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this article is from the Boston Phoenix, September 7, 1990
Hackers under attack
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Crackdown raises questions about new forms of speech
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by Mark Leccese
The First and Fourth Amendments (ensuring free speech and
protection against unreasonable search and seizure) became dust in
the wind on March 1, in Austin, Texas, when US Secret Service busted
Steve Jackson Games for no reason anyone can explain. The firm was
preparing to market a Dungeons and Dragons-type game called GURPS
Cyberpunk when the feds raided its headquarters, seized the
computers the company was using both to create the game and
maintain a computer-bulletin-board system (BBS) for dialog with its
customers. The feds also confiscated software, company records and
all available drafts of the book. Law enforcement officials even tried
to pry open locked file cabinets with letter openers they found on
employees' desks.
And yet, as Jackson told the Phoenix, "No one connected with
the business was ever arrested, charged, indicted or even questioned"
after the raid, which put the company temporarily out of business.
Steve Jackson Games appears to have been an early-year victim
of a federal war against "hackers" - persons who gain unauthorized
access to other people's computers - that began with a raid in Arizona
on May 8 and escalated into a nationwide sweep known as Operation
SunDevil covering 14 cities and involving more than 150 Secret
Service agents.
As John Perry Barlow, a Wyoming rancher, expert on computer
hackers, and long time lyricist for the Grateful Dead ("I Need a
Miracle," "Hell in a Bucket," "Mexicali Blues"), sees it, computer abuse
can be divided into three categories: crimes committed by insiders;
crimes committed by hackers who steal, say, credit card numbers and
long distance phone codes; and gaining of access - just for the purpose
of looking around and learning - by computer "phreaks."
Everyone agrees that the first two are crimes, including the
Electronic Frontier Foundation (EFF), an organization co-founded by
Barlow and Mitchell Kapor, the Cambridge-based wizard who designed
Lotus 1-2-3, to educate the public and the country's leaders about the
electronic world, lobby for change, and when necessary take legal
action such as filing friend-of-the-court briefs. The controversy
surrounds the third category of abuse, which many hackers
characterize as harmless high-tech fun. "The government is drawing
no distinction" between these kinds of activities, says Barlow.
The Secret Service held the confiscated material for three
months while Jackson tried, in vain, to find out why it had been seized
in the first place. According to attorney Sharon Beckman, of the Boston
law firm Silvergate & Good, which represents the company, the
government's application for a search warrant - which would describe
what its agents were after - has never been released. "So far, I haven't
heard anything to indicate probable cause," she says.
The only thing a search warrant authorizes government agents
to seize, Beckman contends, is information relating directly to a crime
or a criminal conspiracy. The kind of "fishing expedition" conducted at
Steve Jackson Games, she says, "is against the Forth Amendment" of
the US Constitution.
After Jackson wrote to his congressmen and, with his lawyers,
applied pressure on the feds, most, but not all, of the property was
returned - some of it badly damaged. "There's one computer I'm not
even going to turn on unless I have a fire extinguisher handy," he
says.
During the time the government was holding on to Steve
Jackson Games' equipment, the small business had to lay off eight of
its 25 employees, none of whom have been rehired. "They cost us an
awful lot of money with their little visit," Jackson says.
All this apparently for a fantasy game with imaginary futuristic
weapons - one Beckman describes as akin to "as James Bond movie.
James Bond has all kinds of special tools, too, but the government
doesn't close down James Bond movies because they could teach
people physical-trespass skills."
Says Jackson of the government gumshoes: "These people don't
have enough expertise to tell fantasy from reality."
The Jackson raid and the Operation SunDevil forays represent
the fed's opening gambit is what many worry could be a major civil-
liberties debacle. The culprits in these Kafka-esque trials are the ever-
proliferating digital electronic impulses carried across what is known
to computer aficionados as "the net," or, to sci-fi fans, "Cyberspace" or
the "virtual" world - a vast and complex web of computer networks
that make up the electronic frontier, where nothing exists in physical
form but the hardware used to translate the bleeps into information.
The frontier is unmapped, confusing, and infinitely expandable.
Like the 19th-century American frontier, it is populated mostly by
earnest settlers searching for new knowledge, but it also has its share
of fringe characters and desperados taking advantage of the wide-
open spaces. With the advent of electronic mail, BBS's and publications
that never put ink on paper, technology has out-paced the law. Forty
years ago the government saw a Red under every bed; now it sees a
hacker behind each keyboard. Over the past two years, the lawmen,
led by the US Secret Service, have come crashing across the plains,
dispensing frontier justice. Some actual criminals have been arrested
and convicted, but the government, in its zealousness and ignorance of
this new land, has also rounded up many innocent computer users
and, in the process, trampled constitutional rights.
