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Legal Net Newsletter Volume 1 Issue 12
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Legal Net Newsletter
Volume 1, Issue 12 -- July 7, 1993
Legal Net Newsletter is dedicated to providing information
on the legal issues of computing and networking in the 1990's
and into the future.
The information contained in this newsletter is not to be
misconstrued as a bona fide legal document, nor is it to be taken
as an advocacy forum for topics discussed and presented herein.
The information contained within this newsletter has been
collected from several governmental institutions, computer
professionals and third party sources. Opinion and ideological
excerpts have been collected from many sources with prior approval.
"Legal Net News", "Legal Net Newsletter"
and the Legal Net News logo are
Copyright (c) 1993 Paul Ferguson -- All rights reserved.
This newsletter may be freely copied and distributed in its entirety.
Singular items contained within this newsletter may also be
freely copied and distributed, with the exception of individual
copyrighted items.
Legal Net News can be found at the following locations:
Publicly Accessible BBS's
-------------------------
The SENTRY Net BBS Arlington Software Exchange
Centreville, Virginia USA Arlington, Virginia USA
+1-703-815-3244 +1-703-532-7143
To 9,600 bps To 14,400 bps
The Internet
------------
tstc.edu (161.109.128.2) Directory: /pub/legal-net-news
Login as ANONYMOUS and use your net ID (for example: fergp@sytex.com)
as the password. Or send e-mail to
postmaster@tstc.edu
E-mail submissions, comments and editorials to: fergp@sytex.com
- --
In this issue -
o Steve Jackson Games vs. US Secret Service, by Peter D. Kennedy
o CPSR Workplace Privacy Testimony
o The "Net Police" Experiment w/ follow-up remarks
- --
reprinted from:
BoardWatch Magazine
July 1993
pages 43 - 46
Steve Jackson Games v. US Secret Service
by Peter D. Kennedy
On March 12, 1993, a federal judge in Austin, Texas decided that
the US Secret Service broke the law when it searched Steve
Jackson Games Inc., and seized its bulletin board system and
other computer equipment. The decision in this case has been
long-awaited in the computer world, and most observers have
hailed it as a significant victory for computer user's freedom
and privacy.
I had the fortune to be one of the lawyers representing Steve
Jackson and his co-plaintiffs. During the course of the lawsuit, I
met many people passionately interested in the issues the case
raised. I watched and listened to the discussions and arguments
about the case. I've been impressed by the intelligence of the
on-line world, and the interest that computer enthusiasts show --
especially computer communications enthusiasts -- in the law.
I've also been impressed and distressed at how the Net can
spontaneously generate misinformation. Steve Jackson has spent
untold hours correcting errors about him, his company, and the
case on both the Net and more traditional news media.
The decision in the Steve Jackson Games case is clearly a
significant victory for computer users, especially BBS operators
and subscribers. I hope to give a simple and clear explanation
for the intelligent non-lawyer of the legal issues raised by the
case, and the significance and limitations of the court's
decision.
The facts.
By now, most people interested in the case are familiar with the
basic facts: On March 1, 1990, the Secret Service, in an
early-morning raid, searched the offices of Steve Jackson Games.
The agents kept the employees out of the offices until the
afternoon, and took the company's BBS -- called "Illuminati" --
along with an employee's work computer, other computer equipment,
and hundreds and hundreds of floppy disks. They took all the
recent versions of a soon-to-be-published game book, "GURPS
Cyberpunk," including big parts of the draft which were publicly
available on Illuminati.
On March 2, Steve Jackson tried to get copies of the seized files
back from the Secret Service. He was treated badly, and given
only a handful of files from one office computer. He was not
allowed to touch the Illuminati computer, or copy any of its
files.
Steve Jackson Games took a nosedive, and barely avoided going
out of business. According to Jackson, eight employees lost their
jobs on account of the Secret Service raid, and the company lost
many thousands of dollars in sales. It is again a busy
enterprise, no thanks to the Secret Service (although they tried
to take credit, pointing to the supposedly wonderful publicity
their raid produced.)
After months of pestering, including pressure by lawyers and
Senator Lloyd Bentson (now, as Treasury Secretary, the Secret
Service's boss) the Secret Service returned most of the
equipment taken, some of it much the worse for wear.
By then, Steve Jackson had restarted Illuminati on a different
computer. When the old Illuminati computer was finally given
back, Jackson turned it one -- and saw that all the electronic
mail which had been on the board on March 1 was gone! Wayne Bell,
WWIV developer and guru, was called in. He gave us invaluable
(and free) help evaluating the condition of the files. He
concluded, and testified firmly at trial, that during the week of
March 20, 1990, when the Secret Service still had Illuminati,
the BBS was run, and every piece of e-mail was individually
accessed and deleted. The Illuminati files the Secret Service had
returned to Steve Jackson left irrefutable electronic traces of
what had been done -- even I could understand how the condition
and dates of the e-mail files showed what had happened, and when.
