1394 lines
68 KiB
Plaintext
1394 lines
68 KiB
Plaintext
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THE ELECTRONIC FRONTIER FOUNDATION
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One Cambridge Center, Suite 300
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Cambridge, MA 02142
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617/577-1385
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617/225-2347 fax
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eff@well.sf.ca.us
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Saturday, July 21, 1990
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Good people,
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Greetings. Some of you who read Crime and Puzzlement when it first went
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digital and offered immediate help in dealing with the issues raised therein.
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It's been five weeks since I promised to get back to you "shortly." It is now
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clear that we are operating on political rather than electronic time. And
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political time, though not so ponderous as geologic time or, worse, legal
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time,
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is hardly swift. The Net may be instantaneous, but people are as slow as
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ever.
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Nevertheless, much has happened since early June. Crime and Puzzlement
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rattled
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all over Cyberspace and has, by now, generated almost 300 unsolicited offers
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of
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help...financial, physical, and virtual. At times during this period I
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responded to as many as 100 e-mail messages a day with the average running
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around 50. (The voice of Peter Lorre is heard in the background, repeating,
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"Toktor, ve haf created a *monster*.")
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Well, we have at least created an organization. Lotus founder Mitch Kapor and
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I have founded the Electronic Frontier Foundation, an endeavor for which we
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have immodest ambitions. Descending from the Computer Liberty Foundation
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mentioned in Crime and Puzzlement, the EFF has received initial (and extremely
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generous) funding from Mitch, Steve Wozniak, and another Silicon Valley
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pioneer
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who wishes to remain anonymous. We have also received many smaller offers of
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support.
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As you will see in the accompanying press release, we formally announced the
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EFF at a press conference in Washington on July 10. The press attention was
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lavish but predictable...KAPOR TO AID COMPUTER CRIMINALS. Actually, our
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mission is nothing less than the civilization of Cyberspace.
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We mean to achieve this through a variety of undertakings, ranging from
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immediate legal action to patient, long-lasting efforts aimed at forming, in
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the public consciousness, useful metaphors for life in the Datasphere. There
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is much to do. Here is an abbreviated description of what we are already
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doing:
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* We have engaged the law firms of Rabinowitz, Boudin, Standard, Krinsky &
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Lieberman and Silverglate & Good to intervene on behalf of Craig Neidorf (the
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publisher of Phrack) and Steve Jackson Games. (For a digest of the legal
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issues, please see the message following this one.) We became involved in
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these particular cases because of their general relevance and we remain alert
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to developments in a number of other related cases.
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Despite what you may have read, we are not involved in these legal matters as
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a
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"cracker's defense fund," but rather to ensure that the Constitution will
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continue to apply to digital media. Free expression must be preserved long
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after the last printing press is gathering museum dust. And we intend an
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unequivocal legal demonstration that speech is speech whether it finds form in
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ink or in ascii.
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* We have funded a significant two-year project on computing and civil
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liberties to be managed by the Computer Professionals for Social
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Responsibility. With it, we aim to acquaint policy makers and law enforcement
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officials of the civil liberties issues which may lie hidden in the brambles
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of
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telecommunications policy. (A full description of this project follows.)
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* During the days before and after the press conference, Mitch and I met
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with Congressional staffers, legal authorities, and journalists, as well as
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officials from the White House and Library of Congress. Thus we began
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discussions which we expect to continue over a period of years. These
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informal
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sessions will relate to intellectual property, free flow of information, law
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enforcement training and techniques, and telecommunications law,
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infrastructure, and regulation.
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Much of this promises to be boring as dirt, but we believe that it is
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necessary
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to "re-package" the central issues in more digestible, even entertaining,
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forms
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if the general public is to become involved in the policies which will
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fundamentally determine the future of American liberty.
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* Recognizing that Cyberspace will be only as civilized as its
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inhabitants, we are working with a software developer to create an
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"intelligent
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front end" for UNIX mail systems. This will, we hope, make Net access so easy
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that your mother will be able cruise around the digital domain (if you can
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figure out a way to make her want to). As many of you are keenly aware, the
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best way, perhaps the only way, to understand the issues involved in digital
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telecommunications is to experience them first hand.
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These are audacious goals. However, the enthusiasm already shown the
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Foundation indicates that they may not be unrealistic ones. The EFF could be
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like a seed crystal dropped into a super-saturated solution. (Or perhaps more
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appropriately, "the hundredth monkey.") Our organization has been so far
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extremely self-generative as people find in it an expression for concerns
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which
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they had felt but had not articulated.
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In any case, we are seeing a spirit of voluntary engagement which is quite a
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departure from the common public interest sensation of "pushing a rope."
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You, the recipients of this first e-mailing are the pioneers in this effort.
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By coming forward and offering your support, both financial and personal, you
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are doing much to define the eventual structure and flavor of the Electronic
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Frontier Foundation.
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And much remains to be defined. We are applying for 501(c)3 status, which
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means that your contributions to the Foundation will be tax deductible at the
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time this status is granted. However, tax-exempt status also places
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restrictions on the ability to lobby which may not be consistent with our
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mission. Like many activist organizations, we may find it necessary to
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maintain two organizations, one for lobbying and the other for education.
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We are in the process of setting up both a BBS in Cambridge and a Net
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newsgroups. None of this is as straightforward as we would have it be. We
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have also just received an offer of production and editorial help with a
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newsletter.
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What can you do? Well, for starters, you can spread the word about EFF as
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widely as possible, both on and off the Net. Feel free, for example, to
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distribute any of the materials included in this or subsequent mailings,
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especially to those who may be interested but who may not have Net access.
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You can turn some of the immense processing horsepower of your distributed
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Mind
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to the task of finding useful new metaphors for community, expression,
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property, privacy and other realities of the physical world which seem up for
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grabs in these less tangible regions.
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And you can try to communicate to technically unsophisticated friends the
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extent to which their future freedoms and well-being may depend on
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understanding the broad forms of digital communication, if not necessarily the
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technical details.
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Finally, you can keep in touch with us at any of the above addresses. Please
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pass on your thoughts, concerns, insights, contacts, suggestions, and, and
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most
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importantly, news of relevant events. And we will return the favor.
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Forward,
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C<EFBFBD>HH<EFBFBD>˂<EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD>Barlow
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for The Electronic Frontier Foundation
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P.S. The following documents were included in the press packets distributed
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at
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our announcement in Washington last week. Please distribute them as you see
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fit.
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If you would like a recently amended digital version of Crime and Puzzlement,
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please let us know, and we will e-mail you one. We would prefer, of course,
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that you simply buy the August issue of Whole Earth Review, in which it will
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appear.
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Finally, we also have available an excellent paper on hackers by Dorothy
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Denning, a widely respected computer security expert with DEC.
