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874 lines
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Plaintext
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Computer underground Digest Fri Sept 22, 1995 Volume 7 : Issue 75
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ISSN 1004-042X
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Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU
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Archivist: Brendan Kehoe
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Shadow Master: Stanton McCandlish
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Field Agent Extraordinaire: David Smith
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Shadow-Archivists: Dan Carosone / Paul Southworth
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Ralph Sims / Jyrki Kuoppala
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Ian Dickinson
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Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
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CONTENTS, #7.75 (Fri, Sept 22, 1995)
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File 1--CuD readers may want to know...
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File 2--VTW BillWatch #18: new child porn bill (S1237)
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File 3--Ruling in RTC v. F.A.C.T.NET (Church of Sci. Loses)
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File 4--Cu Digest Header Info (unchanged since 19 Apr, 1995)
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CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
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THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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---------------------------------------------------------------------
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From: Stanton McCandlish <mech@EFF.ORG>
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Subject: File 1--CuD readers may want to know--(EFF Homepage)
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Date: Wed, 20 Sep 1995 20:47:43 -0400 (EDT)
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...that the EFF-housed CuD archive has been jazzed up a bit for WWW users.
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It now features a nice index page.
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URL: http://www.eff.org/pub/Publications/CuD/
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This index should propagate to all the mirrors as well, so all of them
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should be browsable in style.
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Only the top level is currently so indexed. Will work on the
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subdirectories at some point.
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--
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<A HREF="http://www.eff.org/~mech/"> Stanton McCandlish
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</A><HR><A HREF="mailto:mech@eff.org"> mech@eff.org
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</A><P><A HREF="http://www.eff.org/"> Electronic Frontier Foundation
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</A><P><A HREF="http://www.eff.org/1.html"> Online Services Mgr. </A>
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------------------------------
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Date: Sun, 17 Sep 1995 17:30:12 -0400
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From: shabbir@PANIX.COM(Shabbir J. Safdar, Voters Telecom Watch)
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Subject: File 2--VTW BillWatch #18: new child porn bill (S1237)
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SUMMARY OF INTERNET CENSORSHIP LEGISLATION
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The four different pieces of legislation that address Internet regulation
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are still waiting for conference committee consideration. With the budget
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as the current Congressional priority, it isn't likely the fate of the
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Internet will be considered for several weeks.
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VTW is still collecting the signatures of businesses and bulletin boards
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that wish to participate in the joint letter to be sent to Congress urging
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parental control (instead of censorship) as a means of approaching the
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Internet. VTW urges you to contact your Internet service provider along
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with any business that use the Internet to signon to this letter. Details
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can be found at the http://www.vtw.org/cdaletter/
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or by sending mail to vtw@vtw.org with "send cdaletter" in the subject line.
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_________________________________________________________
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CHANGES IN US CRYPTOGRAPHY POLICY
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VTW has been chronicaling the government's attempts at forcing Clipper II
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onto the public and industry. Of course, it is still extremely unpopular.
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At the Sep. 6th and 7th NIST workshop, industry and public interest
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groups panned the plan and small working groups setup by NIST to evaluate
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the criteria unhappily participated, even openly revolting in some instances.
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On Sep 15th, NIST held another workshop to discuss the FIPS (Federal
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Information Processing Standard) that would embody Clipper II (also
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know as Commercial Key Escrow). Believe it or not, this meeting was not
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a repeat of the Sep 6th/7th meeting. Several attendees noticed significant
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differences:
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HEIGHTENED GOVERNMENT PRESENCE
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At the Sep 6th/7th workshop, dissent among industry and public
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representatives interfered with NIST's attempts at having a discussion
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about the specifics of Clipper II. Simply put, industry and the public
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advocates didn't like the plan. Therefore discussions of the details
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were fruitless. One smaller working group simply refused to work on
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the details and issued a statement condemning the whole Clipper II plan.
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The government upped the number of Federal participants at the Sep. 15th
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meeting in order to prevent the repeat of such an event. Several public
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advocates noticed a high percentage of government-provided participants in
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the working groups. One civil liberties advocate noted that he had never
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seen so many NSA individuals identifying themselves in public before.
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Needless to say the tactic worked. Little in the way of opposition to
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the plan was voiced.
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BURNOUT AMONG INDUSTRY AND PUBLIC REPRESENTATIVES
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Having been through this Kafka-esque exercise a mere two years ago with
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the original Clipper plan, industry and public advocates are showing
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signs of burnout. It's fairly clear that their concerns are not being
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listened to. Both the public and the industry clearly sent a message to
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the Clinton Administration when the original Clipper was proposed.
