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Computer Undergroud Digest Vol. 01 Issue 22
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>C O M P U T E R U N D E R G R O U N D<
>D I G E S T<
*** Volume 1, Issue #1.22 (July 14, 1990) **
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MODERATORS: Jim Thomas / Gordon Meyer
ARCHIVISTS: Bob Krause / Alex Smith
REPLY TO: TK0JUT2@NIU.bitnet
COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
information among computerists and to the presentation and debate of
diverse views.
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DISCLAIMER: The views represented herein do not necessarily represent the
views of the moderators. Contributors assume all responsibility
for assuring that articles submitted do not violate copyright
protections.
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File 1: Moderators' Comments
File 2: From the Mailbag: More on CU and Free Speech
File 3: Response to "Problems of Evidence" (Mike Godwin)
File 4: What to do When the Police come a'knocking (Czar Donic)
File 5: Observations on the Law (Mike Godwin)
File 6: Electronic Frontier Fund Press Releases
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*** CuD #1.22, File 1 of 6: Moderators' Comments ***
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In this file:
1) Electronic Frontier Fund formed
2) CuD's Readership Survey (reminder)
3) SummerCon '90
4) Errata
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ELECTRONIC FRONTIER FUND
+++++++++++++++++++++++++++++
The Electronic Frontier Fund has been officially announced. The EFF's
mission statement, press release, "Electronic Bill of Rights," and Legal
Summary are in File #6 of this issue. The opening day press release and
other documents have been combined into a single file and is available from
both archive sites (FTP and Krause). The length of the file is about 950
lines.
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CuD SURVEY
+++++++++++++++++++
Bob Krause has the readership survey about ready. Those who responded
generally thought the survey to be a good idea. There were no negative
comments, so it should be going out in a week or two.
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SUMMERCON '90 Week of July 27th St. Louis
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SummerCon, an annual event where the CU elite gather to party, meet
friends, and generally have a good time, returns! This years event is
being hosted by Aristotle and Forest Ranger. CuD wishes them the best and
welcomes any reports/reviews that attendees wish to contribute.
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ERRATA (from 1.14)
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In CuD 1.14, we erroneously announced that a PHRACK file to be
used for evidence announced the beginning of The Phoenix Project
BBS. In fact, the file made no specific reference to the BBS of the
same name.
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*** CuD #1.22, File 2 of 6: Mail--More on Harassment ***
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To: tk0jut2%niu.BITNET@cunyvm.cuny.edu
Subject: Lines of Communication
Date: 8 Jul 90 22:37:00 PDT (Sun)
From: john@bovine.ati.com(John Higdon)
It was most refreshing to see some balanced comment on the subject of
opinions and viewpoints. Having been outraged by some of the underhanded
tactics of law enforcement, I have been also a little troubled by the
inability of some CU types to hear or allow others to hear alternative
points of view.
A recent incident comes to mind. Some months ago, there appeared an article
in Telecom Digest from someone who lamented the advent of CPID. His
objections were hardly mainstream: with CPID it became risky to "hack"
authorization codes for long distance carriers. I was annoyed on two
counts. First was the assumption that CPID would pose any more risk than
ANI, something that long distance carriers have had available for years,
and second, that somehow searching for authorization codes was advancing
the state of hacking in the field of computing or telephony.
I posted a straight-forward article expressing my opinion. Mind you, my
background includes healthy amounts of hacking, mainly in the field of
telephony, with exploits dating back to the sixties. A significant portion
of my knowledge of the telephone network (a knowledge which now puts food
on my table) was obtained through what can only be described as
questionable means. My pointed response rose from the indignations of a
"real" hacker over the antics of what appeared to be a schlep.
No sooner did that response appear in the Digest, my e-mailbox filled with
the most vitriolic, in many cases juvenile, threats one can possibly
imagine. Most of the hate mail was anonymous, with mighty computer lords
demonstrating their power over e-mail and threatening unspecified
retaliation. I answered all that carried a legitimate return address,
inviting the writer to take me on in the Telecom forum if he (they were all
from males) thought I was out of line. None did. However, the incident
confirmed my original premise: the concept of simply stealing authorization
codes was a product of juvenile minds.
For a time it appeared that this forum was becoming a strident, whiney,
self-pitying club. Anything law enforcement did was bad; anything any
hacker anywhere did was noble and cause-supporting. We're all adults here.
