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TUCoPS :: Cyber Law :: thefacts.txt

Push Button Felonies





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{}                   ** PUSH BUTTON FELONIES **                       {}
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{}       KPFA-FM RADIO BROADCAST JULY 26, 1990 AT 12:00 NOON          {}
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{}            ELECTRONIC TEXT -- PUBLIC INFORMATION FILE              {}
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{}                      ** SPECIAL EDITION **                         {}
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{}                        THE EPIC PROJECT                            {}
{}        a nonprofit public electronic publishing corporation        {}
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{}  P.O. Box 5080-341                  Electronic Netmail Address     {}
{}  Fairfield, Ca. 94533               jefrich@well.sf.ca.us          {}
{}  Jeff Aldrich, Contact:             Voice: (707)425-6813           {}
{}  Data: (707)429-1545                Fax: (707)425-9811             {}
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                              NOTICE

    This text file contains copies of press releases by government
agencies, citizen action organizations, and transcripts of events received
by The EPIC Project.  They example both the personal information power of
telecommunication technology and the current threat to our basic civil
liberties -- our rights to privacy and to protection against unwarranted
searches and seizures.  Panelists on the KPFA-FM "Push Button Felonies"
broadcast are responsible for some of these documents.  This electronic text
information is provided to KPFA listeners by The EPIC Project to increase
understanding of the issues discussed in this broadcast. The EPIC
Project makes no warranty as to document accuracy, expressed or implied.
==========================================================================

KPFA-FM  Studio Panelists:

Assistant Arizona Attorney General Gail Thackery.
Marc Rotenberg of Computer Professionals for Social Responsibility
A Telecommunication Industry Service Provider Representative

KPFA-FM  Telephone Panelist:

Jeff Aldrich, Founder of The EPIC Project Electronic Publishing Corp.

===========================================================================

                              CONTENTS
       
Line  75:  Operation Sun Devil: Press Release
Line 162:  Operation Sun Devil: Secret Service Statement
Line 230:  News Excerpts about Operation Sun Devil
  Source:  Computer Underground Digest Issue #1.09

Line 393:  Letter from the Director of the Secret Service to Rep. Don Edwards
Line 692:  CPSR FOIA Request to the FBI Regarding BBS Surveillance
Line 804:  CPSR letter to Congressman Don Edwards regarding FOIA request
Line 901:  Chronology of events
  Source:  Computer Professionals for Social Responsibility (CPSR)

Line 1048: Sun Devil gives birth to the Electronic Frontier Foundation
Line 1141: Electronic Frontier Foundation: Mission Statement
Line 1190: Electronic Frontier Article by John Perry Barlow and Mitchell Kapor
Line 1374: CPSR Expands Civil Liberties Program
Line 1464: EFF Supported Legal Case Summary
Line 1801: The Electronic Frontier and The Bill of Rights
   Source: Electronic Frontier Foundation (EFF)

Line 2036: U.S. Attorney Visits The EPIC Project Online After July 5th
           KPFA Electronic Citizen Broadcast: A Sysop Chat with the Feds

   Source: The EPIC Project

NOTE: Line numbers are approximate
********************************************************************
********************************************************************

                                          U.S. Department of Justice
                                          United States Attorney
                                          District of Arizona
                                          4000 United States Courthouse
                                          Phoenix, Arizona 82505
                                          602-379-3011 /FTS/261-3011


                               PRESS RELEASE


FOR IMMEDIATE RELEASE:          CONTACT: Wendy Harnagel
Wednesday, May 9, 1990                   United States Attorney's Office
                                         (602) 379-3011


PHOENIX--Stephen M. McNamee, United States Attorney for the District of
Arizona, Robert K. Corbin, Attorney General for the state of Arizona, and
Henry R. Potosky, Acting Special Agent in Charge of the United States
Secret Service Office in Phoenix, today announced that approximately
twenty-seven search warrants were executed on Monday and Tuesday, May 7 and
8, 1990, in various cities across the nation by 150 Secret Service agents
along with state and local law enforcement officials. The warrants were
issued as a part of Operation Sundevil, which was a two year investigation
into alleged illegal computer hacking activities.

The United States Secret Service, in cooperation with the United States
Attorney's Office, and the Attorney General for the State of Arizona,
established an operation utilizing sophisticated investigative techniques,
targeting computer hackers who were alleged to have trafficked in and abuse
stolen credit card numbers, unauthorized long distance dialing codes, and
who conduct unauthorized access and damage to computers. While the total
amount of losses cannot be calculated at this time, it is
                                  (MORE)
estimated that the losses may run into the millions of dollars. For
example, the unauthorized accessing of long distance telephone cards have
resulted in uncollectible charges. The same is true of the use of stolen
credit card numbers. Individuals are able to utilize the charge accounts to
purchase items for which no payment is made.

Federal search warrants were executed in the following cities:

               Chicago, IL
               Cincinnati, OH
               Detroit, MI
               Los Angeles, CA
               Miami, FL
               Newark, NJ
               New York, NY
               Phoenix, AZ
               Pittsburgh, PA
               Plano, TX
               Richmond, VA
               San Diego, CA
               San Jose, CA

Unlawful computer hacking imperils the health and welfare of individuals,
corporations and government agencies in the United States who rely on
computers and telephones to communicate.

Technical and expert assistance was provided to the United States Secret
Service by telecommunication companies including Pac Bel, AT&T, Bellcore,
Bell South, MCI, U.S. Sprint, Mid-American, Southwestern Bell, NYNEX, U.S.
West, and by the many corporate victims. All are to be commended for their
efforts in researching intrusions and documenting losses.