The lawsuit.
Suing the federal government and its agents is never a simple
thing. The United States can only be sued when it consents.
Lawsuits against individual agents face big legal hurdles erected
to protect government officials from fear off a tidal wave of
lawsuits.
Amazing as it may sound, you cannot sue the United States (or any
federal agency) for money damages for violating your
constitutional rights. You can sue individual federal agents,
though. If you do, you have to get past a defense called
"qualified immunity" which basically means you have to show that
the officials violated "clearly established" constitutional law.
For reasons I can't explain briefly, "qualified immunity" often
creates a vicious circle in civil rights litigation, where the
substance of constitutional law is never established because the
court never has determine the Constitution's scope, only whether
the law was "clearly established" at the time of the violation.
The strongest remedies for federal over-stepping are often
statutes which allow direct suit against the United States or
federal agencies (although these are less dramatic than the
Constitution). Fortunately, these statutes were available to
Steve Jackson and the three Illuminati users who joined him in
his suit against the Secret Service.
The legal claims.
The Steve Jackson Games case was a lot of things to a lot of
people. I saw the case as having two basic goals: (1) to redress
the suppression of the public expression embodied in Steve
Jackson's publications (including his publication via BBS) and
thereby compensate the company for the damage unnecessarily done
by the raid, and (2) to redress the violation of the privacy of
the BBS users, and the less tangible harm they suffered.
The individual government agents involved in the raid were sued
for constitutional violations -- the First and Fourth Amendments.
The Secret Service was sued under two important laws which embody
the same principles as the First and Fourth Amendments -- the
Privacy Protection Act of 1980 and provisions of the Electronic
Communications Privacy Act of 1986. There were other claims, but
these were the core.
After the case was pending a year and a half and all discovery
completed, the government moved to have thee claims dismissed,
claiming qualified immunity. This motion (usually brought early
in a case) guaranteed that the trial would be delayed by over a
year, because even if the government lost its motion, the
individuals could immediately appeal. In December, 1992, the
tactical decision was made to drop those claims, rather than
suffer the delay, and proceed promptly to trial on the claims
against the Secret Service itself.
The Privacy Protection Act of 1980.
In the late 1970's the Stanford Daily was subjected to a fishing
expedition by police officers in the Stanford Daily's newsroom.
The police were looking for notes and photos of a demonstration
the newspaper had covered for a story, hoping the newspaper's
files would identify suspects. The Supreme Court held in 1979
that the newspaper had no separate First Amendment right
protecting it from searches and seizures of its reporters notes
and photographs if they were "evidence" of a crime the paper had
covered -- even when the newspaper was not under any suspicion
itself. Congress responded in 1980 with the Privacy Protection
Act, which, until Steve jackson came along, was distinguished
mostly by its lack of interpretation by courts.
The Act's wording is rather obtuse, but basically it enacts a
"subpoena only" rule for publishers -- law enforcement officials
are not allowed to search for evidence of crimes in publisher's
offices, or more accurately, they may not "search for or seize"
publishers' "work product" or "documentary materials",
essentially draft of publications, writer's notes, and such. To
get such material, the police must subpoena them, not with the
much more disruptive search warrant. Every BBS sysop should read
this act, located at 42 U.S.C. 2000aa in the law books, because I
can't fully explain it here.
The Act is quite broad, protecting from searches and seizures
the work product and commentary materials of anyone who has "a
purpose to disseminate to the public a newspaper, book,
broadcast, or other similar form of public communication..." It
also has a big exception -- if the publisher is the person
suspected in the criminal investigation.
The Electronic Communications Privacy Act.
Two provisions of the Electronic Communications Privacy Act (or
ECPA) were paramount in the suit. The plaintiffs claimed the
Secret Service violated two provisions -- one prohibiting
unjustified "disclosure and use" of e-mail (18 U.S.C. 2703; the
other prohibiting "interception" of e-mail (18 U.S.C. 22511(1)).
The parties' positions were fairly simple, and laid out well
before trial. As for the Privacy Protection Act, Steve Jackson
claimed that his company's publication, both in book form and on
Illuminati, were obviously "work product" protected by the Act,
and the government had no right to seize them, and therefore owed
him money for the damages the raid caused his business. The
government replied claiming that (1) Steve Jackson Games'
products are not the type of publications protected by the PPA;
and anyway, (2) the Secret Service didn't know that Steve Jackson
Games was a publisher when it raided its offices; and even then,
(3) the Secret Service didn't mean to take the books, the books
just came along when the computers and disks were taken.