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======================================================
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FOR IMMEDIATE RELEASE
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Contact: Cathy Cook (415) 759-5578
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NEW FOUNDATION ESTABLISHED TO ENCOURAGE COMPUTER- BASED
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COMMUNICATIONS
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POLICIES
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Washington, D.C., July 10, 1990 -- Mitchell D. Kapor, founder of Lotus
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Development Corporation and ON Technology, today announced that he,
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along with colleague John Perry Barlow, has established a foundation to
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address social and legal issues arising from the impact on society of
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the increasingly pervasive use of computers as a means of communication
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and information distribution. The Electronic Frontier Foundation (EFF)
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will support and engage in public education on current and future
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developments in computer-based and telecommunications media. In
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addition, it will support litigation in the public interest to preserve,
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protect and extend First Amendment rights within the realm of computing
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and telecommunications technology.
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Initial funding for the Foundation comes from private contributions by
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Kapor and Steve Wozniak, co-founder of Apple Computer, Inc. The
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Foundation expects to actively raise contributions from a wide
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constituency.
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As an initial step to foster public education on these issues, the
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Foundation today awarded a grant to the Palo Alto, California-based
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public advocacy group Computer Professionals for Social Responsibility
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(CPSR). The grant will be used by CPSR to expand the scope of its
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on-going Computing and Civil Liberties Project (see attached).
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Because its mission is to not only increase public awareness about civil
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liberties issues arising in the area of computer-based communications,
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but also to support litigation in the public interest, the Foundation
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has recently intervened on behalf of two legal cases.
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The first case concerns Steve Jackson, an Austin-based game manufacturer
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who was the target of the Secret Service's Operation Sun Devil. The EFF
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has pressed for a full disclosure by the government regarding the
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seizure of his company's computer equipment. In the second action, the
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Foundation intends to seek amicus curiae (friend of the court) status
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in the government's case against Craig Neidorf, a 20-year-old University
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of Missouri student who is the editor of the electronic newsletter
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Phrack World News (see attached).
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"It is becoming increasingly obvious that the rate of technology
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advancement in communications is far outpacing the establishment of
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appropriate cultural, legal and political frameworks to handle the
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issues that are arising," said Kapor. "And the Steve Jackson and Neidorf
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cases dramatically point to the timeliness of the Foundation's mission.
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We intend to be instrumental in helping shape a new framework that
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embraces these powerful new technologies for the public good."
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The use of new digital media -- in the form of on-line information and
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interactive conferencing services, computer networks and electronic
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bulletin boards -- is becoming widespread in businesses and homes.
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However, the electronic society created by these new forms of digital
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communications does not fit neatly into existing, conventional legal and
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social structures.
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The question of how electronic communications should be accorded the
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same political freedoms as newspapers, books, journals and other modes
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of discourse is curren+<2B><><EFBFBD><EFBFBD><EFBFBD><EFBFBD>Չ<EFBFBD><D589><EFBFBD>сź"<22>͍<EFBFBD><CD8D>ͥ<EFBFBD><CDA5><EFBFBD>
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<EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD>́<EFBFBD>չ<EFBFBD><EFBFBD>坚5R<EFBFBD>+<2B>[<5B><><EFBFBD><EFBFBD><EFBFBD><EFBFBD>
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<EFBFBD><EFBFBD><EFBFBD>j<EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD>́z<EFBFBD><EFBFBD><EFBFBD>Е<EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD>ѕɁJ<EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD>P<><50><EFBFBD>*ee
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<EFBFBD>Z<EFBFBD>l take an
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active role in these discussions through its continued funding of
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various educational projects and forums.
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An important facet of the Foundation's mission is to help both the
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public and policy-makers see and understand the opportunities as well as
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the challenges posed by developments in computing and
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telecommunications. Also, the EFF will encourage and support the
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development of new software to enable non-technical users to more easily
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use their computers to access the growing number of digital
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communications services available.
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The Foundation is located in Cambridge, Mass. Requests for information
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should be sent to Electronic Frontier Foundation, One Cambridge Center,
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Suite 300, Cambridge, MA 02142, 617/577-1385, fax 617/225-2347; or it
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can be reached at the Internet mail address eff@well.sf.ca.us.
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======================================================
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ELECTRONIC FRONTIER FOUNDATION
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MISSION STATEMENT
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A new world is arising in the vast web of digital, electronic media
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which connect us. Computer-based communication media like electronic
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mail and computer conferencing are becoming the basis of new forms of
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community. These communities without a single, fixed geographical
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location comprise the first settlements on an electronic frontier.
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While well-established legal principles and cultural norms give
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structure and coherence to uses of conventional media like newspapers,
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books, and telephones, the new digital media do not so easily fit into
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existing frameworks. Conflicts come about as the law struggles to
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define its application in a context where fundamental notions of speech,
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property, and place take profoundly new forms. People sense both the
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promise and the threat inherent in new computer and communications
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technologies, even as they struggle to master or simply cope with them
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in the workplace and the home.
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The Electronic Frontier Foundation has been established to help civilize
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the electronic frontier; to make it truly useful and beneficial not just
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to a technical elite, but to everyone; and to do this in a way which is
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in keeping with our society's highest traditions of the free and open
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flow of information and communication.
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To that end, the Electronic Frontier Foundation will:
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1. Engage in and support educational activities which increase
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popular understanding of the opportunities and challenges posed by
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developments in computing and telecommunications.
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2. Develop among policy-makers a better understanding of the issues
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underlying free and open telecommunications, and support the creation of
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legal and structural approaches which will ease the assimilation of
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these new technologies by society.
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3. Raise public awareness about civil liberties issues arising from
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the rapid advancement in the area of new computer-based communications
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media. Support litigation in the public interest to preserve, protect,
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and extend First Amendment rights within the realm of computing and
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telecommunications technology.
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4. Encourage and support the development of new tools which will
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endow non-technical users with full and easy access to computer-based
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telecommunications.
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======================================================
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ACROSS THE ELECTRONIC FRONTIER
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by
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John Perry Barlow and Mitchell Kapor
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Electronic Frontier Foundation
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Washington, DC
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July 10,1990
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Over the last 50 years, the people of the developed world have begun to
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cross into a landscape unlike any which humanity has experienced before. It
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is
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a region without physical shape or form. It exists, like a standing wave, in
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the vast web of our electronic communication systems. It consists of electron
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states, microwaves, magnetic fields, light pulses and thought itself.
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It is familiar to most people as the "place" in which a long-distance
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telephone
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conversation takes place. But it is also the repository for all digital or
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electronically transferred information, and, as such, it is the venue for most
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of what is now commerce, industry, and broad-scale human interaction. William
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Gibson called this Platonic realm "Cyberspace," a name which has some currency
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among its present inhabitants.
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Whatever it is eventually called, it is the homeland of the Information Age,
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the place where the future is destined to dwell.
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In its present condition, Cyberspace is a frontier region, populated by the
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few
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hardy technologists who can tolerate the austerity of its savage computer
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interfaces, incompatible communications protocols, proprietary barricades,
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cultural and legal ambiguities, and general lack of useful maps or metaphors.
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Certainly, the old concepts of property, expression, identity, movement, and
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context, based as they are on physical manifestion, do not apply succinctly in
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a world where there can be none.
