program. "(b) Prohibition on service. "(c) Program for rehabilitation. "(d) Procedures. "(e) Effect on other laws and regulations. "(f) Definition.". (d) AMENDMENT OF THE FEDERAL RAILROAD SAFETY ACT.--Section 202 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 431) is amended by adding at the end thereof the following new subsection: "(r)(1) In the interest of safety, the Secretary shall, not later than 12 months after the date of enactment of this subsection, issue rules, regulations, standards, and orders relating to alcohol and drug use in railroad operations. Such regulations shall establish a program which-- "(A) requires railroads to conduct preemployment, reasonable suspicion, random, and post-accident testing of all railroad employees responsible for safety-sensitive functions (as determined by the Secretary) for use, in violation of law, of alcohol or a controlled substance; "(B) requires, as the Secretary considers appropriate, disqualification for an established period of time or dismissal of any employee determined to have used or to have been impaired by alcohol while on duty; and "(C) requires, as the Secretary considers appropriate, disqualification for an established period of time or dismissal of any employee determined to have used a controlled substance, whether on duty or not on duty, except as permitted for medical purposes by law and any rules, regulations, standards, or orders issued under this title. The Secretary may also issue rules, regulations, standards, and orders, as the Secretary considers appropriate in the interest of safety, requiring railroads to conduct periodic testing of railroad employees responsible for such safety sensitive functions, for use of alcohol or a controlled substance in violation of law. Nothing in this subsection shall be construed to restrict the discretion of the Secretary to continue in force, amend, or further supplement any rules, regulations, standards, and orders governing the use of alcohol and controlled substances in railroad operations issued before the date of enactment of this subsection. "(2) In carrying out this subsection, the Secretary shall develop requirements which shall-- "(A) promote, to the maximum extent practicable, individual privacy in the collection of specimen samples; "(B) with respect to laboratories and testing procedures for controlled substances, incorporate the Department of Health and Human Services scientific and technical guidelines dated April 11, 1988, and any amendments thereto, including mandatory guidelines which-- "(i) establish comprehensive standards for all aspects of laboratory controlled substances testing and laboratory procedures to be applied in carrying out this subsection, including standards that require the use of the best available technology for ensuring the full reliability and accuracy of controlled substances tests and strict procedures governing the chain of custody of specimen samples collected for controlled substances testing; "(ii) establish the minimum list of controlled substances for which persons may be tested; and "(iii) establish appropriate standards and procedures for periodic review of laboratories and criteria for certification and revocation of certification of laboratories to perform controlled substances testing in carrying out this subsection; "(C) require that all laboratories involved in the controlled substances testing of any employee under this subsection shall have the capability and facility, at such laboratory, of performing screening and confirmation tests; "(D) provide that all tests which indicate the use, in violation of law, of alcohol or a controlled substance by any employee shall be confirmed by a scientifically recognized method of testing capable of providing quantitative data regarding alcohol or a controlled substance; "(E) provide that each specimen sample be subdivided, secured, and labeled in the presence of the tested person and that a portion thereof be retained in a secure manner to prevent the possibility of tampering, so that in the event the person's confirmation test results are positive the person has an opportunity to have the retained portion assayed by a confirmation test done independently at a second certified laboratory if the person requests the independent test within 3 days after being advised of the results of the confirmation test; "(F) ensure appropriate safeguards for testing to detect and quantify alcohol in breath and body fluid samples, including urine and blood, through the development of regulations as may be necessary and in consultation with the Department of Health and Human Services; "(G) provides for the confidentiality of test results and medical information (other than information relating to alcohol or a controlled substance) of employees, except that the provisions of this subparagraph shall not preclude the use of test results for the orderly imposition of appropriate sanctions under this subsection; and "(H) ensure that employees are selected for tests by nondiscriminatory and impartial methods, so that no employee is harassed by being treated differently from other employees in similar circumstances. "(3) The Secretary shall issue rules, regulations, standards, or orders setting forth requirements for rehabilitation programs which at a minimum provide for the identification and opportunity for treatment of railroad employees responsible for safety-sensitive functions (as determined by the Secretary) in need of assistance in resolving problems with the use, in violation of law, of alcohol or a controlled substance. Each railroad is encouraged to make such a program available to all of its employees in addition to those employees responsible for safety-sensitive functions. The Secretary shall determine the circumstances under which such employees shall be required to participate in such program. Nothing in this paragraph shall preclude a railroad from establishing a program under this paragraph in cooperation with any other railroad. "(4) In carrying out the provisions of this subsection, the Secretary shall establish requirements that are consistent with the international obligations of the United States, and the Secretary shall take into consideration any applicable laws and regulations of foreign countries. "(5) For the purposes of this subsection, the term 'controlled substance' means any substance under section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)) specified by the Secretary.". (e) AMENDMENT OF THE COMMERCIAL MOTOR VEHICLE SAFETY ACT.