McNamee and Corbin expressed concern that the improper and alleged illegal
use of computers may become the White Collar crime of the
                                  (MORE)
1990's. McNamee and Corbin reiterated that the state and federal government
will vigorously pursue criminal violations of statutes under their
jurisdiction. Three individuals were arrested yesterday in other
jurisdictions on collateral or independent state charges. The
investigations surrounding the activities of Operation Sundevil are
continuing.

The investigations are being conducted by agents of the United States
Secret Service and Assistant United States Attorney Tim Holtzen, District
of Arizona, and **Assistant Arizona Attorney General Gail Thackery.

                                 END STORY

**KPFA-FM Panelist


     **************************************************************

           Assistant Director Garry M. Jenkins' Prepared Remarks

                            Operation Sun Devil


Today, the Secret Service is sending a clear message to those computer
hackers who have decided to violate the laws of this nation in the mistaken
belief that they can successfully avoid detection by hiding behind the
relative anonymity of their computer terminals.

In 1984, Congress enacted the Comprehensive Crime Control Act which
prohibits, among other things, credit card fraud and computer fraud. Since
1984, the Secret Service has been aggressively enforcing these laws and has
made over 9,000 arrests nationwide.

Recently we have witnessed an alarming number of young people who, for a
variety of sociological and psychological reasons, have become attached to
their computers and are exploiting thier potential in a criminal manner.
Often, a progression of criminal activity occurs which involves
telecommunications fraud (free long distance phone calls), unauthorized
access to other computers (whether for profit, fascination, ego, or the
intellectual challenge), credit card fraud (cash advances and unauthorized
purchases of goods), and then move on to other destructive activities like
computer viruses.

Some computer abusers form close associations with other people having
similar interests. Underground groups have been formed for the purpose of
exchanging information relevant to their criminal activities. These groups
often communicate with each other through message systems between computers
called "bulletin boards."

Operation Sun Devil was an investigation of potential computer fraud
conducted over a two-year period with the use of sophisticated
investigative techniques.

This investigation exemplifies the commitment and extensive cooperation
between federal, state and local law enforcement agencies and private
governmental industries which have been targeted by computer criminals.

While state and local law enforcement agencies successfully investigate and
prosecute technological crimes in specific geographical locations, federal
intervention is clearly called for when the nature of these crimes becomes
interstate and international.

                                 (PAGE 1)

On May 8, 1990, over 150 Special Agents of the United States Secret
Service, teamed with numerous local and state law enforcement agencies,
served over two dozen search warrants in approximately fifteen (15) cities
across this nation.

Several arrests and searches were made during the investigation to protect
the public from impending dangers. In one situation, computer equipment
was seized after unauthorized invasion into a hospital computer.

Our experience shows that many computer hacker suspects are no longer
misguide teenagers mischievously playing games with their computers in
their bedrooms.  Some are now high tech computer operators using computers
to engage in unlawful conduct.

The losses to the american public in this case are expected to be
significant.  The Secret Service takes computer crime very seriously, and
we will continue to investigate aggressively those crimes which threaten
our nation's businesses and government services.

                               END
  ***************************************************************

                  OPERATION SUN DEVIL NEWS ARTICLES

            Probe Focuses on Entry, Theft by Computers
           (From: CHICAGO TRIBUNE, May 10, 1990: p. I-6)


PHOENIX--An interstate probe of computer invasions has uncovered losses
that may reach millions of dollars and could be "just the tip of the
iceberg," federal law enforcement officials said Wednesday.

The investigation is focused on illegal entry into computer systems and
unauthorized use of credit-card numbers and long-distance codes, said Garry
Jenkins, assistant Secret Service director for investigations.

No arrests for computer crime resulted, however, when 27 search warrants
were served in 12 cities, including Chicago, by 150 Secret Service agents
and police on Tuesday, officials said.

In Chicago, federal agents seized computers and information disks at a
business and a private home, said Tim McCarthey, chief of the Secret
Service's criminal enforcement division in Chicago.  Nationwide, some 40
computers and 23,000 disks of computer information were seized.

Secret Service officials declined to release an specifics, including the
number of people targeted, saying the two-year investigation, code-named
"Operation Sun Devil," is continuing.

"The losses that we estimate on this may run to the millions of dollars,"
said Stephen McNamee, U.S. Atty. for Arizona.

Much of the alleged loss stems from unpaid telephone and computer access
charges, officials said.

They said it was possible that computer hackers had obtained goods or cash
through use of unauthorized credit cards, but could not cite any instance
of it.

In addition to misuse of credit cards and phone lines the hackers are
believed to have gained access to computers that store medical and
financial histories, officials said.

Under new computer crime laws, the Secret Service has jurisdiction to
investigate allegations of electronic fraud through the use of access
devices such as credit-card numbers and long-distance codes.

Defendants convicted of unauthorized use of such devices can be sentenced
up to 10 years in prison if they commit fraud of more than $,100.

A similar investigation supervised by federal prosecutors in Chicago has
resulted in several indictments.
********************************************************************

AT&T NEWS BRIEFS via Consultant's Liason Program

Wednesday, May 9, 1990

HACKER WHACKER -- The Secret Service is conducting a coast-to-coast
investigation into the unauthorized use of credit-card numbers and
long-distance dialing as well as illegal entry into computer systems

by hackers, according to sources. ... AP ...  Authorities fanned out
with search warrants in fourteen cities Tuesday in an investigation of
a large nationwide computer hacker operation.  Officials of the Secret
Service, U.S. Attorney's Office and Arizona Attorney General's office
scheduled a news conference Wednesday to release details of the
operation.