We all know there are two sides to any situation. As a hacker, my wish
would be that commercial systems designers put a lot more effort into
security. If hackers can't get in in the first place, there wouldn't be the
need for SS raids and the seizure of private computer systems. The age-old
concept of "security through obscurity" will not suffice any longer.
Some of the apparent tactics of our law enforcement agencies appear to be
questionable at the very least. No doubt some innocent bystanders are
being, to put it mildly, grossly inconvenienced. But let's not as a group
lapse into self-righteousness, or try to silence those who have an opposing
point of view.
**John Higdon | P. O. Box 7648 | +1 408 723 1395
john@bovine.ati.com | San Jose, CA 95150 | M o o !
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*** CuD #1.22, File 3 of 6: Response to "CU Harassment" ***
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Date: Sun, 8 Jul 90 16:51:10 -0500
From: mnemonic@ccwf.cc.utexas.edu(Mike Godwin)
To: TK0JUT2%NIU.BITNET@UICVM.uic.edu
Some responses to Mr. Anonymous:
RE Point 1 ("misleading" references to punishments):
It is true that there are a range of punishments available in cases such as
this one. But it is false to conclude that the judge has either the right
or necessarily the inclination to sentence leniently. Regarding the
former: Federal judges' discretion has been greatly limited by the adoption
of the Federal Sentencing Guidelines. Increasingly, judges have complained
that they are not allowed by the Sentencing Guidelines to sentence
leniently.
Regarding the latter: Judges may be likely to accept prosecutors'
characterization of all computer hackers as serious criminals, which means
the judges won't be likely to use whatever discretion they have to be
lenient.
So, how did Robert Morris get such a lenient sentence? Answer: Unless I'm
mistaken, he was prosecuted for *much less serious crimes* than the LoD
defendants have been indicted for. Morris was not charged with theft or
fraud, as I recall. This makes it incredibly misleading for Mr. A to
compare the Morris case with the Neidorf/Riggs prosecution.
RE Point 2 (Confiscation of equipment):
There is no doubt that it's more convenient and more efficient for federal
law-enforcement agents to seize evidence for inspection. The question is
not whether there are alternative means for conducting these
investigations, but whether all the necessary interests have been served.
One of these interests is every citizen's right not to be deprived of
property by the government without due process of law, and without just
compensation.
Even if Mr. A believes "due process of law" has occurred in, say, the
seizures at Steve Jackson Games, *where's the "just compensation"*?
Jackson probably has no remedy at all under federal law, thanks to
exceptions in the Federal Tort Claims Act.
RE Point 3 (What computer criminals will say when caught):
Mr. A is perfectly correct to note that that suspects, and especially
guilty ones, will characterize their actions as being comparatively
innocent.
But this is true in all federal prosecutions, regardless of whether the
crimes involve computers, and regardless of whether the defendants are
truly innocent.
Mr. A suggests that "it doesn't matter" why the defendants did what they
did. In this, he demonstrates a basic ignorance of criminal law--it is
*central* to prosecution of major crimes that the defendants be proved
beyond a reasonable doubt to have criminal intent. Therefore, what the
defendants were thinking *does* matter--indeed, for most federal
prosecutions, the defendant's mental state is the single most important
issue to be resolved at trial. Except for purely regulatory offenses (which
typically carry only minor penalties), the criminal law is designed to
punish (and deter) acts by people with criminal mental states.
Proving criminal defendants' mental states to a jury's satisfaction has not
been an insuperable task for federal prosecutors up to now, by the way.
RE Point 4 (Law enforcement access to the Net):
Mr. A is also correct to note that relatively few law-enforcement officials
have Net access, and fewer still understand the relevant electronic
subculture.
This is precisely why it is dangerous for them to go forward and
characterize ALL hackers as serious criminals. Some hackers clearly are
criminals. But many of them are motivated by the same sense of exploration
that motivates federal prosecutors to discover new uses for the wire-fraud
statute. The courts are capable of distinguishing between the merely
adventurous and the criminal--but misunderstandings on the part of
prosecutors can make it more difficult for judges and juries to make those
distinctions. And, of course, willingness to seize lots of property as
evidence and to prosecute 19-year-old hackers afflicted with braggadocio
creates ancillary chilling affects the consequences of which none of us
probably would like.