--(1) The Commercial Motor Vehicle Safety Act of 1986 (49 App. U.S.C. 2701 et seq.) is amended by adding at the end thereof the following new section: "SEC. 12020. ALCOHOL AND CONTROLLED SUBSTANCES TESTING. "(a) REGULATIONS.--The Secretary shall, in the interest of commercial motor vehicle safety, issue regulations not later than 12 months after the date of enactment of this section. Such regulations shall establish a program which requires motor carriers to conduct preemployment, reasonable suspicion, random, and post-accident testing of the operators of commercial motor vehicles for use, in violation of law, of alcohol or a controlled substance. The Secretary may also issue regulations, as the Secretary considers appropriate in the interest of safety, for the conduct of periodic testing of such operations for such use in violation of law. "(b) TESTING.-- "(1) POST-ACCIDENT TESTING.--In issuing such regulations, the Secretary shall require that post-accident testing of the operator of a commercial motor vehicle be conducted in the case of any accident involving a commercial motor vehicle in which occurs loss of human life, or, as determined by the Secretary, other serious accidents involving bodily injury or significant property damage. "(2) TESTING AS PART OF MEDICAL EXAMINATION.--Nothing in subsection (a) shall preclude the Secretary from providing in such regulations that such testing be conducted as part of the medical examination required by subpart E of part 391 of title 49, Code of Federal Regulations, with respect to operators of commercial motor vehicles to whom such part is applicable. "(c) PROGRAM FOR REHABILITATION.--The Secretary shall issue regulations setting forth requirements for rehabilitation programs which provide for the identification and opportunity for treatment of operators of commercial motor vehicles who are determined to have used, in violation of law or Federal regulation, alcohol or a controlled substance. The Secretary shall determine the circumstances under which such operators shall be required to participate in such program. Nothing in this subsection shall preclude a motor carrier from establishing a program under this subsection in cooperation with any other motor carrier. "(d) PROCEDURES FOR TESTING.--In establishing the program required under subsection (a) of this section, the Secretary shall develop requirements which shall-- "(1) promote, to the maximum extent practicable, individual privacy in the collection of specimen samples; "(2) with respect to laboratories and testing procedures for controlled substances, incorporate the Department of Health and Human Services scientific and technical guidelines dated April 11, 1988, and any subsequent amendments thereto, including mandatory guidelines which-- "(A) establish comprehensive standards for all aspects of laboratory controlled substances testing and laboratory procedures to be applied in carrying out this section, including standards which require the use of the best available technology for ensuring the full reliability and accuracy of controlled substances tests and strict procedures governing the chain of custody of specimen samples collected for controlled substances testing; "(B) establish the minimum list of controlled substances for which individuals may be tested; and "(C) establish appropriate standards and procedures for periodic review of laboratories and criteria for certification and revocation of certification of laboratories to perform controlled substances testing in carrying out this section; "(3) require that all laboratories involved in the testing of any individual under this section shall have the capability and facility, at such laboratory, of performing screening and confirmation tests; "(4) provide that all tests which indicate the use, in violation of law or Federal regulation, of alcohol or a controlled substance by any individual shall be confirmed by a scientifically recognized method of testing capable of providing quantitative data regarding alcohol or a controlled substance; "(5) provide that each specimen sample be subdivided, secured, and labeled in the presence of the tested individual and that a portion thereof be retained in a secure manner to prevent the possibility of tampering, so that in the event the individual's confirmation test results are positive the individual has an opportunity to have the retained portion assayed by a confirmation test done independently at a second certified laboratory if the individual requests the independent test within 3 days after being advised of the results of the confirmation test; "(6) ensure appropriate safeguards for testing to detect and quantify alcohol in breath and body fluid samples, including urine and blood, through the development of regulations as may be necessary and in consultation with the Department of Health and Human Services; "(7) provide for the confidentiality of test results and medical information (other than information relating to alcohol or a controlled substance) of employees, except that the provisions of this paragraph shall not preclude the use of test results for the orderly imposition of appropriate sanctions under this section; and "(8) ensure that employees are selected for tests by nondiscriminatory and impartial methods, so that no employee is harassed by being treated differently from other employees in similar circumstances. "(e) EFFECT ON OTHER LAWS AND REGULATIONS.