Notes Kapor, "We get into trouble when we blindly try to apply
the laws for physical media to digital media. We have to reinterpret
what data and speech and property are."
The Senate Judiciary Committee is now considering an
amendment to the 1986 Computer Fraud and Abuse Act that would
create a "recklessness" misdemeanor under which computer users who
gain illegal access to a system and accidentally cause damage would be
prosecuted. The EFF and the Washington based Computer Professionals
for Social Responsibility (CPSC) both back the amendment.
The most famous example of such "recklessness" is the case of
Cornell graduate student Robert Morris Jr., who designed a program to
break into the Internet system in an attempt, Barlow says, to map the
almost unbelievably complex network (no one knows how many
computers are hooked up to it or where they are). But the program
written by Morris had a bug in it, and rather than mapping the
system, it endlessly reproduced itself on computers around the
country, temporarily bringing the Internet system to a halt. No data
was destroyed, but valuable computing time was lost.
"You don't want to send somebody like that to jail for 30 years
because he wrote a bad program," Barlow says.
Barlow - who doesn't say how he'd feel if it were his data being
trashed - is not alone in his judgment. Surprisingly, even some in the
corporate world that so fears and loathes the new pioneers think that
there may be an alternative. (It is obviously in the corporate interest
to have information - and the free flow of communication - controlled
as tightly as possible; after all knowledge is power and power is
money).
Whatever else you can say about hacking, there is no question
that it requires a gifted intellect, cleverness and hard work - all
qualities prized and encouraged by American society. So if you can't
stop the hackers - and no matter how hard it tries, nor how many civil
liberties it steps on, the government doesn't seem able to - why not
put them to good use?
At least one expert from an unlikely quarter agrees. Dorothy E.
Denning, of Digital Equipment Corporation (DEC), has prepared a paper
to be presented to the National Computer Conference in Washington
next month in which she recommends that she and her fellow security
professionals "work closely with hackers."
Denning has a truly novel idea: systems managers who obtain
access to a supposedly secure system to leave a "calling card,"
explaining how they broke in.
"This approach could have the advantages of not only letting the
hackers contribute to the security of the system, but of allowing the
managers to quickly recognize the malicious hackers, since they are
unlikely to leave their cards. Perhaps if hackers are given the
opportunity to make contributions outside the underground, this will
dampen their desire to pursue illegal activities," she writes.
It's hard to imagine the large corporations going along with this
clever but quirky idea. "Corporations that feel they've been affected
have voiced strong demands for government action," Kapor says. To
wit: at least 10 corporations aided the feds in Operation SunDevil.
No sympathy for the Devil
During Operation SunDevil numerous BBS's were shut down and
40 computers and the equivalent of more than five million pages of
information were swept up. Since then, there have been many more
raids and seizures just as egregious, but they have received less
publicity. And the campaign shows no signs of abating.
With large corporations pressuring elected officials to take
action, the law has its work cut out for it. There are tens of thousands
of BBS's and national computer networks in this country, and most of
them can be interlinked. Log on to one network, and you can travel
the globe - and you won't be alone. According to the New York Times,
Internet carried the equivalent of about half a trillion keyboard
strokes in July alone.
Anyone with a home computer and a modem can log on to a BBS
and join discussions on, say, new computer projects and movies; copy
"freeware" and "shareware," software in the public domain; or
contribute to talks on topics such as ham radio, the Holocaust, good
dinners, or travel in Europe. You can either "post" a message for all to
read, or send private electronic mail ("e-mail") to a fellow BBS
member or to the BBS's system operator (generally the person who's
set up the board). If you've got some kind of computer question, just
post it on the BBS and you'll get a dozen good suggestions.
Or, for a fee, you can hook up to a national computer network.
Once connected to the GEnie network (operated by General Electric),
for example, you can, among other things, join roundtable discussions
on subjects ranging from investments to photography, send and
receive e-mail, play on-line games against other members, read up-to-
the-minute wire-service reports, access an encyclopedia, copy one of
hundred of programs, get stock quotes, make airline reservations, and
buy jewelry from Tiffany.
In other words, you could spend the rest of your life wandering
around the net and never retrace your steps.
Of course, these days chances are you'll bump into some folks
who have no business joining the club. Following a Freedom of
Information Act request earlier this year from Representative Don
Edwards (D-California), the Secret Service admitted to Congress that its
agents, posing as legitimate users, were secretly monitoring BBS's. And
though reading messages posted to the public is not illegal,
government agents' reading and most likely making records of BBS
conversations is "a little bit like an agent who attends a political rally
to get information for a file," says CPSR president Marc Rotenberg.
Barlow likens a BBS to "a village with a continuous town
meeting in progress 24 hours a day." The US government, he says, is
"confiscating towns."