The current indictments against Neidorf and Riggs characterize their use of
BBS "handles" and their erasure of computer logs that recorded their entry
into computer systems as fraudulent misrepresentations. In effect, the
federal prosecutors have decided that anyone who uses a BBS "pen name" is
misrepresenting himself and thereby opening himself up to fraud
prosecutions. Only persons ignorant of the current American BBS subculture
can draw such a conclusion.
**Mike
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*** CuD #1.22, File 4 of 6: The Czar's Guide to Law ***
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THE CZAR'S GUIDE TO THE YOUNG CRIMINAL ACCUSED OF USING COMPUTERS
With the hyperactivity of law enforcement officials and the current
attitudes of the public in general, it is probably time to consider what to
do in case of a bust. I would guess that just about everybody receiving
the Computer Underground Digest has violated some sort of law somewhere in
someone's mind involving computers. This is not to say that all the
readers of this publication are really criminals -- just that the laws are
so broadly interpreted so as so make anyone with a modem a criminal. For
example, if you have ever downloaded shareware and not used it, but didn't
delete it, and had it for over 15 days, you could be violating copyright
laws if the author put some sort of announcement to the effect that such
were the terms of agreement. This means that you could very well be raided
someday.
Nothing is more gratuitous than free legal advice given to a defendant
who has already engaged counsel, especially if the giver of such advice is
not an attorney. However, as someone close to me was so arrested (and the
charges later dropped), I thought you might be able to benefit from our
experience. It does not matter what the computer crime is, how extensive,
how serious the charges, etc. What matters is how you deal with the system
when it comes knocking on your door.
There may be warning signs. You could get a call or a preliminary
visit from a member of the Secret Service, a call from security from a
local phone company, a visit from a local policeman, news that someone you
know has been busted, anything like that. At that point, you are legally
free to say whatever you want, but it is best if you give the impression
that you are willing to cooperate. Of course, any specific details you
give will be noted. They can not be used in evidence against you, but that
will not stop them from making the attempt in the future. I would indicate
that I was very willing to help but that, right now, I had a number of
pressing things to do and that I would like to talk tomorrow when I had
much more time and could go into more detail. Right now, I'd say, my
mother was calling. Everyone, to paraphrase Thoreau, should have such a
mother.
I would hardly advise anybody to destroy evidence since that is a
crime itself, but it would seem to me that at this point a lot of material
you have had around the house has been bringing you bad luck. A lot of
paper and printouts are a definite fire hazard and should not be left lying
around. Also, old data never does you any good -- it would be wise to
format most of your ala disks several times. Better yet, treat yourself to
some new ones and maybe your luck will change. All those old, dusty disks
simply clutter things up. It's time to reorganize.
The search warrant usually takes a while to get, but most judges take
the path of least resistance and will issue one on fairly flimsy grounds.
Now you must realize that most police officers are not used to dealing with
computer people and that they do not like the ones they do have to deal
with at work. The are used more to searches in the case of narcotics,
illegal weapons, etc. You can not expect them, then, to be overly polite
when they do knock on your door. Do not let this frighten you into telling
them all sorts of things. During the search, however, it helps to have
someone there crying. Also, act limply, as if you have lost the will to
live. This will usually placate the more professional ones who should
realize thereby that you are not going to shoot at them. This behavior is
simply designed to keep you from being beaten or otherwise abused. It does
not help your case legally although, if they do beat or otherwise try to
intimidate you, and you can document it, a prosecutor will feel less
exuberant about taking the case to court.
They will probably place you under arrest at this point, reading you
your rights. Once they do, you are under no obligation to say anything,
but I would advise you to say "I want an attorney." An alternative is "I
want a lawyer." You can respond to their "good guy" questions about the
weather and such, but then when the questions come back to the topic of
computers you had best repeat the above sentence(s). In fact, the more
times you say it the better if it ever gets to court, but do not say it
gratuitously so as to arouse the macho defensiveness that some officers may
have. Realize that the arresting officer is not a legal scholar and that
he is no more culpable in this arrest than is the postman for bringing you
a bill. The real fighting lies ahead. One final point: it is wise to
become acquainted with an attorney before any of this happens. One thing
is quite certain: nothing you say to the arresting officers is likely to
help your case.
