Telecom/1996-04-telecom-walnutcreek.iso/legal-fcc/elec.frontier.foundation

Text File | 1990-07-14 | 40KB | 802 lines

TELECOM Digest     Wed, 11 Jul 90 20:12:50 CDT   Electronic Frontier  1 of 2

Inside This Issue:                         Moderator: Patrick A. Townson

    New Foundation Established To Encourage Computer Based Communications
    CPSR To Undertake Expanded Civil Liberties Program
    Electronic Frontier Foundation - Mission Statement
    Across the Electronic Frontier [Statement by Mssrs. Kapor and Barlow]
----------------------------------------------------------------------

Sub: New Foundation Established to Encourage Computer Based Communications
Reply-To: [e-mail]
Date: Tue, 10 Jul 90 07:21:31 BST
From: the terminal of Geoff Goodfellow <[e-mail]>


Contact: Cathy Cook [phone]

 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.

"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
[e-mail].

------------------------------

Subject: CPSR to Undertake Expanded Civil Liberties Program
Reply-To: [e-mail]
Date: Tue, 10 Jul 90 07:22:40 BST
From: the terminal of Geoff Goodfellow <[e-mail]>


Contact: Marc Rotenberg [phone]

Washington, D.C., July 10, 1990 -- Computer Professionals for Social
Responsibility (CPSR), a national computing organization, announced
today that it would receive a two-year grant in the amount of $275,000
for its Computing and Civil Liberties Project.  The Electronic
Frontier Foundation (EFF),founded by Mitchell Kapor, made the grant to
expand ongoing CPSR work on civil liberties protections for computer
users.

At a press conference in Washington today, Mr. Kapor praised CPSR's
work, "CPSR plays an important role in the computer community.  For
the last several years, it has sought to extend civil liberties
protections to new information technologies.  Now we want to help CPSR
expand that work."

Marc Rotenberg, director of the CPSR Washington Office said, "We are
obviously very happy about the grant from the EFF.  There is a lot of
work that needs to be done to ensure that our civil liberties
protections are not lost amidst policy confusion about the use of new
computer technologies."

CPSR said that it will host a series of policy round tables in
Washington, DC, during the next two years with lawmakers, computer
users, including (hackers), the FBI, industry representatives, and
members of the computer security community.  Mr. Rotenberg said that
the purpose of the meetings will be to "begin a dialogue about the new
uses of electronic media and the protection of the public interest."

CPSR also plans to develop policy papers on computers and civil
liberties, to oversee the Government's handling of computer crime
investigations, and to act as an information resource for
organizations and individuals interested in civil liberties issues.

The CPSR Computing and Civil Liberties project began in 1985 after
President Reagan attempted to restrict access to government computer
systems through the creation of new classification authority.  In
1988, CPSR prepared a report on the proposed expansion of the FBI's
computer system, the National Crime Information Center.  The report
found serious threats to privacy and civil liberties.  Shortly after
the report was issued, the FBI announced that it would drop a proposed
computer feature to track the movements of people across the country
who had not been charged with any crime.

"We need to build bridges between the technical community and the
policy community," said Dr. Eric Roberts, CPSR president and a
research scientist at Digital Equipment Corporation in Palo Alto,
California.  "There is simply too much misinformation about how
computer networks operate.  This could produce terribly misguided
public policy."

CPSR representatives have testified several times before Congressional
committees on matters involving civil liberties and computer policy.
Last year CPSR urged a House Committee to avoid poorly conceived
computer activity.  "In the rush to criminalize the malicious acts of
the few we may discourage the beneficial acts of the many," warned
CPSR.  A House subcommittee recently followed CPSR's recommendations
on computer crime amendments.

Dr. Ronni Rosenberg, an expert on the role of computer scientists and
public policy, praised the new initiative.  She said, "It's clear that
there is an information gap that needs to be filled.  This is an
important opportunity for computer scientists to help fill the gap."

CPSR is a national membership organization of computer professionals,
based in Palo Alto, California.  CPSR has over 20,000 members and 21
chapters across the country. In addition to the civil liberties
project, CPSR conducts research, advises policy makers and educates
the public about computers in the workplace, computer risk and
reliability, and international security.