As for the e-mail, Steve Jackson and the other BBS users claimed
that the seizure, disclosure, and deletion of the e-mail was both
an unlawful "disclosure and use," and an "interception" of
electronic communications in violation of the ECPA. The Secret
Service replied that (1) there was no "interception" because the
e-mail was just sitting there on the hard drive, not moving; and
(2) the Secret Service didn't read the mail, but if it did, it
was acting on good faith, because it had a search warrant
authorizing it so seize Steve Jackson Games' "computers" and read
their contents.
The trial.
When the individual defendants were dropped, the case quickly
went to trial. The plaintiffs opened their case on January 29,
1993. The trial took the better part of four days; the witnesses
included now-familiar names: Timothy Foley and Barbara Golden of
the Secret Service, William Cook, formerly of the U.S. Attorney's
office in Chicago, Henry Kluepfel of Bellcore, Steve Jackson and
the BBS users Elizabeth McCoy, Walter Milliken and Steffan
O'Sullivan, and WWIV master Wayne Bell.
At trial, Judge Sparks was introduced to the labyrinthine E911
investigation. We also set up and ran Illuminati as it looked on
March 1, 1990, and Steve Jackson walked Judge Sparks through his
BBS, lingering on discussion areas such as "GURPS Old West" to
give the Judge a taste of the scope and breadth of BBS
publication and communications which the Secret Service had shut
down. The judge had appeared upset by the callous and suspicious
manner in which the Secret Service had treated Steve Jackson, and
with the Service's apparent disregard for the effects the raid
might have on the company.
The decision.
Judge Sparks decided the case in February, 1993, in a long
written opinion. The full text of the opinion is available on
the Internet at ftp.eff.org, and on Illuminati itself
(512-447-7866). I recommend all sysops and BBS users to read it,
as it is one of the very few legal rulings specifically
addressing bulletin boards and electronic mail.
First, the bad news: Judge Sparks accepted the government's
argument that the seizure of the BBS was not an "interception" of
the e-mail, even mail that had not yet been read. Essentially, he
decided that the definition of "interception" implicitly means
"contemporaneously with the transmission"; that is, for there to
be an interception, the government must position itself in the
data stream. like a conventional wiretap. Since the e-mail was
temporarily stored on the BBS hard drive, he held there was no
contemporaneous interception.
Ruling that there was no interception means two things. First,
the plaintiffs did not receive the $10,000 minimum damages a
violation of the "interception" law provides, even though the
judge found the Secret Service had not acted in good faith. More
importantly, it lowers the standard for seizing BBS e-mail -- and
threatens to lower the standard for the seizure of all electronic
communications which reside long enough in computer memory to be
seized (which is most all computer communications, as far as I
understand it). To "intercept" wire communications you need a
court order, not just a routine search warrant. This ruling
(which technically only applies in Western District of Texas)
means law enforcement is not limited in its seizure of BBSs by
the higher standards required of wire-tapping.
Now, the good news: the plaintiffs won the "disclosure and use"
argument under the ECPA, getting back most of what was lost in
the "interception" decision. First, Judge Sparks found the
obvious: that while the Secret Service had Illuminati they or
their agents read and deleted all the e-mail on Illuminati,
including the plaintiffs' mail -- persons the Secret Service
admittedly having no reason at all to suspect of any illegal
activity.
Next, he rejected the Secret Service's argument that its agents
were acting in "good faith." While he didn't list all the
reasons, quite a few are supported by the evidence: the Secret
Service's investigation was "sloppy", he said, and there was no
attempt to find out what Steve Jackson Games did as a business;
the Secret Service was told the day of the raid that the company
was a "publisher," and refused to make copies or return files for
months after they were done reviewing them; and the Secret
Service apparently allowed the private mail of dozens of entirely
innocent and unsuspecting people to be read and trashed.
The judge ruled that Steve Jackson, his company, and the three
Illuminati users who joined Jackson in the suit were each
entitled to an $1,000 award from the government, as provided by
the ECPA.
The Privacy Protection Act was pretty much a clean sweep. While
the judge and Steve Jackson still differ over how much money the
raid cost the company, the court's ruling was squarely in
Jackson's favor on the law. Although unconventional, the court
found that Steve Jackson Games' publications were clearly
covered by the Act, should not have been seized, and should have
been promptly returned. At trial, the Secret Service agents had
freely admitted they knew nothing about the Act. Former U.S.
Attorney William Cook claimed he knew about it before the raid,
but decided (without any investigation) that Steve Jackson Games
wasn't covered. The Privacy Protection Act (unlike the ECPA)
allows no "good faith" excuses, anyway, and since the Secret
Service was repeatedly told on March 1 and afterwards that the
company was a publishing business there was no defense for the
seizure of "GURPS Cyberpunk" or the other book drafts. Most of
the over $50,000 awarded in damages was due to the violation of
the Privacy Protection Act.