While they are carrying out your computer, your floppies, your
printouts, your telephones, your answering machine, your radio, your tapes,
watch them. Remember the irrelevant material they seize. This fact may be
helpful in court as well and it may well help dissuade the prosecutor from
doing anything much with the case. In one case, they took copies of the
Federal Register, a tape of Mozart's 23rd piano concerto (Horowitz), and
Gordon Meyer's thesis. The constant repetition of "I want my Mozart back"
irritated the prosecutor no end and lessened enthusiasm for the case.
(They also picked up pieces of grass the cat had brought in). None of this
is legally relevant, but then a lot they do is not legally relevant either
** such as taking the materials in the first place.
From here on, the case should be in the hands of a competent attorney.
It is not necessary that he be an expert in computers since the prosecutor
isn't either and the police even less so. The odds are that you will be
able to supply more than enough computer expertise. What is important is
his willingness to fight the case. Most will take that path of least
resistance, perhaps working toward a plea bargain. The trouble with that
is you are not in the best position at this point for a plea bargain. One
of you main strategies should be to make the case so much of a pain in the
ass for the prosecutor that he tires of it. If the charge is a
misdemeanor, be advised that prosecutors do not like to prosecute such
cases in the first place. The charge was made a misdemeanor in the hopes
that you would simply plead guilty and that would be an end of it. It
would also be the last you ever saw of your equipment. One last point: a
defense attorney in one of these cases, after I had complained to him that
as a taxpayer I resented the enormous expenditure of funds on these cases
while there were abundant examples of clear and present dangers ripe for
prosecution, said "Oh, they have absolutely no sense of resource
management." Hardly encouraging words.
A pain in the ass: judges do not like to be overturned on appeal,
usually. The Fifth and Sixth Amendments are clearly relevant on your
behavior before the trial. I would hope that the First and Ninth would be
applied somewhere in the defense. Everyone knows that the first has to do
with freedom of expression, but the ninth says, the way I read it, unless
we specifically give up certain rights to the government, we retain them.
I do not know, really, how these issues would ultimately be resolved, but
when constitutional issues are raised during a trial and ruled not
relevant, the path is set for appeal all the way, as the saying goes, to
the Supreme Court. No matter that it doesn't help in this case
specifically -- it may well help in other aspects of the case. The point
is that once you are in the legal system and have an attorney, you are in a
fight. They have to prove that you are guilty and you have the right to
make them prove it legally.
This does not mean that you examine all aspects of the case and come
to a rational judgment. The interesting thing is that they try to produce
any sort of evidence no matter how irrelevant and you try to prevent them
from presenting any evidence no matter how germane. There is no longer any
objective truth --simply a fight using words.
Finally, there is an old maxim to the effect that you should not lie
to your attorney. It is also true that it helps to have an attorney who
believes in your case and is willing to fight it at every point, even
points that seem to you quit irrelevant. When and how much to tell him is
a tricky issue. Remember, he is good friends with the judge and the
prosecutor, but he is also quite interested in winning cases for his
clients. It is also wise to arrange some sort of set fee for the entire
case so that you feel more comfortable communicating with him. One thing
you should communicate is the outcome you wish to see from the trial and he
should also make clear to you what your options are. For example, it is
more difficult for a prosecutor to convince a jury that you are guilty. He
doesn't even know that much about computers -- imagine him trying to
educate others. On the other hand, if he succeeds. and the jury recommends
jail time, the judge is more likely to impose it. On the other hand, a
judge might be easier to convince, but he would feel much more free to
suspend sentence and order "restitution." You have to decide what risks
you are willing to incur in search of the desired outcome.
I hope this hasn't sounded too frightening and I hope some of it might
be helpful to someone out there. All I can say right now is that it is a
good time for people with computers to make friends with people with law
degrees. The current climate makes it necessary for the one and profitable
for the other.
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*** CuD #1.22, File 5 of 6: Mike Godwin on Federal Law ***
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The government's use of the 18 USC 1343 and 18 USC 2314 in this %Craig
Neidorf's% case, by the way, is similar to its use of 18 USC 641 in the
Pentagon Papers case. Basically, the government's strategy is to stretch
the notion of "property" in a way that allows prosecutors to characterize
defendant's activity as a property crime--theft, that is.
There's a very good law-review article on this general subject: Michael E.