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Sovereignty over this new world is also not well defined. Large institutions
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already lay claim to large fiefdoms, but most of the actual natives are
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solitary and independent, sometimes to the point of sociopathy. It is,
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therefore, a perfect breeding ground for both outlaws and vigilantes.
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Most of society has chosen to ignore the existence of this arising domain.
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Every day millions of people use ATM's and credit cards, place telephone
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calls,
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make travel reservations, and access information of limitless variety...all
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without any perception of the digital machinations behind these transactions.
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Our financial, legal, and even physical lives are increasingly dependent on
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realities of which we have only dimmest awareness. We have entrusted the basic
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functions of modern existence to institutions we cannot name, using tools
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we've
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never heard of and could not operate if we had.
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As communications and data technology continues to change and develop at a
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pace
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many times that of society, the inevitable conflicts have begun to occur on
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the
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border between Cyberspace and the physical world.
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These are taking a wide variety of forms, including (but hardly limited to)
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the
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following:
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I. Legal and Constitutional Questions
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What is free speech and what is merely data? What is a free press without
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paper
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and ink? What is a "place" in a world without tangible dimensions? How does
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one protect property which has no physical form and can be infinitely and
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easily reproduced? Can the history of one's personal business affairs properly
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belong to someone else? Can anyone morally claim to own knowledge itself?
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These are just a few of the questions for which neither law nor custom can
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provide concrete answers. In their absence, law enforcement agencies like the
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Secret Service and FBI, acting at the disposal of large information
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corporations, are seeking to create legal precedents which would radically
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limit Constitutional application to digital media.
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The excesses of Operation Sun Devil are only the beginning of what threatens
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to
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become a long, difficult, and philosophically obscure struggle between
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institutional control and individual liberty.
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II. Future Shock
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Information workers, forced to keep pace with rapidly changing technology, are
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stuck on "the learning curve of Sisyphus." Increasingly, they find their
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hard-acquired skills to be obsolete even before they've been fully mastered.
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To
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a lesser extent, the same applies to ordinary citizens who correctly feel a
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lack of control over their own lives and identities.
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One result of this is a neo-Luddite resentment of digital technology from
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which
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little good can come. Another is a decrease in worker productivity ironically
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coupled to tools designed to enhance it. Finally, there is a spreading sense
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of
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alienation, dislocation, and helplessness in the general presence of which no
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society can expect to remain healthy.
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III. The "Knows" and the "Know-Nots"
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Modern economies are increasingly divided between those who are comfortable
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and
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proficient with digital technology and those who neither understand nor trust
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it. In essence, this development disenfranchises the latter group, denying
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them
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any possibility of citizenship in Cyberspace and, thus, participation in the
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future.
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Furthermore, as policy-makers and elected officials remain relatively ignorant
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of computers and their uses, they unknowingly abdicate most of their authority
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to corporate technocrats whose jobs do not include general social
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responsibility. Elected government is thus replaced by institutions with
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little
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real interest beyond their own quarterly profits.
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We are founding the Electronic Frontier Foundation to deal with these and
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related challenges. While our agenda is ambitious to the point of audacity,
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we
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don't see much that these issues are being given the broad social attention
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they deserve. We were forced to ask, "If not us, then whom?"
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In fact, our original objectives were more modest. When we first heard about
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Operation Sun Devil and other official adventures into the digital realm, we
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thought that remedy could be derived by simply unleashing a few highly
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competent Constitutional lawyers upon the Government. In essence, we were
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prepared to fight a few civil libertarian brush fires and go on about our
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private work.
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However, examination of the issues surrounding these government actions
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revealed that we were dealing with the symptoms of a much larger malady, the
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collision between Society and Cyberspace.
|
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We have concluded that a cure can lie only in bringing civilization to
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Cyberspace. Unless a successful effort is made to render that harsh and
|
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mysterious terrain suitable for ordinary inhabits, friction between the two
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worlds will worsen. Constitutional protections, indeed the perceived
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legitimacy of representative government itself, might gradually disappear.
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We could not allow this to happen unchallenged, and so arises the Electronic
|
||
Frontier Foundation. In addition to our legal interventions on behalf of those
|
||
whose rights are threatened, we will:
|
||
|
||
* Engage in and support efforts to educate both the general public and policy-
|
||
makers about the opportunities and challenges posed by developments in
|
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computing and telecommunications.
|
||
|
||
* Encourage communication between the developers of technology, government and
|
||
corporate officials, and the general public in which we might define the
|
||
appropriate metaphors and legal concepts for life in Cyberspace.
|
||
|
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* And, finally, foster the development of new tools which will endow non-
|
||
technical users with full and easy access to computer-based
|
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telecommunications.
|
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||
One of us, Mitch Kapor, had already been a vocal advocate of more accessible
|
||
software design and had given considerable thought to some of the challenges
|
||
we
|
||
now intend to meet.
|
||
|
||
The other, John Perry Barlow, is a relative newcomer to the world of
|
||
computing
|
||
(though not to the world of politics) and is therefore well- equipped to act
|
||
as
|
||
an emissary between the magicians of technology and the wary populace who must
|
||
incorporate this magic into their daily lives.
|
||
|
||
While we expect the Electronic Frontier Foundation to be a creation of some
|
||
longevity, we hope to avoid the sclerosis which organizations usually develop
|
||
in their efforts to exist over time. For this reason we will endeavor to
|
||
remain
|
||
light and flexible, marshalling intellectual and financial resources to meet
|
||
specific purposes rather than finding purposes to match our resources. As is
|
||
appropriate, we will communicate between ourselves and with our constituents
|
||
largely over the electronic Net, trusting self- distribution and
|
||
self-organization to a much greater extent than would be possible for a more
|
||
traditional organization.
|
||
|
||
We readily admit that we have our work cut out for us. However, we are
|
||
greatly
|
||
encouraged by the overwhelming and positive response which we have received
|
||
so
|
||
far. We hope the Electronic Frontier Foundation can function as a focal point
|
||
for the many people of good will who wish to settle in a future as abundant
|
||
and
|
||
free as the present.
|
||
|
||
|
||
|
||
======================================================
|
||
|
||
|
||
|
||
FOR IMMEDIATE RELEASE
|
||
|
||
Contact: Marc Rotenberg (202) 775-1588
|
||
|
||
CPSR TO UNDERTAKE EXPANDED CIVIL LIBERTIES PROGRAM
|
||
|
||
Washington, D.C., July 10, 1990 -- Computer Professionals for Social
|
||
Responsibility (CPSR), a national computing organization, announced
|
||
today that it would receive a two-year grant in the amount of $275,000
|
||
for its Computing and Civil Liberties Project. The Electronic Frontier
|
||
Foundation (EFF),founded by Mitchell Kapor, made the grant to expand
|
||
ongoing CPSR work on civil liberties protections for computer users.
|
||
|
||
At a press conference in Washington today, Mr. Kapor praised CPSR's
|
||
work, "CPSR plays an important role in the computer community. For the
|
||
last several years, it has sought to extend civil liberties protections
|
||
to new information technologies. Now we want to help CPSR expand that
|
||
work."
