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########## ########## ########## | AMERICA ONLINE FLAP|
########## ########## ########## | A sensible position|
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######## ######## ######## | COMPUSERVE|
######## ######## ######## | A sensible decision|
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########## #### #### | SUN MICROSYSTEMS GRANT TO EFF|
########## #### #### | A new and improved eff.org in 1992|
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THE EFF PIONEER AWARDS: CALL FOR NOMINATIONS |
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EFFector Online January 7, 1992 Volume 2, Number 3|
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In this issue:
THE AMERICA ONLINE FLAP
SUN MICROSYSTEMS MAKES MAJOR EQUIPMENT GRANT TO EFF
THE COMPUSERVE CASE
THE EFF AND FREE ENTERPRISE
EFF at SCAT
THE FIRST ANNUAL PIONEER AWARDS:CALL FOR NOMINATIONS
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THE AMERICA ONLINE FLAP
Three weeks ago, Roger Dietz of Fremont, California, revealed to the
media that he had received GIF files of sex acts via email to his
account on America Online. The files apparently featured people who
were underage.
Dietz, an adult, had been posing as a gay 13-year-old boy in the public
chat rooms of America Online for some time. His announcement that what
appeared to be "kiddie porn" was sent to him caused a number of news
organizations such as CNN, local and national newspapers, and Newsweek
to follow up on the story.
As many participants of the nets know, the "discovery" that computer
networks contain and transmit adult material via email, and sometimes as
files accessible to members of the network or BBS is something that
recurs with some regularity on both the public and commercial systems.
When it does, it poses severe problems for the managers of those networks.
Although explicit sexual material has been part of the American scene
for many years, the fact that it can be transmitted through computer
networks is news to many people. When the material is reported to
involve underage people, most people feel uneasy, mystified, and angry.
Since the technology and legal nature of email is not well understood by
the majority of citizens, many people wonder why the management of
computer networks cannot actively police their systems to odious or
potentially illegal material. Faced with this problem, Steve Case,
President of America Online, said to Newsweek's John Schwartz: "People
ask, 'How can you permit this? It's the same question that could be
asked of the postmaster general."
Going into more detail online, Case posted the following message to all
members of America Online:
-------------------------------------------------
Message to AO members from Steve Case:
RESTATEMENT OF OUR POLICY
I'd like to remind all of you that we have established rules regarding
the use of this service, which we call "Terms of Service." These rules
are posted in the online customer support area. Our goal is to foster
the development of an "electronic community" that honors the principles
of freedom of expression, while also recognizing that some community
standards are needed for the service to grow.
Recently two troubling problems have come to our attention. The first
is a report that some members are using the service to commit illegal
activities. A member has forwarded to us copies of messages he received
which contained graphic files that may constitute child pornography.
Because a member chose to forward these files to us, we were able to
intervene and we are working with the authorities to pursue the matter.
We obviously were unaware of this act until the files were forwarded to
us, as our policy is that all private communications -- including
e-mail, instant messages, and private chat rooms -- are strictly
private, and we do not, will not, and legally cannot monitor any private
communications. But if we are alerted to a potential offense and we are
sent evidence, as we were in this particular case, we will vigorously
pursue the matter.
This first problem dealt with the illegal use of private communications.
The second deals with the abuse by a handful of members of the public
communications features. Recently, there has been an increase in online
behavior that we -- and we think most members -- find to be offensive.
This has included the use of vulgar language in public areas (chat rooms
and/or message boards), the creation of inappropriate screen names
and/or room names, and the sending of unsolicited, harassing Instant
Messages to some members.
Our desire is to trust the judgment of our members, and to err on the
side of free expression. We don't want to aggressively police public
areas to make sure everyone is abiding by the Terms of Service.
However, we aren't going to let this type of unwanted behavior by a few
ruin the service for us all. Let this serve as a warning to those few
people who are creating the problem: shape up or ship out.
Steve Case, President
America Online, Inc.
(reposted by permission of America Online)
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Reviving A Computer After A Fire
If a computer's plastic casing has not been deformed by the heat, which
begins to happen at 250 degrees F, then the computer will work.
--Dean Sheridan, electronics technician and deaf actor,
Torrance, California.**
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SUN MICROSYSTEMS MAKES MAJOR EQUIPMENT GRANT TO EFF
We are pleased to announce that Sun Microsystems has awarded The
Electronic Frontier Foundation a substantial equipment grant for 1992.
This grant will enable us to go forward with a number of technical
upgrades and other projects we have been putting off for some time due
to the limitations on our equipment.