Tigar's "The Right of Property and the Law of Theft," 62 Texas Law Review
1443 (1984). Here's a relevant passage from that article, addressing the
government's use of 18 USC 641 (theft of government property) in the
Ellsberg and Truong cases:
When Daniel Ellsberg took the Pentagon Papers, he was prosecuted uner
section 641 for, among other things, stealing government property
worth more than one hundred dollars. When David Truong was prosecuted
for allegedly passing copies of State Department cable traffic to the
Socialist Republic of Vietnam, the government's multicount indictment
included a theft allegation. Neither theft charge relied directly upon
the alleged national security character of the information in these
papers; the government's theory would equally have applied to a
"whistleblower" in the Environmental Protection Agency who gave a
newspaper reporter a document outlining a plan to dismantle an agency
program.
The offense of stealing government property does not, in these cases,
require that the information be sold, simply that it be "worth" more
than one hundred dollars. The value is established not by the cost of
the pieces of paper themselves, but by some valuation of the
information on them. In the Ellsberg and Truong cases, one measure of
value was supposedly that which a foreign intelligence service would
attach to the information. In the EPA example, evidence that
news-paper reporters sometimes pay for "leads" or "leaks" would
presumably be admissible. But neither Ellsberg, nor Truong, nor the
hypothetical EPA employee has dispossessed the government of its
information, even momentarily; the documents were simply copies of
originals left in the file. Indeed, given the bureaucratic penchant
for making multiple copies of everything, it is hard to imagine a case
in which taking a document would so deprive the government.
We know why the government wants to prosecute the three leakers, and
its reason has nothing to do with loss of information: it wants to
warn those with access to government files that serious consequences
attend unauthorized use. Yet there is no United States criminal
statute that expressly proscribes such use. (Page 1462)
Tigar is a law professor at the University of Texas.
I don't know about you, but it's hard to read that statute without thinking
1) that AT&T and Bell neither lost any property nor were at risk of losing
any property in the so-called "thefts" for which Neidorf and Riggs are
being prosecuted, and 2) the government's valuation of the E911 text file
as being "worth" $70,000 or so seems designed to be the predicate for a
major theft prosecution *and for no other purpose.*
(Who'd *pay* $70K for that file? It's not offered on any market for that
price. Valuing it at the number of AT&T employee hours it took to create it
might make sense if AT&T or Bell were deprived of its use ... but they
*weren't*. Heck, they weren't even deprived of their *exclusive* use of the
E911 file, since neither Neidorf nor Riggs was ever able to use the file
for any purpose other than to prove that someone, somewhere, had had access
to an AT&T or Bell computer.)
**Mike
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*** CuD #1.22, File 6 of 6: EFF Documents ***
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The following three files are the initial releases and statements issued by
the ELECTRONIC FRONTIER FUND on July 10, 1990, to announce the founding of
the group. The files include:
1. Mission Statement
2. Initial Press Release
3. Legal Overview: The Electronic Frontier and the Bill of Rights
The entire packet of six files (about 950 lines) can be obtained from
either the CuD archives or the FTP site.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
FOR IMMEDIATE RELEASE
Contact: Cathy Cook (415) 759-5578
NEW FOUNDATION ESTABLISHED TO ENCOURAGE COMPUTER-BASED COMMUNICATIONS
POLICIES
Washington, D.C., July 10, 1990 -- Mitchell D. Kapor, founder of Lotus
Development Corporation and ON Technology, today announced that he,
along with colleague John Perry Barlow, has established a foundation to
address social and legal issues arising from the impact on society of
the increasingly pervasive use of computers as a means of communication
and information distribution. The Electronic Frontier Foundation (EFF)
will support and engage in public education on current and future
developments in computer-based and telecommunications media. In
addition, it will support litigation in the public interest to preserve,
protect and extend First Amendment rights within the realm of computing
and telecommunications technology.
Initial funding for the Foundation comes from private contributions by
Kapor and Steve Wozniak, co-founder of Apple Computer, Inc. The
Foundation expects to actively raise contributions from a wide
constituency.
As an initial step to foster public education on these issues, the
Foundation today awarded a grant to the Palo Alto, California-based
public advocacy group Computer Professionals for Social Responsibility
(CPSR). The grant will be used by CPSR to expand the scope of its
on-going Computing and Civil Liberties Project (see attached).
Because its mission is to not only increase public awareness about civil
liberties issues arising in the area of computer-based communications,
but also to support litigation in the public interest, the Foundation
has recently intervened on behalf of two legal cases.
