A Not Terribly Brief History of the Electronic Frontier Foundation by John Perry Barlow Thursday, November 8, 1990 The Electronic Frontier Foundation was started by a visit from the FBI. In late April of 1990, I got a call from Special Agent Richard Baxter of the Federal Bureau of Investigation. He asked if he could come by the next day and discuss a certain investigation with me. His unwillingness to discuss its nature over the phone left me with a sense of global guilt, but I figured turning him down would probably send the wrong signal. On Mayday, he drove to Pinedale, Wyoming, a cow town 100 miles north of his Rock Springs office (where he ordinarily investigates livestock theft and other regional crimes). He brought with him a thick stack of documents from the San Francisco office and a profound confusion about their contents. He had been sent to find out if I might be a member of the NuPrometheus League, a dread band of info-terrorists (or maybe just a disaffected former Apple employee) who had stolen and wantonly distributed source code normally used in the Macintosh ROMs. Agent Baxter's errand was complicated by a fairly complete unfamiliarity with computer technology. I realized right away that before I could demonstrate my innocence, I would first have to explain to him what guilt might be. The three hours I passed doing this were surreal for both of us. Whatever this source code stuff was, and whatever it was that happened to it, had none of the cozy familiarity of a few yearling steers headed across the Wyoming border in the wrong stock truck. What little he did know, thanks to the San Francisco office, was also pretty well out of kilter. He had been told, for example, that Autodesk, the publisher of AutoCAD, was a major Star Wars defense contractor and that its CEO was none other than John Draper, the infamous phone phreak also known as Cap'n Crunch. As soon as I quit laughing, I started to worry. I realized in the course of this interview that I was seeing, in microcosm, the entire law enforcement structure of the United States. Agent Baxter was hardly alone in his puzzlement about the legal, technical, and metaphorical nature of datacrime. I also found in his struggles a framework for understanding a series of recent Secret Service raids on some young hackers I'd met in a Harper's magazine forum on computers and freedom. And it occurred to me that this might be the beginning of a great paroxysm of governmental confusion during which everyone's liberties would become at risk. When Agent Baxter had gone, I wrote an account of his visit and placed it on the WELL, a computer BBS in Sausalito which is digital home to a large collection of technically hip folks, including Mitch Kapor, the father of Lotus 1-2-3. Turns out Mitch had also been visited by the FBI, owing to his having unaccountably received of one of the source code disks which NuPrometheus scattered around. Mitch's experience had been as dreamlike as mine. He had, in fact, filed the whole thing under General Inexplicability until he read my tale on the WELL. Now he had enough corroboration for his own strange sense of alarm to begin acting on it. Several days later, he found his bizjet about to fly over Wyoming on its way to San Francisco. He called me from somewhere over South Dakota and asked if he might literally drop in for a chat about Agent Baxter and related matters. So, while a late spring snow storm swirled outside my office, we spent several hours hatching what became the Electronic Frontier Foundation. I told him about the sweep of Secret Service raids which had taken place several months before and their apparent disregard for the Bill of Rights. Alarmed, he gave me the phone number of Harvey Silverglate, whose willingness to champion unpopular causes was demonstrated by his current defense of Leona Helmsley. He said that Harvey would probably know if this were as bad as it was starting to sound. He also said that he would be willing to pay the bills that generally start to appear whenever you call a lawyer. I finally found Harvey in the New York offices of Rabinowitz, Boudin, Standard, Krinsky and Lieberman, a firm whose long list of successfully defended liberties includes the Pentagon Papers case. I told him and Eric Lieberman what I knew about recent government flailings against cybercrime. They were even less sanguine than I had been. The next day a trio code-named Acid Phreak, Phiber Optik, and Scorpion entered the walnut-panelled chambers of Rabinowitz, Boudin and told their tales to a young lawyer there named Terry Gross. While EFF as a formal organization would not exist for another two months, its legal arm was already flexing its muscle. A few days later I received a phone call from the technology writer for the Washington Post. He was interested in following up on the Harper's forum, and knew nothing of Mitch's and my joint endeavors. I filled him in, hoping to expose the Secret Service. Several days later, the Post published the first of many newspaper stories, all of which could have shared the same headline: LOTUS FOUNDER DEFENDS HACKERS. While this was an irritating misrepresentation...we were more interested in defending the Constitution than any digital miscreants...the publicity produced a couple of major supporters: Steve Wozniak, who called and offered an unlimited match to Mitch's contributions, and John Gilmore (Sun Microsystems employee #5) who e-mailed me a six figure offer of support. Meanwhile, the list of apparent outrages lengthened. We learned about an Austin role-playing games publisher named Steve Jackson whose office equipment had been confiscated by the Secret Service in an apparent effort to restrain his publication of a game called Cyberpunk which they tght, with ludicrous inaccuracy, to be " a handbook for computer crime. All over the country computer bulletins being confiscated, undelivered e- mail and all. A Secret Service dragnet called Operation Sundevil seized more than 40 computers and 23,000 data disks from teenagers in 14 American cities, using levels of force and terror which would have been more appropriate to the apprehension of urban guerrillas than barely post- pubescent computer nerds. And there was the Craig Neidorf case. Neidorf, also known by the nom de crack Knight Lightning, had published an internal BellSouth document in his electronic magazine Phrack. For this constitutionally protected act, Neidorf was being charged