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Said F. Lynn McNulty of NIST in the New York Times Magazine (6/12/94), "We
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received 320 comments, only 2 of which were supportive."
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NIST made the Clipper Chip a government standard anyway, and it flopped
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in the marketplace. How many of those Clipper-phones do you see running
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around? The government's so-called "stupid criminals" are just falling
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over themselves to buy them, aren't they? NIST has stated that it has
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already been decided to make Clipper II a standard, before receiving any
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public input. Is this how democracy is supposed to work?
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COMMERCIAL CHEERLEADING FROM SELECT INDUSTRY INDIVIDUALS
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If you're wondering how the Clinton administration can get away with
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pushing such a disastrous proposal again, look no further than select
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members of the hardware and software industry. Several companies that
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make both security software, hardware devices and several key escrow
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companies are pushing Clipper II because they incorrectly believe that
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the government will not make it mandatory, and because they believe
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the industry wants key escrow.
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VTW believes they have it half-right: industry wants key escrow, though
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not on the Clinton Administration's terms. It is clear, however, that
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the Administration will not allow key-escrow to be a voluntary program.
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The EPIC (Electronic Privacy Information Center) has proved that the
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government has enough common sense to know that key escrow is going to be
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unpopular and will have to be forced on the marketplace. (See FOIA'd
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documents at URL:http://www.epic.org/crypto/).
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Never the less, several companies who want to produce hardware key
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escrowed devices, key escrowed software, and become escrow holders have
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become the champions of the Clipper II (Commercial Key Escrow)
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program. With their support, VTW predicts that the Clinton
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Administration will ratify Clipper II as a FIPS standard over the
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objections of industry and public.
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Stay tuned to BillWatch for progress on Clipper II.
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______________________________________________________________
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Internet Freedom and Family Empowerment Act (HR 1978, S n.a.)
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*** THIS BILL IS IN CONFERENCE COMMITTEE ***
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Description:
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HR 1978 is an attempt to recognize the unique medium that is
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online systems and avoid legislating censorship. It would:
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-prohibit the FCC from regulating constitutionally-protected
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online speech
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-absolve sysops and services from liability if they take
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good faith measures to screen their content or provide
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parental-screening software
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See directions below for obtaining analyses from various
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organizations.
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House sponsors and cosponsors: Cox (R-CA), Wyden (D-OR), Matsui (D-CA),
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White (R-WA), Stupak (D-MI), Rohrabacher (R-CA)
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House status:
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HR 1978 was passed 8/4/95 by the House in a vote (421-4).
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Where to get more info:
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Email: vtw@vtw.org (with "send hr1978" in the subject line)
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Gopher: gopher -p 1/vtw/exon gopher.panix.com
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WWW: http://www.panix.com/vtw/exon
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___________________________________________________________
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1995 COMMUNICATIONS DECENCY ACT (CDA) (Passed Senate, HR 1004)
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*** THIS BILL IS IN CONFERENCE COMMITTEE ***
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Description:
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The CDA would criminalize electronic speech currently protected
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in print by the First Amendment.
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House CDA sponsors: Johnson (D-SD)
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House status:
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HR1004 will probably never leave committee.
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Senate status:
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The Senate affirmed the Communications Decency Act (84-16)
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as amended to the Telecommunications Reform bill (S 652).
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Where to get more info:
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WWW: http://www.panix.com/vtw/exon
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http://www.eff.org/
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http://www.cdt.org/
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http://epic.org/free_speech
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Gopher: gopher -p 1/vtw/exon gopher.panix.com
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gopher gopher.eff.org
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Email: vtw@vtw.org (with "send cdafaq" in the subject line)
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cda-status@cdt.org
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cda-info@cdt.org
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____________________________________________________________
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Child Protection, User Empowerment, and Free Expression in Interactive
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Media Study Act (Amendment to HR1555 in the House, S 714)
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*** THIS BILL IS IN CONFERENCE COMMITTEE ***
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Description:
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Would direct the Department of Justice to study whether current
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law is sufficient to cover enforcement of existing obscenity
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laws on computers networks.
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Senate sponsors: Leahy (D-VT)
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Senate status:
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Currently unattached to any legislation; attempted attachment to
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S.652 but failed (6/14/95).
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House sponsors: Klink (D-PA)
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House status:
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Amended to HR 1555 in committee.
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______________________________________________________________
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Last-minute provisions of the Manager's Mark amendment to HR1555 (added to
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HR1555 at the last minute)
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*** THIS BILL IS IN CONFERENCE COMMITTEE ***
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Description:
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Criminalizes many forms of constitutionally-protected speech
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when they are expressed online.