UPI, 5/8 ... A Long Island [NY] teen, caught up in [the investigation],
dubbed Operation Sun Devil, has been charged ...  with computer
tampering and computer trespass.  State Police, who said [Daniel
Brennan, 17], was apparently trying to set up a surreptitious
messaging system using the [computer system of a Massachusetts firm]
and 800 numbers, raided his home Monday along with security officials
of AT&T. ... [A State Police official] said that in tracing phone
calls made by Brennan ... AT&T security people found that he was
regularly calling one of the prime targets of the Sun Devil probe, a
... hacker who goes by the handle "Acid Phreak."  ... New York
Newsday, p. 31.
****************************************************************************
>EXCERPTED From The Detroit News, Thursday, May 10, 1990, Section B, p.1:

FEDS PULL PLUG ON HACKERS
Computer-fraud raid hits two homes in Michigan

By Joel J. Smith, Detroit News Staff Writer

Secret Service agents got a big surprise when they raided a Jackson-area
home as part of an investigation of a nationwide computer credit card and
telephone fraud scheme.  They found a manual that details how almost
anybody can use a computer to steal.  It also describes how to avoid
detection by federal agents.  On Wednesday, James G. Huse, Jr., special
agent in charge of the Secret Service office in Detroit, said the manual
was discovered when his agents and Michigan State Police detectives broke
into a home in Clark Lake, near Jackson, on Tuesday.  Agents, who also
raided a home in Temperance, Mich., near the Ohio border, confiscated
thousands of dollars in computer equipment suspected of being used by
computer buffs -- known as hackers -- in the scheme.

The raids were part of a national computer fraud investigation called
Operation Sundevil in which 150 agents simultaneously executed 28 search
warrants in 16 U.S. cities.  Forty-two computer systems and 23,000 computer
disks were seized across the country.  The nationwide network reportedly
has bilked phone companies of $50 million.  Huse said the Secret Service
has evidence that computers in both of the Michigan homes were used to
obtain merchandise with illegally obtained credit card numbers.  He said
long-distance telephone calls from the homes also were billed to
unsuspecting third parties.

There were no arrests, because it was not known exactly who was using the
computers at the homes.  Huse also said there was no evidence that the
suspects were working together.  Rather, they probably were sharing
information someone had put into a national computer "bulletin board".

*****************************************************************************
                "Computer Hacker Ring with a Bay Area Link"
            (From: San Francisco Chronical, May 9, 1990: A-30)

The Secret Service yesterday searched as many as 29 locations in 13 cities,
including the family home of an 18-year-old San Jose State University
student, in an investigation of alleged fraud by computer hackers, law
enforcement sources said.

The 6 a.m. search on Balderstone Drive in San Jose sought computer
equipment allegedly used to "deal in pirate software and electronic fraud,"
San Jose police Seargeant Richard Saito said in a prepared statement.

The nationwide investigation, code-named "Operation Sun Devil," concerns
the unauthorized use of credit card numbers and long-distance dialing codes
as well as illegal entry into computer systems by hackers, said sources.

Saito said the probe centered on the "Billionaire Boys Cub computer
bulletin board" based in Phoenix. A press conference on the probe is
scheduled today in Phoenix.

The investigation in Phoenix is also focusing on incidents in which
copmputer hackers allegedly changed computerized records at hospitals and
police 911-emergency lines, according to one source.

The San Jose suspect was identified as Frank Fazzio Jr., whom neighors said
was a graduate of Pioneer High School and lives at home with his younger
sister and parents. Neither he nor his family could be reached for comment.

"I've never thought him capable of that sort of thing," said one neighbor
in the block-long stret located in the Almaden Valley section of south San
Jose.

Warrants were obtained by the Secret Service to conduct the search in San
Jose, as well as in Chicago; Cincinnati; Detroit; Los Angeles; Miami;
Newark, N.J.; New York City; Pittsburgh; Richmond, Va.; Plano Texas; and
San Diego.

Under new computer crime laws, the Secret Service has jurisdiction to
investigate allegations of electronic fraud through the use of access
devices such as credit card numbers and codes that long-distance companies
issue to indivdual callers.  Defendants convicted of unauthorized use of
such "access devaices" can be sentenced to 10 years in prison if they
commit fraud of more than $1,000.

                               END
         *************************************************

 
 ======================================================================

 From Marc Rotenberg of Computer Professionals for Social Responsibility
 Fri, Jun 15, '90      266 lines

 
 Here is a letter from the Director of the Secret Service to Don Edwards in
 response to questions raised by Edwards' Subcommittee. It is quite long as are
 the postings which follow it.  
 
 [This letter follows from a FOIA request sent by CPSR to the FBI in 
  August, 1989]      
               ------------------------------------------
 
                                         DEPARTMENT OF TREASURY
                                         UNITED STATES SECRET SERVICE
                                          WASHINGTON, DC 20223
                                         APR 30 1990 
 
 The Honorable Don Edwards
 Chairman
 Subcommittee on Civil and Constitutional Rights
 Committee on the Judiciary
 House of Representatives
 Washington,  D.C.  20515
 
 Dear Mr. Chairman:
 
 Thank you for your letter of April 3, 1990, concerning your 
 committee's interest in computer fraud.  We welcome the 
 opportunity to discuss this issue with your committee and I 
 hope the following responses adequately answer your 
 questions.
                                            
 Question 1:
 
 Please describe the  Secret Service's process for investigating 
 computer related crimes under Title 18, United States Code, 
 Section 1030 and any other related statutes.
 
 Response:
 
 The process by which the  Secret Service investigates 
 computer related crimes is similar to the methods we use to 
 investigate other types of criminal investigations.  Most of the 
 investigative techniques are the  same; surveillances, record 
 checks, witness and suspect interviews, etc.  the primary 
 difference is we had to develop resources to assist in the 
 collection and review of computer evidence.
 