with interstate transport of stolen property with a possible sentence of 60 years in jail and a $122,000 in fines. I wrote a piece about these events called Crime & Puzzlement. Although I did so at the request of the Whole Earth Review...it made its first print appearance in the Fall 1990 issue of WER...I " published" it on the Net in June and was astonished by the response. It was like planting a fence-post and discovering that the " ground" into which you've driven it is actually the back of a giant animal which quivers and heaves at the irritation. By July, I was receiving up to 100 e-mail messages a day. They came from all over the planet and expressed nearly universal indignation. I began to experience datashock, but I also realized that Mitch and I were not alone in our concerns. We had struck a chord. In Cambridge, Mitch was having something like the same experience. Since the Washington Post story, he found himself bathed in media glare. However, the more he learned about ambiguous nature of law in Cyberspace, the more of his considerable intellectual and financial resources he became willing to devote to the subject. In late June, Mitch and I threw several dinners in San Francisco, to which we invited major figures from the computer industry. We weren't surprised to learn than many of them had exploits in their past which, undertaken today, would arouse plenty of Secret Service interest. It appeared possible that one side-effect of current government practices might be the elimination of the next generation of computer entrepreneurs and digital designers. It also became clear that we were dealing with a set of problems which was a great deal more complex and far-reaching than a few cases of governmental confusion. The actions of the FBI and Secret Service were symptoms of a growing social crisis: Future Shock. America was entering the Information Age with neither laws nor metaphors for the appropriate protection and conveyance of information itself. We realized that our legal actions on behalf of a few teen-age crackers would go on indefinitely without much result unless something were done to ease social tensions along the electronic frontier. The real task at hand was the civilization of Cyberspace. Such an undertaking would require more juice and stamina than two men could muster, even amplified by the Net and a solid financial supply. We would need some kind of organizational identity. With this in mind, we hired a press coordinator, Cathy Cook (who had formerly done PR for Steve Jobs), set a squad of lawyers to work on investigating the proper organizational tax status, and, over a San Francisco dinner with Stewart Brand, Nat Goldhaber, Jaron Lanier, and Chuck Blanchard, we selected a name and defined a mission. We announced the formation of the Electronic Frontier Foundation at the National Press Club on July 10. Mitch and I were joined for the announcement by Harvey Silverglate, Terry Gross, and Steve Jackson. We were also joined by Marc Rotenberg of the Washington office of Computer Professionals for Social Responsibility. One of our first official acts had been to grant that organization $275,000 for a project on computing and civil liberties. CPSR would keep a wary eye on developments " inside the Beltway" and work in conjunction with congressional staffers to see that any legislation dealing with access to information was sensibly drafted. While in Washington, we also took inventory of the terrain, meeting with congressional staffers, the Washington civil liberties establishment, and officials from the Library of Congress and the White House. The area to be covered, from intellectual property to telecommunications policy to law enforcement technique, was daunting, as were the ambient levels of confusion and indifference. We also generated an enormous amount of press. And it became apparent that not everyone was persuaded of our cause. Business Week called Mitch naive for his willingness to believe that computer crackers were somehow less dangerous that drug kingpins. Various burghers of the computer establishment, ranging from the executive director of the Software Publishers Association to a columnist for ComputerWorld, called us fools at best and, more likely, dangerous fools. The Wall Street Journal printed a particularly hysterical piece which alleged that the document Craig Neidorf (into whose case we had entered a supporting amicus brief) had published was a computer virus capable of bringing down the emergency phone system for the entire country. In fact, the text file which Neidorf distributed dealt with the bureaucratic procedures of 911 administration in the BellSouth region and contained nothing which could be used to crack a system. Indeed, it contained nothing which could not be easily obtained through by legal means. We persevered. Our first major break came in late July. Thanks in part to the expertise of John Nagel, a witness we introduced to Neidorf's lawyer, the government was forced to abandon its case against Neidorf after 4 days in Chicago's Federal Court. Although our briefs supporting Neidorf's activities under the 1st Amendment were not admitted, it became apparent, before such loftier matters could even be broached, that the Secret Service had indicted him with no clear understanding of the purpose or availability of the document he had distributed. Like Agent Baxter, they knew too little to critically examine the misinformation they had been given by the corporate masters, in this case, officials at Bellcore. Following the resolution of the Neidorf case, and, to some extent because of it, skepticism of EFF has moderated considerably. If anything, the most recent press accounts of our activities have been almost fulsome in their praise. Recent favorable coverage has appeared in the New York Times, The Economist, Infoworld, Information Week, PCweek, and Boston Magazine. Since July, we have been absurdly busy on numerous fronts: We've worked on raising public awareness of the issues at stake. We are organizing legal responses to the original and continuing intemperance of law enforcement. We have worked on the political front, developing and lobbying for rational computer security legislation. We have started to create a network of interested experts on computer security, intellectual property, telecommunications policy, and international information rights. And lately we've been attending to the organizational