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House sponsors: Unknown
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House status:
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Amended to HR 1555 through the Manager's Mark on 8/4/95.
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______________________________________________________________
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1995 Protection of Children from Computer Pornography Act (S 892)
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Description:
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Would make Internet Service Providers liable for shielding
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people under 18 from all indecent content on the Internet.
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Senate sponsors: Dole (R-KS), Coats (R-IN), Grassley (R-IA), McConnell (R-KY),
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Shelby (R-AL), Nickles (R-OK), Hatch (R-UT)
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Senate status:
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A hearing was held Monday July 24th. No action on the bill
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has happened yet as a result of that hearing.
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___________________________________________________________
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Anti-Electronic Racketeering Act of 1995 (HR n.a., S 974)
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Description:
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S 974 has many effects (not good) on law enforcement's use of
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intercepted communications. It would also make it unlawful for
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any person to publicly disseminate encoding or encrypting
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software including software *currently allowed* to be exported
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unless it contained a "universal decoding device". This
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more than likely means that Clipper-style key escrow systems
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could be disseminated, but not strong, private cryptography.
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Senate sponsors: Grassley (R-IA)
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Senate status: Currently not active and probably won't move before the
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August recess.
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Senate citizen action required:
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Request bill below and familiarize yourself with it. VTW is
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tracking this bill, and will alert you when there is movement.
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There is no Congressional action to take right now; as other
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bills (such as the Communications Decency Act) pose a greater,
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more immediate threat.
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House of Representatives status: No House version is currently enrolled.
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Where to get more info:
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Email: vtw@vtw.org (with "send s974" in the subject line)
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Gopher: URL:gopher://gopher.panix.com:70/11/vtw/
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_________________________________________________________
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Child Pornography Prevention Act of 1995 (HR n.a., S 1237)
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Description:
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S 1237 would criminalize material that depicts children engaging
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in sexually-explicit conduct whether or not the material was
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produced with children or entirely without computer.
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Senate sponsors:
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Hatch (R-UT), Abraham (R-MI), Grassley (R-IA), Thurmond (R-SC)
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Senate status: In the Judiciary committee, no hearing has been held yet
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Senate citizen action required:
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Read the bill below and familiarize yourself with it. VTW is
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tracking this bill, and will alert you when there is movement.
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House of Representatives status: No House version is currently enrolled.
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Where to get more info:
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Check URL:http://thomas.loc.gov and search for bill S1237. VTW
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will have a homepage on this bill soon. We've included both
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the text of the bill and Congressional debate on it below.
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To amend certain provisions of law relating to child pornography,
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and for other purposes.
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IN THE SENATE OF THE UNITED STATES
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September 13 (legislative day, September 5), 1995
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Mr. Hatch (for himself, Mr. Abraham, Mr. Grassley, and Mr.
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Thurmond) introduced the following bill; which was read twice
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and referred to the Committee on the Judiciary
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A BILL
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To amend certain provisions of law relating to child pornography,
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and for other purposes.
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Be it enacted by the Senate and House of Representatives of the
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United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
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This Act may be cited as the `Child Pornography Prevention Act of
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1995'.
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SEC. 2. FINDINGS.
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Congress finds that--
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(1) the use of children in the production of sexually
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explicit material, including photographs, films, videos,
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computer images, and other visual depictions, is a form of
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sexual abuse which can result in physical or psychological
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harm, or both, to the children involved;
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(2) child pornography permanently records the victim's abuse,
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and its continued existence causes the child victims of sexual
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abuse continuing harm by haunting those children in future years;
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(3) child pornography is often used as part of a method of
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seducing other children into sexual activity; a child who is
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reluctant to engage in sexual activity with an adult, or to
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pose for sexually explicit photographs, can sometimes be
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convinced by viewing depictions of other children `having fun'
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participating in such activity;
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(4) prohibiting the possession and viewing of child
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pornography encourages the possessors of such material to
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destroy them, thereby helping to protect the victims of child
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pornography and to eliminate the market for the sexually
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exploitative use of children; and
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(5) the elimination of child pornography and the protection
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of children from sexual exploitation provide a compelling
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governmental interest for prohibiting the production,
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distribution, possession, or viewing of child pornography.
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SEC. 3. DEFINITIONS.