Steve Jackson Games publishes traditional books and magazines,
with printed paper pages. Is the BBS operator who publishes only
on-line articles protected, too? It's a question Judge Sparks did
not need to address directly, but his opinion can and should be
read to include the on-line publisher. The court's opinion
includes the BBS files as material improperly seized, and the Act
specifically includes work product in electronic form. Publishing
via BBSs has become just like publishing a "newspaper, book, or
other form of publication..." -- the only source of news many
people get.
If the Privacy Protection Act is broadly understood to encompass
electronic publishing (as it should) it should provide
meaningful protection to innocent sysops whose boards may be
used by some for illegal purposes. It should prevent the
"preventative detention" of BBSs -- where boards are seized in
investigations and held indefinitely -- which seems to be one
crude means used to attack suspected criminal activity without
bothering to actually prosecute a case. It should also force law
enforcement to consider who the actual suspect is -- for
instance, in the recent spate of seizures of BBSs for suspected
copyright violations. The Privacy Protection Act should prevent
law enforcement from seizing a sysop's board who is not suspect
in engaging or condoning illegal activity.
Those of you who have followed this case will note how little
significance I've given to the "Phrack" investigation and the
overvaluation of the E911 document. Of course the Secret Service
misunderstood or exaggerated the importance of the purloined E911
document, and were chasing imaginary goblins.
The real significance of the Steve Jackson Games case, however,
was not knocking holes in that one investigation (the Neidorf
trial effectively did that), but taking a solid step to set firm,
discernible limits for criminal investigations involving computer
communication. To focus on the specific foibles of the E911
investigation is to miss the importance of what the Secret
Service really did wrong. Out of ignorance or callousness, they
ignored the legal rights of people not even suspected of crimes;
people who simple shared common electronic space. There are and
will continue to be legitimate computer-crime investigations. The
closeness that people live in Cyberspace, though, means the
government must learn ways to conduct investigations without
violating the rights of all the innocent members of the on-line
community. In March 1990, the Privacy Protection Act said that
Steve Jackson could write and publish his books without having
them seized; the Secret Service didn't know that. In 1990, the
Illuminati users had the right not to have their e-mail seized
and read without at least being suspected of a crime; the Secret
Service apparently didn't know that, either. Now they do, and
hopefully the word will spread to other government agencies,
too.
(As of this writing, there is still no decision whether the
Secret Service (or Steve Jackson, for that matter) will appeal
Judge Spark's decision.)
[Peter D. Kennedy is an associate with the Austin, Texas law firm
of George, Donaldson & Ford, specializing in civil litigation.
George, Donaldson & Ford represents national media, technology
and other corporate and individual clients in a variety of civil
litigation, including libel and invasion of privacy defense,
constitutional law, intellectual property, commercial and
employment litigation. George, Donaldson & Ford, 114 W. 7th
Street, Suite 100, Austin, Texas 787001; (512) 495-1400 voice;
(512) 499-0094 fax; E-mail: gdf.well.sf.ca.us]
- --
From: Dave Banisar <uunet!washofc.cpsr.org!banisar>
Date: Fri, 2 Jul 1993 16:00:05 EST
Subject: CPSR Workplace Privacy Testimony
CPSR Workplace Privacy Testimony
=====================================================
Prepared Testimony
and
Statement for the Record
of
Marc Rotenberg,
Director, CPSR Washington office,
Adjunct Professor, Georgetown University Law Center
on
H.R. 1900,
The Privacy for Consumers and Workers Act
Before
The Subcommittee on Labor-Management Relations,
Committee on Education and Labor,
U.S. House of Representatives
June 30, 1993
Mr. Chairman, members of the Subcommittee, thank
for the opportunity to testify today on H.R. 1900, the
Privacy for Consumers and Workers Act. My name is Marc
Rotenberg and I am the director of the CPSR Washington
office and an adjunct professor at Georgetown University
Law Center where I teach a course on information privacy
law.
Speaking on behalf of CPSR, we strongly endorse the
Privacy for Consumers and Workers Act. The measure will
establish important safeguards for workers and consumers
in the United States. We believe that H.R. 1900 is
particularly important as our country becomes more
dependent on computerized information systems and the
risk of privacy abuse increases.
CPSR has a special interest in workplace privacy.
For almost a decade we have advocated for the design of
computer systems that better serve the needs of
employees in the workplace. We do not view this
particular goal as a trade-off between labor and
management. It is our belief that computer systems and
information policies that are designed so as to value
employees will lead to a more productive work
environment and ultimately more successful companies and
organizations. As Charles Hecksher of the Harvard
Business School has said good managers have no use for
secret monitoring.
Equally important is the need to ensure that
certain fundamental rights of employees are safeguarded.
The protection of personal privacy in the information
age may be as crucial for American workers as the
protection of safety was in the age of machines.
Organizations that fail to develop appropriate workplace
privacy policies leave employees at risk of abuse,
embarrassment, and harassment.
