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Weltanschauung Magazine (The WorldView)
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% Editor: The Desert Fox D E R %
% Co-Editor: Rev. Scott Free %
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% W E L T A N S C H A U U N G %
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April 4, 1991 Vol. 1, Issue 1.
(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)
Material Written By Computer And Telecommunications Hobbyists World Wide
Promoting the publication of Features, Editorials, and Anything Else....
To submit material, or to subscribe to the magazine in hardcopy, send a
SASE to: WorldView
11504 Hughes #124 ? Weltanschauu?g Distribution Site:
Houston, Texas U.S.A. 77089 Rivendell BBS
******************************************* (713)333-XXXX
* Please submit articles and comments to: * 3/12/2400 Bps
* INTERNET - Fox@nuchat.sccsi.com * (The New BBS will be
******************************************* up May 1, 1991)
If Possible...Otherwise, Mail Or Call!
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*IN THE NEXT ISSUE *** Unix features, More On Robert Morris, Info*
*On The New Rivendell BBS Including The New Phone Number, An *
*Editorial By The Reverand Scott Free, Plus Much More... *
******************************************************************
Table Of Contents:
I. The Shockwave Rider: A mini-biography on Robert T. Morris,
the creator of the Internet Worm.
II. Wordless: An editorial by Homer Mandril
III. The State Of National Security: An editorial by The
Desert Fox and Lord Macduff
IV. The complete explination of BEER*NET
V. Torts: Some handy information on laws governing the world of
communications, by James J. Spinelli
VI. HR 4070 [The story behind Homer Mandrill's Editorial]
VII. Editor's Comments
Title: The Shockwave Rider. (background on Robert T. Morris Jr., author
of the Internet 'worm')
Author: Unknown
Summary: A profile of Robert T. Morris Jr, author of the 'worm' program
which caused major system crashes on the Internet network in Nov 1988, is
presented. Morris is the son of Robert Tappan Morris Sr, the chief computer
scientist of the National Security Agency's Computer Security center and a
master cryptographer. Morris junior ('RTM') identified with the protagonist
of John Brunner's science fiction novel 'The Shockwave Rider,' a social rebel
who outsmarts computer security measures and is forced to make a
controversial decision. Some hackers view RTM as a 'freedom fighter,' but
some say he is placing freedom of information at risk. The younger Morris was
known for computer pranks while an undergraduate at Harvard and worked on
graphics problems as a Cornell University graduate student. He was allegedly
bored and created the Internet worm as an experiment; it was designed to
replicate itself throughout the umbrella Internet network and exploited
well-known bugs in the Unix operating system. It struck academic, military
and commercial scientific research sites, consuming memory and causing
machines to grind to a halt. Many computer security experts argue that RTM
should not be punished, but many worry about the social implications of
computer security: more and more systems will require cumbersome 'locks'
which will make it difficult for legitimate users to access information.
The Shockwave Rider "ONCE YOU RELEASED this worm, did you have any ability to
control it?" the defense attorney asked the defendant.
"No. Once I released it, I had essentially no contact with it at all. I
couldn't control it," said the young man, facing the jury in the Syracuse,
New York, courtroom. "After it started, it was pretty much doing its own
thing."
Robert Tappan Morris, the creator of the Internet computer worm, patiently
told the courtroom packed with TV and newspaper reporters how his secret
experiment had gone terribly awry.
In the front row of the courtroom sat a slender man holding a copy of Livy's
History of Rome. The man's suit was worn, his shoes untied, his gray beard
unkempt. But he just happened to be an internationally known computer
security expert, master cryptographer, and the National Security Agency's top
computer scientist. His name: Robert Morris, Sr.
"It was a mistake, and I am sorry for it," said the younger Morris, his
large, watery eyes focused on the jury. Minutes later, at the lunch break,
the prosecutor walked past the defendant, and the young hacker couldn't
suppress a smile. His soft, pale checks seemed to rise into a smirk. Was he
giggling?
"The work of a bored graduate student," was Morris senior's explanation to
The New York Times after his son released the most virulent worm the world
had ever seen. Indeed, the younger Morris did seem bored at Cornell, where
he was only a few weeks into his graduate studies. Two weeks before the
worm's release, Peter McIlroy, a childhood friend, had visited Morris. "He
liked some classes and not others," McIlroy remembers. "Some he seemed to be
blowing off."
But Morris seemed to be getting along in Ithaca. He had taken to
rock-climbing and was playing intramural hockey. "There was no inkling he
was about to write a computer worm," recalls his friend. Except, perhaps,
for one clue. McIlroy, also a techie, had casually mentioned to his friend
that he believed the Unix operating system was pretty secure.
"No! It's unbelievably insecure!" Morris snapped. "It's unbelievable how
many holes there are!"