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Section 2256 of title 18, United States Code, is amended--
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(1) in paragraph (2)(E), by inserting before the semicolon
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the following: `, or the buttocks of any minor, or the breast
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of any female minor';
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(2) in paragraph (5), by inserting before the semicolon the
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following: `, and data stored on computer disk or by electronic
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means which is capable of conversion into a visual image';
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(3) in paragraph (6), by striking `and';
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(4) in paragraph (7), by striking the period and inserting `;
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and'; and
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(5) by adding at the end the following new paragraph:
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`(8) `child pornography' means any visual depiction,
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including any photograph, film, video, picture, drawing, or
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computer or computer-generated image or picture, whether made
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or produced by electronic, mechanical, or other means, of
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sexually explicit conduct, where--
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`(A) the production of such visual depiction involves the
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use of a minor engaging in sexually explicit conduct;
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`(B) such visual depiction is, or appears to be, of a
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minor engaging in sexually explicit conduct; or
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`(C) such visual depiction is advertised, promoted,
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presented, described, or distributed in such a manner that
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conveys the impression that the material is or contains a
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visual depiction of a minor engaging in sexually explicit
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conduct.'.
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SEC. 4. PROHIBITED ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR
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CONTAINING CHILD PORNOGRAPHY.
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(a) In General: Section 2252 of title 18, United States Code, is
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amended to read as follows:
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`Sec. 2252. Certain activities relating to material constituting or
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containing child pornography
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`(a) Any person who--
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`(1) knowingly mails, transports, or ships in interstate or
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foreign commerce by any means, including by computer, any child
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pornography;
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`(2) knowingly receives or distributes--
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`(A) any child pornography that has been mailed, shipped,
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or transported in interstate or foreign commerce by any
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means, including by computer; or
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`(B) any material that contains child pornography that
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has been mailed, shipped, or transported in interstate or
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foreign commerce by any means, including by computer;
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`(3) knowingly reproduces any child pornography for
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distribution through the mails, or in interstate or foreign
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commerce by any means, including by computer;
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`(4) either--
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`(A) in the maritime and territorial jurisdiction of the
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United States, or on any land or building owned by, leased
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to, or otherwise used by or under the control of the United
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States Government, or in the Indian country (as defined in
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section 1151), knowingly sells or possesses with the intent
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to sell any child pornography; or
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`(B) knowingly sells or possesses with the intent to sell
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any child pornography that has been mailed, shipped, or
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transported in interstate or foreign commerce by any means,
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including by computer, or that was produced using materials
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that have been mailed, shipped, or transported in
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interstate or foreign commerce by any means, including by
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computer; or
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`(5) either--
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`(A) in the maritime and territorial jurisdiction of the
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United States, or on any land or building owned by, leased
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to, or otherwise used by or under the control of the United
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States Government, or in the Indian country (as defined in
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section 1151), knowingly possesses 3 or more books,
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magazines, periodicals, films, videotapes, computer disks,
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or any other material that contains any child pornography; or
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`(B) knowingly possesses 3 or more books, magazines,
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periodicals, films, videotapes, computer disks, or any
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other material that contains any child pornography that has
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been mailed, shipped, or transported in interstate or
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foreign commerce by any means, including by computer,
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shall be punished as provided in subsection (b).
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`(b)(1) Whoever violates, or attempts or conspires to violate,
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paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined
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under this title or imprisoned not more than 10 years, or both,
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but, if such person has a prior conviction under this chapter or
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chapter 109A, such person shall be fined under this title and
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imprisoned for not less than 5 years nor more than 15 years.
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`(2) Whoever violates paragraph (5) of subsection (a) shall be
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fined under this title or imprisoned for not more than 5 years, or
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both.'.
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(b) Technical Amendment: The table of sections for chapter 110 of
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title 18, United States Code, is amended by amending the item
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relating to section 2252 to read as follows:
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`2252. Certain activities relating to material constituting or
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containing child pornography.'.
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SEC. 5. PRIVACY PROTECTION ACT AMENDMENTS.
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Section 101 of the Privacy Protection Act of 1980 (42 U.S.C.
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2000aa) is amended--
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(1) in subsection (a)(1), by inserting before the semicolon
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at the end the following: `, or if the offense involves the
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production, possession, receipt, mailing, sale, distribution,
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shipment, or transportation of child pornography, the sexual
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exploitation of children, or the sale or purchase of children
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under section 2251, 2251A, or 2252 of title 18, United States
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Code'; and
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(2) in subsection (b)(1), by inserting before the semicolon
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at the end the following: `, or if the offense involves the
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production, possession, receipt, mailing, sale, distribution,
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shipment, or transportation of child pornography, the sexual
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exploitation of children, or the sale or purchase of children
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under section 2251, 2251A, or 2252 of title 18, United States
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Code'.
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SEC. 6. SEVERABILITY.
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If any provision of this Act, an amendment made by this Act, or
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the application of such provision or amendment to any person or
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circumstance is held to be unconstitutional, the remainder of this
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Act, the amendments made by this Act, and the application of such
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to any other person or circumstance shall not be affected thereby.