demands of the non-profit equivalent of a hyper-successful computer startup. The following is a cursory digest of these activities. The EFF in Public We believe that critical to taming the electronic frontier is creating a sense of the stakes among both the computer literate and the general public. We have combined public appearances, that incredibly blunt instrument, the Media, and electronic interaction to cover a lot of consciousness since July. It's a good thing Mitch has that airplane. We have continued to build a constituency within the computing community, convening small gatherings of computer professionals from across the hacker/suit spectrum. Mitch, Harvey, and I have also addressed larger forums such as the CPSR Annual Meeting, the International Information Integrity Institute meeting on computer security, the Computer Science and Telecommunications Board of the National Academy of Science and Engineering, Stewart Alsop's Agenda '91, MacHack, the Boston Computer Society, Ars Electronica, the Kennedy School of Government, and numerous others. We have done more press interviews and call-in radio shows than I can remember. Woz appeared on Good Morning America with Assistant Arizona AG (and Operation Sundevil architect) Gail Thackery. EFF has appeared prominently in national publications ranging from Newsweek to Spin, most of the major daily newspapers, and nearly every computer trade publication from Information Week to Mondo 2000. A writer for The New York Times Magazine is currently at work on a major piece about EFF. I have agreed to write a regular column on the Electronic Frontier for the Communications of the ACM. And Mitch and I have been invited to submit pieces to Scientific American, Issues in Science and Technology, and Whole Earth Review. We set up two Usenet newsgroups, comp.org.eff.news and comp.org.eff.talk. eff.news is moderated by Glenn Tenney and contains a selection of the best articles posted in eff.talk. We began an EFF forum on the WELL (which soon became among the most active conferences there, right behind Sex and the Grateful Dead). We are setting up our own USENET node on the Net, eff.org, with a Sun IV in our Cambridge office and the guidance of volunteer sysop Spike Ilacqua. When fully operational, the machine will run the Caucus conferencing system and should have a 56kb Internet connection. Finally, we are investigating the possibility of setting up an EFF conference on Compuserve. We have read and personally generated over 4 megabytes of e-mail since June. Lately, Jef Poskanzer has been maintaining the EFF's electronic mailing list, which is now approaching 1000 names. Information distributed through eff.news is also sent to the mailing list. Concerned that our approach is a little too electronic, we are now trying to connect more directly with folks who might be interested in EFF but who are not online. Our newsletter, the first edition of which you now have in your hands, is part of that effort. Primarily the work of Rick Doherty and Dan Sokol, we intend to publish The EFFector a minimum of 4 times a year. Finally, we are working with Jim Warren and a variety of groups to organize a major international conference on Communications, Privacy, and Freedom to be held in San Francisco in March of 1991. This gathering is being designed to include citizens who are not technologically sophisticated. Legal Issues In the beginning, we had thought that most of our activities would either take place in court or on the way there. While this hasn't quite been the case, legal matters still require much of our time and by far the lion's share of our expenditures. Since the Neidorf case, most of our legal activity has been, of necessity, low-profile. It is not strategically sound to announce lawsuits well in advance of filing them, and, while there remains a lot of dubiously confiscated equipment in constabulary storage, we are not going to jeopardize our ends by telegraphing their means. We are currently preparing cases on a variety of fronts, proceeding at the deliberate pace characteristic of both geology and the law. We remain primarily interested in those cases in which constitutional issues are at stake. We are investigating incidents in which the First Amendment rights of computer users may have been abridged, where searches and seizures appear to have exceeded the authority of the Fourth Amendment, where the government seems to have violated the Electronic Communications Privacy Act, and where warrants have been issued with insufficient cause. There is no shortage of legal opportunities here. The problem is picking the best ones. We are still working with two law firms, Silverglate and Good of Boston and Rabinowitz, Boudin, Standard, Krinsky, and Lieberman of New York. We also have dealings with Katten, Muchin & Zavis, the Chicago firm of Craig Neidorf's attorney, Sheldon Zenner, and are considering offers of pro bono assistance from a number of other firms around the country. We recently hired Mike Godwin, a freshly minted Texas lawyer and USENET adept, to sort through the factual and legal details of the many cases we are being asked to intervene in. In his short time with us, he has investigated several cases to determine their fit with EFF's constitutional mission, their winnability, and their likelihood of producing clear legal precedent. We have a conference call of the EFF Legal Committee every other Wednesday to discuss the current state of our cases and any new possibilities we might wish to take on. The Legal Committee includes Mitch, Mike Godwin, Harvey Silverglate, Sharon Beckman (of Silverglate & Good), Terry Gross (of Rabinowitz, Boudin), and myself. We also have a private conference on the WELL to distribute briefs, documents, and other legal information among the members of the committee. Mike Godwin is also EFF's liaison with a committee of the American Bar Association which is investigating government actions in Operation Sundevil. Chaired by Judge William McMahon of Ohio, the committee is devising ABA guidelines for computer searches and seizures. EFF will have an important role in establishing the committee's recommendations. The Art of the Possible Despite the patience it requires, the political process offers many opportunities to pursue EFF's agenda. We have been working on two different fronts to promote government rationality toward computer use, in Washington, where we are working closely with the