The concern about workplace privacy is widely felt
in the computer profession. This month MacWorld
magazine, a leading publication in the computer
industry, released a special report on workplace
privacy. The report, based on a survey of 301 companies
in the United States and authored by noted science
writer Charles Piller, made clear the need for a strong
federal policy.
Among the key findings of the MacWorld survey:
> More than 21 percent of those polled said that
they had "engaged in searches of employee
computer files, voice mail, electronic mail, or
other networking communications."
> "Monitoring work flow" is the most frequently
cited reason for electronic searches.
> In two out of three cases, employees are not
warned about electronic searches.
> Only one third of the companies surveyed have a
written policy on privacy
What is also interesting about the MacWorld survey
is the high level of concern expressed by top corporate
managers about electronic monitoring. More than a half
of those polled said that electronic monitoring was
either "never acceptable" or "usually or always
counterproductive." Less than five percent believed
that electronic monitoring was a good tool to routinely
verify honesty.
These numbers suggest that managers would support a
sensible privacy law. Indeed, they are consistent with
other privacy polls conducted by Professor Alan Westin
for the Lou Harris organization which show that managers
are well aware of privacy concerns and may, with a
little prodding, agree to sensible policies.
What would such a policy look like? The MacWorld
report also includes a model privacy policy that is
based on several U.S. and international privacy codes.
Here are the key elements:
> Employees should know what electronic
surveillance tools are used, and how management
will use the data gathered.
> Management should minimize electronic monitoring
as much as possible. Continuous monitoring
should not be permitted.
> Data should only be used for clearly defined,
work-related purposes.
> Management should not engage in secret
monitoring unless there is credible evidence of
criminal activity or serious wrongdoing.
> Data gathered through monitoring should not be
the sole factor in employee evaluations.
> Personal information gathered by employers
should not be disclosed to any third parties,
except to comply with legal requirements.
> Employees or prospective employees should not be
asked to waive privacy rights.
> Managers who violate these privacy principles
should be subject to discipline or termination.
Many of these provisions are contained in H.R.
1900, the Privacy for Consumers and Workers Act.
Clearly, the policies and the bill itself are not
intended to prohibit monitoring, nor to prevent
employers from protecting their business interests.
What the bill will do is help establish a clear
framework that ensures employees are properly notified
of monitoring practices, that personal information is
not misused, and that monitoring capability is not
abused. It is a straightforward, sensible approach that
does not so much balance rights as it clarifies
interests and ensures that both employers and employees
will respect appropriate limitations on monitoring
capability.
The need to move quickly to establish a framework
for workplace privacy protection is clear. Privacy
problems will become more acute in the years ahead as
new monitoring schemes are developed and new forms of
personal data are collected. As Professor Gary Marx has
made clear, there is little that can be imagined in the
monitoring realm that can not be achieved. Already,
some members of the computer profession are wearing
"active badges" that provide full-time geographical
monitoring. Properly used, these devices help employees
use new tools in the hi-tech workplace. Improperly
used, such devices could track the physical movements of
an employee throughout the day, almost like a blip on a
radar screen.
Computers are certainly powerful tools. We believe
that they can be used to improve productivity and
increase job satisfaction. But this requires that
appropriate policies be developed to address employee
concerns and that laws be passed, when necessary, to
ensure that computer abuse does not occur.
This concludes my testimony. I would be pleased to
answer your questions.
- --
The "Net Police" Experiment
I decided to include three messages from the cypherpunks list in this
issue of LNN that touch on several, very volite subjects. This thread
further defines the problems regarding protectionism, free expression,
censorship and several other political hot-potatoes. Draw your own
conclusions.
>From: uunet!netcom.com!tcmay (Timothy C. May)
Subject: (fwd) GIFs--Now it can be told
Date: Sat, 3 Jul 93 2:42:11 PDT
Cypherpatriots,
Here's a little experiment I've been conducting. A week ago I posted
an ecrypted GIF to a bizarre new newsgroup that showed up on NETCOM,
"alt.binaries.pictures.erotica.children." Quite a controversial group,
pushing several buttons.
My posting generated some real heat, though there was absolutely no
evidence it was anything more than just a file. Apparently the mere
fact of it existing was a kind of "thoughtcrime" in these politically
correct times.
Anyway, I let it brew for one week, then wrote this explanation and
posted it. Several Cypherpunk list readers were slightly involved,
some to criticize me, some to say "Not so fast." You know who you are.
:-}
All in all, a pleasant little experiment.
Here's the posting I sent out:
Newsgroups: alt.binaries.pictures.erotica.children,alt.config,netcom.netnews
From: tcmay@netcom.com (Timothy C. May)
Subject: GIFs--Now it can be told
Message-ID: <tcmayC9L0zI.2C3@netcom.com>
Date: Sat, 3 Jul 1993 09:28:29 GMT
One week ago tonight a new group appeared at my site,
"alt.binaries.pictures.erotica.children," a group certain to provoke
controversy, to bring out the Net Cops, and to induce a certain kind
of "Stockholm Syndrome," wherein some folks scramble to initiate
censorship prior even to the Feds doing it. (Their battle cry is "Eeek! If
we don't nip this in the bud, _right now_, think of what might
happen!)