For many months, the trusty Sun 4/110 (eff.org) which handles almost all
our Internet traffic (including the EFF's anonymous ftp archives, the
mailing lists we host, our USENET feed, and our WAIS server) has been
pushed to its limits. In order to upgrade our systems and provide
better service to the net and our members, we began last summer to
pursue a grant from Sun Microsystems that would allow us to modify and
upgrade our system.
The major feature of the grant is a new SPARCStation 2, as well as an
upgrade to a SPARCStation 2 from our current 4/110. With two machines,
each more powerful than our current system, we will be able to provide
more and faster ftp, WAIS, and mailing list service without making the
system unusable for "normal work".
In addition, we have been granted a SPARCStation IPX (to be used for
software development), two SPARCStation ELCs, which will be used for
administrator workstations (allowing us to run window systems, long
compiles, and the like without bogging everything down), and a large
amount of additional disk space (much of which will go to ftp archives,
additional WAIS databases, and the like).
We are making the final arrangements now, and hope to have the new
machines phased in over the course of February. (People who have been
using 192.88.144.3 or 'eff.org' for ftp or WAIS please note that that
address *will change*. Use ftp.eff.org or wais.eff.org, respectively,
instead, as those will always point to the right machine for the job.)
The Electronic Frontier Foundation would like to extend its heartfelt
thanks to all the people at Sun Microsystems for this strong vote of
confidence in our mission and our work.
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Brenner's Rule of Pausing Programmers
If an expert pauses while testing a new program, that's where the
beginner will fail. -- Norman Brenner, Fleetwood, New York **
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THE COMPUSERVE CASE:
A STEP FORWARD IN FIRST AMENDMENT PROTECTION FOR ONLINE SERVICES.
By Mike Godwin (mnemonic@eff.org)
By now you may have heard about the summary-judgment decision in Cubby,
Inc. v. CompuServe, a libel case. What you may not know is why the
decision is such an important one. By holding that CompuServe should not
be liable for defamation posted by a third-party user, the court in this
case correctly analyzed the First Amendment needs of most online
services. And because it's the first decision to deal directly with
these issues, this case may turn out to be a model for future decisions
in other courts.
The full name of the case, which was decided in the Southern District of
New York, is Cubby Inc. v. CompuServe. Basically, CompuServe contracted
with a third party for that user to conduct a special-interest forum on
CompuServe. The plaintiff claimed that defamatory material about its
business was posted a user in that forum, and sued both the forum host
and CompuServe. CompuServe moved for, and received, summary judgment in
its favor.
Judge Leisure held in his opinion that CompuServe is less like a
publisher than like a bookstore owner or book distributor. First
Amendment law allows publishers to be liable for defamation, but not
bookstore owners, because holding the latter liable would create a
burden on bookstore owners to review every book they carry for
defamatory material. This burden would "chill" the distribution of
books (not to mention causing some people to get out of the bookstore
business) and thus would come into serious conflict with the First
Amendment.
So, although we often talk about BBSs as having the rights of publishers
and publications, this case hits on an important distinction. How are
publishers different from bookstore owners? Because we expect a
publisher (or its agents) to review everything prior to publication. But
we *don't* expect bookstore owners to review everything prior to sale.
Similarly, in the CompuServe case, as in any case involving an online
service in which users freely post messages for the public (this
excludes Prodigy), we wouldn't expect the online-communications service
provider to read everything posted *before* allowing it to appear.
It is worth noting that the Supreme Court case on which Judge Leisure
relies is Smith v. California--an obscenity case, not a defamation case.
Smith is the Supreme Court case in which the notion first appears that
it is generally unconstitutional to hold bookstore owners liable for
content. So, if Smith v. California applies in a online-service or BBS
defamation case, it certainly ought to apply in an obscenity case as well.
Thus, Cubby, Inc. v. CompuServe sheds light not only on defamation law
as applied in this new medium but on obscenity law as well. This
decision should do much to clarify to concerned sysops what their
obligations and liabilities are under the law.
----------
Highlights of the CompuServe decision (selected by Danny Weitzner):
"CompuServe's CIS [CS Information Service] product is in essence an
electronic, for-profit library that carries a vast number of
publications and collects usage and membership fees from its subscribers
in return for access to the publications. CompuServe and companies like
it are at the forefront of the information industry revolution. High
technology has markedly increased the speed with which information is
gathered and processed; it is now possible for an individual with a
personal computer, modem, and telephone line to have instantaneous
access to thousands of news publications from across the United States
and around the world. While CompuServe may decline to carry a given
publication altogether, in reality, once it does decide to carry a given
publication, it will have little or no editorial control over that
publication's contents. This is especially so when CompuServe carries
the publication as part of a forum that is managed by a company
unrelated to CompuServe. "... CompuServe has no more editorial control
over ... [the publication in question] ... than does a public library,
book store, or newsstand, and it would be no more feasible for
CompuServe to examine every publication it carries for potentially
defamatory statements than it would for any other distributor to do so."