As federal agents scan the BBSs for criminal activity, what other
small fish might they catch in their nets? Well, for one, the Secret
Service, in response to Edward's FOIA request, admitted it has a new
Computer Diagnostics Center, about which Rotenburg paints this
frightening picture: the technology is readily available for a computer,
purring quietly in a corner 24 hours a day, to scan electronic BBSs for
key words like "hacking" or even key name - like yours - and dump
every communication it finds with that word into a database. A BBS
user, entirely unaware, could have a thousand page file on him at the
Secret Service's disposal in a matter of weeks.
For its part, the Secret Service denies that the agency is
undertaking such surveillance, or will. Special agent and Washington
Secret Service spokesman Richard Adams told the Phoenix, "The only
folks the Secret Service is targeting are those operators who are using
or encouraging others in the use of stolen phone-company numbers
and stolen credit-card numbers."
"I can assure you we're not randomly searching bulletin
boards," he said. "We're bound by the courts. You've got to have
probable cause, as you do in any case, to obtain a search warrant or an
arrest warrant."
But what constitutes probable cause? After all, hasn't the US
Supreme Court ruled repeatedly that speech - and even "encouraging
others," as agent Adams put it - is protected under the First
Amendment unless it is "likely" to lead to "imminent" criminal
activity?
Where, for instance, was probable cause in the case of the
much-publicized Phrack imbroglio? Which raises an even more
ominous consideration: does corporate status play a role in
determining it?
Say you are a publisher into whose system a stolen document
falls (a circumstance roughly equivalent to someone's dropping
purloined papers on a newspapers editor's desk). You publish it. What
happens to you and your publication?
If you are Arthur Sulzberger, publisher of the New York Times,
you publish the Pentagon Papers. The government tries to take action
against you, but the courts, citing First Amendment, stand foursquare
behind you.
If you are Craig Neirdorf, publisher of Phrack, an electronic
newsletter covering the hackers' world, you, too, publish a stolen
document. You are arrested by the Secret Service, hit with a seven-
count grand-jury indictment, and the equipment you use to publish -
along with all your files - is seized. Your publication is out of business.
Phrack's document was an internal BellSouth memorandum
describing the company's 911 emergency system. In elegant
bureaucratese, the document was titled " A Bell South Standard
Practice (BSP) 660-225-104SV-Control Office Administration of
Enhanced 911 Services for Special Services and Major Account Centers,
March 1988." It was plucked from BellSouth's computers and dropped
into Neirdorf's system, among others, by a hacker named Robert Riggs,
who was indicted and pleaded guilty to this and other incidents of
illegal entry. In February 1989, Neidorf, a 20-year-old University of
Missouri student, included the three-page document in Phrack.
BellSouth claimed the document was worth exactly $79,449 and by
being made public could cause potentially fatal disruption of its 911
system. Neidorf was busted and indicted on felony charges that
included interstate transmission of stolen goods. Earlier this month,
the prosecuting US Attorney dropped the charges against Neidorf after
his attorney proved that all the information in the document was
already in the public domain and that contained much of the same
data as the stolen one - and that went into more detail - could be
obtained by calling an 800 number and paying $13. Neidorf's lawyers
are considering a civil suit against the government. Neidorf, now in his
senior year, has no plans to publish another issue of Phrack "in the
near future," says his attorney.
According to attorney Beckman, the government was "blaming
Phrack for what other people might do with the information it would
publish... It's like a newspaper publishing an article about home
security systems that someone would use to break into a house."
"I don't think the government even thought through the First
Amendment implications," she says.
Not to mention corporate fallout. As Steve Jackson sees it, "The
Times was only going up against the military-industrial complex.
Neidorf pulled the nose of the phone company."
Sheldon Zenner, the Chicago attorney who represented Neidorf,
says the legal issue raised by the Phrack case - an illegally obtained
document appearing on a BBS and the government then seizing the
BBS - is likely to recur. The Secret Service's press release announcing
the Operation SunDevil raid calls computer users who gain illegal
access "a frightening threat" and states that their actions have "serious
implications for the health and welfare of all individuals, corporations,
and United States Government agencies relying on computers and
telephones to communicate." To back up its assertions, the feds add
that the telephone companies put their losses to stolen phone service
"as high as 50 million dollars" and that hackers have had access to
hospital records and "could have added, deleted, or altered vital
patient information, possibly causing life-threatening situations." As
Barlow points out, that's a mighty big "could" - especially since no one
has ever proven that a single patient record has ever been altered by
a hacker.
Why do the powers-that-be so fear BBSs? Mark Worthington, of
Cambridge's MacEast BBS, posted a message saying it's out of
ignorance, "but I also think they fear them for a much more troubling
reason. They rightly perceive BBSs as a place where people can
congregate and communicate without physically meeting... A BBS
represents the electronic First Amendment right of free assembly, and
thus constitutes a political threat to the paranoid and powerful."