My experience has been that these Net.Censors are usually too quick to
claim something has clearly gone beyond the bounds of decency and
acceptability. Thankfully, they usually fail in their efforts.
Anyway, seeing this strange new group appear on my system, I decided
to conduct an experiment.
I posted an "encrypted GIF," not further identified, and waited for
the reaction. The file was as follows (only part of it shown):
-----BEGIN PGP MESSAGE-----
Version: 2.2
b2cCrVJKUYUZf7UBA/i1tSSz66dOx4+cJKzNkm1JBhGigMdRvxM8Slm3TyC7kgWW
L8J3w/On10thisi487rU/Gl7xOMajxCQedHrb6k0+wYDGjxmVcu9xwLWAWpkgq+5
fUiNKBnF/SUA/JisFrWvn63rt44n+DqROwx8CXuSvL1mUdqLRTS0t/timjHnhIwC
VmLN1FTnSD8BBACFa38SqiwByarfcVhFg/fuKWc4AgKtYqSt5oWW6sYLckC3nEen
ZcHV+DNFo36Exg7r0trapoBXpjoe9ENCsCbFJ7i/M7FwFYvK1QAcxQ6zGt+3HICM
9Hsxg1d5Goqp4+nmpW+9Y/UVY16+WVl9moY3c7Iv04Cp0ipu2B5qfIxPZoSMAlKv
.....
Not to my surprise, about 20 people have (so far) requested the key to
this file. (The whole encryption rationale is covered later.) I didn't
reply to them...some of them asked for the key a second time!
What surprised me is that nobody carefully looked at the file. Here it
is again, with some places marked:
-----BEGIN PGP MESSAGE-----
Version: 2.2
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.......
I put a couple of other "subliminal messages" in, which I suppose
could provoke the Religious Right into squawking that "Satanic
messages" are being hidden in computer files *that children could
possibly read*. Gasp!
Needless to say, such ASCII surgery performed on a PGP file (which, by
the way, was just some random message someone had sent me a while
back, utterly unreadable by anyone other than the two of us--and not
even that after I mutated various characters) makes it completely
unreadable. Even if someone had the other half of the PGP key
pair--which never existed--the file would not even checksum as a legal
PGP file!
(Putting plaintext into the file was both a message I hoped astute
readers would eventually notice--though it *is* pretty hard to
see--and an ironclad proof that the file could not be a real PGP
message, let alone a GIF, let alone kiddie porn.)
There are some quasi-legitimate issues surrounding the area of child
erotica. Was the child coerced? Was consent meaningful? Etc.
But the posting of mere bits qua bits causing such anger and flamage
indicates a serious overreaction.
Are mere thoughts the crime? Orwell covered this, didn't he?
* What if such images merely "look like" children (and just what is the
age of consent? 18? 16? "Children" of 15 can get married in most
countries of the world.)...are such "fakes" illegal?
* What if they are computer-generated images, of children that never
existed outside of a computer? Which children were exploited? We're
back to thoughtcrime again. (Don't laugh, a leading interpretation is
that even computer-generated child porn would be illegal, not because
of crimes committed against children, but because of the "atmosphere"
and "climate" it might produce. That is, thoughtcrime.)
* What if the images were morphs? Not wholly computer-generated, but the
morph of an adult image into that of a child?
* What if one 15-year old child took photos of a another 15-year old
child? What if one child "exploited" another? What if a child took
pictures of herself, self-portraits?
* What if the images, if they were ever to be posted, originated
someplace where they are legal? Perhaps Amsterdam, someone suggested.
If the U.S government tries to stop the Net (which is already a market
anarchy, thankfully) from distributing this material, mightn't all the
various countries that have different laws than ours do the same
thing? There goes alt.fan.salman.rushdie. And there goes soc.motss and
all the "normal" alt.binaries.pictures.* groups. Of course it won't
likely happen, nor will alt.binaries.pictures.erotica.children go
away,either. Get used to it. (Again, I don't care for it, but wailing
and moaning won't make it go away.)
* What if someone scanned-in images from the widely available books by
David Hamilton, or Robert Mapplethorpe? Certainly many of these photos
are of nude children...would the imminent death of Usenet finally
happen if someone went down to B. Dalton Books, bought a David
Hamilton collection, and posted some of the photos in a.b.p.e.c.?
So, I would encourage folks to lighten up. In a week on the Net, not a
single kiddie porn picture has been posted. And if it does happen, try
to just ignore it. The kid whose picture was taken is probably grown
up by now (I'm guessing that many such images are from old magazines,
etc.). In any case, the occasional picture is hardly going to create a
new slave trade in children.