The first case concerns Steve Jackson, an Austin-based game manufacturer
who was the target of the Secret Service's Operation Sun Devil. The EFF
has pressed for a full disclosure by the government regarding the
seizure of his company's computer equipment. In the second action, the
Foundation intends to seek amicus curiae (friend of the court) status
in the government's case against Craig Neidorf, a 20-year-old University
of Missouri student who is the editor of the electronic newsletter
Phrack World News (see attached).
"It is becoming increasingly obvious that the rate of technology
advancement in communications is far outpacing the establishment of
appropriate cultural, legal and political frameworks to handle the
issues that are arising," said Kapor. "And the Steve Jackson and Neidorf
cases dramatically point to the timeliness of the Foundation's mission.
We intend to be instrumental in helping shape a new framework that
embraces these powerful new technologies for the public good."
The use of new digital media -- in the form of on-line information and
interactive conferencing services, computer networks and electronic
bulletin boards -- is becoming widespread in businesses and homes.
However, the electronic society created by these new forms of digital
communications does not fit neatly into existing, conventional legal and
social structures.
The question of how electronic communications should be accorded the
same political freedoms as newspapers, books, journals and other modes
of discourse is currently the subject of discussion among this country's
lawmakers and members of the computer industry. The EFF will take an
active role in these discussions through its continued funding of
various educational projects and forums.
An important facet of the Foundation's mission is to help both the
public and policy-makers see and understand the opportunities as well as
the challenges posed by developments in computing and
telecommunications. Also, the EFF will encourage and support the
development of new software to enable non-technical users to more easily
use their computers to access the growing number of digital
communications services available.
The Foundation is located in Cambridge, Mass. Requests for information
should be sent to Electronic Frontier Foundation, One Cambridge Center,
Suite 300, Cambridge, MA 02142, 617/577-1385, fax 617/225-2347; or it
can be reached at the Internet mail address eff@well.sf.ca.us.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
ELECTRONIC FRONTIER FOUNDATION
MISSION STATEMENT
A new world is arising in the vast web of digital, electronic media
which connect us. Computer-based communication media like electronic
mail and computer conferencing are becoming the basis of new forms of
community. These communities without a single, fixed geographical
location comprise the first settlements on an electronic frontier.
While well-established legal principles and cultural norms give
structure and coherence to uses of conventional media like newspapers,
books, and telephones, the new digital media do not so easily fit into
existing frameworks. Conflicts come about as the law struggles to
define its application in a context where fundamental notions of speech,
property, and place take profoundly new forms. People sense both the
promise and the threat inherent in new computer and communications
technologies, even as they struggle to master or simply cope with them
in the workplace and the home.
The Electronic Frontier Foundation has been established to help civilize
the electronic frontier; to make it truly useful and beneficial not just
to a technical elite, but to everyone; and to do this in a way which is
in keeping with our society's highest traditions of the free and open
flow of information and communication.
To that end, the Electronic Frontier Foundation will:
1. Engage in and support educational activities which increase
popular understanding of the opportunities and challenges posed by
developments in computing and telecommunications.
2. Develop among policy-makers a better understanding of the issues
underlying free and open telecommunications, and support the creation of
legal and structural approaches which will ease the assimilation of
these new technologies by society.
3. Raise public awareness about civil liberties issues arising from
the rapid advancement in the area of new computer-based communications
media. Support litigation in the public interest to preserve, protect,
and extend First Amendment rights within the realm of computing and
telecommunications technology.
4. Encourage and support the development of new tools which will
endow non-technical users with full and easy access to computer-based
telecommunications.
The Electronic Frontier Foundation
One Cambridge Center
Cambridge, MA 02142
(617) 577-1385
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LEGAL OVERVIEW
THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS
Advances in computer technology have brought us to a new frontier in
communications, where the law is largely unsettled and woefully
inadequate to deal with the problems and challenges posed by electronic
technology. How the law develops in this area will have a direct impact
on the electronic communications experiments and innovations being
devised day in and day out by millions of citizens on both a large and
small scale from coast to coast. Reasonable balances have to be struck
among:
% traditional civil liberties
% protection of intellectual property
% freedom to experiment and innovate
% protection of the security and integrity of computer
systems from improper governmental and private
interference.