 To provide  our agents with this expertise, the secret service 
 developed a computer fraud investigation course which, as of 
 this date, has trained approximately 150 agents in the proper  
 methods for conducting a computer fraud investigation.  
 Additionally, we established a computer  Diagnostics center, 
 staffed  with computer professional, to review evidence on 
 computer  systems.
 
 Referrals of computer related criminal investigations occur in 
 much the same manner as any other case.  A victim sustains a 
 loss and reports the crime, or, a computer related crime is 
 discovered during the course of another investigation.
 
 In the investigations  we do select, it is not our intention to 
 attempt to supplant local or state law enforcement.  We 
 provide enforcement in those cases that are interstate or 
 international in nature and for one reason or another are 
 beyond the capability of state and local law enforcement 
 agencies.
 
 When computer related crimes are referred by the various 
 affected industries to the local field offices, the Special 
 Agent in  Charge (SAIC) determines which cases will be 
 investigated based on a variety of criteria.  Each SAIC must 
 consider the economic impact of each case, the prosecutive 
 guidelines of the United States Attorney, and the investigative 
 resources available in the office to investigate the case .
                                               
 In response to the other portion of your question, the other 
 primary statute we use to investigate computer related crimes 
 is Title 18, United States  Code,  Section 1029 ( Access Device 
 Fraud).  This service  has primary jurisdiction in those cases 
 which are initiated outside a bank and do not involve  
 organized crime, terrorism, or foreign counterintelligence 
 (traditional responsibilities of the FBI).
 
 The term "access device" encompasses credit cards, debit 
 cards, automatic teller machines (ATM) cards, personal 
 identification numbers (PIN's) used to activate ATM machines, 
 credit or debit card account numbers, long distance telephone 
 access codes, computer passwords and logon sequences, and 
 among other things the computer chips in cellular car phones 
 which assign billing.
 
 Additionally, this Service has primary jurisdiction in cases 
 involving electronic fund transfers by consumer (individuals) 
 under Title 15, U. S. code, section 169n (Electronic Fund 
 Transfer Act).  This could involve any scheme designed to 
 defraud EFT systems used by the public, such as pay by phone 
 systems, home banking, direct deposit, automatic payments, 
 and violations concerning automatic teller machines.  If the 
 violations can be construed to be a violation of the  banking 
 laws by bank employee, the FBI would have primary 
 jurisdiction.  
 
 There are many other statutes which have been used to 
 prosecute computer criminals but it is within the purview of 
 the U.S. Attorney to determine which statute will be used to 
 prosecute an individual.
 
 Question 2:
 
 Has the Secret  Service ever monitored any computer bulletin 
 boards or networks?  Please describe  the procedures for 
 initiating such monitoring, and list those computer bulletin 
 boards or networks monitored by the Secret  Service since 
 January 1988.
 
 Response:
 
 Yes, we have occasionally monitored computer bulletin boards.  
 The monitoring occurred after we received complaints 
 concerning criminal activity on a particular computer bulletin 
 board.  The computer bulletin boards were monitored as part of 
 an official investigation and in accordance with the directives 
 of the Electronic Communications  Privacy  Act of 1986 (Title 
 18 USC 2510)
 
 The procedures used to monitor computer bulletin boards 
 during an official investigation have involved either the use of 
 an informant (under the direct supervision of the investigating 
 agent)  or an agent operating in an undercover capacity.  In 
 either case, the informant or agent had received authorization 
 from the computer bulletin board's owner/operator to access 
 the system.
 
 We do not keep records of the bulletin boards which we have 
 monitored but can provide information concerning a particular 
 board if we are given the name of the board.
 
 Question 3:
 
 Has the Secret Service or someone acting its direction ever 
 opened an account on a computer bulletin board or network?  
 Please describe the procedures for opening such an account and 
 list those bulletin boards or networks on which such accounts 
 have been opened since January 1988.
 
 Response:
 
 Yes, the U.S.  Secret Service has on many occasions, during the 
 course of a criminal investigation, opened accounts on 
 computer bulletin boards or networks.
 
 The procedure for opening an account involves asking the 
 system administrator/operator for permission to access to the 
 system.  Generally, the system administrator/operator will 
 grant everyone immediate access to the computer bulletin 
 board but only for lower level of the system.  The common 
 "pirate" computer bulletin boards associated with most of 
 computer crimes have many different level in their systems.  
 The first level is generally available to the public and does not 
 contain any information relation to criminal activity.  Only 
 after a person has demonstrated unique computer skills, been 
 referred by a known "hacker," or provided stolen long-distance 
 telephone access codes or stolen credit card account 
 information,  will the system administrator/operator permit a 
 person to access the higher levels of the bulletin board system 
 which contains the information on the criminal activity.
 
 As previously reported in our answer for Question 2, we do not 
 keep records of the computer bulletin boards on which we have 
 established accounts.
 
 Question 4:
 
 Has the Secret Service or someone acting under its direction 
 ever created a computer bulletin board or network that was 
 offered to the public?  Please describe any such bulletin board 
 or networks.
 
 Response:
 
 No, the U. S. Secret Service has not created a computer bulletin 
 board nor a network which was offered to members of the 
 public.   We have created an undercover bulletin board which 
 was offered to a select number of individuals who had 
 demonstrated an interest in conducting criminal activities.  
 This was done with the guidance of the U.S. Attorney's  office 
 and was consistent with the Electronic Communications 
 Privacy Act.
 
 Question 5:
 
 Has the Secret Service ever collected, reviewed or 
 "downloaded" transmissions or information from any computer 
 network or bulletin board?  What procedures does the Secret 
 Service have for obtaining information from computer bulletin 
 boards or networks?  Please list the occasions where 
 information has been obtained since January 1988, including 
 the identity of the bulletin boards or networks,  the type of 
 information obtained,   and how that information was obtained 
 (was it downloaded, for example).
 