CPSR Civil Liberties and Computing Project which we funded, and in Massachusetts where we have been successful in developing model legislation. CPSR, through the able efforts of Marc Rotenberg, has filed a lawsuit in federal district court in the District of Columbia to obtain information from the FBI about the monitoring of computer bulletin boards. This follows similar efforts which forced the Treasury Department to admit that the Secret Service was in fact monitoring BBS's. Marc also testified before the Subcommittee on Technology and Law of the Senate Judiciary Committee on S. 2476, the Computer Abuse Amendments Act of 1990. CPSR supported the proposed addition of a recklessness misdemeanor provision, calling attention to problems surrounding Operation Sun Devil and the civil liberties issues raised by the investigation of computer crime. The testimony was well received and widely reported in the press, but Congress adjourned before passing the amendments. In Massachusetts, we headed off a misguided computer crime bill which had made it all the way to the desk of Governor Dukakis. Not only did we persuade the Governor not to sign it, we organized an effort to rewrite the bill for re-submission to the Massachusetts Legislature. Sharon Beckman of Silverglate and Good drafted much of the new legislation, which, if it passes, will serve as a model law for other states to emulate. The new bill draws a clear distinction between computer trespass and actual malice, proposing appropriate penalties for each. It also instructs law enforcement agencies to be aware of the constitutional issues involved in the investigation of computer crime. Intellectual Property This phrase has always sounded like an oxymoron to me. " Property" seems to imply something more tangible than the mysterious stuff to which the term applies, and it is from this ambiguity that arises much of the difficulty along the electronic frontier. Just as limited bandwidth was the excuse for applying censorship to broadcast media, it appears that the zealous protection of intellectual property presents the greatest threat to free digital expression. For this reason, the definition and regulation of intellectual property is a matter of great concern to EFF. However, we recognize that the established canon of copyright and patent law is so fundamentally inadequate to the demands of the Information Age that any effort to made a significant difference in this area could consume all of EFF's resources. Nevertheless, both Mitch and I intend to devote a lot of our personal time to this issue. Mitch is especially well situated to make a difference. As the author of the most successful (as well the most pirated) piece of software in history, he has an important and credible voice amid the babble of obsolete legalisms which surrounds the discussion of intellectual property. Marc Rotenberg is also working in this area. He attended the first meeting of the Office of Technology Assessment panel on intellectual property. Marc recommended that the OTA give careful consideration to the public interest issues that might be raised by various forms of intellectual property protection. The OTA has agreed to host a workshop on this topic and has asked CPSR to prepare a short report. Designing the Future Net Sometimes it seems as if all of humanity is engaged in a Great Work...which I imagine to be the hard-wiring of human consciousness. It is as if we must literally connect ourselves electronically before we can appreciate the connections which have always existed. As exalted as such an undertaking might sound, the actual wiring process is as tedious as any endeavor I can imagine. In addition to building hard infrastructure...fiber optic cabling, link stations, and microwave towers...the policy process surrounding telecommunications and information delivery is arcane and convoluted beyond ability of any but the most dedicated student to understand it. As a consequence, those large institutions with a clear financial stake are the only entities which have taken the trouble. This leaves the average citizen with no voice in the some of the most important decisions about how his future will be designed. Fortunately, Mitch is also willing to take these issues on. Working with Jerry Berman of the ACLU, Mitch and the EFF intend to create an " information consumers communications policy forum" to bring together the Baby Bells, AT&T, other telcos, the FCC, newspaper publishers, online information services, and other stakeholders to discuss how their vision of the future of the Net serves the public interest. Mitch is also meeting with Net hackers and visionaries to begin to develop a sense of where we want to go and how we might get there. His own vision: " a reliable digital network available to everyone with no restrictions on content and policies which promote information entrepreneurship.S He will be devoting a lot of his time to this issue. Again, EFF will support his efforts to the extent it can do so without diminishing its effectiveness on the civil liberties front. An Information Bill of Rights When we first defined the mission of the Electronic Frontier Foundation, we saw our task as assuring the application of the U.S. Constitution to digital media. And this remains much of what we are about. However, information has little natural regard for national borders or local ordinances. Cyberspace is transnational. During the tsunami of e- mail which Crime & Puzzlement elicited, there were many items from foreign countries. Their authors wanted to know how they could protect or establish their rights of free expression. And I had no idea what to tell them. The question arose again at Esther Dyson's recent East-West Technology Conference in Budapest which Mitch and I attended. EFF was well-known among the Soviets at this meeting, some of whom were already involved in drafting what they called an Information Bill of Rights. (One young Moscow programmer had managed to hack together an Internet connection through Finland in order to contact me.) Like intellectual property and telecom policy, the development of international principles of free digital speech is a large angel to wrestle with. We will have to be careful not to allow this immense task to divert EFF from its specific legal agenda. But neither can we ignore the fact that Cyberspace is hardly an American territory. Nuts and Bolts The Electronic Frontier Foundation grew