Striking these balances properly will not be easy, but if they are
struck too far in one direction or the other, important social and legal
values surely will be sacrificed.
Helping to see to it that this important and difficult task is done
properly is a major goal of the Electronic Frontier Foundation. It is
critical to assure that these lines are drawn in accordance with the
fundamental constitutional rights that have protected individuals from
government excesses since our nation was founded -- freedom of speech,
press, and association, the right to privacy and protection from
unwarranted governmental intrusion, as well as the right to procedural
fairness and due process of law.
The First Amendment
The First Amendment to the United States Constitution prohibits the
government from "abridging the freedom of speech, or of the press," and
guarantees freedom of association as well. It is widely considered to
be the single most important of the guarantees contained in the Bill of
Rights, since free speech and association are fundamental in securing
all other rights.
The First Amendment throughout history has been challenged by every
important technological development. It has enjoyed only a mixed record
of success. Traditional forms of speech -- the print media and public
speaking -- have enjoyed a long and rich history of freedom from
governmental interference. The United States Supreme Court has not
afforded the same degree of freedom to electronic broadcasting,
however.
Radio and television communications, for example, have been subjected to
regulation and censorship by the Federal Communications Commission
(FCC), and by the Congress. The Supreme Court initially justified
regulation of the broadcast media on technological grounds -- since
there were assumed to be a finite number of radio and television
frequencies, the Court believed that regulation was necessary to prevent
interference among frequencies and to make sure that scarce resources
were allocated fairly. The multiplicity of cable TV networks has
demonstrated the falsity of this "scarce resource" rationale, but the
Court has expressed a reluctance to abandon its outmoded approach
without some signal from Congress or the FCC.
Congress has not seemed overly eager to relinquish even
counterproductive control over the airwaves. Witness, for example,
legislation and rule-making in recent years that have kept even
important literature, such as the poetry of Allen Ginsberg, from being
broadcast on radio because of language deemed "offensive" to regulators.
Diversity and experimentation have been sorely hampered by these rules.
The development of computer technology provides the perfect opportunity
for lawmakers and courts to abandon much of the distinction between the
print and electronic media and to extend First Amendment protections to
all communications regardless of the medium. Just as the multiplicity
of cable lines has rendered obsolete the argument that television has to
be regulated because of a scarcity of airwave frequencies, so has the
ready availability of virtually unlimited computer communication
modalities made obsolete a similar argument for harsh controls in this
area. With the computer taking over the role previously played by the
typewriter and the printing press, it would be a constitutional disaster
of major proportions if the treatment of computers were to follow the
history of regulation of radio and television, rather than the history
of freedom of the press.
To the extent that regulation is seen as necessary and proper, it should
foster the goal of allowing maximum freedom, innovation and
experimentation in an atmosphere where no one's efforts are sabotaged by
either government or private parties. Regulation should be limited by
the adage that quite aptly describes the line that separates reasonable
from unreasonable regulation in the First Amendment area: "Your liberty
ends at the tip of my nose."
As usual, the law lags well behind the development of technology. It is
important to educate lawmakers and judges about new technologies, lest
fear and ignorance of the new and unfamiliar, create barriers to free
communication, expression, experimentation, innovation, and other such
values that help keep a nation both free and vigorous.
The Fourth Amendment
The Fourth Amendment guarantees that "the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
In short, the scope of the search has to be as narrow as
possible, and there has to be good reason to believe that the
search will turn up evidence of illegal activity.
The meaning of the Fourth Amendment's guarantee has evolved over time in
response to changing technologies. For example, while the Fourth
Amendment was first applied to prevent the government from trespassing
onto private property and seizing tangible objects, the physical
trespass rationale was made obsolete by the development of electronic
eavesdropping devices which permitted the government to "seize" an
individual's words without ever treading onto that person's private
property. To put the matter more concretely, while the drafters of the
First Amendment surely knew nothing about electronic databases, surely
they would have considered one's database to be as sacrosanct as, for
example, the contents of one's private desk or filing cabinet.
The Supreme Court responded decades ago to these types of technological
challenges by interpreting the Fourth Amendment more broadly to prevent
governmental violation of an individual's reasonable expectation of
privacy, a concept that transcended the narrow definition of one's
private physical space. It is now well established that an individual
has a reasonable expectation of privacy, not only in his or her home
and business, but also in private communications. Thus, for example:
% Government wiretapping and electronic eavesdropping are now limited
by state and federal statutes enacted to effectuate and even to expand
upon Fourth Amendment protections.
