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EFFector Online Volume 5 No. 4 3/19/1993 editors@eff.org
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A Publication of the Electronic Frontier Foundation ISSN 1062-9424
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389 lines
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-==--==--==-<>-==--==--==-
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In this issue:
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Victory in the Steve Jackson Games Case
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EFF Pioneer Award Winners for 1993
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Issues for K-12 Access to the Internet
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-==--==--==-<>-==--==--==-
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STEVE JACKSON GAMES WINS LAWSUIT
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AGAINST U.S. SECRET SERVICE
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A games publisher has won a lawsuit against the U.S. Secret Service
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and the federal government in a ground-breaking case involving
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computer publications and electronic mail privacy.
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In a decision announced in Austin, Texas, on March 12, Judge Sam
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Sparks of the federal district court for the Western District of Texas
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announced that the case of Steve Jackson Games et al. versus the U.S.
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Secret Service and the United States Government has been decided
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for the plaintiffs.
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The plaintiffs, which include Steve Jackson, the company he founded,
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and three users of the company's bulletin board system (BBS), sued
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the government on claims that their statutory rights to electronic
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mail privacy had been violated when the BBS and other computers,
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disks and printouts were seized by the Secret Service as part of a
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computer crime investigation. These rights are protected under the
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Electronic Communications Privacy Act (ECPA), which extended most
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of the protections of the federal Wiretap Act ("Title III") to electronic
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mail.
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Jackson and his company also claimed violations of the Privacy
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Protection Act of 1980, a federal law designed to limit searches of
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publishers in order to protect their First Amendment rights.
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Mitch Kapor, founder and chairman of the board for the Electronic
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Frontier Foundation, the public interest/civil liberties organization
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that has underwritten and supported the case since it was filed in
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1991, said he is pleased with the decision. "This decision vindicates
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our position that users of computer bulletin board systems are
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engaging in Constitutionally protected speech," Kapor said.
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"This decision shows that perseverance pays off," he added. "We've
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been at this for almost three years now, and we still don't know if it's
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over -- the Justice Department might appeal it." Nevertheless, Kapor
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said he is optimistic about the case's ultimate outcome.
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Judge Sparks awarded more than $50,000 in damages to Steve
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Jackson Games, citing lost profits and violations of the Privacy
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Protection Act of 1980. In addition, the judge awarded each plaintiff
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$1,000 under the Electronic Communications Privacy Act for the
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Secret Service seizure of their stored electronic mail. The judge also
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stated that plaintiffs would be reimbursed for their attorneys's fees.
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The judge did not find that Secret Service agents had "intercepted"
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the electronic communications that were captured when agents
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seized the Illuminati BBS in an early morning raid in the spring of
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1990 as part of a computer crime investigation. The judge did find,
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however, that the ECPA had been violated by the agents's seizure of
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stored electronic communications on the system.
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The case was tried in Austin, Texas, by the Austin-based media law
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firm George, Donaldson & Ford, with case assistance provided by the
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Boston, Massachusetts, law firm of Silverglate & Good.
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Pete Kennedy, the lawyer from George, Donaldson & Ford who
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litigated the case, calls the decision "a solid first step toward
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recognizing that computer communications should be as well-
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protected as telephone communications." Kennedy also said he
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believes the case has particular significance for those who use
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computers to prepare and distribute publications. "There is a strong
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indication from the judge's decision that the medium of publication is
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irrelevant," he said, adding that "electronic publishers have the same
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protections against law enforcement intrusions as traditional
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publishers like newspapers and magazines. All publishers that use
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computers should be heartened by this decision. It indicates that the
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works-in-progress of all types of publications are protected under
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the Privacy Protection Act.
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"The case also demonstrates that there are limits on the kinds of
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defenses law enforcement agents can use, Kennedy said, noting that
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"the judge made it very clear that it is no excuse that the seizure of
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draft material for publication held on a computer was incidental or
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accidental."
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Mike Godwin, an attorney for the Electronic Frontier Foundation who
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has worked on the case since 1990, said he is pleased with the scope
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of the decision. "This case is a major step forward in protecting the
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rights of those who use computers to send private mail to each other
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or who use computers to create and disseminate publications."
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-==--==--==-<>-==--==--==-
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SECOND ANNUAL EFF PIONEER AWARDS
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On March 10, at the Computers, Freedom and Privacy Conference in
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Burlingame, California, the Electronic Frontier Foundation presented
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its Second Annual Pioneer Awards to five recipients who were
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judged to have made significant and influential contributions to the
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field of computer-based communications. The 1993 Pioneer Award
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recipients were Paul Baran, Vinton Cerf, Ward Christensen, Dave
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Hughes and the USENET software developers, represented by the
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software's originators Tom Truscott and Jim Ellis.