-- "(1) STATE AND LOCAL LAW AND REGULATIONS.--No State or local government shall adopt or have in effect any law, rule, regulation, ordinance, standard, or order that is inconsistent with the regulations issued under this section, except that the regulations issued under this section shall not be construed to preempt provisions of State criminal law which impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to commercial motor vehicle employees, or to the general public. "(2) OTHER REGULATIONS ISSUED BY SECRETARY.--Nothing in this section shall be construed to restrict the discretion of the Secretary to continue in force, amend, or further supplement any regulations governing the use of alcohol or controlled substances by commercial motor vehicle employees issued before the date of enactment of this section. "(3) INTERNATIONAL OBLIGATIONS.--In issuing regulations under this section, the Secretary shall only establish requirements that are consistent with the international obligations of the United States, and the Secretary shall take into consideration any applicable laws and regulations of foreign countries. "(f) APPLICATION OF PENALTIES.-- "(1) EFFECT ON OTHER PENALTIES.--Nothing in this section shall be construed to supersede any penalty applicable to the operator of a commercial motor vehicle under this title or any other provision of law.. "(2) DETERMINATION OF SANCTIONS.--The Secretary shall determine appropriate sanctions for commercial motor vehicle operators who are determined, as a result of tests conducted and confirmed under this section, to have used, in violation of law or Federal regulation, alcohol or a controlled substance but are not under the influence of alcohol or a controlled substance as provide in this title. "(g) DEFINITION.--(1) For the purposes of this section, the term 'controlled substance' means any substance under section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)) specified by the Secretary.". (2) The table of contents of the Commercial Motor Vehicle Safety Act of 1986 (Public Law 99-570; 100 Stat. 5223) is amended by adding at the end thereof the following: "Sec. 12020. Alcohol and controlled substances testing.". (3) The Secretary shall design within 9 months after the date of enactment of this subsection, and implement within 15 months after the date of enactment of this subsection, a pilot test program for the purpose of testing the operators of commercial motor vehicles on a random basis to determine whether an operator has used, in violation of law or Federal regulation, alcohol or a controlled substance. The pilot test program shall be administered as part of the Motor Carrier Safety Assistance Program. (4) The Secretary shall solicit the participation of State which are interested in participating in such program and shall select four States to participate in the program. (5) The Secretary shall ensure that the states selected pursuant to this section are representative of varying geographical and population characteristics of the Nation and that the selection takes into consideration the historical geographical incidence of commercial motor vehicle accidents involving loss of human life. (6) The pilot program authorized by this section shall continue for a period of one year. The Secretary shall consider alternative methodologies for implementing a system of random testing of operators of commercial motor vehicles. (7) Not later than 30 months after the date of enactment of this section, the Secretary shall prepare and submit to the Congress a comprehensive report setting forth the results of the pilot program conducted under this subsection. Such report shall include any recommendations of the Secretary concerning the desirability and implementation of a system for the random testing of operators of commercial motor vehicles. (8) For the purposes of carrying out this subsection, there shall be available to the Secretary $5,000,000 from funds made available to carry out section 404 of the Surface Transportation Assistance Act of 1982 (49 App. U.S.C. 2304) for fiscal year 1990. (9) For the purposes of this subsection, the term "commercial motor vehicle" shall have the meaning given to such term in section 12019(6) of the Commercial Motor Vehicle Safety Act of 1986 (49 App. U.S.C. 2716(6)). (f) AMENDMENT OF THE URBAN MASS TRANSPORTATION ACT.--The Urban Mass Transportation Act of 1964 is amended by adding at the end thereof the following new section: "ALCOHOL AND CONTROLLED SUBSTANCES TESTING "SEC. 26. (a) REGULATIONS.--The Secretary shall, in the interest of mass transportation safety, issue regulations within 12 months after the date of enactment of this section. Such regulations shall establish a program which requires each recipient of assistance under this Act to conduct preemployment, reasonable suspicion, random, and postaccident testing of the operators of mass transportation vehicles for use, in violation of law or Federal regulation, of alcohol or a controlled substance. The Secretary may also issue regulations, as the Secretary considers appropriate in the interest of safety, for the conduct of periodic recurring testing of such operators for such use in violation of law or Federal regulation. "(b) POSTACCIDENT TESTING.