 Response:
 
 Yes, during the course of several investigations, the U. S.  
 Secret Service has "down loaded" information from computer 
 bulletin boards.  A review of information gained in this manner 
 (in an undercover capacity after being granted access to the 
 system by it's system administrator)  is performed in order to 
 determine whether or not that bulletin board is being used to 
 traffic in unauthorized access codes or to gather other 
 information of a criminal intelligence nature.  At all times, 
 our methods are in keeping with the procedures as outlined in 
 the Electronic Communications Privacy Act (ECPA).
 
 If a commercial network was suspected of containing 
 information concerning a criminal activity, we would obtain 
 the proper court order to obtain this information in keeping 
 with the ECPA.
 
 The U. S. Secret Service does not maintain a record  of the 
 bulletin boards we have accessed.
 
 Question 6:
 
 Does the Secret Service employ, or is it considering employing, 
 any system or program that could automatically review the 
 contents of a computer file, scan the file for key items, 
 phrases or data elements, and flag them or recommend further 
 investigative action?  If so, what is the status of any such 
 system.  Please describe this system and research being 
 conducted to develop it.
 
 Response:
 
 The Secret  Service has pioneered the concept of a Computer  
 Diagnostic Center (CDC)  to facilitate the review and 
 evaluation of electronically stored information.  To streamline 
 the tedious task of reviewing thousands of files per 
 investigation, we have gathered both hardware and software 
 tools to assist our search of files for specific information or 
 characteristics.  Almost all of these products are 
 commercially  developed products and are available to the 
 public.  It is conceivable that an artificial intelligence process 
 may someday be developed and have application to this law 
 enforcement function but we are unaware if such a system is 
 being developed.
 
 The process of evaluating the information and making 
 recommendations for further investigative action is currently 
 a manual one at our CDC.  We process thousands of computer 
 disks annually as well as review evidence contained in other 
 types of storage devices (tapes, hard drives, etc.).   We are 
 constantly seeking  ways to enhance our investigative mission.  
 The development of high tech resources like the CDC saved 
 investigative manhours and assist in the detection  of criminal 
 activity.
 
 Again, thank you for your interest.  Should you have any further 
 questions, we will be happy to address them. 
 
                                                 Sincerely, 
                                                 /s/
                                                 John R.  Simpson, Director
 
 cc: Honorable Charles E.  Schumer 
 
 =============================================================================

 
 For those of you who have considered submitting an FOIA information request,
 Marc submits the following cautionary tale:   
 
 
 On August 18, 1989 CPSR submitted a Freedom of Information Act request to the
 FBI asking for information about BBS surveillance.  After four follow-up
 letters, a series of phone calls, and Congressional testimony that discussed
 the CPSR request, the FBI has failed to respond to our request.  (The
 statutory
 time limit for the FOIA is ten days).
 
 If any one has information about possible FBI surveillance of bulletin boards
 or networks, please send it to me. Specific dates, locations, BBSs are
 important.  (You can send information to me
 anonymously by land mail, if you need to protect your identity).

 Thanks for your assistance,                   
 
 Marc Rotenberg, Director
 CPSR Washington Office
 1025 Connecticut Ave., NW, Suite 1015
 Washington, DC 20036
 202/775-1588 (voice)
 202/775-1941 (Data)
 rotenberg@csli.stanford.edu or
 cdp!mrotenberg@arisia.xerox.com
 
           ---------------------------------------
 
    [CPSR FOIA Request to the FBI Regarding BBS Surveillance]


 CPSR Washington Office
 1025 Connecticut Avenue, NW
 Suite 1015
 Washington, DC  20036                         
 202 775-1588
 202 775-1941 (fax)
 
 Director
 Marc Rotenberg
                                                 August 18, 1989
 FOIA Officer
 FBI
 9th St. & Penn. Ave., NW
 Washington, DC  20535
 Dear FOIA Officer,
         This is a request under the Freedom of Information Act, 5 U.S.C. 552.
 
 Part I:       I write to request a copy of all materials relating to the FBI's
 collecf information from computer networks and bulletin boards, such as
 PeaceNet (San Francisco CA) or The Well (Berkeley CA), that are used
 frequently by political or advocacy organizations.  In particular, I would
 like any records which would indicate whether the Bureau is intercepting,
 collecting, reviewing, or "downloading" computer transmissions from any of the
 following networks and conferences: Action Southern Africa, AIDS Coalition
 Network, The American Peace Test, Amnesty International, Association for
 Progressive Communications, Beyond Containment, Center for Innovative
 Diplomacy, Central America Resource Center, Central America Resource Network
 (CARNet), The Christic Institute, Citizen Diplomacy, Community Data
 Processing, EcoNet, Friends of the Earth, Friends Committee on National
 Legislation, HandsNet, Institute for Peace and International Security, Media
 Alliance, Meiklejohn Civil Liberties Institute, National Execution Alert
 Network, Palo Alto Friends Peace and Social Action Committee, PeaceNet. Quaker
 Electronic Project, Web, The Well.
 
    This request includes public communications that take place through a
 bulletin board.  For example, this would include both transmissions that are
 available for public perusal, a "conference" or "posting," as well as
 transmissions that are directed from one party to one or more other specific
 parties and intended as private, "electronic mail."
 
 Part II:         I also request any records that would indicate whether the
 FBI, or anyoe acting at the behest or direction of the FBI, has any computer
 accounts on any computer bulletin boards operated by an advocacy or political
 organization, and, if so, the names of the bulletin boards, and whether the
 Bureau has indicated the actual organizational affiliation of the account
 holders to the system operators.
 
