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Computer underground Digest Tue Apr 12, 1994 Volume 6 : Issue 32
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET)
Archivist: Brendan Kehoe (He's Baaaack)
Acting Archivist: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Suspercollater: Shrdlu Nooseman
CONTENTS, #6.32 (Apr 12, 1994)
File 1--An Issues Primer for the Lamacchia Case
File 2-- MIT Butt-Covering?
File 3--New Edition of E-Zine-List available
File 4--Ratings Bandwidth
File 5--"I Have Seen the Future" (Satire)
File 6--Badgering LambdaMOO
File 7--Edwards to Lopez
File 8--Gilmore Files Clipper FOIA
File 9--Arrests of Juvenils in New Zealand for Bomb-making llegal
File 10--PRODIGY Forges Ahead With New Features
File 11--NY bill to make govt. info available online - act NOW!
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----------------------------------------------------------------------
Date: Mon, 11 Apr 1994 22:48:00 -0500
From: Silverglate & Good <slvrgood@well.sf.ca.us>
Subject: File 1--An Issues Primer for the Lamacchia Case
An Issues Primer
in the Criminal Prosecution of
_United States of America vs. David LaMacchia_
(U. S. District Court, Boston, MA)
There has been a lot of mis-information and mis-understanding
floating around the electronic and print media concerning the issues
in the prosecution of Massachusetts Institute of Technology
undergraduate David LaMacchia, who was indicted on April 7, 1994 in
the federal District of Massachusetts. This issues primer is meant
to clarify what the case is and is not about, and to place into some
perspective the legal issues raised. The purpose of this memo is
not, at this stage, to discuss any contested evidence in the case,
since that will be played out at a later stage. Some of the case's
legal implications are, however, clear from the start.
* * *
>>> The charge in the indictment:
The indictment charges that David LaMacchia, by operating a
computer bulletin board system, or "BBS", at M.I.T. during a period
of some six weeks, thereby permitted and facilitated the illegal
copying and distribution of copyrighted software by other unknown
persons (presumably, the many computer users who logged onto the
BBS). It is further alleged that LaMacchia knew that others were
using his system for such a purpose, although it is *not* alleged
that the BBS was not used for other, lawful communication purposes as
well. There is *no* allegation that LaMacchia himself uploaded,
downloaded, sold, profited from, used, or actually transmitted any
such software. The government does not allege that LaMacchia
violated the federal copyright or computer fraud statutes. Rather,
the prosecution has charged him with engaging in a criminal
conspiracy to violate the federal wire fraud statute, which was
enacted in 1952 to prevent the use of the telephone wires in
interstate fraud schemes.
* * *
>>> What this case is *not* about:
This is *not* a case about whether *"software piracy"* is
illegal under federal law. Both sides in the case are proceeding,
and will proceed, on the assumption that it is *not* lawful to make
and distribute copies of copyrighted computer software without paying
a licensing or royalty fee to the copyright owner. There is likely
to be agreement as well that if copyrighted software above a certain
value is willfully copied and sold, a criminal copyright violation
has occurred.
David LaMacchia is *not* alleged in the indictment to have
_uploaded_ or _downloaded_, _transmitted to anyone_ or even _used
personally_, any copyrighted software on the computer bulletin board
system ("BBS"), or "node", that he created and operated from an
M.I.T. computer.
LaMacchia is *not* alleged to have _sold_ any copyrighted
software, _nor profited_ one penny from the copying or distribution
of any such software.
It is *not* alleged that the computer BBS was used *exclusively*
to transfer copyrighted software. Indeed, the indictment alleges
that "part" of the conspiracy was to transmit "files and messages" on
the system, part was "to create a library of software", and that
"part" of the scheme was to allow some users to "unlawfully download
copyrighted software."