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STATEMENTS OF INTRODUCED BILLS AND JOINT RESOLUTIONS (Senate -
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September 13, 1995)
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THE CHILD PORNOGRAPHY PREVENTION ACT OF 1995
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|
|
Mr. HATCH. Mr. President, it is impossible for any decent American not
|
|
to be outraged by child pornography and the sexual exploitation of
|
|
children. Such material is a plague upon our people and the moral
|
|
fabric of this great Nation.
|
|
|
|
And, as a great Nation, I believe that we have both the constitutional
|
|
right and moral obligation to protect our children from those who,
|
|
motivated by profit or perversion or both, would abuse, exploit, and
|
|
degrade the weakest and most vulnerable members of our society.
|
|
|
|
Current Federal law dealing with child pornography reflects the
|
|
overwhelming bipartisan consensus which has always existed, both in
|
|
Congress and in the country, that there is no place for such filth
|
|
even in a free society and that those who produce or peddle this
|
|
reprehensible material must be made to feel the full weight of the law
|
|
and suffer a punishment reflective of the seriousness of their
|
|
offense.
|
|
|
|
As with many of our criminal statutes, however, effective enforcement
|
|
of our laws against child pornography today faces a new obstacle: The
|
|
criminal use, or misuse, of new technology which is outside the scope
|
|
of existing statutes. In order to close this computer-generated
|
|
loophole and to give our law enforcement authorities the tools they
|
|
need to stem the increasing flow of high-tech child pornography, I am
|
|
today introducing the Child Pornography Prevention Act of 1995.
|
|
|
|
The necessity for prompt legislative action amending our existing
|
|
Federal child pornography statutes to cover the use of computer
|
|
technology in the production of such material was vividly illustrated
|
|
by a recent story in the Washington Times. This story, dated July 23,
|
|
1995, reported the conviction in Canada of a child pornographer who
|
|
copied innocuous pictures of children from books and catalogs onto a
|
|
computer, altered the images to remove the childrens' clothing, and
|
|
then arranged the children into sexual positions. According to
|
|
Canadian police, these sexual scenes involved not only adults and
|
|
children, but also animals.
|
|
|
|
Even more shocking than the occurrence of this type of repulsive
|
|
conduct is the fact that, under current Federal law, those pictures,
|
|
depicting naked children involved in sex with other children, adults,
|
|
and even animals, would not be prosecutable as child pornography. That
|
|
is because current Federal child pornography and sexual exploitation
|
|
of children laws, United States Code title 18, sections 2251, 2251A,
|
|
and 2252, cover only visual depictions of children engaging in
|
|
sexually explicit conduct whose production involved the use of a minor
|
|
engaging in such conduct; materials such as photographs, films, and
|
|
videotapes.
|
|
|
|
Today, however, visual depictions of children engaging in any
|
|
imaginable forms of sexual conduct can be produced entirely by
|
|
computer, without using children, thereby placing such depictions
|
|
outside the scope of Federal law. Computers can also be used to alter
|
|
sexually explicit photographs, films, and videos in such a way as to
|
|
make it virtually impossible for prosecutors to identify individuals,
|
|
or to prove that the offending material was produced using children.
|
|
|
|
The problem is simple: While Federal law has failed to keep pace with
|
|
technology, the purveyors of child pornography have been right on line
|
|
with it. This bill will help to correct that problem.
|
|
|
|
The Child Pornography Prevention Act of 1995, which includes a
|
|
statement of congressional findings as to harm, both to children and
|
|
adults, resulting from child pornography, has three major provisions.
|
|
First, it would amend United States Code title 18, section 2256, to
|
|
establish, for the first time, a specific, comprehensive, Federal
|
|
statutory definition of child pornography. Under this bill, any visual
|
|
depiction, such as a photograph, film, videotape or computer image,
|
|
which is produced by any means, including electronically by computer,
|
|
of sexually explicit conduct will be classified as child pornography
|
|
if: (a) its production involved the use of a minor engaging in
|
|
sexually explicit conduct; or (b) it depicts, or appears to depict, a
|
|
minor engaging in sexually explicit conduct; or (c) it is promoted or
|
|
advertised as depicting a minor engaging in sexually explicit conduct.