 Part III:         I also request any records that would indicate whether the
 Bureau has er operated, is currently operating, is involved in the operation
 of, or is planning to operate, a computer bulletin board that is intended for
 public use.
 
 Part IV:         I would also like any records which would indicate the
 circumstances unr which it would be appropriate for an agent or authorized
 representative, asset, informant, or source of the Bureau to intercept,
 collect, review, or "download" the contents of computer bulletin boards.
 
 Part V:         I would like any records relating to the FBI's development,
 research, or assessment of computer systems for automated review of
 information stored in an electronic format, obtained from a computer bulletin
 board or network.  
 
 Part VI:         Finally, I request any records that would indicate whether
 the FBI has developed, or is planning to develop, a system that could
 automatically review the contents of a computer file, scan the file for key
 terms or phrases, and then recommend the initiation of an investigation based
 upon this review.
 

 I ask that you check with your regional offices in San Francisco, San Jose,
 Austin, Phoenix, Los Angeles, and New York, in addition to the files that are
 available in Washington, DC.  I also ask that you consult with those agents
 involved in the investigation of computer crime to determine whether they
 might be aware of the existence of such records.  You should also check any
 documents relating to John Maxfield, who was employed by the Bureau to
 investigate computer bulletin boards.
 
  Under the Freedom of Information Act, you may withhold all properly exed
 materials.  However, you must disclose all non-exempt portions that are
 reasonably segregable.  I reserve the right to appeal the withholding or
 deletion of any information.
 
  Under the Freedom of Information Act, CPSR is entitled to a waiver of as for
 this request because the "disclosure of this information is likely to
 contribute significantly to the public understanding of the operations or
 activities of the government and is not primarily in the commercial interest
 of the requester."  CPSR is a non-profit, educational organization of computer
 scientists. Our work has been cited in scholarly journals, trade publications,
 and the national media. CPSR has particular expertise on the use of computer
 technology by the FBI, having prepared an extensive report on the proposed
 expansion of the NCIC at the request of Congressman Don Edwards.  For these
 reasons, CPSR is entitled to a waiver of all fees.
 
  If you have any questions regarding this request, please telephone me ae
 above number. I will make all reasonable efforts to narrow the request if you
 determine that it has been too broadly framed.
 
  As provided in the Freedom of Information Act, I will expect to receivea
 response within ten working days. 
                                                 Sincerely yours,
 
 
                                                 Marc Rotenberg, Director
                                                 Washington Offfice,
                                                 Computer Professionals
                                                 for Social Responsibility

              *************************************** 
 
 [CPSR letter to Congressman Don Edwards regarding FOIA request]
 
  
                                               
                                                         February 27, 1990
 Representative Don Edwards
 Subcommittee on Civil and 
 Constitutional Rights
 House Judiciary Committee
 806 House Annex 1
 Washington, DC  20515
 
 Dear Chairman Edwards:
         I am writing to you about a particular FOIA request that CPSR 
 has pursued since August of last year.  We asked the FBI for 
 information about the monitoring of computer networks and bulletin 
 boards.  We initiated this request because of the obvious civil 
 liberties interests -- speech, associational, and privacy -- that 
 would be endangered if the FBI's examination of the contents of 
 computer systems failed to satisfy appropriate procedural 
 safeguards.

         After six months of delay, five certified letters to the 
 Bureau's FOIA/Privacy Act office, and many phone calls with the 
 FBI's FOIA officers, we have not received even a partial response to 
 our request.  
         On September 20, 1989 a FOIA officer at the FBI assured us
 that information would be forthcoming "in a couple of weeks."  A 
 letter from the FBI FOIA/PA office on December 22 indicated that 
 information responsive to our request "has been located and will be 
 assigned for processing soon."  But when I spoke with a FBI FOIA 
 Officer on February 15, less than two weeks ago, I was told that 
 they "haven't even started" to process the request and that the FBI 
 couldn't say when we would receive a response.  (Please see 
 enclosed chronology and attachments).

         The need for this information is truly urgent.  Further delay 
 will constitute a denial.  Congress is now considering several 
 computer crime bills, such as H.R. 55 and H.R. 287, that could 
 broaden the authority of federal agents to examine the contents of 
 computer systems across the country.  There is a good chance that a 
 bill will pass before the end of this session.     

         Before opening the door to new forms of criminal 
 investigation, Congress and the public should have a complete 
 picture of the FBI's current practices.  Computer communications are 
 particularly vulnerable to surveillance and routine monitoring.  
 Computer mail unrelated to a particularized investigation could be 
 swept up in the government's electronic dragnet if the law is not 
 carefully tailored to a well defined purpose.  Without a clear 
 understanding of the civil liberties problems associated with the 
 investigation of computer crime, Congress may be exacerbating a 
 problem it does not yet fully know about.

         CPSR's Freedom of Information Act request could provide 
 answers to these questions.  The FOIA establishes a presumption 
 that the activities of government should be open to public review 
 and that agency records should be disclosed upon request.  But the 
 Bureau failed to comply with the statutory requirements of the FOIA 
 and frustrated our effort to obtain information that should be 
 disclosed.  Without this information computer users, the public, and 
 the Congress, may be unable to assess whether the Bureau's current 
 activities conform to appropriate procedural safeguards.

         Computer crime is a serious problem in the United States.  One 
 auditing firm places the annual loss between $3 billion and $5 
 billion.  Nonetheless, it is necessary to ensure that new criminal 
 law does not undermine the civil liberties of computer users across 
 the country.  We requested information from the FBI under the FOIA 
 to help assess the adequacy of current safeguards.  The Bureau failed 
 to respond.  The result is that the public is left in the dark at a time 
 when significant legislation is pending.        

         We would appreciate whatever assistance with this request 
 you might be able to provide.  