* * *
>>> What this case *is* about:
This case raises the following significant issues in the overall
larger question of whether, and how, the principles underlying
freedom of speech and of the press (the First Amendment) will be
applied to the world of computer communications ("cyberspace"):
1. Under current criminal statutes, may a systems operator
("SYSOP") of a computer BBS be held criminally responsible for
what *users* of the system do while logged onto the network,
including the exchange of copyrighted software or indeed, the
publication of other copyrighted materials?
2. If current criminal statutes, including the "wire
fraud" statute that LaMacchia is alleged to have "conspired" to
violate, are interpreted to reach the SYSOP who does not himself
upload, download, copy, use, or sell copyrighted software, do
those statutes, as so interpreted, violate the First Amendment,
and are they therefore unconstitutional?
3. In light of the uncertainty over whether and how
current statutes, including the federal "wire fraud" statute,
apply to the activities of a SYSOP of a computer BBS, does the
government violate the "Due Process of Law" provision of the
Fifth Amendment to the Constitution which prohibits criminal
prosecution unless Congress has given citizens clear notice of
what conduct is prohibited, by seeking to impose *criminal*
liability on a SYSOP like LaMacchia, where any reasonable person
(even a legal expert, but much less a 20-year-old undergraduate)
would not have known that his conduct even arguably was a crime?
In short, was LaMacchia given adequate *notice* that the wire
fraud statute would be stretched to cover his activity? Is it
fair, or constitutional, to prosecute such a person before the
law is *clarified*?
* * *
>>> Discussion:
The First Amendment to the United States Constitution has long
conferred special protection on those engaged in the activity of
maintaining communications media. Part of this protection has
involved protecting such persons from being held *criminally*
responsible for the criminal misuses of their systems and media by
other people. Thus, for example:
It is well-known that certain classified advertisements for
"_dating services_" found commonly in some newspapers are really
covers for high-class *prostitution* rings. Yet only the people
who actually run the prostitution services are prosecuted for
those violations of law. Editors and publishers of the
newspapers are *not* prosecuted on some legal theory that their
classified sections -- and therefore they themselves -- somehow
"aided" or "conspired with" the prostitution rings in the
criminal prostitution enterprise, even if the editors and
publishers were well aware of the fact that their newspapers
were being mis-used for an illegal purpose.
It is well-known that gambling "numbers" syndicates utilize
newspaper reports of scores of the outcomes of certain athletic
events, as the basis for illegal sports-betting operations.
Only the bookies are criminally prosecuted for such gambling
activity. The newspapers -- their editors, publishers, and
reporters included -- are never criminally prosecuted for the
illegal activities of those who thus use the published sports
reports.
In nearly every lending library in the country, there are
one or more photocopying machines sitting in the midst of large
number of books, many of which are copyrighted. Librarians
surely understand that a certain number of people who make
photocopies on those machines are copying *copyrighted*
material, perhaps in violation of the copyright laws. There
does not appear to be a criminal prosecution of any such
librarians for "aiding" or "facilitating" breaches of the
copyright laws.
The owner or manager of a bookstore may not be criminally
prosecuted for the distribution of obscene material if, in a
bookstore carrying a wide variety of printed materials, a
certain quantity of those materials contain obscene portions.
It does not even matter whether the bookstore owner or manager
suspects that some of the material in the store may contain
obscene matter. It is not his or her legal responsibility to
monitor and censor such materials, according to the United
States Supreme Court. (_Smith v. California_, 361 U.S. 147
(1959))
The reason why the editor, publisher, reporter, librarian, and
bookstore-owner and manager are all protected against criminal
prosecution, is because the First Amendment protects them from being
held criminally responsible for the acts of those who use, or
mis-use, their media or their facilities. In short, because of the
First Amendment, we do not assign to such people the role of being
*censors* or "media cops."
In the case of a SYSOP (like David LaMacchia) of a computer BBS,
the First Amendment would appear to protect him from criminal
liability for the arguably illegal actions of other people using (or
mis-using) his system to upload, download, transfer, copy, and use
copyrighted software. Just as with the owner or manager of a
bookstore or the librarian, it would be impossible for a SYSOP to
monitor everything being uploaded to or downloaded from his computer
BBS. Were such liability imposed, nobody would risk being a SYSOP,
and virtually every computer BBS in the country would shut down.