--In issuing such regulations, the Secretary shall require that postaccident testing of the operator of a mass transportation vehicle be conducted in the case of any accident involving a mass transportation vehicle in which occurs loss of human life, or, as determined by the Secretary, other serious accidents involving bodily injury or significant property damage. "(c) PROGRAM FOR REHABILITATION.--The Secretary shall issue regulations setting forth requirements for rehabilitation programs which provide for the identification and opportunity for treatment of operators of mass transportation vehicles who are determined to have used, in violation of law or Federal regulation, alcohol or a controlled substance. The Secretary shall determine the circumstances under which such operators shall be required to participate in such a program. Nothing in this subsection shall preclude a recipient from establishing a program under this subsection in cooperation with any other recipient. "(d) PROCEDURES FOR TESTING.--In establishing the program required under subsection (a) of this section, the Secretary shall develop requirements which shall-- "(1) promote, to the maximum extent practicable, individual privacy in the collection of specimen samples; "(2) with respect to laboratories and testing procedures for controlled substances, incorporate the Department of Health and Human Services scientific and technical guidelines dated April 11, 1988, and any subsequent amendments thereto, including mandatory guidelines which-- "(A) establish comprehensive standards for all aspects of laboratory controlled substances testing and laboratory procedures to be applied in carrying out this section, including standards which require the use of the best available technology for ensuring the full reliability and accuracy of controlled substances tests and strict procedures governing the chain of custody of specimen samples collected for controlled substances testing; "(B) establish the minimum list of controlled substances for which individuals may be tested; and "(C) establish appropriate standards and procedures for periodic review of laboratories and criteria for certification and revocation of certification of laboratories to perform controlled substances testing in carrying out this section; "(3) require that all laboratories involved in the testing of any individual under this section shall have the capability and facility, at such laboratory, of performing screening and confirmation tests; "(4) provide that all tests which indicate the use, in violation of law or Federal regulation, of alcohol or a controlled substance by any individual shall be confirmed by a scientifically recognized method of testing capable of providing quantitative data regarding alcohol or a controlled substance; "(5) provide that each specimen sample be subdivided, secured, and labeled in the presence of the tested individual and that a portion thereof be retained in a secure manner to prevent the possibility of tampering, so that in the event the individual's confirmation test results are positive the individual has an opportunity to have the retained portion assayed by a confirmation test done independently at a second certified laboratory if the individual requests the independent test within 3 days after being advised of the results of the confirmation test; "(6) ensure appropriate safeguards for testing to detect and quantify alcohol in breath and body fluid samples, including urine and blood, through the development of regulations as may be necessary and in consultation with the Department of Health and Human Services; "(7) provide for the confidentiality of test results and medical information (other than information relating to alcohol or a controlled substance) of employees, except that the provisions of this paragraph shall not preclude the use of test results for the orderly imposition of appropriate sanctions under this section; and "(8) ensure that employees are selected for tests by nondiscriminatory and impartial methods, so that no employee is harassed by being treated differently from other employees in similar circumstances. "(e) EFFECT ON OTHER LAWS AND REGULATIONS.-- "(1) STATE AND LOCAL LAW AND REGULATIONS.--No State or local government shall adopt or have in effect any law, rule, regulation, ordinance, standard, or order that is inconsistent with the regulations issued under this section, except that the regulations issued under this section shall not be construed to preempt provisions of State criminal law which impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property. "(2) OTHER REGULATIONS ISSUED BY SECRETARY.--Nothing in this section shall be construed to restrict the discretion of the Secretary to continue in force, amend, or further supplement any regulations governing the use of alcohol or controlled substances by mass transportation employees issued before the date of enactment of this section. "(3) INTERNATIONAL OBLIGATIONS.--In issuing regulations under this section, the Secretary shall only establish requirements that are consistent with the international obligations of the United States, and the Secretary shall take into consideration any applicable laws and regulations of foreign countries. "(f) APPLICATION OF PENALTIES.-- "(1) EFFECT ON OTHER PENALTIES.--Nothing in this section shall be construed to supersede any penalty applicable under this title or any other provision of law.. "(2) DETERMINATION OF SANCTIONS.--The Secretary shall determine appropriate sanctions for mass transportation vehicle operators who are determined, as a result of tests conducted and confirmed under this section, to have used, in violation of law or Federal regulation, alcohol or a controlled substance but are not under the influence of alcohol or a controlled substance as provide in this title. "(g) DEFINITION.