textfiles/magazines/EFF/eff504.law

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EFFector Online Volume 5 No. 4       3/19/1993       editors@eff.org
A Publication of the Electronic Frontier Foundation   ISSN 1062-9424
389 lines

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                        In this issue:
            Victory in the Steve Jackson Games Case
              EFF Pioneer Award Winners for 1993
               Issues for K-12 Access to the Internet
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               STEVE JACKSON GAMES WINS LAWSUIT 
                  AGAINST U.S. SECRET SERVICE

A games publisher has won a lawsuit against the U.S. Secret Service 
and the federal government in a ground-breaking case involving 
computer publications and electronic mail privacy.

In a decision announced in Austin, Texas, on March 12, Judge Sam 
Sparks of the federal district court for the Western District of Texas 
announced that the case of Steve Jackson Games et al. versus the U.S. 
Secret Service and the United States Government has been decided 
for the plaintiffs.

The plaintiffs, which include Steve Jackson, the company he founded, 
and three users of the company's bulletin board system (BBS), sued 
the government on claims that their statutory rights to electronic 
mail privacy had been violated when the BBS and other computers, 
disks and printouts were seized by the Secret Service as part of a 
computer crime investigation.  These rights are protected under the 
Electronic Communications Privacy Act (ECPA), which extended most 
of the protections of the federal Wiretap Act ("Title III") to electronic 
mail.

Jackson and his company also claimed violations of the Privacy 
Protection Act of 1980, a federal law designed to limit searches of 
publishers in order to protect their First Amendment rights.

Mitch Kapor, founder and chairman of the board for the Electronic 
Frontier Foundation, the public interest/civil liberties organization 
that has underwritten and supported the case since it was filed in 
1991, said he is pleased with the decision.  "This decision vindicates 
our position that users of computer bulletin board systems are 
engaging in Constitutionally protected speech," Kapor said.

"This decision shows that perseverance pays off," he added.  "We've 
been at this for almost three years now, and we still don't know if it's 
over -- the Justice Department might appeal it."  Nevertheless, Kapor 
said he is optimistic about the case's ultimate outcome.

Judge Sparks awarded more than $50,000 in damages to Steve 
Jackson Games, citing lost profits and violations of the Privacy 
Protection Act of 1980.  In addition, the judge awarded each plaintiff 
$1,000 under the Electronic Communications Privacy Act for the 
Secret Service seizure of their stored electronic mail.  The judge also 
stated that plaintiffs would be reimbursed for their attorneys's fees.

The judge did not find that Secret Service agents had "intercepted" 
the electronic communications that were captured when agents 
seized the Illuminati BBS in an early morning raid in the spring of 
1990 as part of a computer crime investigation.  The judge did find, 
however, that the ECPA had been violated by the agents's seizure of 
stored electronic communications on the system.

The case was tried in Austin, Texas, by the Austin-based media law 
firm George, Donaldson & Ford, with case assistance provided by the 
Boston, Massachusetts, law firm of Silverglate & Good.

Pete Kennedy, the lawyer from George, Donaldson & Ford who 
litigated the case, calls the decision "a solid first step toward 
recognizing that computer communications should be as well-
protected as telephone communications."  Kennedy also said he 
believes the case has particular significance for those who use 
computers to prepare and distribute publications.  "There is a strong 
indication from the judge's decision that the medium of publication is 
irrelevant," he said, adding that "electronic publishers have the same 
protections against law enforcement intrusions as traditional 
publishers like newspapers and magazines.  All publishers that use 
computers should be heartened by this decision.  It indicates that the 
works-in-progress of all types of publications are protected under 
the Privacy Protection Act.

"The case also demonstrates that there are limits on the kinds of 
defenses law enforcement agents can use, Kennedy said, noting that 
"the judge made it very clear that it is no excuse that the seizure of 
draft material for publication held on a computer was incidental or 
accidental."

Mike Godwin, an attorney for the Electronic Frontier Foundation who 
has worked on the case since 1990, said he is pleased with the scope 
of the decision.  "This case is a major step forward in protecting the 
rights of those who use computers to send private mail to each other 
or who use computers to create and disseminate publications."

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                SECOND ANNUAL EFF PIONEER AWARDS 

On March 10, at the Computers, Freedom and Privacy Conference in 
Burlingame, California, the Electronic Frontier Foundation presented 
its Second Annual Pioneer Awards to five recipients who were 
judged to have made significant and influential contributions to the 
field of computer-based communications.  The 1993 Pioneer Award 
recipients were Paul Baran, Vinton Cerf, Ward Christensen, Dave 
Hughes and the USENET software developers,  represented by the 
software's originators Tom Truscott and Jim Ellis.