|
||
|
||
Marc Rotenberg, director of the CPSR Washington Office said, "We are
|
||
obviously very happy about the grant from the EFF. There is a lot of
|
||
work that needs to be done to ensure that our civil liberties
|
||
protections are not lost amidst policy confusion about the use of new
|
||
computer technologies."
|
||
|
||
CPSR said that it will host a series of policy round tables in
|
||
Washington, DC, during the next two years with lawmakers, computer
|
||
users, including (hackers), the FBI, industry representatives, and
|
||
members of the computer security community. Mr. Rotenberg said that the
|
||
purpose of the meetings will be to "begin a dialogue about the new uses
|
||
of electronic media and the protection of the public interest."
|
||
|
||
CPSR also plans to develop policy papers on computers and civil
|
||
liberties, to oversee the Government's handling of computer crime
|
||
investigations, and to act as an information resource for organizations
|
||
and individuals interested in civil liberties issues.
|
||
|
||
The CPSR Computing and Civil Liberties project began in 1985 after
|
||
President Reagan attempted to restrict access to government computer
|
||
systems through the creation of new classification authority. In 1988,
|
||
CPSR prepared a report on the proposed expansion of the FBI's computer
|
||
system, the National Crime Information Center. The report found serious
|
||
threats to privacy and civil liberties. Shortly after the report was
|
||
issued, the FBI announced that it would drop a proposed computer feature
|
||
to track the movements of people across the country who had not been
|
||
charged with any crime.
|
||
|
||
"We need to build bridges between the technical community and the policy
|
||
community," said Dr. Eric Roberts, CPSR president and a research
|
||
scientist at Digital Equipment Corporation in Palo Alto, California.
|
||
"There is simply too much misinformation about how computer networks
|
||
operate. This could produce terribly misguided public policy."
|
||
|
||
CPSR representatives have testified several times before Congressional
|
||
committees on matters involving civil liberties and computer policy.
|
||
Last year CPSR urged a House Committee to avoid poorly conceived
|
||
computer activity. "In the rush to criminalize the malicious acts of
|
||
the few we may discourage the beneficial acts of the many," warned
|
||
CPSR. A House subcommittee recently followed CPSR's recommendations
|
||
on computer crime amendments.
|
||
|
||
Dr. Ronni Rosenberg, an expert on the role of computer scientists and
|
||
public policy, praised the new initiative. She said, "It's clear that
|
||
there is an information gap that needs to be filled. This is an
|
||
important opportunity for computer scientists to help fill the gap."
|
||
|
||
CPSR is a national membership organization of computer professionals,
|
||
based in Palo Alto, California. CPSR has over 20,000 members and 21
|
||
chapters across the country. In addition to the civil liberties project,
|
||
CPSR conducts research, advises policy makers and educates the public
|
||
about computers in the workplace, computer risk and reliability, and
|
||
international security.
|
||
|
||
For more information contact:
|
||
|
||
Marc Rotenberg
|
||
CPSR Washington Office
|
||
1025 Connecticut Avenue, NW
|
||
Suite 1015
|
||
Washington, DC 20036 202/775-1588
|
||
|
||
Gary Chapman
|
||
CPSR National Office
|
||
P.O. Box 717
|
||
Palo Alto, CA 94302
|
||
415/322-3778
|
||
|
||
|
||
|
||
======================================================
|
||
|
||
ELECTRONIC FRONTIER FOUNDATION
|
||
|
||
LEGAL CASE SUMMARY
|
||
July 10, 1990
|
||
|
||
The Electronic Frontier Foundation is currently providing litigation
|
||
support in two cases in which it perceived there to be substantial civil
|
||
liberties concerns which are likely to prove important in the overall
|
||
legal scheme by which electronic communications will, now and in the
|
||
future, be governed, regulated, encouraged, and protected.
|
||
|
||
Steve Jackson Games
|
||
|
||
Steve Jackson Games is a small, privately owned adventure game
|
||
manufacturer located in Austin, Texas. Like most businesses today,
|
||
Steve Jackson Games uses computers for word processing and bookkeeping.
|
||
In addition, like many other manufacturers, the company operates an
|
||
electronic bulletin board to advertise and to obtain feedback on its
|
||
product ideas and lines.
|
||
|
||
One of the company's most recent products is GURPS CYBERPUNK, a science
|
||
fiction role-playing game set in a high-tech futuristic world. The
|
||
rules of the game are set out in a game book. Playing of the game is
|
||
not performed on computers and does not make use of computers in any
|
||
way. This game was to be the company's most important first quarter
|
||
release, the keystone of its line.
|
||
|
||
On March 1, 1990, just weeks before GURPS CYBERPUNK was due to be
|
||
released, agents of the United States Secret Service raided the premises
|
||
of Steve Jackson Games. The Secret Service:
|
||
|
||
* seized three of the company's computers which were used in the
|
||
drafting and designing of GURPS CYBERPUNK, including the computer used
|
||
to run the electronic bulletin board,
|
||
|
||
* took all of the company software in the neighborhood of the computers
|
||
taken,
|
||
|
||
* took with them company business records which were located on the
|
||
computers seized, and
|
||
|
||
* destructively ransacked the company's warehouse, leaving many items
|
||
in disarray.
|
||
|
||
In addition, all working drafts of the soon-to-be-published GURPS
|
||
CYBERPUNK game book -- on disk and in hard-copy manuscript form -- were
|
||
confiscated by the authorities. One of the Secret Service agents told
|
||
Steve Jackson that the GURPS CYBERPUNK science fiction fantasy game book
|
||
was a, "handbook for computer crime."
|
||
|
||
Steve Jackson Games was temporarily shut down. The company was forced
|
||
to lay-off half of its employees and, ever since the raid, has operated
|
||
on relatively precarious ground.
|
||
|
||
Steve Jackson Games, which has not been involved in any illegal activity
|
||
insofar as the Foundation's inquiries have been able to determine, tried
|
||
in vain for over three months to find out why its property had been
|
||
seized, why the property was being retained by the Secret Service long
|
||
after it should have become apparent to the agents that GURPS CYBERPUNK
|
||
and everything else in the company's repertoire were entirely lawful and
|
||
innocuous, and when the company's vital materials would be returned. In
|
||
late June of this year, after attorneys for the Electronic Frontier
|
||
Foundation became involved in the case, the Secret Service finally
|
||
returned most of the property, but retained a number of documents,
|
||
including the seized drafts of GURPS CYBERPUNKS.
|
||
|
||
The Foundation is presently seeking to find out the basis for the search
|
||
warrant that led to the raid on Steve Jackson Games. Unfortunately, the
|
||
application for that warrant remains sealed by order of the court. The
|
||
Foundation is making efforts to unseal those papers in order to find out
|
||
what it was that the Secret Service told a judicial officer that
|
||
prompted that officer to issue the search warrant.