% More recently, the Fourth Amendment has been used, albeit with
limited success, to protect individuals from undergoing certain random
mandatory drug testing imposed by governmental authorities.
Advancements in technology have also worked in the opposite direction,
to diminish expectations of privacy that society once considered
reasonable, and thus have helped limit the scope of Fourth Amendment
protections. Thus, while one might once have reasonably expected
privacy in a fenced-in field, the Supreme Court has recently told us
that such an expectation is not reasonable in an age of surveillance
facilitated by airplanes and zoom lenses.
Applicability of Fourth Amendment to computer media
Just as the Fourth Amendment has evolved in response to changing
technologies, so it must now be interpreted to protect the reasonable
expectation of privacy of computer users in, for example, their
electronic mail or electronically stored secrets. The extent to which
government intrusion into these private areas should be allowed, ought
to be debated openly, fully, and intelligently, as the Congress seeks to
legislate in the area, as courts decide cases, and as administrative,
regulatory, and prosecutorial agencies seek to establish their turf.
One point that must be made, but which is commonly misunderstood, is
that the Bill of Rights seeks to protect citizens from privacy invasions
committed by the government, but, with very few narrow exceptions, these
protections do not serve to deter private citizens from doing what the
government is prohibited from doing. In short, while the Fourth
Amendment limits the government's ability to invade and spy upon private
databanks, it does not protect against similar invasions by private
parties. Protection of citizens from the depredations of other citizens
requires the passage of privacy legislation.
The Fifth Amendment
The Fifth Amendment assures citizens that they will not "be deprived of
life, liberty, or property, without due process of law" and that private
property shall not "be taken for public use without just compensation."
This Amendment thus protects both the sanctity of private property and
the right of citizens to be proceeded against by fair means before they
may be punished for alleged infractions of the law.
One aspect of due process of law is that citizens not be prosecuted for
alleged violations of laws that are so vague that persons of reasonable
intelligence cannot be expected to assume that some prosecutor will
charge that his or her conduct is criminal. A hypothetical law, for
example, that makes it a crime to do "that which should not be done",
would obviously not pass constitutional muster under the Fifth
Amendment. Yet the application of some existing laws to new situations
that arise in the electronic age is only slightly less problematic than
the hypothetical, and the Electronic Frontier Foundation plans to
monitor the process by which old laws are modified, and new laws are
crafted, to meet modern situations.
One area in which old laws and new technologies have already clashed and
are bound to continue to clash, is the application of federal criminal
laws against the interstate transportation of stolen property. The
placement on an electronic bulletin board of arguably propriety computer
files, and the "re-publication" of such material by those with access to
the bulletin board, might well expose the sponsor of the bulletin board
as well as all participants to federal felony charges, if the U.S.
Department of Justice can convince the courts to give these federal laws
a broad enough reading. Similarly, federal laws protecting against
wiretapping and electronic eavesdropping clearly have to be updated to
take into account electronic bulletin board technology, lest those who
utilize such means of communication should be assured of reasonable
privacy from unwanted government surveillance.
Summary
The problem of melding old but still valid concepts of constitutional
rights, with new and rapidly evolving technologies, is perhaps best
summed up by the following observation. Twenty-five years ago there was
not much question but that the First Amendment prohibited the government
from seizing a newspaper's printing press, or a writer's typewriter, in
order to prevent the publication of protected speech. Similarly, the
government would not have been allowed to search through, and seize,
one's private papers stored in a filing cabinet, without first
convincing a judge that probable cause existed to believe that evidence
of crime would be found.
Today, a single computer is in reality a printing press, typewriter, and
filing cabinet (and more) all wrapped up in one. How the use and output
of this device is treated in a nation governed by a Constitution that
protects liberty as well as private property, is a major challenge we
face. How well we allow this marvelous invention to continue to be
developed by creative minds, while we seek to prohibit or discourage
truly abusive practices, will depend upon the degree of wisdom that
guides our courts, our legislatures, and governmental agencies entrusted
with authority in this area of our national life.
For further information regarding The Bill of Rights please contact:
Harvey Silverglate
Silverglate & Good
89 Broad Street, 14th Floor
Boston, MA 02110
617/542-6663
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