from an effort to fight a specific legal brushfire into a full-fledged Cause much faster than we could have imagined. And, like any explosive start-up, it spends a lot of time playing catch-up. Electronically amplified, Mitch and I were able to personally conduct much of EFF's business in the first few months of operations. But gradually we had to confront the fact that while the Net is very broad, it is also quite shallow. Without even a sense of their physical location, we have been unable to marshal the hundreds of people who have e-mailed us with their volunteered services. Also, we found ourselves administering a significant cash-flow in both donations and expenditures. (By year's end, EFF will have spent around $220,000. Our tentative 1991 budget predicts expenses of almost half a million.) So, despite a mutual terror of bureaucracy and organizational sclerosis, we have started to adopt some institutional trappings. First, in order to satisfy the requirements for a 501c3 tax status (which we should have in about six months), we found that we needed something more substantial than two guys with modems. Thus, on October 9, we held our first official board meeting and formally elected Stewart Brand, Steve Wozniak, and John Gilmore to join us as board members. And we have started to take on staff. In addition to the affore-mentioned Mike Godwin, we have contracted Judith Nies to come in to the office once a week and work on correspondence the requests for information which come in via the telephone and mail. We have also advertised for an Executive Director. We hope to hire this individual soon and expect him/her to attend to the many administrative details which have begun to gobble our time (Mitch has been especially swamped.). Upon his/her arrival, we will be able to devise policies regarding membership, coordination of volunteers, local chapters, and other organizational dimensions. Finally, after many months as eff@well.sf.ca.us, we have established a location in the material world. Our office is at: The Electronic Frontier Foundation 155 Second St. Cambridge, MA 02141 (617)864-0665 (617)864-0866 fax We are determined that EFF will remain an agile, swift-moving sort of outfit. We will adopt any new bureaucratic manifestations with the greatest skepticism. But we are being bombarded with many legitimate requests for assistance, advice, and information. In order to respond rapidly and appropriately, the Electronic Frontier Foundation has had to become an institution. One method by which we hope to maintain organizational lightness involves keeping a clear distinction between strategy and tactics. On the strategic level, EFF has a very broad mission involving such amorphous endeavors as defining intellectual property, helping establish a transnational culture of information, designing telecommunications policy, sponsoring humane software design... civilizing Cyberspace. With an appropriate sense of their limitations, the board members will remain responsible for these matters. This will prevent the staff's losing tactical focus on more tangible action items like litigation, political action, communicating through the press and across the Net, and organizational care and feeding. The Kicker The problem with history is that it keeps happening. Today, as I was working on this EFF mini-biography, I learned that Mitch has just had his fingerprints subpoenaed by the FBI. Turns out they are now examining the NuPrometheus distribution disks for fingerprints and want to be able to sort his out. Or, perhaps, search for their appearance on other disks... So the Wheels of Justice grind blindly on. And we will go on trying to prevent anyone's being ground up in them. THE ELECTRONIC FRONTIER FOUNDATION One Cambridge Center, Suite 300 Cambridge, MA 02142 617/577-1385 617/225-2347 fax eff@well.sf.ca.us Saturday, July 21, 1990 Good people, Greetings. Some of you who read Crime and Puzzlement when it first went digital and offered immediate help in dealing with the issues raised therein. It's been five weeks since I promised to get back to you "shortly." It is now clear that we are operating on political rather than electronic time. And political time, though not so ponderous as geologic time or, worse, legal time, is hardly swift. The Net may be instantaneous, but people are as slow as ever. Nevertheless, much has happened since early June. Crime and Puzzlement rattled all over Cyberspace and has, by now, generated almost 300 unsolicited offers of help...financial, physical, and virtual. At times during this period I responded to as many as 100 e-mail messages a day with the average running around 50. (The voice of Peter Lorre is heard in the background, repeating, "Toktor, ve haf created a *monster*.") Well, we have at least created an organization. Lotus founder Mitch Kapor and I have founded the Electronic Frontier Foundation, an endeavor for which we have immodest ambitions. Descending from the Computer Liberty Foundation mentioned in Crime and Puzzlement, the EFF has received initial (and extremely generous) funding from Mitch, Steve Wozniak, and another Silicon Valley pioneer who wishes to remain anonymous. We have also received many smaller offers of support. As you will see in the accompanying press release, we formally announced the EFF at a press conference in Washington on July 10. The press attention was lavish but predictable...KAPOR TO AID COMPUTER CRIMINALS. Actually, our mission is nothing less than the civilization of Cyberspace. We mean to achieve this through a variety of undertakings, ranging from immediate legal action to patient, long-lasting efforts aimed at forming, in the public consciousness, useful metaphors for life in the Datasphere. There is much to do. Here is an abbreviated description of what we are already doing: * We have engaged the law firms of Rabinowitz, Boudin, Standard, Krinsky & Lieberman and Silverglate & Good to intervene on behalf of Craig Neidorf (the publisher of Phrack) and Steve Jackson Games. (For a digest of the legal issues, please see the message following this one.) We became involved in these particular cases because of their general relevance and we remain alert to developments in a number of other related cases. Despite what you may have read, we are not involved in these legal matters as a "cracker's defense fund," but rather to ensure that the Constitution will continue to apply to digital media. Free expression