|
||
|
||
Under the Fourth Amendment to the United States Constitution, a search
|
||
warrant may be lawfully issued only if the information presented to the
|
||
court by the government agents demonstrates "probable cause" to believe
|
||
that evidence of criminal conduct would be found on the premises to be
|
||
searched. Unsealing the search warrant application should enable the
|
||
Foundation's lawyers, representing Steve Jackson Games, to determine the
|
||
theory by which Secret Service Agents concluded or hypothesized that
|
||
either the GURPS CYBERPUNK game or any of the company's computerized
|
||
business records constituted criminal activity or contained evidence of
|
||
criminal activity.
|
||
|
||
Whatever the professed basis of the search, its scope clearly seems to
|
||
have been unreasonably broad. The wholesale seizure of computer
|
||
software, and subsequent rummaging through its contents, is precisely
|
||
the sort of general search that the Fourth Amendment was designed to
|
||
prohibit.
|
||
|
||
If it is unlawful for government agents to indiscriminately seize all of
|
||
the hard-copy filing cabinets on a business premises -- which it surely
|
||
is -- that the same degree of protection should apply to businesses
|
||
that store information electronically.
|
||
|
||
The Steve Jackson Games situation appears to involve First Amendment
|
||
violations as well. The First Amendment to the United States
|
||
Constitution prohibits the government from "abridging the freedom of
|
||
speech, or of the press". The government's apparent attempt to prevent
|
||
the publication of the GURPS CYBERPUNK game book by seizing all copies
|
||
of all drafts in all media prior to publication, violated the First
|
||
Amendment. The particular type of First Amendment violation here is the
|
||
single most serious type, since the government, by seizing the very
|
||
material sought to be published, effectuated what is known in the law as
|
||
a "prior restraint" on speech. This means that rather than allow the
|
||
material to be published and then seek to punish it, the government
|
||
sought instead to prevent publication in the first place. (This is not
|
||
to say, of course, that anything published by Steve Jackson Games could
|
||
successfully have been punished. Indeed, the opposite appears to be the
|
||
case, since SJG's business seems to be entirely lawful.) In any effort
|
||
to restrain publication, the government bears an extremely heavy burden
|
||
of proof before a court is permitted to authorize a prior restraint.
|
||
|
||
Indeed, in its 200-year history, the Supreme Court has never upheld a
|
||
prior restraint on the publication of material protected by the First
|
||
Amendment, warning that such efforts to restrain publication are
|
||
presumptively unconstitutional. For example, the Department of Justice
|
||
was unsuccessful in 1971 in obtaining the permission of the Supreme
|
||
Court to enjoin The New York Times, The Washington Post, and The Boston
|
||
Globe from publishing the so-called Pentagon Papers, which the
|
||
government strenuously argued should be enjoined because of a perceived
|
||
threat to national security. (In 1979, however, the government sought
|
||
to prevent The Progressive magazine from publishing an article
|
||
purporting to instruct the reader as to how to manufacture an atomic
|
||
bomb. A lower federal court actually imposed an order for a temporary
|
||
prior restraint that lasted six months. The Supreme Court never had an
|
||
opportunity to issue a full ruling on the constitutionality of that
|
||
restraint, however, because the case was mooted when another newspaper
|
||
published the article.)
|
||
|
||
Governmental efforts to restrain publication thus have been met by
|
||
vigorous opposition in the courts. A major problem posed by the
|
||
government's resort to the expedient of obtaining a search warrant,
|
||
therefore, is that it allows the government to effectively prevent or
|
||
delay publication without giving the citizen a ready opportunity to
|
||
oppose that effort in court.
|
||
|
||
The Secret Service managed to delay, and almost to prevent, the
|
||
publication of an innocuous game book by a legitimate company -- not by
|
||
asking a court for a prior restraint order that it surely could not have
|
||
obtained, but by asking instead for a search warrant, which it obtained
|
||
all too readily.
|
||
|
||
The seizure of the company's computer hardware is also problematic, for
|
||
it prevented the company not only from publishing GURPS CYBERPUNK, but
|
||
also from operating its electronic bulletin board. The government's
|
||
action in shutting down such an electronic bulletin board is the
|
||
functional equivalent of shutting down printing presses of The New York
|
||
Times or The Washington Post in order to prevent publication of The
|
||
Pentagon Papers. Had the government sought a court order closing down
|
||
the electronic bulletin board, such an order effecting a prior restraint
|
||
almost certainly would have been refused. Yet by obtaining the search
|
||
warrant, the government effected the same result.
|
||
|
||
This is a stark example of how electronic media suffer under a less
|
||
stringent standard of constitutional protection than applies to the
|
||
print media -- for no apparent reason, it would appear, other than the
|
||
fact that government agents and courts do not seem to readily equate
|
||
computers with printing presses and typewriters. It is difficult to
|
||
understand a difference between these media that should matter for
|
||
constitutional protection purposes. This is one of the challenges
|
||
facing the Electronic Frontier Foundation.
|
||
|
||
The Electronic Frontier Foundation will continue to press for return of
|
||
the remaining property of Steve Jackson Games and will take formal
|
||
steps, if necessary, to determine the factual basis for the search.
|
||
The purpose of these efforts is to establish law applying the First and
|
||
Fourth Amendments to electronic media, so as to protect in the future
|
||
Steve Jackson Games as well as other individuals and businesses from
|
||
the devastating effects of unlawful and unconstitutional government
|
||
intrusion upon and interference with protected property and speech
|
||
rights.
|
||
|
||
United States v. Craig Neidorf
|
||
|
||
Craig Neidorf is a 20-year-old student at the University of Missouri who
|
||
has been indicted by the United States on several counts of interstate
|
||
wire fraud and interstate transportation of stolen property in
|
||
connection with his activities as editor and publisher of the
|
||
electronic magazine, Phrack.
|
||
|
||
The indictment charges Neidorf with: (1) wire fraud and interstate
|
||
transportation of stolen property for the republication in Phrack of
|
||
information which was allegedly illegally obtained through the accessing
|
||
of a computer system without authorization, though it was obtained not
|
||
by Neidorf but by a third party; and (2) wire fraud for the publication
|
||
of an announcement of a computer conference and for the publication of
|
||
articles which allegedly provide some suggestions on how to bypass
|
||
security in some computer systems.
|
||
|
||
The information obtained without authorization is a file relating to the
|
||
provision of 911 emergency telephone services that was allegedly removed
|
||
from the BellSouth computer system without authorization. It is
|
||
important to note that neither the indictment, nor any briefs filed in
|
||
this case by the government, contain any factual allegation or
|
||
contention that Neidorf was involved in or participated in the removal
|
||
of the 911 file.