The issue of how the media may react is a more serious one. Part of
the reason I'm explaining my little experiment now is to make sure my
posting, at least, is not used by some nitwit reporter as the basis of
a story. (If it's being used, then he'll soon have egg on his face.)
That's the story. I hope you enjoyed the ride.
P.S. I said I'd say something about why I used encryption. Aside from
not being a real PGP-readable file, the idea was to make it look like
one. This is the likeliest way for such material to get posted, along
with anonymous remailers. The "look for the key in the 'usual places'"
bit was to resonate with the "binary nerve gas" idea, where the
dangerous pieces are stored separately and only combined at the last
minute. I don't know if such techniques are already in use, but I
expect them soon.
The mutant condors that one reader (who claimed to be a Pope in the
Church of the Subgenius, but who humorlessly missed the joke--but I
forgive him, for he knew not what he saw) wanted to feed me to, can
now stop circling my house.
-Tim May
..........................................................................
Timothy C. May | Crypto Anarchy: encryption, digital money,
tcmay@netcom.com | anonymous networks, digital pseudonyms, zero
408-688-5409 | knowledge, reputations, information markets,
W.A.S.T.E.: Aptos, CA | black markets, collapse of governments.
Higher Power: 2^756839 | Public Key: PGP and MailSafe available.
Note: I put time and money into writing this posting. I hope you enjoy it.
[follow-up messages]
>Date: Tue, 6 Jul 93 21:08:06 MDT
From: uunet!muskwa.ucs.ualberta.ca!sneal (Sneal)
Subject: We are becoming politically correct sheep
I am slightly dubious of the wisdom of Tim's switch-and-bate on
a.b.p.e.c. for a couple of reasons:
a) The possibility of some media nitwit hearing about the initial
post and missing Tim's "retraction" (or ignoring it in the interests
of a great big ol' byline). Nightmarish possibilities abound,
particularly given the subtle nature of the "clue" in the PGP block.
b) In a more paranoid moment some months ago, I predicted that the
NSA would be waiting for a chance to work a PGP angle into some
sensational story that creates a lot of public outcry. Linking PGP
to terrorism, drug dealing, or kiddie porn would be a great first
step towards getting some laws against "unlicensed cryptography" on
the books. I'm less worried about Tim giving the TLAs any ideas (I'm
sure they have lots of bright "media relations" people already) than
I am about him inspiring real pornographers (or agent provocateurs).
c) Personally, I think that the fewer excuses one gives busybodies to
"make policy", the better. However, what with Clipper, Markey, Gore,
Denning, Sternlight, et al, the cat's already out of the bag. We can
only sigh and wish that these beknighted ones had viewed with alarm
the excess profits and price gouging of the haircutting industry, and
the need to balance unbridled free enterprise with the tonsorial
rights of the public.
However - tickling a few neurons may very well have been worth the
risks noted above.
In response to Tim's later post about freedom of speech, J. Eric
Townsend writes:
>[flameage censored]
In arguing the fine points of Dworkinism, pornography,
capitalization of proper nouns, etc., I think Eric misses Tim's point,
which is (I think) that the current movement of society is from
Forbidding actions that cause harm to others
to
Forbidding actions and speech that might offend others, or make them
uncomfortable, or hurt their feelings.
This is an obviously not a happy thing. While not offending others
is an admirable goal, I am going to disagree with Tim May if he
claims that he can levitate given the right mix of ginseng, pig
knuckles, and spiritual harmony. Tim may be emotionally crushed by
this, but that's life. If things keep on the way they are, in a few
years, Tim will have the option of taking me to the Spiritual
Tribunal and having me busted for emotional assault, where I'll be
sentenced to three to five years at hard consciousness-raising.
There's an excellent article on this issue by Jonathan Rauch in the
April 93 issue of 'Reason'; this is an excerpt from his book "Kindly
Inquisitors: The New Attack On Free Thought". Rauch's thesis is that
the very humanitarian goal of making sure that nobody's feelings are
hurt is incompatible with the free inquiry and lively discourse that
are necessary parts of a free society.
To those of you who think "it can't happen here", I would refer you
to Canada's "hate speech" laws, which make it a criminal offense to
"promote hatred against an identifiable group". To date, the only
well-known charges under these laws have been against couple of
Holocaust revisionists; however, the definitions of "promoting
hatred" and "identifiable group" are vague enough to make this
country a somewhat dangerous place to have unpopular views, even
disregarding the tremendous leverage this law gives governments to
step on anyone who gets too far out of line.
"It's the First Amendment, stupid."