|
|
|
|
_____________________________________________________________
|
|
|
|
SUBSCRIPTION AND REPRODUCTION INFORMATION
|
|
|
|
*** Know of someone ANYWHERE with a fax machine but without net ***
|
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*** access that's interested in VTW's issues? Tell them to ***
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To get on the distribution list for BillWatch, send mail to
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For permission to reproduce VTW alerts contact vtw@vtw.org
|
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|
|
------------------------------
|
|
|
|
Date: Fri, 22 Sep 1995 15:21:41 CDT
|
|
From: CuD Moderators <cudigest@sun.soci.niu.edu>
|
|
Subject: File 3--Ruling in RTC v. F.A.C.T.NET (Church of Sci. Loses)
|
|
|
|
((MODERATORS NOTE: The following is the text of the Church of
|
|
Scientiology civil action against F.A.C.TNET. The ruling
|
|
is a legal blow for CoS. Links to web sites detailing what
|
|
some have called a "campaign of litigation terrorism" or a
|
|
"war on the Net" can be found on the CuD homepage at
|
|
http://www.soci.niu.edu.
|
|
|
|
Copyright © 1995 Faegre & Benson Professional Limited
|
|
Liability Partnership and Internet Broadcasting Corporation,
|
|
all rights reserved. http://www.faegre.com))
|
|
|
|
IN THE UNITED STATES DISTRICT COURT
|
|
FOR THE DISTRICT OF COLORADO
|
|
|
|
Civil Action No. 95-B-2143
|
|
|
|
RELIGIOUS TECHNOLOGY CENTER,
|
|
Plaintiff,
|
|
|
|
vs.
|
|
|
|
F.A.C.T.NET, INC., et al.,
|
|
Defendants.
|
|
|
|
_________________________________________________________________
|
|
|
|
|
|
REPORTER'S TRANSCRIPT
|
|
RULING
|
|
|
|
|
|
Proceedings before the HONORABLE JOHN L. KANE, JR., Judge, United
|
|
States District Court for the District of Colorado, commencing at 4:00
|
|
p.m., on the 12th day of September, 1995, in Courtroom C-401, United
|
|
States Courthouse, Denver, Colorado.
|
|
|
|
_________________________________________________________________
|
|
|
|
|
|
|
|
DEBORAH A. STAFFORD, Official Reporter
|
|
P.O. Box 3592
|
|
Denver, Colorado 80294
|
|
|
|
Proceedings Reported by Mechanical Stenography
|
|
Transcription Produced via Computer
|
|
_________________________________________________________________
|
|
|
|
|
|
|
|
APPEARANCES
|
|
|
|
|
|
|
|
For the Plaintiff:
|
|
|
|
EARLE C. COOLEY, ESQ.
|
|
Cooley, Manion, Moore & Jones
|
|
21 Custom House Street
|
|
Boston, MA 02110
|
|
|
|
TODD P. BLAKELY, ESQ.
|
|
Sheridan Ross & McIntosh
|
|
1700 Lincoln Street, 3500
|
|
Denver, CO 80203
|
|
|
|
ERIC M. LIEBERMAN, ESQ.
|
|
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.
|
|
740 Broadway at Astor Place
|
|
New York, New York 10003
|
|
|
|
HELENA K. KOBRIN, ESQ.
|
|
7629 Fulton Avenue
|
|
North Hollywood, CA 91605
|
|
|
|
For the Defendants:
|
|
|
|
THOMAS B. KELLEY, ESQ.
|
|
KENNETH LIEBMAN ESQ.
|
|
NATALIE HANLON-LEH, ESQ.
|
|
Faegre & Benson
|
|
2500 Republic Plaza
|
|
370 17th Street
|
|
Denver, CO 80202
|
|
|
|
|
|
_________________________________________________________________
|
|
|
|
|
|
|
|
PROCEEDINGS
|
|
|
|
|
|
|
|
THE COURT: I have some remarks to make, some of which may be
|
|
considered preliminary. But I think that they are important for a full
|
|
understanding of what this kind of procedure is.
|
|
|
|
A preliminary injunction is an extraordinary remedy providing the
|
|
potential for considerable harm, yet because of its emergency nature,
|
|
it does not afford the Court the usual degree of careful consideration
|
|
and examination of all relevant and material evidence which is
|
|
afforded by the deliberative process of a so-called full-fledged
|
|
trial. It is by its very nature an emergency matter, and as a
|
|
consequence, the issuance of an injunction is tentative, and it's
|
|
subject to later modification or for that matter even a complete
|
|
rescission or vacation following trial on the merits. That is why in
|
|
our legal tradition the question of whether to issue an injunction,
|
|
what terms such an injunction should contain are to be approached with
|
|
the utmost caution and prudence.
|
|
|
|
The power to issue an injunction, like the power to hold a person in
|
|
contempt of court is a power which is best used sparingly, if at all.