Perhaps the most troubling example of the government's blind
zeal concerns the Jolnet BBS, in Illinois. Its operator, Richard Andrews,
discovered in storage on his system (again, thanks to Riggs) the
infamous 911 document that Phrack later published. He suspected
something illegal and asked the advice of a friend, who notified the
phone company in an effort to set things right. Government agents
shut down the Jolnet BBS and seized Andrew's equipment last
December; they still have yet to return any equipment or to charge
Andrews.
Ignorance of the law is no excuse
It was not only Operation SunDevil and the surrounding spate of
arrests that prompted Barlow to get in touch with Kapor and found
EFF. Barlow's visit from a technically illiterate FBI agent, which he
recounts in his article "Crime & Puzzlement" in the fall issue of The
Whole Earth Review, sealed in his mind the need to take action.
"It's not until you get your own visit from an FBI agent that you
realize this isn't an abstract problem," Barlow says. "I came to the
realization the government was now dealing with things it didn't
understand."
Barlow spent two hours with the FBI agent who'd come to
question him, most of it explaining how computers and networks
operate. "He took to rubbing his face with both hands, peering up over
his fingertips, and saying, 'It sure is something, isn't it?' or 'Whoooo-
eee,'" Barlow writes in his story. "Or:'My eight-year-old knows more
about these things than I do.' He didn't say this with a father's pride
so much as an immigrant's fear of a strange new land into which he
will be forcibly moved and in which his own child is native. He looked
across my keyboard into Cyberspace and didn't like what he saw."
Kapor and Steve Wozniak, the iconoclastic co-founder of Apple
Computers, put up the seed money to establish EFF, which has already
issued its first grant: $275,000 to the Computing and Civil Liberties
Project of the CPSR. The EFF has filed a freind-of-the-court brief in the
Neidorf case, and has hired Silverglate & Good to clarify and articulate
the civil-liberties issue at stake on the electronic frontier.
Kapor is clear about what the EFF is not. "It's not a hacker-
defense fund," he stresses. "Legally, the big thing now is to figure out
what we're going to do about these BBS seizures and the reading of
[electronic] mail" by the Secret Service.
The EFF's purpose, Kapor says, "is to try to ensure that in a new
scheme, the public networks will be universal and open, encouraging
informational entrepreneurship."
The "hacker ethic," as it was so brilliantly described by Stephen
Levy in his seminal 1984 book Hackers, is about learning, not stealing.
(Thus serious hackers' insistence on the term "crackers" for law-
breakers.)
"When a hacker breaks into a system, the objective is to learn
and avoid causing damage," DEC's Denning wrote in her paper,
"Downloaded information [electronically transferred to the hacker's
computer] is copied, not stolen, and still exists on the original system.
Moreover, information has traditionally not been regarded as
property."
Future Shock?
No matter what the corporations or the feds want, or what
restrictive steps they may take, Cyberspace isn't going to go away. If
anything, it will expand. One prominent Apple researcher recently
predicted that within a few years home computers "50 times more
powerful" than those now on the market will be available.
Moreover, the networks themselves are expected to become
more accessible to the general public. To those ends US Senator Albert
Gore (D-Tennessee) has proposed in Congress a $1.75 billion bill that
would fund a supernet to link the nation's universities and
supercomputers.
Gore's bill is considered a step toward a nascent high-speed
national computer network that could potentially reach every home in
the country. Such a network, the New York Times noted on September
2, could trigger a "technological transformation that will be every bit
as profound for America in the next century as the transcontinental
railroad was in the last." Such a network would cost an estimated $200
billion.
Surprisingly, sometimes there is encouraging news from the top
brass themselves. President George Bush last month removed
restrictions the previous administration had placed on computer
access to non-classified federal databases and information collected by
university researchers and private firms working with the
government.
Given this rapid expansion of boundaries, decisions about how
civil liberties will be protected in a world the Bill of Rights' authors
could never have foreseen must be made now, by the courts and the
government. The law-enforcement community and corporations have
so far shown no sign of letting up their technophobic campaign, and,
with a few exceptions, civil libertarians seem slow to wake up to the
issue. The American Civil Liberties Union, for example, has yet to be
heard from in the Operation SunDevil debate, though it has formed a
subcommittee on technology.
The EFF, in its mission statement, recognizes the lack of law and
legal precedent in the electronic frontier and warns that "in their
absence, law-enforcement agencies like the Secret Service and FBI,
acting at the disposal of large information corporations, are seeking to
create legal precedents which would radically limit Constitutional
application to digital media."
"The excesses of Operation SunDevil are only the beginning of
what threatens to become a long, difficult, and philosophically obscure
struggle between institutional control and individual liberty."