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Nominations for the Pioneer Awards were carried out over national
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and international computer-communication systems from November
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1992 to February 1993. A panel of four judges selected the winners
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from these nominations.
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The Pioneer Award Recipients
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Paul Baran was the original inventor of the notion of packet
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switching, a technology of fundamental importance to data networks.
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Packet switching makes possible the efficient and simultaneous
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transmission of many messages from many sources to many
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destinations over the same circuit. Mr. Baran's innovations in other
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and related technologies have led him to co-found a number of
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companies in Silicon Valley including Telebit, Packet Technologies (a
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portion of which later became StrataCom), Equatorial
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Communications, Metricom, InterFax and his current venture, Com21.
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Dr. Vinton Cerf led the research project which developed the TCP/IP
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protocol suite, the open system interconnection protocol which is
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used today by schools, government, corporations and an increasing
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number of individuals to communicate with each other over the
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Internet. Dr. Cerf also participated in the development of the
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ARPANET host protocols and managed the Internet, Packet
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Communications and Networked Security programs for DARPA.
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While working at MCI, he led the engineering effort to develop MCI
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Mail. He is now vice president of the Corporation for National
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Research Initiatives where he is responsible for projects involving
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the Internet, electronic mail, and Knowledge Robot research.
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Ward Christensen wrote the original software program,
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"MODEM.ASM", which came to be called "Xmodem" or the
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"Christensen protocol". For untold numbers of early-to-present day
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computer communications users, Xmodem has made it possible to
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transfer files, error-free, over phone lines from one computer to
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another. Xmodem file transfer has been the major means of
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information exchange for computer hobbyists and small business
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users through the first decade of the personal computer revolution.
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Mr. Christensen also programmed the first microcomputer dial-in
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system which he named a "BBS" - bulletin board system. His original
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BBS, CBBS/Chicago, is still in operation. He is in his 25th year at IBM.
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Dave Hughes has been an outspoken and effective grassroots
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evangelist and spokesperson for popular computer networking and
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electronic democracy for over a decade. He fashioned his own
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computer system at Old Colorado City Communications in1985, and
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soon brought the municipal elected government of Colorado Springs
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online. He helped design and implement a personal computer
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network connecting one-room rural schoolhouses in Montana to
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worldwide information resources. He continually brings network
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connections and new applications to new populations here and
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abroad. Perhaps most importantly, he is a tireless and enthusiastic
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communicator, offering his experience, his inspiration and his vision
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to any and all on the Net.
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USENET is a distributed bulletin board system with approximately
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two million readers worldwide. It came into being in late1979
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through the inspiration of Tom Truscott and Jim Ellis combined with
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the design and programming efforts of Steve Bellovin, Stephen
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Daniel, and Dennis Rockwell. Following USENET's introduction in
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1980, the resulting and ever-expanding collection of "newsgroups"
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began to be carried and circulated by a growing number of
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networked sites. The ongoing work of numerous individuals has
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allowed Usenet to survive its increasing popularity. The daily traffic
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is now approximately 20,000 articles, totaling 50 megabytes, posted
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to 2000 different newsgroups.
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Tom Truscott is currently a distributed computing professional at
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IBM in the Research Triangle Park, North Carolina. He has authored a
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number of UNIX-related articles, and is a member of ACM, IEEE, and
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Sigma Xi.
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James Ellis is currently the Manager of Technical Development at the
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Computer Emergency Response Team, which is the team created to
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assist Internet sites with computer security incidents. At CERT, he is
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responsible for analyzing UNIX system vulnerabilities and for
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developing tools to assist in the handling of security incidents.
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Judges
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This year's judges for the Pioneer Awards were: Jim Warren, Pioneer
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Award recipient from 1992 who coordinated the judging process,
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Steve Cisler of Apple Computer, Esther Dyson, editor of Release 1.0,
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and Bob Metcalfe, Editor of Infoworld.
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-==--==--==-<>-==--==--==-
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COMMUNICATIONS POLICY FORUM
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CPF Airs Issues for K-12 Access to the Internet
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by Andrew Blau
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The Communications Policy Forum (CPF), a non-partisan project
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of the EFF that brings stakeholders together to discuss
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communications policy issues, recently convened a roundtable to
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explore some of the legal questions that arise when K-12 schools
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provide Internet access to their students. Approximately 15 people,
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representing carriers who provide connections to the Internet,
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schools or school systems who are connected to the Internet, and
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legal experts with expertise in this and related areas, met to discuss
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issues of legal liability as this new medium enters an educational
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setting for minors.