--(1) For the purposes of this section, the term 'controlled substance' means any substance under section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)) specified by the Secretary.". SEC. 208. MONETARY AWARDS FOR CERTAIN INFORMATION RELATING TO THE UNLAWFUL SALE OF CONTROLLED SUBSTANCES. Section 524z(c)(1) of title 28, United States Code is amended-- (1) by striking "Justice--" and inserting "Justice:"; (2) in subparagraph (A)-- (A) by striking "the" in the first place it appears and inserting "The"; and (B) by striking the semicolon at the end and inserting a period; and (3) in subparagraph (B)-- (A) by striking "the" the first place it appears and inserting "The"; and (B) by striking the semicolon at the end and inserting a period; and (4) in subparagraph (C)-- (A) by striking "the" the first place it appears and inserting "The"; and (B) by striking the semicolon at the end and inserting a period; (5) in subparagraph (D)-- (A) by striking "the" the first place it appears and inserting "The"; and (B) by striking the semicolon at the end and inserting a period; (6) in subparagraph (E)-- (A) by striking "disbursements" and inserting "Disbursements"; and (B) by striking the semicolon at the end and inserting a period; (7) in subparagraph (F)-- (A) by striking "for" the first place it appears and inserting "For"; and (B) by striking the semicolon at the end and inserting a period; (8) in subparagraph (G)-- (A) by striking "for" the first place it appears and inserting "For"; and (B) by striking the semicolon at the end and inserting a period; (9) in subparagraph (H)-- (A) by striking "after" and inserting "After"; (B) by striking "(H)" and inserting "(I)"; and (10) by inserting after subparagraph (G) the following: "(H)(i) For the payment of an award to any person or persons who provide information leading to the arrest and conviction under Federal law of any individual or individuals for the unlawful sale, or possession for sale, of a controlled substance or a controlled substance analogue. The aggregate amount of such award shall be equal to 50 percent of the fair market value (as of the date of forfeiture) of all property forfeited to the United States as a result of such conviction and pursuant to a law enforced or administered by the Department of Justice: _Provided_, That payment of such awards shall not reduce the amount of such moneys or property available for distribution to State and local law enforcement agencies. "(ii) For the payment to the State or States in which the Federal offense was committed by such individual or individuals, of an incentive award to encourage such State or States, at their option, to establish a program (including outreach) to pay rewards to persons who provide information leading to the arrest and conviction under State law of individuals for the unlawful sale, or possession for sale, of controlled substances or controlled substance analogues. The aggregate amount of such incentive award shall be equal to 5 percent of the fair market value (as of the date of forfeiture) of all property forfeited to the United States as a result of the convictions referred to in clause (i) and pursuant to a law enforced or administered by the Department of Justice. "(iii) For the purposes of this subparagraph-- "(I) the term 'controlled substance' has the meaning stated in section 102(6) of the Controlled Substances Act; "(II) the term 'controlled substance analogue' has the meaning stated in section 102(32) of the Controlled Substances Act; and "(III) the term 'individual' does not include an individual who is convicted under Federal or State law for the unlawful sale, or possession for sale, of a controlled substance or a controlled substances analogue.". TITLE III--AUTHORIZATION OF APPROPRIATIONS SEC. 301. AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated such sums as are necessary to carry out this Act. SEC. 302. SEVERABILITY. If any provision of this Act or any amendment made by this Act, or the application of any such provision or amendment to any person or circumstance is held invalid, the validity of any other such provision or amendment, and the application of such provisions or amendment to other persons and circumstances, shall not be affected thereby. ********************************************************************* Editor's Comment: Well, I hope you enjoyed the first issue. I have no reason to believe that there will not be many more to come. I am sorry if this issue is a somewhat large. We had so much information, that we just had to pack it in. The Rivendell BBS will be up as of May 1, 1991. We are not sure of the number yet, but as soon as we find out, we will post it on the current Rivendell BBS. (713) 481-3448. Please do not call this number after May 1. I would like to extend my special thanks to Homer Mandrill for that exclusive editorial and to the dudes at Beer*Net for the input. I hope all of you are as happy with the first issue as I am. I would love nothing more than to hear from our readers. Please write, call the BBS, or drop me a line on Internet. All mailing/calling info is at the top of the magazine. This issue came out almost two months early. I thought it would be hell to do, but it was smooth as it could have ever been. But, send in those articles and editorials. I will fit them in somewhere. Please state if you would like to remain anonymous, use your handle, or real name. We will give you the courtesy of any option you desire. Many thanks to the guys at NIA for the plug. Keep on Rockin JD & LM! Well, thats the show, and I'm outta here. The Desert Fox

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