For more information contact:

Marc Rotenberg                 Gary Chapman
CPSR Washington Office                  CPSR National Office
1025 Connecticut Avenue, NW             P.O. Box 717
Suite 1015                              Palo Alto, CA 94302
Washington, DC 20036                    415/322-3778
202/775-1588

------------------------------

Subject: Electronic Frontier Foundation - Mission Statement
Reply-To: [e-mail]
Date: Tue, 10 Jul 90 07:23:49 BST
From: the terminal of Geoff Goodfellow <[e-mail]>


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
[phone]

[e-mail]

------------------------------

Subject: Across the Electronic Frontier
Reply-To: [e-mail]
Date: Tue, 10 Jul 90 07:29:18 BST
From: the terminal of Geoff Goodfellow <[e-mail]>

by:      Mitchell Kapor and John Perry Barlow
         Electronic Frontier Foundation
         Washington, D.C.
         July 10, 1990

Over the last 50 years, the people of the developed world have begun
to cross into a landscape unlike any which humanity has experienced
before.  It is a region without physical shape or form.  It exists,
like a standing wave, in the vast web of our electronic communication
systems.  It consists of electron states, microwaves, magnetic fields,
light pulses and thought itself.

It is familiar to most people as the "place" in which a long-distance
telephone conversation takes place.  But it is also the repository for
all digital or electronically transferred information, and, as such,
it is the venue for most of what is now commerce, industry, and
broad-scale human interaction.  William Gibson called this Platonic
realm "Cyberspace," a name which has some currency among its present
inhabitants.

Whatever it is eventually called, it is the homeland of the
Information Age, the place where the future is destined to dwell.

In its present condition, Cyberspace is a frontier region, populated
by the few hardy technologists who can tolerate the austerity of its
savage computer interfaces, incompatible communications protocols,
proprietary barricades, cultural and legal ambiguities, and general
lack of useful maps or metaphors.

Certainly, the old concepts of property, expression, identity,
movement, and context, based as they are on physical manifestation, do
not apply succinctly in a world where there can be none.

Sovereignty over this new world is also not well defined.  Large
institutions already lay claim to large fiefdoms, but most of the
actual natives are solitary and independent, sometimes to the point of
sociopathy.  It is, therefore, a perfect breeding ground for both
outlaws and vigilantes.  Most of society has chosen to ignore the
existence of this arising domain.  Every day millions of people use
ATM's and credit cards, place telephone calls, make travel
reservations, and access information of limitless variety. . . all
without any perception of the digital machinations behind these
transactions.

Our financial, legal, and even physical lives are increasingly
dependent on realities of which we have only dimmest awareness.  We
have entrusted the basic functions of modern existence to institutions
we cannot name, using tools we've never heard of and could not operate
if we had.

As communications and data technology continues to change and develop
at a pace many times that of society, the inevitable conflicts have
begun to occur on the border between Cyberspace and the physical
world.

These are taking a wide variety of forms, including (but hardly limited
to) the following:

I.      Legal and Constitutional Questions

What is free speech and what is merely data?  What is a free press
without paper and ink?  What is a "place" in a world without tangible
dimensions?  How does one protect property which has no physical form
and can be infinitely and easily reproduced?  Can the history of one's
personal business affairs properly belong to someone else?  Can anyone
morally claim to own knowledge itself?

These are just a few of the questions for which neither law nor custom
can provide concrete answers.  In their absence, law enforcement
agencies like the Secret Service and FBI, acting at the disposal of
large information corporations, are seeking to create legal precedents
which would radically limit Constitutional application to digital
media.

The excesses of Operation Sun Devil are only the beginning of what
threatens to become a long, difficult, and philosophically obscure
struggle between institutional control and individual liberty.

II.     Future Shock

Information workers, forced to keep pace with rapidly changing
technology, are stuck on "the learning curve of Sisyphus."
Increasingly, they find their hard-acquired skills to be obsolete even
before they've been fully mastered. To a lesser extent, the same
applies to ordinary citizens who correctly feel a lack of control over
their own lives and identities.

One result of this is a neo-Luddite resentment of digital technology
from which little good can come.  Another is a decrease in worker
productivity ironically coupled to tools designed to enhance it.
Finally, there is a spreading sense of alienation, dislocation, and
helplessness in the general presence of which no society can expect to
remain healthy.

III.    The "Knows" and the "Know-Nots"

Modern economies are increasingly divided between those who are
comfortable and proficient with digital technology and those who
neither understand nor trust it.  In essence, this development
disenfranchises the latter group, denying them any possibility of
citizenship in Cyberspace and, thus, participation in the future.