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A key concern is that students may be exposed to material that
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parents or teachers find inappropriate for children. In other
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electronic media, such as broadcast television, cable TV, and
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audiotext, legal restrictions have been imposed to protect children
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from <20>harmful<75> or <20>indecent<6E> material, and liability has been
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assigned. No such framework exists for the Internet. Moreover, the
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very strengths of the Internet <20> its decentralized, unhierarchical, and
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essentially uncontrolled flow of traffic <20> offer distinct challenges to
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those who would seek to control it in the interest of protecting
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children. Finally, the tools available in other media <20> safe harbors,
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lockboxes, or subscription schemes <20> don't fit in this environment.
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Issues and Suggestions
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Following a brief summary of the Internet and how it operates
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and a review of how it is being used by a handful of K-12
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institutions, participants identified specific problems and policy
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issues and considered existing statutes and case law for guidance.
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The group also considered the potential effects of "harmful to
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minors" or "obscene as to minors" statutes, which are on the books in
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41 states. Although they are often vague or broad, the Supreme
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Court has agreed that it is constitutional to have such laws which
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prohibit the dissemination to minors of material that is protected by
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the First Amendment and would be constitutional for adults, to
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minors.
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Discussion then turned to various practical measures that carriers
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and schools might take in light of what had been described. One
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suggestion was that carriers work with school systems to provide a
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recommended set of features or services. In order to protect
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themselves, carriers could ensure that the school put in place a set of
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policies, identify for students their responsibilities, and place a
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teacher or other adult in control of what students access through the
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school's connection.
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It was also suggested that carriers could develop a contract that
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only connects schools that agree to indemnify the provider.
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Moreover, the carrier could require assurance that when access is
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provided to minors, the school will use some formal agreement with
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the minor's parent that includes provisions that hold the network
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provider harmless from liability.
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As an alternative, it was suggested that carriers could offer a
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simple warning to schools that alerts them that Internet access may
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enable access to materials inappropriate for minors, and that local
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discretion is advised. Schools could also offer disclaimers to parents
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modelled on those that parents are given before a field trip.
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A handful of technical solutions were suggested throughout the
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course of the meeting, and many elicited substantial interest. For
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example, various participants suggested using encryption, programs
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that flag key words or phrases and route them for human
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intervention, and mandatory password protection for all purveyors
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of certain kinds of information.
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Many participants seemed intrigued by a proposal to develop an
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addressing standard under which someone who gets access by virtue
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of his/her status as a K-12 student could get an address tag that
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identifies the student as such for various purposes. One example
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would be to press for the creation of an additional domain of ".stu"
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for K-12 students. The appearance of the ".stu" tag would function
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like any other identification stamp for access to certain materials.
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Statutory immunity for carriers was also seen by almost all
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participants as highly desirable and worth pursuing. Developing a
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legislative strategy may also highlight how these issues in the K-12
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setting are linked to and can be addressed in partnership with other
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issues and other sectors of the communications field.
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It was also noted that all those interested in K-12 networking
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need to educate the new Administration as it considers "information
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highways," a new Federal Communications Commission, the
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implementation of the NREN, and other programs. According to this
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approach, a critical first step is to educate as many new players as
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possible, including Congressional staff and the new administration,
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that addressing these liability issues is part of the package of
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building the networks of tomorrow.
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Conclusion
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By the end of the session, most participants agreed that there are
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no easy answers to the issues raised.
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Yet participants also agreed that if the community of interested
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educators, carriers, and public interest groups could establish
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workable models and promote a positive agenda with lawmakers,
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instead of waiting for problems to arise, the resulting legislative and
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regulatory framework would be far more likely to cultivate
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educational access, as well as to provide a model for broadband
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policy as a whole.
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The value of the Internet as an educational resource is clear. As
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one educator pointed out, our schools lose both students and teachers
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because of inadequate access to resources; the Internet can enrich
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the resources available to both teachers and students and is not
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something that only universities should enjoy. The challenge is to
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articulate a policy framework that can enable that potential to be
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realized and then to work to see that framework constructed.
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=============================================================
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EFFector Online is published by
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The Electronic Frontier Foundation
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666 Pennsylvania Ave., Washington, DC 20003
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Phone: +1 202 544-9237 FAX: +1 202 547 5481
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Internet Address: eff@eff.org
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Coordination, production and shipping by Cliff Figallo, EFF
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Online Communications Coordinator (fig@eff.org)
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Reproduction of this publication in electronic media is encouraged.
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Signed articles do not necessarily represent the view of the EFF.
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To reproduce signed articles individually, please contact the authors
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for their express permission.
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*This newsletter is printed on 100% recycled electrons*
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=============================================================
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MEMBERSHIP IN THE ELECTRONIC FRONTIER FOUNDATION
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In order to continue the work already begun and to expand our
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=============================================================
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