McIlroy was caught off-guard by Morris's fervor. "It bothered and surprised
him that the holes would never get fixed."
Was it as simple as that? Bored by his courses, had the son of the nation's
leading computer security expert taken things into his own hands? Had the
"attack" merely been a well-intended but bungled attempt to shore up computer
security and teach the world a valuable, relatively safe lesson?
Theories on the worm and its author's motivations consume several chapters of
popular books and countless articles. Some have hypothesized that the worm
was a high-tech, father-son spat played out on a global scale, while one book
blithely concluded that father and son had jointly launched the attack under
the auspices of the National Security Agency.
Hackers saw a broader political motivation. The trial of Robert Morris
became the trial of an entire generation and philosophy of computers and
information. To many hackers, Morris became a freedom fighter, a symbol of
electronic free speech, a voice against the power that centralized computers
wield over individuals.
But more than a few hackers wondered if the coup was misguided, if Morris was
not placing at risk the very freedom of information that his supporters
angrily demanded.
At the center of the debate stood two elite hackers, the very sort of wizards
we have come to expect to guard us against computer saboteurs. But that was
before Morris stepped over the line and plunged into a digital no-man's land.
Under provisions of the untested 1986 Computer Fraud and Abuse Act, Robert
Tappan Morris, Jr., was indicted for trespass. His offense? Unauthorized
computer access.
THE STORY OF ROBERT TAPPAN MORRIS begins with his father and the hauntingly
powerful electronic world he helped to create. In the early 1970s, when Bell
Laboratories began designing the universal operating system called Unix, it
was Morris senior who imbued the virgin software with security.
"The scheme for encrypting passwords was very heavily influenced by him, the
interest in low-grade cryptography--the things we think of as absolutely
routine," says Douglas McIlroy, Peter's father and one of the designers of
Unix at Bell Labs' Murray Hill, New Jersey, facility. The elder Morris
helped bar snoopers by making it difficult for anyone to become a "super
user"--a person with the power to use or abuse a system.
"There was this constant game of trying to figure out how to circumvent the
best security measures we had," McIlroy recalls. "You had to be able to
out-think the most devious minds."
That was the dilemma Morris senior faced: to protect, he had to know how to
destroy.
Morris senior often seemed locked in an elusive battle with the equally
brilliant and eccentric Ken Thompson, a legend in the computer industry and
widely respected as one of the inventors of Unix. "Each would try to outdo
the other in a friendly, but mean-spirited, way," McIlroy says.
Morris thrived in the daily skirmishes. One of the cryptic scientist's most
revealing feats occurred during tests on the first working copy of the Multix
operating system. He walked into the laboratory and typed two
characters--two specific characters he had a hunch the system could not
compute. The machine crashed. "It was dramatic," says McIlroy. "He always
liked to put on an air of mystery."
First Bell and then other companies invited Morris to break into their
computer centers to test their defenses. Hired by one defense contractor to
discover its computer system's Achilles' heel, Morris dressed himself as a
security guard, walked in, and watched someone type a password. While this
tactic was an exception (Morris usually broke systems with his encyclopedic
knowledge of encryption, cryptography, and computer security), it
demonstrated his dramatic side. "Bob had a certain amount of flair," recalls
McIlroy. "He definitely enjoyed his prowess."
By the 1980s, the chain-smoking, shabbily dressed scientist had developed
into a master cryptographer and a world expert in protecting electronic
information. He designed a Navy computer that tracked enemy submarines by
spotting anomalies in the masses of data gleaned by ocean sensors. At the
time it was the world's largest computer.
Morris senior's stage broadened in 1986, when he became the chief scientist
at the National Computer Security Center of the National Security Agency and
assumed responsibility for protecting sensitive computer-based data
worldwide. Friends reported that he dove into the mysterious intelligence
underworld with a passion. His office was outfitted with a "Tempest"
computer, encased in lead to prevent the interception of radio emissions, and
visitors say his blackboard was covered with Russian words.
Years later, in the tumultuous days following the Internet attack, Morris
senior's sense of mystery and drama had not waned. Newspaper and TV
reporters camped in front of his new home in Arnold, Maryland. Inside, his
son was quiet, talking little even to his Harvard buddies who had driven
through the night to support their friend.
It was his father who spoke to the press, telling The New York Times, "I know
a few dozen people in the country who could have [created the worm]. I could
have done it, but I'm a darned good programmer." Perhaps it was not
surprising that after the press left, Morris senior placed the puzzling deed
in historical focus. "Let's find out where this all started," he said to his
son's friends, pulling down a book by John Brunner titled The Shockwave
Rider.
In a scholarly tone, Morris senior explained that the 1976 science fiction
classic, one of his son's favorites, popularized the idea of computer worms.