Furthermore, as policy-makers and elected officials remain relatively
ignorant of computers and their uses, they unknowingly abdicate most
of their authority to corporate technocrats whose jobs do not include
general social responsibility.  Elected government is thus replaced by
institutions with little real interest beyond their own quarterly
profits.

We are founding the Electronic Frontier Foundation to deal with these
and related challenges.  While our agenda is ambitious to the point of
audacity, we don't see much that these issues are being given the
broad social attention they deserve.  We were forced to ask, "If not
us, then who?"

In fact, our original objectives were more modest.  When we first
heard about Operation Sun Devil and other official adventures into the
digital realm, we thought that remedy could be derived by simply
unleashing a few highly competent Constitutional lawyers upon the
Government.  In essence, we were prepared to fight a few civil
libertarian brush fires and go on about our private work.

However, examination of the issues surrounding these government
actions revealed that we were dealing with the symptoms of a much
larger malady, the collision between Society and Cyberspace.

We have concluded that a cure can lie only in bringing civilization to
Cyberspace.  Unless a successful effort is made to render that harsh
and mysterious terrain suitable for ordinary inhabitants, friction
between the two worlds will worsen.  Constitutional protections,
indeed the perceived legitimacy of representative government itself,
might gradually disappear.

We could not allow this to happen unchallenged, and so arises the
Electronic Frontier Foundation.  In addition to our legal
interventions on behalf of those whose rights are threatened, we will:

% Engage in and support efforts to educate both the general public and
policymakers about the opportunities and challenges posed by
developments in computing and telecommunications.

% Encourage communication between the developers of technology,
government, corporate officials, and the general public in which we
might define the appropriate metaphors and legal concepts for life in
Cyberspace.

% And, finally, foster the development of new tools which will endow
non-technical users with full and easy access to computer-based
telecommunications.

One of us, Mitch Kapor, had already been a vocal advocate of more
accessible software design and had given considerable thought to some
of the challenges we now intend to meet.

The other, John Perry Barlow, is a relative newcomer to the world of
computing (though not to the world of politics) and is therefore
well-equipped to act as an emissary between the magicians of
technology and the wary populace who must incorporate this magic into
their daily lives.

While we expect the Electronic Frontier Foundation to be a creation of
some longevity, we hope to avoid the sclerosis which organizations
usually develop in their efforts to exist over time.  For this reason
we will endeavor to remain light and flexible, marshalling
intellectual and financial resources to meet specific purposes rather
than finding purposes to match our resources.  As is appropriate, we
will communicate between ourselves and with our constituents largely
over the electronic Net, trusting self-distribution and
self-organization to a much greater extent than would be possible for
a more traditional organization.

We readily admit that we have our work cut out for us.  However, we
are greatly encouraged by the overwhelming and positive response which
we have received so far.  We hope the Electronic Frontier Foundation
can function as a focal point for the many people of good will who
wish to settle in a future as abundant and free as the present.


The Electronic Frontier Foundation
One Cambridge Center, Suite 300
Cambridge, MA 02142

[phone]
[e-mail]

------------------------------

End of TELECOM Digest Special: Electronic Frontier
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TELECOM Digest     Wed, 11 Jul 90 21:33:00 CDT   Electronic Frontier 2 of 2

Inside This Issue:                         Moderator: Patrick A. Townson

    Electronic Frontier Foundation - Legal Case Summary
----------------------------------------------------------------------

Reply-To: [e-mail]
Subject: Electronic Frontier Foundation - Legal Case Summary
Date: Tue, 10 Jul 90 07:31:17 BST
From: the terminal of Geoff Goodfellow <[e-mail]>


The Electronic Frontier Foundation is currently providing litigation
support in two cases in which it perceived there to be substantial
civil liberties concerns which are likely to prove important in the
overall legal scheme by which electronic communications will, now and
in the future, be governed, regulated, encouraged, and protected.

Steve Jackson Games

Steve Jackson Games is a small, privately owned adventure game
manufacturer located in Austin, Texas.  Like most businesses today,
Steve Jackson Games uses computers for word processing and
bookkeeping.  In addition, like many other manufacturers, the company
operates an electronic bulletin board to advertise and to obtain
feedback on its product ideas and lines.

One of the company's most recent products is GURPS CYBERPUNK, a
science fiction role-playing game set in a high-tech futuristic world.
The rules of the game are set out in a game book.  Playing of the game
is not performed on computers and does not make use of computers in
any way.  This game was to be the company's most important first
quarter release, the keystone of its line.