This is what the First Amendment is supposed to prevent.
The question in the _LaMacchia_ case is whether the First
Amendment protections that have long applied to those in the print
medium, should apply fully to those in the computer communications
medium. Because the law has been slow in adjusting to the age of
digital communications, there have been relatively few legal tests of
the scope of First Amendment protections in cyberspace. Civil
libertarians have assumed that there surely should be no less
constitutional protection for free speech and free press in
cyberspace than elsewhere. Those few courts tests that have happened
indicate that the First Amendment is indeed alive and well in
cyberspace.
Now, in the case of _United States v. David LaMacchia_, we will
learn whether the Department of Justice will be permitted to bend and
stretch the old federal criminal "wire fraud" statute to cover the
activities of a SYSOP who himself violates no copyright law, does not
profit from the activities of others, and who merely runs the system
perhaps even suspecting or knowing that it is being used for a wide
variety of purposes -- some legal and some arguably illegal, or
whether Congress, if it wishes to criminalize such activity, will
have to pass a statute *clearly* making it a crime for a SYSOP to
operate in this fashion. If and when such a statute is enacted, the
question of whether the First Amendment allows a SYSOP to be treated
differently than a publisher, an editor, or a bookstore owner or
manager, would have to be decided of course. But surely no SYSOP
should be criminally prosecuted in the *absence* of such a statute,
with no warning at all that he could face prison because it did not
(and reasonably could not) occur to him that someone would claim
under *current* law that he was committing a crime.
Harvey A. Silverglate
Sharon L. Beckman
Silverglate & Good
89 Broad Street
Boston, MA 02110
Tel (617) 542-6663
Fax (617) 451-6971
has@world.std.com
David Duncan
Zalkind, Rodrigues, Lunt & Duncan
65a Atlantic Avenue
Boston, MA 02110
Tel (617) 742-6020
Fax (617) 742-3269
Legal Counsel for David LaMacchia
Dated: April 11, 1994.
------------------------------
Date: Mon, 11 Apr 1994 18:33:15 +0000
From: gtoal@an-teallach.com (Graham Toal)
Subject: File 2-- MIT Butt-Covering?
In the MIT tech newspaper:
"We became aware sometime in December that a computer was
being used to distribute software," said Kenneth D.
Campbell, director of the news office. "That information
was turned over to Campus Police and the FBI. MIT
personnel cooperated with the FBI in the investigation."
The incident was discovered when an Athena-user in the
Student Center cluster noticed that an unattended
workstation next to him was behaving abnormally, making
frequent disk accesses, according to James D. Bruce ScD
'60, vice president for Information Systems.
The user apparently reported the abnormal behavior to
members of the Student Information Processing Board, who
then proceeded to investigate the matter, according to a
source familiar with the investigation. The SIPB members
saw the status of the workstation and reported the
incident to the Information Systems staff, the source
said.
Most places I know of, if something like an FSP site was found, the
Dean or equivalent would take the student to one side and give him a
good verbal rap on the knuckles - maybe suspend his account for a time
- and put him back on the straight and narrow with the fear of god in
him. It's pretty depressing that schools are now so litigation-scared
that they feel they have to cover their backs and get the police
involved. This is the effect SPA et al are having. I can't see it
being for the greater good myself. It ups the stakes and means that
any other sys admin in charge of a University site will now be obliged
to call LE in, or risk being charged as conspirators themselves.
(At least, I *presume* it was fear that led to the law enforcement
agencies because MIT wasn't to make sure their hands were clean.
......
Also, I'd like to know *who* drew up the indictment against David -
who it was that thought using pgp and anonymous remailers was something
worth mentioning. This *isn't* the sort of stuff I'd expect the Boston
DA to know about. Either someone at MIT is deliberately shit-stirring
or the DA got help from <outside agencies>... my personal suspicion
is that that little gem came from MIT and young David is caught up in
something larger than his FSP warez server problems... Does anyone
have a way of finding out who was responsible for that part? Is it
FOIA-able? Or can David's lawyer's expect to be told as part of his
defence?