|
||
|
||
These indictments raise substantial constitutional issues which have
|
||
significant impact on the uses of new computer communications
|
||
technologies. The prosecution of an editor or publisher, under
|
||
generalized statutes like wire fraud and interstate transportation of
|
||
stolen property, for the publication of information received lawfully,
|
||
which later turns out to be have been "stolen," presents an
|
||
unprecedented threat to the freedom of the press. The person who should
|
||
be prosecuted is the thief, and not a publisher who subsequently
|
||
receives and publishes information of public interest. To draw an
|
||
analogy to the print media, this would be the equivalent of prosecuting
|
||
The New York Times and The Washington Post for publishing the Pentagon
|
||
Papers when those papers were dropped off at the doorsteps of those
|
||
newspapers.
|
||
|
||
Similarly, the prosecution of a publisher for wire fraud arising out of
|
||
the publication of articles that allegedly suggested methods of
|
||
unlawful activity is also unprecedented. Even assuming that the
|
||
articles here did advocate unlawful activity, advocacy of unlawful
|
||
activity cannot constitutionally be the basis for a criminal
|
||
prosecution, except where such advocacy is directed at producing
|
||
imminent lawless action, and is likely to incite such action. The
|
||
articles here simply do not fit within this limited category. The
|
||
Supreme Court has often reiterated that in order for advocacy to be
|
||
criminalized, the speech must be such that the words trigger an
|
||
immediate action. Criminal prosecutions such as this pose an extreme
|
||
hazard for First Amendment rights in all media of communication, as it
|
||
has a chilling effect on writers and publishers who wish to discuss the
|
||
ramifications of illegal activity, such as information describing
|
||
illegal activity or describing how a crime might be committed.
|
||
|
||
In addition, since the statutes under which Neidorf is charged clearly
|
||
do not envision computer communications, applying them to situations
|
||
such as that found in the Neidorf case raises fundamental questions of
|
||
fair notice -- that is to say, the publisher or computer user has no
|
||
way of knowing that his actions may in fact be a violation of criminal
|
||
law. The judge in the case has already conceded that "no court has
|
||
ever held that the electronic transfer of confidential, proprietary
|
||
business information from one computer to another across state lines
|
||
constitutes a violation of [the wire fraud statute]." The Due Process
|
||
Clause prohibits the criminal prosecution of one who has not had fair
|
||
notice of the illegality of his action. Strict adherence to the
|
||
requirements of the Due Process Clause also minimizes the risk of
|
||
selective or arbitrary enforcement, where prosecutors decide what
|
||
conduct they do not like and then seek some statute that can be
|
||
stretched by some theory to cover that conduct.
|
||
|
||
Government seizure and liability of bulletin board systems
|
||
|
||
During the recent government crackdown on computer crime, the government
|
||
has on many occasions seized the computers which operate bulletin board
|
||
systems ("BBSs"), even though the operator of the bulletin board is not
|
||
suspected of any complicity in any alleged criminal activity. The
|
||
government seizures go far beyond a "prior restraint" on the publication
|
||
of any specific article, as the seizure of the computer equipment of a
|
||
BBS prevents the BBS from publishing at all on any subject. This akin
|
||
to seizing the word processing and computerized typesetting equipment
|
||
of The New York Times for publishing the Pentagon Papers, simply because
|
||
the government contends that there may be information relating to the
|
||
commission of a crime on the system. Thus, the government does not
|
||
simply restrain the publication of the "offending" document, but it
|
||
seizes the means of production of the First Amendment activity so that
|
||
no more stories of any type can be published.
|
||
|
||
The government is allowed to seize "instrumentalities of crime," and a
|
||
bulletin board and its associated computer system could arguably be
|
||
called an instrumentality of crime if individuals used its private
|
||
e-mail system to send messages in furtherance of criminal activity.
|
||
However, even if the government has a compelling interest in interfering
|
||
with First Amendment protected speech, it can only do so by the least
|
||
restrictive means. Clearly, the wholesale seizure and retention of a
|
||
publication's means of production, i.e., its computer system, is not the
|
||
least restrictive alternative. The government obviously could seize
|
||
the equipment long enough to make a copy of the information stored on
|
||
the hard disk and to copy any other disks and documents, and then
|
||
promptly return the computer system to the operator.
|
||
|
||
Another unconstitutional aspect of the government seizures of the
|
||
computers of bulletin board systems is the government infringement on
|
||
the privacy of the electronic mail in the systems. It appears that the
|
||
government, in seeking warrants for the seizures, has not forthrightly
|
||
informed the court that private mail of third parties is on the
|
||
computers, and has also read some of this private mail after the systems
|
||
have been seized.
|
||
|
||
The Neidorf case also raises issues of great significance to bulletin
|
||
board systems. As Neidorf was a publisher of information he received,
|
||
BBSs could be considered publishers of information that its users post
|
||
on the boards. BBS operators have a great deal of concern as to the
|
||
liability they might face for the dissemination of information on their
|
||
boards which may turn out to have been obtained originally without
|
||
authorization, or which discuss activity which may be considered
|
||
illegal. This uncertainty as to the law has already caused a decrease
|
||
in the free flow of information, as some BBS operators have removed
|
||
information solely because of the fear of liability.
|
||
|
||
The Electronic Frontier Foundation stands firmly against the
|
||
unauthorized access of computer systems, computer trespass and computer
|
||
theft, and strongly supports the security and sanctity of private
|
||
computer systems and networks. One of the goals of the Foundation,
|
||
however, is to ensure that, as the legal framework is established to
|
||
protect the security of these computer systems, the unfettered
|
||
communication and exchange of ideas is not hindered. The Foundation is
|
||
concerned that the Government has cast its net too broadly, ensnaring
|
||
the innocent and chilling or indeed supressing the free flow of
|
||
information. The Foundation fears not only that protected speech will
|
||
be curtailed, but also that the citizen's reasonable expectation in the
|
||
privacy and sanctity of electronic communications systems will be
|
||
thwarted, and people will be hesitant to communicate via these networks.
|
||
Such a lack of confidence in electronic communication modes will
|
||
substantially set back the kind of experimentation by and communication
|
||
among fertile minds that are essential to our nation's development. The
|
||
Foundation has therefore applied for amicus curiae (friend of the
|
||
court) status in the Neidorf case and has filed legal briefs in support
|
||
of the First Amendment issues there, and is prepared to assist in
|
||
protecting the free flow of information over bulletin board systems and
|
||
other computer technologies.
|
||
|
||
For further information regarding Steve Jackson Games please contact:
|
||
|
||
Harvey Silverglate or Sharon Beckman
|
||
Silverglate & Good
|
||
89 Broad Street, 14th Floor
|
||
Boston, MA 02110
|
||
617/542-6663
|
||
|
||
For further information regarding Craig Neidorf please contact:
|
||
|
||
Terry Gross or Eric Lieberman
|
||
Rabinowitz, Boudin, Standard, Krinsky and Lieberman
|
||
740 Broadway, 5th Floor
|
||
New York, NY 10003
|
||
212/254-1111
|
||
|
||
|
||
|
||
======================================================
|
||
|
||
|
||
|
||
LEGAL OVERVIEW
|
||
|
||
THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS
|
||
|
||
Advances in computer technology have brought us to a new frontier in
|
||
communications, where the law is largely unsettled and woefully
|
||
inadequate to deal with the problems and challenges posed by electronic
|
||
technology. How the law develops in this area will have a direct impact
|
||
on the electronic communications experiments and innovations being
|
||
devised day in and day out by millions of citizens on both a large and
|
||
small scale from coast to coast. Reasonable balances have to be struck
|
||
among:
|
||
|
||
* traditional civil liberties
|
||
* protection of intellectual property
|
||
* freedom to experiment and innovate
|
||
* protection of the security and integrity of computer
|
||
systems from improper governmental and private
|
||
interference.