"...Given the relevant First Amendment considerations, the appropriate
standard of liability to be applied to CompuServe is whether it knew or
had reason to know of the allegedly defamatory Rumorville statements."
Cubby, Inc. v. CompuServe, Inc. (90 Civ. 6571, SDNY)
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Writing A Computer Program
No good computer program can be written by more than ten people; the
best programs are written by one or two people. -- Phil A. Schrodt,
Associate Professor, Northwestern University, Evanston, Illinois **
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THE EFF AND FREE ENTERPRISE
by Mitchell Kapor
[Over the past few weeks, there has been a thread in our Internet
discussion group, comp.org.eff.talk, about the EFF's position regarding
free enterprise and the future of the National Public Network. As can
often happen in this volatile medium, there was some confusion over
where the organization stands on this issue. To clarify this, EFF
President, Mitchell Kapor, wrote the following response to the group.]
I post this to clear up confusion about EFF positions which may have
been created by posters imputing positions to the EFF.
The EFF does not believe the U.S. government should own or control a
national public network. We do not believe that the Internet or NREN
should be extended by government fiat into everyone's home.
In the context of the Internet, we would like to see a transition as
speedy as possible to private ownership, management, and control of
network facilities which serve or could serve competitive markets. If
university access to networks is to be subsidized, it should be on the
basis of direct grants to institutions which are to be used for the
purchase of network services.
What keeps the Internet glued together today is access to common network
facilities provided through NSF-subsidized or free connections to a
backbone network owned and controlled by a single private entity, ANS.
The NSF recently announced that in 1993 it would begin a transition to a
regime in which there would be multiple backbone awardees. This will
bring affairs one step closer to a truly open regime. It should be
pointed out that the NSF and other agencies are interested in
stimulating the development of networking regimes (such as gigabit
networks) which are at the leading edge of technology, hence
pre-competitive state. This provides one principled rationale for
government involvement.
With respect to the public switched telephone network, over the next
decade,or as soon as technology permits, we should move away from
government mandated local exchange monopolies and toward competitive
provision of local telephone service. After a period of time, if there
is real competition,and we avoid the dangers of explosive decompression
>from sudden removal of all government controls, it should be possible
to deregulate.
At the same time, development of the market for content-based
information services could be spurred long before that with the
deployment of a ubiquitous, affordable platform based on ISDN. We see no
purpose in delaying this for either local loop competition or the
development of a universal, national broadband network, both of which
are far off (and both of which we support). To do so will likely require
government action, through some combination of legislation and FCC and
state regulation. It was in this narrow context and no broader one that
we originally advocated the appropriateness of regulation to achieve
these ends.
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The Professional Tools Rule
Engineers and computer programmers need equipment equal to one year's
earnings to work at top speed. Anything less slows them down.
-- William Blake, engineering manager, New Haven, Connecticut**
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EFF at SCAT:
Speaking to the Special Computer Attack Team
by Mike Godwin
[One of the jobs of the Electronic Frontier Foundation is to build
bridges between different communities with an interest in computer-based
communications. One of the most important communities is law
enforcement. In December, Mike Godwin, staff counsel for EFF,spoke to a
meeting of the Special Computer Attack Team (SCAT). This is his report.]
The Special Computer Attack Team is a joint federal-state organization
whose mission is to share information and resources in handling computer
crime in that region. I met with them at their invitation in Indianapolis.
I spoke for over two and a half hours, and we touched on most of the
civil-liberties issues with which EFF is concerned.
I told SCAT that perhaps the main things they'd heard about EFF is that
it was a hacker defense fund and is suing some government agents and
prosecutors. I explained that we *aren't* a "hacker defense fund," and
stressed that being alert to the issues I would raise in my presentation
is a way of minimizing the risk of a lawsuit in their cases.
We discussed the issues raised by seizing equipment. "You can't seize
equipment under a search warrant that you don't have probable cause to
believe is evidence of a crime," I said.
They responded by talking about forfeiture laws.
"Can you seize forfeitable stuff that's not evidence under an