------------------------------
Date: Mon, 04 Apr 94 01:10:18 -0700
From: John Labovitz <johnl@ORA.COM>
Subject: File 3--New Edition of E-Zine-List available
This is to announce a New Edition of my E-Zine-List, a guide to
zines on the net.
The newest edition of the list can be obtained in the following ways:
anonymous FTP:
ftp.netcom.com: /pub/johnl/zines/e-zine-list (ASCII text version)
e-zine-list.html (HTML version)
World Wide Web:
ftp://ftp.netcom.com/pub/johnl/zines/e-zine-list.html
FTP-mail
send the message "help" to ftpmail@decwrl.dec.com for more information
email:
johnl@ora.com
A few notes:
* I'm changing my email contact address from johnl@netcom.com to
johnl@ora.com. Any further correspondence should be addressed to me here.
I will eventually be changing the FTP site (and hopefully getting it
on a real WWW sever); I'll let you know when that happens.
* At one point I had started a list of people who wanted to receive the
full version of an edition of the list when it came out. I've realized
that this is simply too timeconsuming for me to implement. If you are
one of those people who'd like the list by email, I'd recommend using
the above FTP-mail server to get the list. At last resort, I'll send
out copies manually, but I'd rather not do it too much.
* And lastly, sorry for the delay between editions. I've been trying
to issue a New Edition every month, but it hasn't been working out quite
that often.
------------------------------
Date: Tue, 5 Apr 1994 02:22:11 -0500 (EDT)
From: "Ofer Inbar" <cos@CS.BRANDEIS.EDU>
Subject: File 4--Ratings Bandwidth
I'm a little behind on my CuDs, and I just got through reading some
of the articles from several months ago about a Usenet ratings system.
A few people mentioned bandwidth as a possible concern, so I looked up
the most recent NSFnet per-port usage stats. Here are the top ten
services, ordered by packet count:
NSFNET Backbone Traffic Distribution by Service
February 1994
Packet Total: 59,978,894,650
Byte Total: 11,415,444,417,600
Service Name Port Packet Count % Pkts Byte Count % Byts
============ ==== ============ ====== ============= ======
ftp-data 20 12374824000 20.632 4482332174350 39.266
(other_tcp/udp_ports) -999 11411443650 19.026 1436332023900 12.582
telnet 23 8808333200 14.686 647239528300 5.670
nntp 119 5071822850 8.456 1113129303700 9.751
smtp 25 4826063100 8.046 766131455150 6.711
domain 53 3521902850 5.872 327470529450 2.869
icmp -1 2366466900 3.945 204080814350 1.788
ip -4 2079238450 3.467 635027078800 5.563
irc 6667 1539952250 2.567 165244146650 1.448
gopher 70 1472386850 2.455 396066059800 3.470
We can see that NNTP, the protocol used for transporting Usenet news
over the Internet, is high on the list, accounting for about 10% of
the data traversing the NSFnet. We can also see that about four times
as much bandwidth is being used to transport files by ftp. This is
assuming that NSFnet statistics are a good barometer for the rest of
the Internet, but I don't think that's such a bad assumption.
It seems to me the real growth is in ftp and similar services, such
as gopher and web/mosaic. NNTP is a very efficient way to distribute
information, where everything is locally cached. (Efficient for the
network, that is, not for your disks!). The popularity of graphics
files, for instance, increases ftp traffic much more than news
traffic. And when full motion video and audio become more common, as
will undoubtedly happen not too long from now, this will be even more
pronounced.
People speculating about Usenet ratings have suggested that there
may be as many rating messages floating about as there are "real"
postings. However, even if NNTP traffic doubled, that's still half as
much as ftp. Personally, I wouldn't be surprised if rating
information became more common than "real" information, since it's
actually more useful, or makes the "real" information more useful,
depending on how you look at it. But even if NNTP traffic were to
triple due to ratings, it would be worth it. One poster mentioned
128-byte PGP signatures as a potential problem. But in the days of
video delivered by net, PGP signatures will be among the least of our
worries.