must be preserved long after the last printing press is gathering museum dust. And we intend an unequivocal legal demonstration that speech is speech whether it finds form in ink or in ascii. * We have funded a significant two-year project on computing and civil liberties to be managed by the Computer Professionals for Social Responsibility. With it, we aim to acquaint policy makers and law enforcement officials of the civil liberties issues which may lie hidden in the brambles of telecommunications policy. (A full description of this project follows.) * During the days before and after the press conference, Mitch and I met with Congressional staffers, legal authorities, and journalists, as well as officials from the White House and Library of Congress. Thus we began discussions which we expect to continue over a period of years. These informal sessions will relate to intellectual property, free flow of information, law enforcement training and techniques, and telecommunications law, infrastructure, and regulation. Much of this promises to be boring as dirt, but we believe that it is necessary to "re-package" the central issues in more digestible, even entertaining, forms if the general public is to become involved in the policies which will fundamentally determine the future of American liberty. * Recognizing that Cyberspace will be only as civilized as its inhabitants, we are working with a software developer to create an "intelligent front end" for UNIX mail systems. This will, we hope, make Net access so easy that your mother will be able cruise around the digital domain (if you can figure out a way to make her want to). As many of you are keenly aware, the best way, perhaps the only way, to understand the issues involved in digital telecommunications is to experience them first hand. These are audacious goals. However, the enthusiasm already shown the Foundation indicates that they may not be unrealistic ones. The EFF could be like a seed crystal dropped into a super-saturated solution. (Or perhaps more appropriately, "the hundredth monkey.") Our organization has been so far extremely self-generative as people find in it an expression for concerns which they had felt but had not articulated. In any case, we are seeing a spirit of voluntary engagement which is quite a departure from the common public interest sensation of "pushing a rope." You, the recipients of this first e-mailing are the pioneers in this effort. By coming forward and offering your support, both financial and personal, you are doing much to define the eventual structure and flavor of the Electronic Frontier Foundation. And much remains to be defined. We are applying for 501(c)3 status, which means that your contributions to the Foundation will be tax deductible at the time this status is granted. However, tax-exempt status also places restrictions on the ability to lobby which may not be consistent with our mission. Like many activist organizations, we may find it necessary to maintain two organizations, one for lobbying and the other for education. We are in the process of setting up both a BBS in Cambridge and a Net newsgroups. None of this is as straightforward as we would have it be. We have also just received an offer of production and editorial help with a newsletter. What can you do? Well, for starters, you can spread the word about EFF as widely as possible, both on and off the Net. Feel free, for example, to distribute any of the materials included in this or subsequent mailings, especially to those who may be interested but who may not have Net access. You can turn some of the immense processing horsepower of your distributed Mind to the task of finding useful new metaphors for community, expression, property, privacy and other realities of the physical world which seem up for grabs in these less tangible regions. And you can try to communicate to technically unsophisticated friends the extent to which their future freedoms and well-being may depend on understanding the broad forms of digital communication, if not necessarily the technical details. Finally, you can keep in touch with us at any of the above addresses. Please pass on your thoughts, concerns, insights, contacts, suggestions, and, and most importantly, news of relevant events. And we will return the favor. Forward, John Perry Barlow for The Electronic Frontier Foundation If you would like a recently amended digital version of Crime and Puzzlement, please let us know, and we will e-mail you one. We would prefer, of course, that you simply buy the August issue of Whole Earth Review, in which it will appear. Finally, we also have available an excellent paper on hackers by Dorothy Denning, a widely respected computer security expert with DEC. ************************************************************ About the EFF General Information Revised August 1990 ************************************************************ The EFF (formally the Electronic Frontier Foundation, Inc.) 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. The EFF now has legal status as a corporation in the state of Massachusetts. We are in the process of applying to the IRS for status as a non-profit, 501c3 organization. Once that status is granted contributions to the EFF will be tax-deductible. ************************************************************ Mission of the EFF ************************************************************ 1. to engage in and support educational activities which increase popular understanding of the opportunities and challenges posed by developments in computing and telecommunications. 2. to 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. to raise public awareness about civil liberties issues arising from the rapid advancement in the area of new computer-based communications media and, where necessary, support litigation in the public interest to preserve, protect, and extend First Amendment rights within the realm of computing and telecommunications technology. 