|
|
Moreover, the very purpose of an injunction is to preserve the status
|
|
quo ante. That is a rather elegant piece of Latin which means the last
|
|
existing state of peaceable, non-contested conditions which preceded
|
|
the pending controversy. I will not dwell on this, but I do think it's
|
|
helpful to observe that our legal forefathers were not fools, and the
|
|
complete phrase from the Latin is the status quo ante bellum which
|
|
literally means the state of things before the war began.
|
|
|
|
Given this purpose and the caution that the law prescribes, there are
|
|
four basic considerations or findings which must be made before an
|
|
injunction can issue. These same four factors likewise assist in
|
|
determining the scope of an injunction and the conditions which would
|
|
attach to it. Applying these conditions and factors to this case and
|
|
reserving, as I had previously indicated, the right, if not indeed the
|
|
obligation, to issue a more detailed document of a finding, finding of
|
|
fact and conclusion of law, in other words, a more formal opinion at a
|
|
later time, I am going to make the following ruling on the case from
|
|
the bench. And if there is any ambiguity, the parties can obtain a
|
|
copy of these comments from the court reporter.
|
|
|
|
The first consideration is probability of success on the merits. I
|
|
find the plaintiff has not established a probability of success on the
|
|
merits, either in relation to the copyright or the trade secret cause
|
|
of action.
|
|
|
|
With regard to the copyright infringement, on the evidence before me,
|
|
I find there is no probability of plaintiffs succeeding on their
|
|
copyright claim because the evidence which has been presented shows
|
|
that the defendants' use of the copyrighted works constitutes a fair
|
|
use under Section 107 of the Copyright Act in that it is for the
|
|
purposes of criticism, comment, or research, and as such is not an
|
|
infringement.
|
|
|
|
With regard to the trade secrets violation claim, the plaintiff has
|
|
not shown by a preponderance of the evidence that the materials in
|
|
issue are secret or within the definition of trade secrets under
|
|
Colorado law. The evidence shows the materials are in fact in the
|
|
public domain, and I am not persuaded by the evidence presented here
|
|
that they entered the public domain only through unlawful means.
|
|
|
|
The second consideration or factors is irreparable injury, and I find
|
|
that the plaintiffs has not shown it will suffer irreparable injury of
|
|
the use by defendants for the materials in issue. The evidence does
|
|
not show that plaintiff will lose competitive advantage through
|
|
defendants' use of the materials, nor that the defendants are using
|
|
the materials for commercial purpose. In balancing the hardships to
|
|
the plaintiff, I find the threatened injury of the plaintiff does not
|
|
outweigh the damage the proposed injunction would cause the
|
|
defendants. Whereas, the evidence has not shown the plaintiffs will
|
|
suffer harm if the injunction is not issued. It shows the affect of
|
|
issuing the injunction would amount to an infringement on defendants'
|
|
right of fair use of copyright materials, and even more so in this
|
|
case to barely prevent the functioning of the defendant F.A.C.T.NET in
|
|
its entirety.
|
|
|
|
With respect to the final consideration of public interest, the public
|
|
interest is served best by the free exchange of speech and ideas on
|
|
matters of public interest. This is indeed a matter of public interest
|
|
and to issue the injunction sought would not serve that interest.
|
|
|
|
Having weighed all of the factors, as I am required to do, I conclude
|
|
the plaintiff has not shown a likelihood of success on the merits and
|
|
the balance of harm lies in favor of the defendants. For these
|
|
reasons, Plaintiff's Motion for Preliminary Injunction is denied.
|
|
|
|
I order, however, as follows: That the plaintiffs shall return and
|
|
restore to the defendants immediately at the plaintiff's expense all
|
|
seized materials, including defendants' hard drive in the exact
|
|
conditions that they were taken and from the precise places from which
|
|
they were taken. I also order the defendants in this case that they
|
|
must maintain -- and each defendant must maintain the status quo as to
|
|
the possession of all of the copyrighted materials at issue in this
|
|
case and the defendants, and each of then, are restricted to making
|
|
fair use and only fair use thereof. The defendants here are
|
|
specifically prohibited from making any additional copies of the
|
|
materials or transferring them in any manner or publishing them other
|
|
than in the context of fair use. Those are the orders of the Court.
|
|
|
|
I thank counsel for the presentation, and the Court will be in recess
|
|
until 9:00 a.m.
|
|
|
|
MR. COOLEY: Your Honor, we'll undoubtedly be appealing this to the
|
|
United States Court of Appeals for the Tenth Circuit, and we would
|
|
respectfully ask a stay of the Court's order of return pending that
|
|
appeal.
|
|
|
|
THE COURT: No, I will not order a stay of the return of the materials.
|
|
That would, in my view, cause the exact harm, which I am mot concerned
|
|
with, and that is the inability of the defendants in the case to
|
|
maintain their continued existence during this litigation.