Nominations for the Pioneer Awards were carried out over national 
and international computer-communication systems from November 
1992 to February 1993.   A panel of four judges selected the winners 
from these nominations.

The Pioneer Award Recipients

Paul Baran was the original inventor of the notion of packet 
switching, a technology of fundamental importance to data networks.  
Packet switching makes possible the efficient and simultaneous 
transmission of many messages from many sources to many 
destinations over the same circuit.  Mr. Baran's innovations in other 
and related technologies have led him to co-found a number of 
companies in Silicon Valley including Telebit, Packet Technologies (a 
portion of which later became StrataCom), Equatorial 
Communications, Metricom, InterFax and his current venture, Com21. 

Dr. Vinton Cerf led the research project which developed the TCP/IP 
protocol suite, the open system interconnection protocol which is 
used today by schools, government, corporations and an increasing 
number of individuals to communicate with each other over the 
Internet.  Dr. Cerf also participated in the development of the 
ARPANET host protocols and managed the Internet, Packet 
Communications and Networked Security programs for DARPA.  
While working at MCI, he led the engineering effort to develop MCI 
Mail.  He is now vice president of the Corporation for National 
Research Initiatives where he is responsible for projects involving 
the Internet, electronic mail, and Knowledge Robot research.

Ward Christensen wrote the original software program, 
"MODEM.ASM", which came to be called "Xmodem" or the 
"Christensen protocol".  For untold numbers of early-to-present day 
computer communications users, Xmodem has made it possible to 
transfer files, error-free, over phone lines from one computer to 
another.  Xmodem file transfer has been the major means of 
information exchange for computer hobbyists and small business 
users through the first decade of the personal computer revolution.  
Mr. Christensen also programmed the first microcomputer dial-in 
system which he named a "BBS" - bulletin board system. His original 
BBS, CBBS/Chicago, is still in operation.  He is in his 25th year at IBM. 

Dave Hughes has been an outspoken and effective grassroots 
evangelist and spokesperson for popular computer networking and 
electronic democracy for over a decade.  He fashioned his own 
computer system at Old Colorado City Communications in1985, and 
soon brought the municipal elected government of Colorado Springs 
online.  He helped design and implement a personal computer 
network connecting  one-room rural schoolhouses in Montana to 
worldwide information  resources.  He continually brings network 
connections and new applications to new populations here and 
abroad.  Perhaps most importantly, he is a tireless and enthusiastic 
communicator, offering  his experience, his inspiration and his vision 
to any and all on the Net.

USENET is a distributed bulletin board system with approximately 
two million readers worldwide. It came into being in late1979 
through the inspiration of Tom Truscott and Jim Ellis combined with 
the design and programming efforts of Steve Bellovin, Stephen 
Daniel, and Dennis Rockwell.  Following USENET's introduction in 
1980, the resulting and ever-expanding collection of "newsgroups" 
began to be carried and circulated by a growing number of 
networked sites.  The ongoing work of numerous individuals has 
allowed Usenet to survive its increasing popularity.  The daily traffic 
is now approximately 20,000 articles, totaling 50 megabytes, posted 
to 2000 different newsgroups.

Tom Truscott is currently a distributed computing professional at 
IBM in the Research Triangle Park, North Carolina. He has authored a 
number of UNIX-related articles, and is a member of ACM, IEEE, and 
Sigma Xi.

James Ellis is currently the Manager of Technical Development at the 
Computer Emergency Response Team, which is the team created to 
assist Internet sites with computer security incidents. At CERT, he is 
responsible for analyzing UNIX system vulnerabilities and for 
developing tools to assist in the handling of security incidents. 

Judges

This year's judges for the Pioneer Awards were: Jim Warren, Pioneer 
Award recipient from 1992 who coordinated the judging process, 
Steve Cisler of Apple Computer, Esther Dyson, editor of Release 1.0, 
and Bob Metcalfe, Editor of Infoworld.