On March 1, 1990, just weeks before GURPS CYBERPUNK was due to be
released, agents of the United States Secret Service raided the
premises of Steve Jackson Games.  The Secret Service:

% seized three of the company's computers which were used in the
drafting and designing of GURPS CYBERPUNK, including the computer used
to run the electronic bulletin board,

% took all of the company software in the neighborhood of the
computers taken,

% took with them company business records which were located on the
computers seized, and

% destructively ransacked the company's warehouse, leaving many items
in disarray.

In addition, all working drafts of the soon-to-be-published GURPS
CYBERPUNK game book -- on disk and in hard-copy manuscript form --
were confiscated by the authorities.  One of the Secret Service agents
told Steve Jackson that the GURPS CYBERPUNK science fiction fantasy
game book was a, "handbook for computer crime."

Steve Jackson Games was temporarily shut down.  The company was forced
to lay-off half of its employees and, ever since the raid, has
operated on relatively precarious ground.

Steve Jackson Games, which has not been involved in any illegal
activity insofar as the Foundation's inquiries have been able to
determine, tried in vain for over three months to find out why its
property had been seized, why the property was being retained by the
Secret Service long after it should have become apparent to the agents
that GURPS CYBERPUNK and everything else in the company's repertoire
were entirely lawful and innocuous, and when the company's vital
materials would be returned.  In late June of this year, after
attorneys for the Electronic Frontier Foundation became involved in
the case, the Secret Service finally returned most of the property,
but retained a number of documents, including the seized drafts of
GURPS CYBERPUNKS.

The Foundation is presently seeking to find out the basis for the
search warrant that led to the raid on Steve Jackson Games.
Unfortunately, the application for that warrant remains sealed by
order of the court.  The Foundation is making efforts to unseal those
papers in order to find out what it was that the Secret Service told a
judicial officer that prompted that officer to issue the search
warrant.

Under the Fourth Amendment to the United States Constitution, a search
warrant may be lawfully issued only if the information presented to
the court by the government agents demonstrates "probable cause" to
believe that evidence of criminal conduct would be found on the
premises to be searched.  Unsealing the search warrant application
should enable the Foundation's lawyers, representing Steve Jackson
Games, to determine the theory by which Secret Service Agents
concluded or hypothesized that either the GURPS CYBERPUNK game or any
of the company's computerized business records constituted criminal
activity or contained evidence of criminal activity.

Whatever the professed basis of the search, its scope clearly seems to
have been unreasonably broad.  The wholesale seizure of computer
software, and subsequent rummaging through its contents, is precisely
the sort of general search that the Fourth Amendment was designed to
prohibit.

If it is unlawful for government agents to indiscriminately seize all
of the hard-copy filing cabinets on a business premises -- which it
surely is -- that the same degree of protection should apply to
businesses that store information electronically.

The Steve Jackson Games situation appears to involve First Amendment
violations as well.  The First Amendment to the United States
Constitution prohibits the government from "abridging the freedom of
speech, or of the press".  The government's apparent attempt to
prevent the publication of the GURPS CYBERPUNK game book by seizing
all copies of all drafts in all media prior to publication, violated
the First Amendment.  The particular type of First Amendment violation
here is the single most serious type, since the government, by seizing
the very material sought to be published, effectuated what is known in
the law as a "prior restraint" on speech.  This means that rather than
allow the material to be published and then seek to punish it, the
government sought instead to prevent publication in the first place.
(This is not to say, of course, that anything published by Steve
Jackson Games could successfully have been punished.  Indeed, the
opposite appears to be the case, since SJG's business seems to be
entirely lawful.)  In any effort to restrain publication, the
government bears an extremely heavy burden of proof before a court is
permitted to authorize a prior restraint.

Indeed, in its 200-year history, the Supreme Court has never upheld a
prior restraint on the publication of material protected by the First
Amendment, warning that such efforts to restrain publication are
presumptively unconstitutional.  For example, the Department of
Justice was unsuccessful in 1971 in obtaining the permission of the
Supreme Court to enjoin The New York Times, The Washington Post, and
The Boston Globe from publishing the so-called Pentagon Papers, which
the government strenuously argued should be enjoined because of a
perceived threat to national security.  (In 1979, however, the
government sought to prevent The Progressive magazine from publishing
an article purporting to instruct the reader as to how to manufacture
an atomic bomb.  A lower federal court actually imposed an order for a
temporary prior restraint that lasted six months.  The Supreme Court
never had an opportunity to issue a full ruling on the
constitutionality of that restraint, however, because the case was
mooted when another newspaper published the article.)