                                                         Sincerely yours,
 
 
 
                                                         Marc Rotenberg,
                                                         Director
                                                         CPSR Washington
                                                         Office
 
 
 Enclosure 
         Chronology of CPSR's FOIA Request regarding
         FBI Monitoring of Computer Networks with attachments
 
 cc:     Representative Charles Schumer
         Representative Wally Herger
 
         FBI FOIA/PA Office

            ********************************************
 
                   [Chronology of events]
 
                                 
         CPSR FOIA Request 
 
 FBI Monitoring of Computer Networks
 
 CHRONOLOGY
 
 
         Aug. 18, 1989   
 
 CPSR sends FOIA request to FBI seeking agency 
 records regarding the FBI's monitoring of computer 
 networks and computer bulletin boards used by 
 political and advocacy organizations.  The FOIA 
 request seeks information about: 
                 
 %       the FBI's surveillance of computer bulletin 
 boards and networks used by political 
 organizations;
 
 %       the FBI's creation of clandestine accounts on 
 computer bulletin boards and networks operated 
 by  political organizations;
 
 %       the FBI's creation of secret accounts on public 
 bulletin boards;
 
 %       the FBI's procedures regarding the downloading 
 of information contained on a computer bulletin 
 board;
 
 %       the FBI's research on the automated review of 
 the contents of information contained on 
 computer bulletin board and networks; and 
 
 %       the FBI's research on the  automation of the 
 decision to initiate a criminal investigation, 
 based on the contents of a computer 
 communication.
                 
   The letter requests a fee waiver based on the 
 public interest standard.  The letter  indicates that 
 CPSR has particular expertise in the evaluation of 
 the civil liberties implications of law enforcement 
 computer systems, having completed an extensive 
 report for the House Judiciary Committee on the 
 proposed expansion of the FBI's computer system, 
 the NCIC.  The letter further states that CPSR 
 would work with the FOIA/PA office to facilitate 
 the processing of the request. 
 
         Aug. 31, 1989   
 
 FBI response #1.  FBI sends a letter to CPSR 
 acknowledging receipt of the FOIA request and 
 designating the request "FBI's Computer Networks 
 and Bulletin Board Collection," request no. 319512.
 
         Sept. 20, 1989  
 
 CPSR speaks with FOIA Officer Keith Gehle 
 regarding status of request.  Mr. Gehle states that 
 he can not send a response "until he receives 
 responses from various agencies."  It is "difficult 
 to go to computing indices."  He says that he 
 expects to have information "in a couple of 
 weeks,"and will have a response "by October 5, at 
 the latest."
 
         Oct. 16, 1990   
 
 CPSR Follow-up letter #1.  CPSR confirms 
 conversation with Mr. Gehle regarding  Oct. 5 target 
 date and asks FOIA Officer to call to indicate the 
 status of the FBI's response to the request.  
 
         Oct. 26, 1989   
 
 CPSR speaks with Mr. Gehle.  He says, "we are 
 working on your request."  "We should have 
 something soon.  Hate to give a specific date, but 
 should have a letter for you within two weeks."
 
         Nov. 22, 1989   
 
 CPSR follow-up letter #2.  CPSR writes to Mr. 
 Gehle, notes that Mr. Gehle said he was working on 
 the request, and the that response should have been 
 sent by Nov. 9.  CPSR requests that FOIA officer 
 call CPSR by Dec. 1 to indicate the status of the 
 request.  
 
         Dec. 22, 1989   
 
 FBI response #2.  FBI sends letter, 
 acknowledging receipt of Oct. 16 and Nov. 22 
 letters.  The letter states that "[i]nformation which 
 may be responsive to your request has been located 
 and will be assigned for processing soon." The 
 letter indicates that the FOIA/PA office receives a 
 large number of requests and that delays are likely.
 
         Jan. 9 , 1990   
 
 CPSR follow-up letter #3.  CPSR writes to Mr. 
 Moschella, chief of the FOIA/PA office at the FBI, 
 acknowledges Dec. 22 letter and location of 
 responsive information.  Requests that records be 
 sent by Feb 18, 1990.                         
 
         Jan. 19, 1990   
 
 FBI response #3.  FBI sends letter stating that 
 the Bureau has allocated many agents to FOIA 
 processing, that a large number of requests are 
 received.  The letter further states that "a delay of 
 several months or more may be anticipated before 
 your request is handled in turn."
 
         Feb. 2, 1990    
 
 CPSR follow-up letter #4.  CPSR writes to Mr. 
 Moschella, acknowledges Jan. 19, expresses 
 concern about delay.  Letter notes that CPSR was 
 assured by a FOIA officer in the fall that "request 
 would be answered within 'a couple of weeks.'" 
 
         Feb. 15, 1990   
 
 CPSR receives call from Mr. Boutwell.  According to 
 Mr. Boutwell, FBI can't say when request will be 
 processed. "Haven't even started.  Backlogs and lay-
 offs during past year . . ."  CPSR: FOIA Officer 
 indicated information had been located. FBI: Too 
 optimistic. "Request not yet assigned to an analyst 
 . . .   working now on 1988 requests . . . Litigation is 
 taking up time . . .  analyst is taking time away 
 from document review for  litigation . . .  increased 
 requests, fewer personnel, lots of other factors.   
 Would expedite for life and death or due process, 
 pursuant to agency regulations." CPSR: so when do 
 we receive a response?  FBI: "Can't say."
 
=============================================================================

  Sun Devil gives birth to the Electronic Frontier Foundation

 
THE ELECTRONIC FRONTIER FOUNDATION
One Cambridge Center, Suite 300
Cambridge, MA       02142
617/577-1385
617/225-2347 fax
eff@well.sf.ca.us


     
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.