                   -==--==--==-<>-==--==--==-

                   COMMUNICATIONS POLICY FORUM

          CPF Airs Issues for K-12 Access to the Internet
                        by Andrew Blau

      The Communications Policy Forum (CPF), a non-partisan project 
of the EFF that brings stakeholders together to discuss 
communications policy issues, recently convened a roundtable to 
explore some of the legal questions that arise when K-12 schools 
provide Internet access to their students.  Approximately 15 people, 
representing carriers who provide connections to the Internet, 
schools or school systems who are connected to the Internet, and 
legal experts with expertise in this and related areas, met to discuss 
issues of legal liability as this new medium enters an educational 
setting for minors.
      A key concern is that students may be exposed to material that 
parents or teachers find inappropriate for children.  In other 
electronic media, such as broadcast television, cable TV, and 
audiotext, legal restrictions have been imposed to protect children 
from <20>harmful<75> or <20>indecent<6E> material, and liability has been 
assigned.  No such framework exists for the Internet.  Moreover, the 
very strengths of the Internet <20> its decentralized, unhierarchical, and 
essentially uncontrolled flow of traffic <20> offer distinct challenges to 
those who would seek to control it in the interest of protecting 
children.  Finally, the tools available in other media <20> safe harbors, 
lockboxes, or subscription schemes <20> don't fit in this environment. 
Issues and Suggestions
      Following a brief summary of the Internet and how it operates 
and a review of how it is being used by a handful of K-12 
institutions, participants identified specific problems and policy 
issues and considered existing statutes and case law for guidance.  
The group also considered the potential effects of "harmful to 
minors" or "obscene as to minors" statutes, which are on the books in 
41 states.  Although they are often vague or broad, the Supreme 
Court has agreed that it is constitutional to have such laws which 
prohibit the dissemination to minors of material that is protected by 
the First Amendment and would be constitutional for adults, to 
minors.
      Discussion then turned to various practical measures that carriers 
and schools might take in light of what had been described.  One 
suggestion was that carriers work with school systems to provide a 
recommended set of features or services.  In order to protect 
themselves, carriers could ensure that the school put in place a set of 
policies, identify for students their responsibilities, and place a 
teacher or other adult in control of what students access through the 
school's connection.
      It was also suggested that carriers could develop a contract that 
only connects schools that agree to indemnify the provider.  
Moreover, the carrier could require assurance that when access is 
provided to minors, the school will use some formal agreement with 
the minor's parent that includes provisions that hold the network 
provider harmless from liability.
      As an alternative, it was suggested that carriers could offer a 
simple warning to schools that alerts them that Internet access may 
enable access to materials inappropriate for minors, and that local 
discretion is advised.  Schools could also offer disclaimers to parents 
modelled on those that parents are given before a field trip.
      A handful of technical solutions were suggested throughout the 
course of the meeting, and many elicited substantial interest.  For 
example, various participants suggested using encryption, programs 
that flag key words or phrases and route them for human 
intervention, and mandatory password protection for all purveyors 
of certain kinds of information.
      Many participants seemed intrigued by a proposal to develop an 
addressing standard under which someone who gets access by virtue 
of his/her status as a K-12 student could get an address tag that 
identifies the student as such for various purposes.  One example 
would be to press for the creation of an additional domain of ".stu" 
for K-12 students.  The appearance of the ".stu" tag would function 
like any other identification stamp for access to certain materials.
      Statutory immunity for carriers was also seen by almost all 
participants as highly desirable and worth pursuing.  Developing a 
legislative strategy may also highlight how these issues in the K-12 
setting are linked to and can be addressed in partnership with other 
issues and other sectors of the communications field.
      It was also noted that all those interested in K-12 networking 
need to educate the new Administration as it considers "information 
highways," a new Federal Communications Commission, the 
implementation of the NREN, and other programs.  According to this 
approach, a critical first step is to educate as many new players as 
possible, including Congressional staff and the new administration, 
that addressing these liability issues is part of the package of 
building the networks of tomorrow.
Conclusion
      By the end of the session, most participants agreed that there are 
no easy answers to the issues raised.
      Yet participants also agreed that if the community of interested 
educators, carriers, and public interest groups could establish 
workable models and promote a positive agenda with lawmakers, 
instead of waiting for problems to arise, the resulting legislative and 
regulatory framework would be far more likely to cultivate 
educational access, as well as to provide a model for broadband 
policy as a whole.
      The value of the Internet as an educational resource is clear.  As 
one educator pointed out, our schools lose both students and teachers 
because of inadequate access to resources; the Internet can enrich 
the resources available to both teachers and students and is not 
something that only universities should enjoy.  The challenge is to 
articulate a policy framework that can enable that potential to be 
realized and then to work to see that framework constructed.

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