What he didn't explain was that the book's protagonis was remarkably similar
to himself. And to his son. Like both Morrises, the Shockwave Rider
outsmarted computer security measures with the cunning of a secret agent and,
like Robert Morris, Jr., the Shockwave Rider was forced by his genius to make
a difficult, controversial decision. Having spent his youth expanding his
computer powers, the Shockwave Rider pondered the true test of wisdom:
"What a wise man can do, that can't be done by someone who's merely clever,
is make a right judgment in an unprecedented situation."
YOUNG MORRIS MAY HAVE BEEN CHARGED with the crime of the future, but he grew
up in a world closer to the last century than the next. The Morris family
lived in a 250-year-old farmhouse on nine rambling acres of spruce, pine, and
swamp alongside the Passaic River near the quaint town of Millington, New
Jersey. The children cared for the farm animals and Robert tended the
family's sheep.
"They wanted to keep the old ways," recalls the current owner of the house.
"They lived very simply. They didn't have material things." The family grew
vegetables in a 50-by-100-foot garden, and if they needed something more than
the earth and animals could supply, Morris senior would bring home a cast-off
to salvage, like the giant-size freezer he repaired to store their freshly
slaughtered meat. The family cut firewood for themselves and in winter
dragged it by sleds over the ice-bound river.
There was something untamed about the Morris clan. "I don't think the
Morrises even knew how many cats they had," recalls a friend, who says 20 or
more cats roamed the property while three or four big furry black dogs ruled
the hearth.
Inside the old farmhouse, unnecessary elements were eliminated. A mantle
considered "too ornamental" was hacked out, a closet was torn out to squeeze
in yet another bookcase, and a bathroom was ripped out to create another
bedroom. The ceiling sagged and the plaster was cracked, but the
"unbelievable mess," as a friend calls it, held an unusual collection of
quirky wartime coding devices, including the mysterious Nazi Enigma machine.
Named from the Greek word for puzzle, the Enigma was a mesh of gears and
rotors that controlled an electronic drum rimmed by the letters of the
alphabet and fed by a typewriter. Considered a foolproof scrambler, the
battery-powered Enigma served as the Third Reich's top coder in World War II.
But in 1939, an elite British team of cryptanalysts and mathematicians
cracked the coder and gained a tremendous edge over Hitler's forces
throughout the war. With the Enigma's secrets unlocked, the Allied
commanders could read the Fuhrer's orders often before his own generals
received them.
Almost everything at the Morris house had a story behind it, no matter how
obscure it might appear. The house was overflowing with puzzle sculpture
pieces, magazines, and more books than you'd find in most small libraries.
And not just any books. Morris senior had been a brilliant mathematician at
Harvard, but he also loved the classics and learned to read Greek and Latin.
His wife, Anne Morris, counted the vast family collection one day and, after
tossing out duplicates, logged 7,000 volumes.
Morris junior began reading at the age of four. The curious toddler created
working scale models out of paper, file folders, and paper clips--cars with
wheels that turned when you moved the steering wheel and revolvers with
bullets and chambers that turned. At nine he read stacks of Scientific
American. His father had a ham radio license, and before long the boy began
assembling and disassembling radios and a variety of other electronic
equipment. By the time he reached his early teens, his reading list had
expanded to include the classics, history, economics, political science, and
science fiction.
But downstairs, in the old kitchen, in front of an unused Dutch oven, was a
machine like no other. From a distance, it looked like a huge mechanical
typewriter stretched over a desk, but what were those protruding rods and
cables? The strange-looking device, which had been in the house since the
mid-1960s, when Morris junior was born, was a computer terminal.
As a top scientist at Bell Labs, Morris senior was one of a few employees
with a home computer terminal during an era when electric typewriters were
still rare. "Everybody lined up behind one another to get their computer
time," recalls Anne Morris of the Digital Equipment terminal. But her
children were not all alike. Soon her daughter lost interest, and the
younger boy rebelled. (He now works as a tree surgeon.)
Only Robert, the older boy, remained captivated by the clanking, screenless
terminal. Each time he struck a key on the machine, mechanical rods shifted
like the trackers of a pipe organ, forming the eight bits that made their way
over the terminal's modem to Bell's central computer. Frequent lubrication
was needed to keep the machine's rods from sticking, and after a long
session, Robert would often emerge with oily knees.
When Peter McIlroy visited the Morris farmhouse, he noticed his friend wasn't
merely playing the computer's math and guessing games. "By the sixth grade,
he was finding holes [in the operating system]," recalls McIlroy. "But he
wasn't a snoop. It was much more of an intellectual game."
Not yet in his teens, Morris junior already knew his way around the huge,
complex Unix operating system. He created multiuser games to chat with his
friends simultaneously and a surprisingly sophisticated Unix interface shell.
