Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/EFFBOR.TXT

Text File | 1994-07-17 | 13KB | 240 lines

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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 in