OK, so now for the real question:
The ratings idea is one that has been floating about the net in
various forms for a while now, and it's clearly a great idea. But, is
anyone actually working on programming it?
BTW, one potential of ratings that I don't remember seeing mentioned
here yet is its commercial potential. A good "editor" or similar
business could make money selling subscriptions to their private
ratings service. This is a good model for letting information
continue to flow freely, while still allowing for people to make money
off the information economy.
------------------------------
Date: Tue, 5 Apr 1994 01:05:57 -0400 (EDT)
From: ktark%src4src@IMAGEEK.YORK.CUNY.EDU(Karl Tarhk)
Subject: File 5--"I Have Seen the Future" (Satire)
I HAVE SEEN THE FUTURE
Satire by ktark@src4src.linet.org
(Sing along with your favorite blues song)
I want to be a rebel
I want to fit in
in the new-tech revolution
in the new scheme of things
I will read Mondo-2000
and Wired magazines,
I will join a hacker group
and be into that scene
CHORUS:
I have seen the future
It is computers and french fries,
CD-ROMS, 3DO and cryptography
with a little mustard on the side
Crypto-hacker, Compu-rebel
Cyberpunk, yes, those are my names!
I am so bad..
I just can't believe myself
I am such a rebel
I write an electronic magazine..
I'll become so famous and quoted,
you're not gonna believe
CHORUS:
I have seen the future
It is computers and french fries,
Virtual Reality, 500 channels
with a little ketchup on the fly
I am so self assured,
well read and full of grace
that I have the need to wave
my degrees in your face!
I am such an anarchist
the government is after me..
for opposing Clipper
and drinking Chinese tea
CHORUS:
I have seen the future
It is Computers and french fries,
MUDS, Raves and Cyber-Sex
with a little KY-jelly on the side
A philantropist, a writer,
glorified and interviewed
worship me now, before
Uncle Sam gets you fooled
And when I retire
I'll start a consulting firm
In a month I'll make more bucks
than you'll ever earn!
CHORUS:
I have seen the future
It is Computers and french fries,
Interactive TV and desktop video
with a some mayo on the fly
------------------------------
Date: Wed, 6 Apr 94 23:16 WET DST
From: jwtlai@IO.ORG(GrimJim)
Subject: File 6--Badgering LambdaMOO
In response to "Mr. Badger" (CuD #6.29):
>To attempt to impart special significance to fantasies on-line does nothing
>but debase the truth concerning actual acts of aggression.
Agreed. The degree of aggression here is more on the order of a prank
phone call. Maybe harassment at the most. Of course, merely being an
ass isn't illegal.
>Do I think [t]he MUDers took things too seriously? Of course!
>Boot the offender off the system and have done with it. If
>push comes to shove, grab your marbles and go play elsewhere.
>Heck, for all I care, argue about it on-line until your phone
>line melts. Just don't try and draw shoddy parallels to real
>life that only serve to weaken judgment in both realms.
Interesting that I was mentioned in the subject line yet my arguments
were at most only vaguely referred to at the end of Mr. Badger's
response, if not downright ignored. Just what was "shoddy" about my
analogy between Usenet article forgery and MUD character fakery save
for the scale of the impact? If my parallels are indeed "weak",
please do point any flaws out, but spare me any rhetorical handwaving.
My basic proposition is simple: by playing on MUDs, the players
engaged the expression of intellectual property via the computerized
medium of interactive text. The financial repercussions were
negligible in this case, but it's human nature to be protective of
something in which one has invested time and effort.
My proposition does not conflate fantasy and reality. For instance, a
character, being an expression of intellectual property and not an
actual person, cannot be libeled or defamed.