|
|
|
|
(Recess.)
|
|
|
|
|
|
_________________________________________________________________
|
|
|
|
REPORTER'S CERTIFICATE
|
|
|
|
|
|
|
|
I certify that the foregoing is a correct transcript from the record
|
|
of proceedings in the above-entitled matter. Dated at Denver,
|
|
Colorado, this 13th day of September, 1995.
|
|
|
|
__________________________________
|
|
Deborah A. Stafford
|
|
|
|
|
|
_________________________________________________________________
|
|
|
|
Last changed 15-September-95
|
|
|
|
Copyright © 1995 Faegre & Benson Professional Limited Liability
|
|
Partnership and Internet Broadcasting Corporation, all rights
|
|
reserved.
|
|
|
|
------------------------------
|
|
|
|
Date: Sun, 19 Apr 1995 22:51:01 CDT
|
|
From: CuD Moderators <cudigest@sun.soci.niu.edu>
|
|
Subject: File 4--Cu Digest Header Info (unchanged since 19 Apr, 1995)
|
|
|
|
Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are
|
|
available at no cost electronically.
|
|
|
|
CuD is available as a Usenet newsgroup: comp.society.cu-digest
|
|
|
|
Or, to subscribe, send a one-line message: SUB CUDIGEST your name
|
|
Send it to LISTSERV@VMD.CSO.UIUC.EDU
|
|
The editors may be contacted by voice (815-753-0303), fax (815-753-6302)
|
|
or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL
|
|
60115, USA.
|
|
|
|
To UNSUB, send a one-line message: UNSUB CUDIGEST
|
|
Send it to LISTSERV@VMD.CSO.UIUC.EDU
|
|
(NOTE: The address you unsub must correspond to your From: line)
|
|
|
|
Issues of CuD can also be found in the Usenet comp.society.cu-digest
|
|
news group; on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of
|
|
LAWSIG, and DL1 of TELECOM; on GEnie in the PF*NPC RT
|
|
libraries and in the VIRUS/SECURITY library; from America Online in
|
|
the PC Telecom forum under "computing newsletters;"
|
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On Delphi in the General Discussion database of the Internet SIG;
|
|
on RIPCO BBS (312) 528-5020 (and via Ripco on internet);
|
|
and on Rune Stone BBS (IIRGWHQ) (203) 832-8441.
|
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CuD is also available via Fidonet File Request from
|
|
1:11/70; unlisted nodes and points welcome.
|
|
|
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EUROPE: In BELGIUM: Virtual Access BBS: +32-69-844-019 (ringdown)
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Brussels: STRATOMIC BBS +32-2-5383119 2:291/759@fidonet.org
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In ITALY: ZERO! BBS: +39-11-6507540
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In LUXEMBOURG: ComNet BBS: +352-466893
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|
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UNITED STATES: etext.archive.umich.edu (192.131.22.8) in /pub/CuD/
|
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ftp.eff.org (192.88.144.4) in /pub/Publications/CuD/
|
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aql.gatech.edu (128.61.10.53) in /pub/eff/cud/
|
|
world.std.com in /src/wuarchive/doc/EFF/Publications/CuD/
|
|
wuarchive.wustl.edu in /doc/EFF/Publications/CuD/
|
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EUROPE: nic.funet.fi in pub/doc/cud/ (Finland)
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ftp.warwick.ac.uk in pub/cud/ (United Kingdom)
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|
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JAPAN: ftp://www.rcac.tdi.co.jp/pub/mirror/CuD
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|
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The most recent issues of CuD can be obtained from the
|
|
Cu Digest WWW site at:
|
|
URL: http://www.soci.niu.edu:80/~cudigest/
|
|
|
|
COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
|
|
information among computerists and to the presentation and debate of
|
|
diverse views. CuD material may be reprinted for non-profit as long
|
|
as the source is cited. Authors hold a presumptive copyright, and
|
|
they should be contacted for reprint permission. It is assumed that
|
|
non-personal mail to the moderators may be reprinted unless otherwise
|
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specified. Readers are encouraged to submit reasoned articles
|
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relating to computer culture and communication. Articles are
|
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preferred to short responses. Please avoid quoting previous posts
|
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unless absolutely necessary.
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|
|
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DISCLAIMER: The views represented herein do not necessarily represent
|
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the views of the moderators. Digest contributors assume all
|
|
responsibility for ensuring that articles submitted do not
|
|
violate copyright protections.
|
|
|
|
------------------------------
|
|
|
|
End of Computer Underground Digest #7.75
|
|
************************************
|
|
|