4. to encourage and support the development of new tools which will endow non-technical users with full and easy access to computer-based telecommunications. ************************************************************ Current EFF Activities ************************************************************ > We are helping educate policy makers and the general public. To this end we have funded a significant two-year project on computing and civil liberties to be managed by the Computer Professionals for Social Responsibility. With it, we aim to acquaint policy makers and law enforcement officials of the civil liberties issues which may lie hidden in the brambles of telecommunications policy. Members of the EFF are speaking at computer and government conferences and meetings throughout the country to raise awareness about the important civil liberties issues. We are in the process of forming alliances with other other public interest organizations concerned with the development of a digital national information infrastructure. The EFF is in the early stages of software design and development of programs for personal computers which provide simplified and enhanced access to network services such as mail and netnews. Because our resources are already fully committed to these projects, we are not at this time considering additional grant proposals. > We are helping defend the innocent. We gave substantial legal support in the criminal defense of Craig Neidorf, the publisher of Phrack, an on-line magazine devoted to telecommunications, computer security and hacking. Neidorf was indicted on felony charges of wire fraud and interstate transportation of stolen property for the electronic publication of a document which someone else had removed, without Neidorf's participation, from a Bell South computer. The government contended that the republication of proprietary business information, even if the information is of public significance, is illegal. The EFF submitted two friend of the court briefs arguing that the publication of the disputed document was constitutionally protected speech. We also were instrumental in locating an expert witness who located documents which were publicly available from Bell South which contained all the information in the disputed document. This information was critical in discrediting the government's expert witness. The government dropped its prosecution in the middle of the trial, when it became aware that its case was untenable. EFF attorneys are also representing Steve Jackson Games in its efforts to secure the complete return and restoration of all computer equipment seized in the Secret Service raid on its offices and to understand what might have been the legal basis for the raid. We are not involved in these legal matters as a "cracker's defense fund," despite press reports you may have read, but rather to ensure that the Constitution will continue to apply to digital media. We intend to demonstrate legally that speech is speech whether it finds form in ink or in ASCII. ************************************************************ What can you do? ************************************************************ For starters, you can spread the word about EFF as widely as possible, both on and off the Net. Feel free, for example, to distribute any of the materials included in this or other EFF mailings. You can turn some of the immense processing horsepower of your distributed Mind to the task of finding useful new metaphors for community, expression, property, privacy and other realities of the physical world which seem up for grabs in these less tangible regions. And you can try to communicate to technically unsophisticated friends the extent to which their future freedoms and well-being may depend on understanding the broad forms of digital communication, if not necessarily the technical details. Finally, you can keep in touch with us at any of the addresses listed below. Please pass on your thoughts, concerns, insights, contacts, suggestions, and news. And we will return the favor. ************************************************************ Staying in Touch ************************************************************ Send requests to be added to or dropped from the EFF mailing list or other general correspondence to eff-request@well.sf.ca.us. We will periodically mail updates on EFF-related activities to this list. If you receive any USENET newsgroups, your site may carry two new newsgroups in the INET distribution called comp.org.eff.news and comp.org.eff.talk. The former is a moderated newsgroup of announcements, responses to announcements, and selected discussion drawn from the unmoderated "talk" group and the mailing list. Everything that goes out over the EFF mailing list will also be posted in comp.org.eff.news, so if you read the newsgroup you don't need to subscribe to the mailing list. Postings submitted to the moderated newsgroup may be reprinted by the EFF. To submit a posting, you may send mail to eff@well.sf.ca.us. There is an active EFF conference on the Well, as well as many other related conferences of interest to EFF supporters. As of August 1990, access to the Well is $8/month plus $3/hour. Outside the S.F. Bay area, telecom access for $5/hr. is available through CPN. Register online at (415) 332-6106. A document library containing all of the EFF news releases, John Barlow's "Crime and Puzzlement" and others is available on the Well. We are working toward providing FTP availability into the document library through an EFF host system to be set up in Cambridge, Mass. Details will be forthcoming. Our Address: The Electronic Frontier Foundation, Inc. One Cambridge Center, Suite 300 Cambridge, MA 02142 (617) 577-1385 (617) 225-2347 (fax) After August 25, 1990: The Electronic Frontier Foundation, Inc. 155 Second Street Cambridge, MA 02142 We will distribute the new telephone number once we have it. ************************************************************ Mitchell Kapor (mkapor@well.sf.ca.us) John Perry Barlow (barlow@well.sf.ca.us) Postings and email for the moderated newsgroup should be sent to "comp-org-eff-news@well.sf.ca.us". ************************************************************ 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 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 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 that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In short, the scope of the search has to be as narrow as possible, and there has to be good reason to believe that the search will turn up evidence of illegal activity. The meaning of the Fourth Amendment's guarantee has evolved over time in response to changing technologies. For example, while the Fourth Amendment was first applied to prevent the government from trespassing onto private property and seizing tangible objects, the physical trespass