|
||
|
||
Striking these balances properly will not be easy, but if they are
|
||
struck too far in one direction or the other, important social and legal
|
||
values surely will be sacrificed.
|
||
|
||
Helping to see to it that this important and difficult task is done
|
||
properly is a major goal of the Electronic Frontier Foundation. It is
|
||
critical to assure that these lines are drawn in accordance with the
|
||
fundamental constitutional rights that have protected individuals from
|
||
government excesses since our nation was founded -- freedom of speech,
|
||
press, and association, the right to privacy and protection from
|
||
unwarranted governmental intrusion, as well as the right to procedural
|
||
fairness and due process of law.
|
||
|
||
The First Amendment
|
||
|
||
The First Amendment to the United States Constitution prohibits the
|
||
government from "abridging the freedom of speech, or of the press," and
|
||
guarantees freedom of association as well. It is widely considered to
|
||
be the single most important of the guarantees contained in the Bill of
|
||
Rights, since free speech and association are fundamental in securing
|
||
all other rights.
|
||
|
||
The First Amendment throughout history has been challenged by every
|
||
important technological development. It has enjoyed only a mixed record
|
||
of success. Traditional forms of speech -- the print media and public
|
||
speaking -- have enjoyed a long and rich history of freedom from
|
||
governmental interference. The United States Supreme Court has not
|
||
afforded the same degree of freedom to electronic broadcasting,
|
||
however.
|
||
|
||
Radio and television communications, for example, have been subjected to
|
||
regulation and censorship by the Federal Communications Commission
|
||
(FCC), and by the Congress. The Supreme Court initially justified
|
||
regulation of the broadcast media on technological grounds -- since
|
||
there were assumed to be a finite number of radio and television
|
||
frequencies, the Court believed that regulation was necessary to prevent
|
||
interference among frequencies and to make sure that scarce resources
|
||
were allocated fairly. The multiplicity of cable TV networks has
|
||
demonstrated the falsity of this "scarce resource" rationale, but the
|
||
Court has expressed a reluctance to abandon its outmoded approach
|
||
without some signal from Congress or the FCC.
|
||
|
||
Congress has not seemed overly eager to relinquish even
|
||
counterproductive control over the airwaves. Witness, for example,
|
||
legislation and rule-making in recent years that have kept even
|
||
important literature, such as the poetry of Allen Ginsberg, from being
|
||
broadcast on radio because of language deemed "offensive" to regulators.
|
||
Diversity and experimentation have been sorely hampered by these rules.
|
||
|
||
The development of computer technology provides the perfect opportunity
|
||
for lawmakers and courts to abandon much of the distinction between the
|
||
print and electronic media and to extend First Amendment protections to
|
||
all communications regardless of the medium. Just as the multiplicity
|
||
of cable lines has rendered obsolete the argument that television has to
|
||
be regulated because of a scarcity of airwave frequencies, so has the
|
||
ready availability of virtually unlimited computer communication
|
||
modalities made obsolete a similar argument for harsh controls in this
|
||
area. With the computer taking over the role previously played by the
|
||
typewriter and the printing press, it would be a constitutional disaster
|
||
of major proportions if the treatment of computers were to follow the
|
||
history of regulation of radio and television, rather than the history
|
||
of freedom of the press.
|
||
|
||
To the extent that regulation is seen as necessary and proper, it should
|
||
foster the goal of allowing maximum freedom, innovation and
|
||
experimentation in an atmosphere where no one's efforts are sabotaged by
|
||
either government or private parties. Regulation should be limited by
|
||
the adage that quite aptly describes the line that separates reasonable
|
||
from unreasonable regulation in the First Amendment area: "Your liberty
|
||
ends at the tip of my nose."
|
||
|
||
As usual, the law lags well behind the development of technology. It is
|
||
important to educate lawmakers and judges about new technologies, lest
|
||
fear and ignorance of the new and unfamiliar, create barriers to free
|
||
communication, expression, experimentation, innovation, and other such
|
||
values that help keep a nation both free and vigorous.
|
||
|
||
The Fourth Amendment
|
||
|
||
The Fourth Amendment guarantees "the right of the people to be secure in
|
||
their persons, houses, papers, and effects, against unreasonable
|
||
searches and seizures." Judges are not to issue search warrants for
|
||
private property unless the law enforcement officer seeking the warrant
|
||
demonstrates the existence of "a probable cause, supported by Oath or
|
||
affirmation, and particularly describing the place to be searched, and
|
||
the persons or things to be seized." In short, the scope of the search
|
||
has to be as narrow as possible, and there has to be good reason to
|
||
believe that the search will turn up evidence of illegal activity.
|
||
|
||
The meaning of the Fourth Amendment's guarantee has evolved over time in
|
||
response to changing technologies. For example, while the Fourth
|
||
Amendment was first applied to prevent the government from trespassing
|
||
onto private property and seizing tangible objects, the physical
|
||
trespass rationale was made obsolete by the development of electronic
|
||
eavesdropping devices which permitted the government to "seize" an
|
||
individual's words without ever treading onto that person's private
|
||
property. To put the matter more concretely, while the drafters of the
|
||
First Amendment surely knew nothing about electronic databases, surely
|
||
they would have considered one's database to be as sacrosanct as, for
|
||
example, the contents of one's private desk or filing cabinet.
|
||
|
||
The Supreme Court responded decades ago to these types of technological
|
||
challenges by interpreting the Fourth Amendment more broadly to prevent
|
||
governmental violation of an individual's reasonable expectation of
|
||
privacy, a concept that transcended the narrow definition of one's
|
||
private physical space. It is now well established that an individual
|
||
has a reasonable expectation of privacy, not only in his or her home
|
||
and business, but also in private communications. Thus, for example:
|
||
|
||
* Government wiretapping and electronic eavesdropping are now limited
|
||
by state and federal statutes enacted to effectuate and even to expand
|
||
upon Fourth Amendment protections.
|
||
|
||
* More recently, the Fourth Amendment has been used, albeit with
|
||
limited success, to protect individuals from undergoing certain random
|
||
mandatory drug testing imposed by governmental authorities.
|
||
|
||
Advancements in technology have also worked in the opposite direction,
|
||
to diminish expectations of privacy that society once considered
|
||
reasonable, and thus have helped limit the scope of Fourth Amendment
|
||
protections. Thus, while one might once have reasonably expected
|
||
privacy in a fenced-in field, the Supreme Court has recently told us
|
||
that such an expectation is not reasonable in an age of surveillance
|
||
facilitated by airplanes and zoom lenses.