======================================================

ACROSS THE ELECTRONIC FRONTIER

by
John Perry Barlow and Mitchell Kapor
Electronic Frontier Foundation
Washington, DC
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 manifestion, 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 whom?" 

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 inhabits, 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 policy-
makers about the opportunities and challenges posed by developments in
computing and telecommunications. 

* Encourage communication between the developers of technology, government and
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.
    
======================================================


    FOR IMMEDIATE RELEASE
 
 Contact: Marc Rotenberg (202) 775-1588    
 
 CPSR TO UNDERTAKE EXPANDED CIVIL LIBERTIES PROGRAM 
 
 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 
 CPSR Washington Office 
 1025 Connecticut Avenue, NW 
 Suite 1015 
 Washington, DC 20036 202/775-1588 
 
 Gary Chapman 
 CPSR National Office 
 P.O. Box 717 
 Palo Alto, CA 94302 
 415/322-3778 
    
======================================================

(The following is a discussion of legal issues currently engaged by the
Electronic Frontier Foundation)


ELECTRONIC FRONTIER FOUNDATION  

LEGAL CASE SUMMARY
July 10, 1990

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
 
======================================================
 
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 "the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures."  Judges are not to issue search warrants for
private property unless the law enforcement officer seeking the warrant
demonstrates the existence of "a 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 

========================================================================
 
 U.S. Attorney Visits The EPIC Project Online -- July 6, 1990 --
 after EPIC Founder Jeff Aldrich speaks out against government
 raids as a panelist on KPFA-FM "Electronic Democracy" broadcast July 5,
 1990.  The following is an account of that electronic visit.


                           Libertarian Fedz?

   I was interrupted by a "yell for sysop" around noon today.  The user's
name was Joe Dew, from the U.S. Attorney's Office in San Francisco.  Prior to
yelling, he checked the user list for Mike Yamaguchi.

   Mike was in the bbs just after a 4-20-90 half page ad ran in the Wall
Street Journal, "If You Own a Computer You Can Change Congress," asking
those with an interest to login.  He checked things out and appeared to
capture, among other things, the text of a proposed Constitutional Amendment
we distributed electronically in California earlier this year.   Mike
Yamaguchi's login had that "something fishy" strangeness about it.  I found
out why today during a chat with Joe the fed.  I didn't capture -"tape" our
conversation. The following is a careful recap from memory.

  Rather than trying to hide, Joe Dew wanted to chat and did so with candor.

   Joe:  I just heard about EPIC.  Can I see the government files or are they
         private?

 Sysop:  They're in the file section and everything is public.

   Joe:  How do I get there?

 Sysop:  Would you like a tour?

   Joe:  Yes.

 Sysop:  Hang on...

   Off we went for a peek at Information Age Democracy with his capture wide
open for a screen full or two:  OTA Critical Connections summary chapter,
ALA Summary of HR3849, campaign finance disclosure reports on federal, state
and local politicians, county/city meeting agendas, voting records and
approved minutes.  I didn't bother with the user list, he'd already been
there.

 Back to chat...

 Sysop:  Was that enough information?  Or would you like more?

   Joe:  Wow!  That was enough government information, but I didn't get any
         information on EPIC.  Is it a government related agency?  Why are you
         doing this?  Are you a group of hackers?  Where do I get
         information on EPIC?

 Sysop:  "A bunch of hackers?"  Hardly.  EPIC is a nonprofit public benefit
         corporation; a citizen operated and supported electronic publisher
         providing free public access to government documents and
         information.  Board members include legal eagles, constitutional
         scholars and activists.  I appreciate your interest.  You know who I
         am, may I ask who you are?  Media or fedz?

   Joe:  Strange that you ask.  I'm with the government.

 Sysop:  As in fedz?

   Joe:  Well, both actually.  I'm with the U.S. Attorney's Office, but I'm
         leaving in a month to work with a media marketing company.  I'm
         new to this and meant no offense asking about hackers.

 Sysop:  None taken.  It's just that many of us are concerned about "thought
         police" because of recent events.  Not that we have anything to
         hide, but the current climate is, well...tense.

   Joe:  I haven't been out of college long...and going to work here changed
         my mind about fedz.  They're some of the most libertarian people
         I've met.  I understand your uneasiness, but there's no need to be
         concerned.  Our office concentrates on drug dealers.

 Sysop:  Don't be a stranger, you're welcome here.  And tell Yama...(whatever)
         he's welcome too.  Thanks for your candor.

   Joe:  He's out to lunch right now.  But I'll tell him, his office is just
         down the hall.

 Sysop:  I'll put some of the information you asked for in the public file
         section so you'll be able to grab it at your leisure.

   Joe:  Thanks, I gott'a go.

 Sysop:  bb

   I took him back to the opening menu for an easy exit.  Joe the fed seemed
like a nice guy, a regular person.  The fact he didn't fit my picture of
"thought police" ran through my mind.  As if I had a Polaroid tucked away in
a dusty album or had seen'em in the "T" volume encyclopedia sitting on the
shelf.  His effort to reasure me I had no reason for concern did little to
ease the Orwellian tension of his visit.

   I considered asking Joe the fed why he thought EPIC might be a group of
hackers.  My social conditioning would give little merit to his answer, so
it wasn't worth asking.  I wondered if he was reading the hackers conference
on the Well or heard me on the radio yesterday.  As disappointing as it might
be, the local high school kids fix our computer when it decides to act up.
The only hack I'm guilty of is the mess I made in my home directory trying to
automate my conferencing on the Well.

   Joe the fed made my day.  For a moment he elevated me to genuine computer
literacy.  He logged off and it was back to the reality of fumbling with a
label program to get the mail out before five.

============================END OF FILE=======================================




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