Confusion may occur when people slip between reality (sometimes
referred to as OOC, or "out of context") and fantasy mode (IC, or "in
context"). An attack made IC, or on the character, may be
misinterpreted as being OOC, or on the person. This is
miscommunication, however.
This potential for miscommunication is interesting, though it hardly
justifies wild philosophical ramblings of the type in the cited
Village Voice article.
Since most people on Usenet post as themselves (OOC), there is usually
no fantasy (IC) to confuse the matter. On Usenet, attacks on others
are attacks, plain and simple. But there is nothing innately
different between the media of MUD, IRC, and Usenet in their ability
to distinguish between IC and OOC behavior; it is merely a matter of
social convention (or rules, or etiquette). Thus, my parallel between
Usenet message forgery and MUD character fakery. It appears to me
that there is a lack of a uniform social convention on MUDs; as a
result, miscommunication is all too common.
People arguably take things too seriously in the "real" world, judging
from the number of spurious lawsuits and torts. I can only hope that
my proposition would provide a down-to-earth framework, allowing
"virtual" situations to be dealt with rationally, level-headedly, and
in a consistent manner.
GrimJim
(Jim W. Lai in reality)
------------------------------
Date: Mon, 11 Apr 94 11:51:34 EDT
From: shadow@VORTEX.ITHACA.NY.US(bruce edwards)
Subject: File 7--Edwards to Lopez
I'd like to address one point Andy Lopez -- Mr.Badger -- makes in his
response to my critique of his review of Dibbell's Voice article.
(Whew!) [Cu Digest, #6.21;6.26;6.29]
I had written:
[...] I have seen an RL event unfold much like the one Mr.
Bungle reportedly perpetrated on LamdaMOO. The
perpetrator's actions there (child abuse) were not verbal,
but physical. This real life Bungle, too, had reasons why
the community ought not "toad" him, though the toading would
have been of the banishing, not the annihilating sort (the
legal processes were already complete). The community
involved agonized in much the same way the members of
LamdaMOO did. In the end, there was no Wizard to act, and
there was little resolution, but there was experience to be
archived. Had these people the previous experience of the
players on the MOO at adjudicating communal threat, I
believe that they would have been able to relate with
greater precision to their real life dilemma. This is the
value of simulation, is it not?
Lopez responds:
[...] I also find it ridiculous that Edwards believes
experience in role playing would help a jury decide on
whether or not a child molester ought to be punished or not.
Any weakening of the fundamental difference between
fantasy/reality or words/actions is exactly what leads to
the vagaries of the modern justice system. A person can
fantasize about whatever they wish, but those who commit
rape and child abuse deserve to be punished. To attempt to
impart special significance to fantasies on-line does
nothing but debase the truth concerning actual acts of
aggression. True, the use of words can be potent. Witness
libel. But Edwards should realize that libel has also been
difficult to prosecute, precisely because the claimant must
prove actual damages.
I was perhaps not clear enough above when I parenthesized that, "the
legal processes were already complete." This molester had been tried,
convicted, and sentenced (not to jail, though). The problem was
whether -- and if so, how -- to re-context him within his
(sub)community following the crime, or to banish him. Like the
quandary on LamdaMOO, the folks meeting (and meeting, and meeting)
here found no general agreement. The only accord reached was that he
be watched around children (no kidding).
It was to a peripheral member, absurd. Abuse of children (in
particular) is right out. I won't go into their deliberations,
besides noting the sentiments and dynamics were *very* much those of
the MOOers. I believe that some of this mush could have been avoided
if those involved had only the experience of the MOOers. The
situation on the MOO may have been virtual, but the principles were
heartfelt and needed genuine (not virtual) involvement to resolve.
My argument (here) was that VR experience can prepare one to handle
RL situations. It was not about a fundamental difference between
fantasy/reality or words/actions.
------------------------------
Date: 7 Apr 1994 13:42:26 -0500
From: abacard@well.sf.ca.us (Andre Bacard)
Subject: File 8--Gilmore Files Clipper FOIA