Governmental efforts to restrain publication thus have been met by
vigorous opposition in the courts.  A major problem posed by the
government's resort to the expedient of obtaining a search warrant,
therefore, is that it allows the government to effectively prevent or
delay publication without giving the citizen a ready opportunity to
oppose that effort in court.

The Secret Service managed to delay, and almost to prevent, the
publication of an innocuous game book by a legitimate company -- not
by asking a court for a prior restraint order that it surely could not
have obtained, but by asking instead for a search warrant, which it
obtained all too readily.

The seizure of the company's computer hardware is also problematic,
for it prevented the company not only from publishing GURPS CYBERPUNK,
but also from operating its electronic bulletin board.  The
government's action in shutting down such an electronic bulletin board
is the functional equivalent of shutting down printing presses of The
New York Times or The Washington Post in order to prevent publication
of The Pentagon Papers.  Had the government sought a court order
closing down the electronic bulletin board, such an order effecting a
prior restraint almost certainly would have been refused.  Yet by
obtaining the search warrant, the government effected the same result.

This is a stark example of how electronic media suffer under a less
stringent standard of constitutional protection than applies to the
print media -- for no apparent reason, it would appear, other than the
fact that government agents and courts do not seem to readily equate
computers with printing presses and typewriters.  It is difficult to
understand a difference between these media that should matter for
constitutional protection purposes.  This is one of the challenges
facing the Electronic Frontier Foundation.

The Electronic Frontier Foundation will continue to press for return
of the remaining property of Steve Jackson Games and will take formal
steps, if necessary, to determine the factual basis for the search.
The purpose of these efforts is to establish law applying the First
and Fourth Amendments to electronic media, so as to protect in the
future Steve Jackson Games as well as other individuals and businesses
from the devastating effects of unlawful and unconstitutional
government intrusion upon and interference with protected property and
speech rights.

United States v. Craig Neidorf

Craig Neidorf is a 20-year-old student at the University of Missouri
who has been indicted by the United States on several counts of
interstate wire fraud and interstate transportation of stolen property
in connection with his activities as editor and publisher of the
electronic magazine, Phrack.

The indictment charges Neidorf with: (1) wire fraud and interstate
transportation of stolen property for the republication in Phrack of
information which was allegedly illegally obtained through the
accessing of a computer system without authorization, though it was
obtained not by Neidorf but by a third party; and (2) wire fraud for
the publication of an announcement of a computer conference and for
the publication of articles which allegedly provide some suggestions
on how to bypass security in some computer systems.

The information obtained without authorization is a file relating to
the provision of 911 emergency telephone services that was allegedly
removed from the BellSouth computer system without authorization.  It
is important to note that neither the indictment, nor any briefs filed
in this case by the government, contain any factual allegation or
contention that Neidorf was involved in or participated in the removal
of the 911 file.

These indictments raise substantial constitutional issues which have
significant impact on the uses of new computer communications
technologies.  The prosecution of an editor or publisher, under
generalized statutes like wire fraud and interstate transportation of
stolen property, for the publication of information received lawfully,
which later turns out to be have been "stolen," presents an
unprecedented threat to the freedom of the press.  The person who
should be prosecuted is the thief, and not a publisher who
subsequently receives and publishes information of public interest.
To draw an analogy to the print media, this would be the equivalent of
prosecuting The New York Times and The Washington Post for publishing
the Pentagon Papers when those papers were dropped off at the
doorsteps of those newspapers.

Similarly, the prosecution of a publisher for wire fraud arising out
of the publication of articles that allegedly suggested methods of
unlawful activity is also unprecedented.  Even assuming that the
articles here did advocate unlawful activity, advocacy of unlawful
activity cannot constitutionally be the basis for a criminal
prosecution, except where such advocacy is directed at producing
imminent lawless action, and is likely to incite such action.  The
articles here simply do not fit within this limited category.  The
Supreme Court has often reiterated that in order for advocacy to be
criminalized, the speech must be such that the words trigger an
immediate action.  Criminal prosecutions such as this pose an extreme
hazard for First Amendment rights in all media of communication, as it
has a chilling effect on writers and publishers who wish to discuss
the ramifications of illegal activity, such as information describing
illegal activity or describing how a crime might be committed.