-- Steve
>From: uunet!netcom.com!tcmay (Timothy C. May)
Subject: Re: We are becoming politically correct sheep
Date: Tue, 6 Jul 93 21:25:37 PDT
Steve Neal makes some very good points:
> a) The possibility of some media nitwit hearing about the initial
> post and missing Tim's "retraction" (or ignoring it in the interests
> of a great big ol' byline). Nightmarish possibilities abound,
> particularly given the subtle nature of the "clue" in the PGP block.
I agree, which is why I ended the charade. (And I would've ended it
sooner had I gotten any strange phone calls, suggesting a reporter
sniffing around, or threats to report the posting to the cops. I did
get a few strange messages suggesting Netcom should yank my account.)
But the interesting thing is how paranoid people are about free speech
being exercised (the free speech being posting of non-provably illegal
material, not the posting of provably illegal material). I won't
repeat my point about a nation of politically correct sheep.
> However - tickling a few neurons may very well have been worth the
> risks noted above.
Yes, perhaps thinking about some issues in advance is a good "drill."
(For some reason, I seem to gravitate toward these "early warning"
situations...it was me who posted the first message about Dorothy
Denning's key escrow system, last October ("A Trial Balloon to Ban
Encryption?"), and I also posted the fake "Stealth Secrets" article in
cypherpunks, anonymously. The intent was to test the commitment of the
list to the much-talked about "whistleblowers" group and to the likey
implications. (Sure enough, several people freaked out and called for
censorship--as if anonymous whistleblowing can be censored! I
'fessed-up after several days, pointing out the material came from a
published book and some Aviation Leak material.)
Steve then makes some really excellent points:
> In arguing the fine points of Dworkinism, pornography,
> capitalization of proper nouns, etc., I think Eric misses Tim's point,
> which is (I think) that the current movement of society is from
>
> Forbidding actions that cause harm to others
>
> to
>
> Forbidding actions and speech that might offend others, or make them
> uncomfortable, or hurt their feelings.
Yes, exactly! This is a profound shift from the principles on which
this country (apologies to Brits, etc.) was founded.
> To those of you who think "it can't happen here", I would refer you
> to Canada's "hate speech" laws, which make it a criminal offense to
> "promote hatred against an identifiable group". To date, the only
And France and Germany have both used "hate crimes" as "hate groups"
as justification to ban certain groups from existing.
> well-known charges under these laws have been against couple of
> Holocaust revisionists; however, the definitions of "promoting
> hatred" and "identifiable group" are vague enough to make this
> country a somewhat dangerous place to have unpopular views, even
> disregarding the tremendous leverage this law gives governments to
> step on anyone who gets too far out of line.
Good points, but the so-called "Holocaust" never actually happened,
hence there cannot be any such thing as "Holocaust revisionism," just
the telling of the truth. While the Nazis were not perfect, this
nonsense about extermination camps was just Allied propaganda
(confirmed by documents declassified in 1967) designed to embarass the
Nazi "Huns" and to hide the mass exodus of Jews, who stole the wealth
of Germany and took it to New York to set up brokerage and banking
firms like S.G. Warburg and the Rothschild Bank. Every true
researcher knows this.
(This little joke could be enough in Canada, as Steve points out, to
at least threaten me, and perhaps the machine this message originates
to the List from. Most likely not (the Canadians concentrated on
long-time activists), but the _threat_ is there. And this
threat is coming down to the U.S.)
Understand that the real threat to the Jews in Germany was not so much
hatred of the Jews (of which there was probably less in Germany than
in France and other European countried until Hitler began stirring up
hatred and staging events to trigger mass hatred) as it was the
unbridled power of the Nazi state. Civil rights were suspended, the
courts fell under the control of Hitler's people, and "law" became
whatever the government wanted. Ironically, with "hate crimes" as a
prosecutorial tool in the 1930s, Hitler could have used the laws to
prosecute Jews (especially Orthodox Jews, with different fashion
styles and a dislike ("hate"?) for many Gentiles.
The real threat is the government, whatever its initial intent. They
have the guns, they have the courts, they have the power.
We've sunk into a strange situation in which various special interest
groups jockey for special privilege, special powers granted to them
by the State.
"Live and let live" doesn't mean one has to _like_ all the various
individuals or groups that are out there, it just means you let them
do their thing as long as they don't interfere with your own life.
You can't pass laws to force others to like you, or your group, or to
make their thougths conform to yours. About all you can really do is make
sure they can't rob and kill, and even that's iffy.
--Tim May
..........................................................................
Timothy C. May | Crypto Anarchy: encryption, digital money,
tcmay@netcom.com | anonymous networks, digital pseudonyms, zero
408-688-5409 | knowledge, reputations, information markets,
W.A.S.T.E.: Aptos, CA | black markets, collapse of governments.
Higher Power: 2^756839 | Public Key: PGP and MailSafe available.
Note: I put time and money into writing this posting. I hope you enjoy it.
- --
<end of lnn1.012>