|
||
|
||
Applicability of Fourth Amendment to computer media
|
||
|
||
Just as the Fourth Amendment has evolved in response to changing
|
||
technologies, so it must now be interpreted to protect the reasonable
|
||
expectation of privacy of computer users in, for example, their
|
||
electronic mail or electronically stored secrets. The extent to which
|
||
government intrusion into these private areas should be allowed, ought
|
||
to be debated openly, fully, and intelligently, as the Congress seeks to
|
||
legislate in the area, as courts decide cases, and as administrative,
|
||
regulatory, and prosecutorial agencies seek to establish their turf.
|
||
|
||
One point that must be made, but which is commonly misunderstood, is
|
||
that the Bill of Rights seeks to protect citizens from privacy invasions
|
||
committed by the government, but, with very few narrow exceptions, these
|
||
protections do not serve to deter private citizens from doing what the
|
||
government is prohibited from doing. In short, while the Fourth
|
||
Amendment limits the government's ability to invade and spy upon private
|
||
databanks, it does not protect against similar invasions by private
|
||
parties. Protection of citizens from the depredations of other citizens
|
||
requires the passage of privacy legislation.
|
||
|
||
The Fifth Amendment
|
||
|
||
The Fifth Amendment assures citizens that they will not "be deprived of
|
||
life, liberty, or property, without due process of law" and that private
|
||
property shall not "be taken for public use without just compensation."
|
||
This Amendment thus protects both the sanctity of private property and
|
||
the right of citizens to be proceeded against by fair means before they
|
||
may be punished for alleged infractions of the law.
|
||
|
||
One aspect of due process of law is that citizens not be prosecuted for
|
||
alleged violations of laws that are so vague that persons of reasonable
|
||
intelligence cannot be expected to assume that some prosecutor will
|
||
charge that his or her conduct is criminal. A hypothetical law, for
|
||
example, that makes it a crime to do "that which should not be done",
|
||
would obviously not pass constitutional muster under the Fifth
|
||
Amendment. Yet the application of some existing laws to new situations
|
||
that arise in the electronic age is only slightly less problematic than
|
||
the hypothetical, and the Electronic Frontier Foundation plans to
|
||
monitor the process by which old laws are modified, and new laws are
|
||
crafted, to meet modern situations.
|
||
|
||
One area in which old laws and new technologies have already clashed and
|
||
are bound to continue to clash, is the application of federal criminal
|
||
laws against the interstate transportation of stolen property. The
|
||
placement on an electronic bulletin board of arguably propriety computer
|
||
files, and the "re-publication" of such material by those with access to
|
||
the bulletin board, might well expose the sponsor of the bulletin board
|
||
as well as all participants to federal felony charges, if the U.S.
|
||
Department of Justice can convince the courts to give these federal laws
|
||
a broad enough reading. Similarly, federal laws protecting against
|
||
wiretapping and electronic eavesdropping clearly have to be updated to
|
||
take into account electronic bulletin board technology, lest those who
|
||
utilize such means of communication should be assured of reasonable
|
||
privacy from unwanted government surveillance.
|
||
|
||
Summary
|
||
|
||
The problem of melding old but still valid concepts of constitutional
|
||
rights, with new and rapidly evolving technologies, is perhaps best
|
||
summed up by the following observation. Twenty-five years ago there was
|
||
not much question but that the First Amendment prohibited the government
|
||
from seizing a newspaper's printing press, or a writer's typewriter, in
|
||
order to prevent the publication of protected speech. Similarly, the
|
||
government would not have been allowed to search through, and seize,
|
||
one's private papers stored in a filing cabinet, without first
|
||
convincing a judge that probable cause existed to believe that evidence
|
||
of crime would be found.
|
||
|
||
Today, a single computer is in reality a printing press, typewriter, and
|
||
filing cabinet (and more) all wrapped up in one. How the use and output
|
||
of this device is treated in a nation governed by a Constitution that
|
||
protects liberty as well as private property, is a major challenge we
|
||
face. How well we allow this marvelous invention to continue to be
|
||
developed by creative minds, while we seek to prohibit or discourage
|
||
truly abusive practices, will depend upon the degree of wisdom that
|
||
guides our courts, our legislatures, and governmental agencies entrusted
|
||
with authority in this area of our national life.
|
||
|
||
For further information regarding The Bill of Rights please contact:
|
||
|
||
Harvey Silverglate
|
||
Silverglate & Good
|
||
89 Broad Street, 14th Floor
|
||
Boston, MA 02110
|
||
617/542-6663
|
||
|
||
From lll-winken!decwrl!apple!well!jef Mon Aug 20 01:56:09 1990
|
||
Return-Path: <lll-winken!decwrl!apple!well!jef>
|
||
Received: by ddsw1.mcs.com (/\=-/\ Smail3.1.18.1 #18.27)
|
||
id <m0i463J-0000LJC@ddsw1.mcs.com>; Mon, 20 Aug 90 01:56 CDT
|
||
Received: by lll-winken.llnl.gov (smail2.5)
|
||
id AA13373; 19 Aug 90 23:35:20 PDT (Sun)
|
||
Received: by decwrl.dec.com; id AA01095; Sun, 19 Aug 90 23:35:29 -0700
|
||
Received: by apple.com (5.61/25-eef)
|
||
id AA18655; Sun, 19 Aug 90 22:10:55 -0700
|
||
for
|
||
Received: by well.sf.ca.us (4.12/4.7)
|
||
id AA21841; Sun, 19 Aug 90 21:02:16 pdt
|
||
Message-Id: <9008200402.AA21841@well.sf.ca.us>
|
||
From: decwrl!apple!well!eff-news-request
|
||
Reply-To: decwrl!apple!well.sf.ca.us!eff-news-request
|
||
Subject: EFF mailing #3: About the Electronic Frontier Foundation
|
||
To: eff-news
|
||
Date: Sun, 19 Aug 90 21:02:14 PDT
|
||
Sender: decwrl!apple!well!jef
|
||
Status: RO
|
||
|
||
[Our story so far: If you're getting this message, you either asked to
|
||
be added to the EFF mailing list, or asked for general information about
|
||
the EFF. We have sent out two mailings before this one; if you missed
|
||
them and want copies, send a request to eff-news-request@well.sf.ca.us.
|
||
We now have two Usenet newsgroups set up, in the "inet" distribution.
|
||
The moderated newsgroup, comp.org.eff.news, will carry everything we send
|
||
to this mailing list, plus other things of interest. If your site gets
|
||
the newsgroup and you want to read this stuff there instead of through
|
||
the mailing list, send a request to eff-news-request@well.sf.ca.us and
|
||
I'll be happy to take you off the list. And now...]
|
||
|
||
|
||
************************************************************
|
||
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".
|
||
|
||
************************************************************
|
||
|
||
$ Power to the people.
|
||
Power: not found
|
||
|
||
Downloaded From P-80 International Information Systems 304-744-2253 12yrs+
|