rationale was made obsolete by the development of electronic eavesdropping devices which permitted the government to "seize" an individual's words without ever treading onto that person's private property. To put the matter more concretely, while the drafters of the First Amendment surely knew nothing about electronic databases, surely they would have considered one's database to be as sacrosanct as, for example, the contents of one's private desk or filing cabinet. The Supreme Court responded decades ago to these types of technological challenges by interpreting the Fourth Amendment more broadly to prevent governmental violation of an individual's reasonable expectation of privacy, a concept that transcended the narrow definition of one's private physical space. It is now well established that an individual has a reasonable expectation of privacy, not only in his or her home and business, but also in private communications. Thus, for example: % Government wiretapping and electronic eavesdropping are now limited by state and federal statutes enacted to effectuate and even to expand upon Fourth Amendment protections. % More recently, the Fourth Amendment has been used, albeit with limited success, to protect individuals from undergoing certain random mandatory drug testing imposed by governmental authorities. Advancements in technology have also worked in the opposite direction, to diminish expectations of privacy that society once considered reasonable, and thus have helped limit the scope of Fourth Amendment protections. Thus, while one might once have reasonably expected privacy in a fenced-in field, the Supreme Court has recently told us that such an expectation is not reasonable in an age of surveillance facilitated by airplanes and zoom lenses. Applicability of Fourth Amendment to computer media Just as the Fourth Amendment has evolved in response to changing technologies, so it must now be interpreted to protect the reasonable expectation of privacy of computer users in, for example, their electronic mail or electronically stored secrets. The extent to which government intrusion into these private areas should be allowed, ought to be debated openly, fully, and intelligently, as the Congress seeks to legislate in the area, as courts decide cases, and as administrative, regulatory, and prosecutorial agencies seek to establish their turf. One point that must be made, but which is commonly misunderstood, is that the Bill of Rights seeks to protect citizens from privacy invasions committed by the government, but, with very few narrow exceptions, these protections do not serve to deter private citizens from doing what the government is prohibited from doing. In short, while the Fourth Amendment limits the government's ability to invade and spy upon private databanks, it does not protect against similar invasions by private parties. Protection of citizens from the depredations of other citizens requires the passage of privacy legislation. The Fifth Amendment The Fifth Amendment assures citizens that they will not "be deprived of life, liberty, or property, without due process of law" and that private property shall not "be taken for public use without just compensation." This Amendment thus protects both the sanctity of private property and the right of citizens to be proceeded against by fair means before they may be punished for alleged infractions of the law. One aspect of due process of law is that citizens not be prosecuted for alleged violations of laws that are so vague that persons of reasonable intelligence cannot be expected to assume that some prosecutor will charge that his or her conduct is criminal. A hypothetical law, for example, that makes it a crime to do "that which should not be done", would obviously not pass constitutional muster under the Fifth Amendment. Yet the application of some existing laws to new situations that arise in the electronic age is only slightly less problematic than the hypothetical, and the Electronic Frontier Foundation plans to monitor the process by which old laws are modified, and new laws are crafted, to meet modern situations. One area in which old laws and new technologies have already clashed and are bound to continue to clash, is the application of federal criminal laws against the interstate transportation of stolen property. The placement on an electronic bulletin board of arguably propriety computer files, and the "re-publication" of such material by those with access to the bulletin board, might well expose the sponsor of the bulletin board as well as all participants to federal felony charges, if the U.S. Department of Justice can convince the courts to give these federal laws a broad enough reading. Similarly, federal laws protecting against wiretapping and electronic eavesdropping clearly have to be updated to take into account electronic bulletin board technology, lest those who utilize such means of communication should be assured of reasonable privacy from unwanted government surveillance. Summary The problem of melding old but still valid concepts of constitutional rights, with new and rapidly evolving technologies, is perhaps best summed up by the following observation. Twenty-five years ago there was not much question but that the First Amendment prohibited the government from seizing a newspaper's printing press, or a writer's typewriter, in order to prevent the publication of protected speech. Similarly, the government would not have been allowed to search through, and seize, one's private papers stored in a filing cabinet, without first convincing a judge that probable cause existed to believe that evidence of crime would be found. Today, a single computer is in reality a printing press, typewriter, and filing cabinet (and more) all wrapped up in one. How the use and output of this device is treated in a nation governed by a Constitution that protects liberty as well as private property, is a major challenge we face. How well we allow this marvelous invention to continue to be developed by creative minds, while we seek to prohibit or discourage truly abusive practices, will depend upon the degree of wisdom that guides our courts, our legislatures, and governmental agencies entrusted with authority in this area of our national life. For further information regarding The Bill of Rights please contact: Harvey Silverglate Silverglate & Good 89 Broad Street, 14th Floor Boston, MA 02110 617/542-6663