In addition, since the statutes under which Neidorf is charged clearly
do not envision computer communications, applying them to situations
such as that found in the Neidorf case raises fundamental questions of
fair notice -- that is to say, the publisher or computer user has no
way of knowing that his actions may in fact be a violation of criminal
law.  The judge in the case has already conceded that "no court has
ever held that the electronic transfer of confidential, proprietary
business information from one computer to another across state lines
constitutes a violation of [the wire fraud statute]."  The Due Process
Clause prohibits the criminal prosecution of one who has not had fair
notice of the illegality of his action.  Strict adherence to the
requirements of the Due Process Clause also minimizes the risk of
selective or arbitrary enforcement, where prosecutors decide what
conduct they do not like and then seek some statute that can be
stretched by some theory to cover that conduct.

Government seizure and liability of bulletin board systems

During the recent government crackdown on computer crime, the
government has on many occasions seized the computers which operate
bulletin board systems ("BBSs"), even though the operator of the
bulletin board is not suspected of any complicity in any alleged
criminal activity.  The government seizures go far beyond a "prior
restraint" on the publication of any specific article, as the seizure
of the computer equipment of a BBS prevents the BBS from publishing at
all on any subject.  This akin to seizing the word processing and
computerized typesetting equipment of The New York Times for
publishing the Pentagon Papers, simply because the government contends
that there may be information relating to the commission of a crime on
the system.  Thus, the government does not simply restrain the
publication of the "offending" document, but it seizes the means of
production of the First Amendment activity so that no more stories of
any type can be published.

The government is allowed to seize "instrumentalities of crime," and a
bulletin board and its associated computer system could arguably be
called an instrumentality of crime if individuals used its private
e-mail system to send messages in furtherance of criminal activity.
However, even if the government has a compelling interest in
interfering with First Amendment protected speech, it can only do so
by the least restrictive means.  Clearly, the wholesale seizure and
retention of a publication's means of production, i.e., its computer
system, is not the least restrictive alternative.  The government
obviously could seize the equipment long enough to make a copy of the
information stored on the hard disk and to copy any other disks and
documents, and then promptly return the computer system to the
operator.

Another unconstitutional aspect of the government seizures of the
computers of bulletin board systems is the government infringement on
the privacy of the electronic mail in the systems.  It appears that
the government, in seeking warrants for the seizures, has not
forthrightly informed the court that private mail of third parties is
on the computers, and has also read some of this private mail after
the systems have been seized.

The Neidorf case also raises issues of great significance to bulletin
board systems.  As Neidorf was a publisher of information he received,
BBSs could be considered publishers of information that its users post
on the boards.  BBS operators have a great deal of concern as to the
liability they might face for the dissemination of information on
their boards which may turn out to have been obtained originally
without authorization, or which discuss activity which may be
considered illegal.  This uncertainty as to the law has already caused
a decrease in the free flow of information, as some BBS operators have
removed information solely because of the fear of liability.

The Electronic Frontier Foundation stands firmly against the
unauthorized access of computer systems, computer trespass and
computer theft, and strongly supports the security and sanctity of
private computer systems and networks. One of the goals of the
Foundation, however, is to ensure that, as the legal framework is
established to protect the security of these computer systems, the
unfettered communication and exchange of ideas is not hindered.  The
Foundation is concerned that the Government has cast its net too
broadly, ensnaring the innocent and chilling or indeed supressing the
free flow of information.  The Foundation fears not only that
protected speech will be curtailed, but also that the citizen's
reasonable expectation in the privacy and sanctity of electronic
communications systems will be thwarted, and people will be hesitant
to communicate via these networks.  Such a lack of confidence in
electronic communication modes will substantially set back the kind of
experimentation by and communication among fertile minds that are
essential to our nation's development.  The Foundation has therefore
applied for amicus curiae (friend of the court) status in the Neidorf
case and has filed legal briefs in support of the First Amendment
issues there, and is prepared to assist in protecting the free flow of
information over bulletin board systems and other computer
technologies.

For further information regarding Steve Jackson Games please contact:

Harvey Silverglate or Sharon Beckman
Silverglate & Good
89 Broad Street, 14th Floor
Boston, MA  02110
617/542-6663

For further information regarding Craig Neidorf please contact:

Terry Gross or Eric Lieberman
Rabinowitz, Boudin, Standard, Krinsky and Lieberman
740 Broadway, 5th Floor
New York, NY 10003
212/254-1111

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End of TELECOM Digest Special: Electronic Frontier  2 of 2
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