The Unix code was online, and nearly every day after school Robert studied it
the way other boys studied girls. His girlfriend, the daughter of another
Bell employee, was online, and the budding hacker zapped love notes to her.
By his mid-teens, the young Morris showed Peter McIlroy how, by logging on to
one terminal, he could masquerade as a legitimate user on any computer in
Bell's network. "He found it, played with it, and fixed it," says McIlroy.
"I think they [Bell officials] were impressed." Bell officials say that
while Morris did modify some files, no serious damage was done. "He was told
to stop and that was that," says Bell's Fred Grampp.
But Morris was allowed to visit his father's office and continue his poking,
and in December 1982, Grampp invited him to give a talk about tightening
security on a Unix communications program. Soon Morris was working part-time
at the lab after school and full-time for the next two summers, writing his
first scientific paper, "A Security Flaw in Berkeley . . . Unix," in January
1983.
His initiation into the rites of super-hacking couldn't have been more pure.
In the elite, challenging research environment of Bell Labs, the teenager
learned "to spot and repair security holes" at the feet of the very people
who had created Unix.
But Morris was far from a one-dimensional, stereotypical hacker. At nearby
Delbarton, a preparatory school run by Benedictine monks, he excelled in a
broad range of courses, swam the breaststroke on the school swim team, sang
with the abbey's chorus, and was, according to the Delbarton credo,
"encouraged to become an independent seeker of information and take
responsibility for gaining both knowledge and judgment."
Yet years later, his parents proudly announced that it was he who was
featured in a 1982 Smithsonian magazine article as a "quiet, polite young
man" who "has broken into password files" and read "supposedly private"
computer mail. "I never told myself that there was nothing wrong with what I
was doing," the boy was quoted as saying, adding that he was driven by the
challenge of testing computer security. It was a family preoccupation that
Morris shared with his fictional double, the shockwave Rider:
"I guess my daddy was a 'phone phreak' and I inherited the gene."
The following year, Morris senior wrote in his 25th anniversary Harvard
report: "I promised myself that I would learn to read Greek, learn in some
detail how the planets move in their orbits, and learn how to decipher secret
codes. I have gone a long way toward keeping all three promises." But it
was secret codes--not Greek or the heavens--that captivated his teenage son,
and he was soon fast at work on his first paid computer security project at
Bell.
The security crusade didn't end at the laboratory. At the farmhouse, father
and son often discussed Unix and computer security. "I'm very sure he got
hints from his father," says Douglas McUlroy, "but I doubt he got much
detailed help. I think his father wanted to generate self-reliance." The
young Morris told a friend that his father created games to develop his
programming skills, once even making him program without GOTO
commands--something like playing basketball with only your left hand. "His
father was always challenging him," recalls Roy Horton, Morris junior's music
teacher and a close family friend. "They were of similar minds."
The next year Morris senior and Grampp wrote and, with some trepidation,
published the definitive paper on Unix security. In the footnotes was a
reference to Morris junior's paper, and in the introduction, a warning:
"There is a fine line between helping administrators protect their systems
and providing a cookbook for bad guys."
Morris junior seemed to understand the dangers. In his second published
scientific paper, he sounded every bit the seasoned computer security expert.
"The old uucp [Unix to Unix copy procedure] was designed on small machines
with light traffic and little concern for security," wrote the confident
18-year-old. "Times have changed. With many hundreds of machines running
uucp, one cannot assume that no uucp requests will be malicious."
"AREN'T YOU THIS FAMOUS, GREAT HACKER?" asked an impressionable fellow
Harvard student. "No," said Morris, his boyish face betraying embarrassment
and a slight smile. "That's my roommate."
Morris continued the playful deception for several minutes. The Shockwave
Rider, too, had many identities, many lives woven through the electronic net:
"An individual could rewrite him or herself via any terminal connected to the
federal data banks . . . this was the most precious of all freedoms . . .
freedom to become the person you chose to be instead of the person remembered
by the computers . . . it was the enchanted sword, the invulnerable shield,
the winged boots, the cloak of invisibility. It was the ultimate defense."
Morris had several identities at Harvard. The story goes that as a freshman
he walked in, brought down the system, and hacked his first identity, an
unauthorized Harvard account. Whether that initial act of mastery be myth or
fact, in a matter of months Morris had hacked and cultivated a fistful of
computer credit accounts. His log-on name became his identity, both online
and among his friends: RTM.
As a freshman, RTM began hanging around Harvard's graduate computer science
department, Aiken Lab, an ugly slab of concrete built in the 1940s and named
after one of the inventors of the modern computer. It was here, behind a
glass wall, opposite the antiquated vacuum-tube computer, that RTM spent most
of his waking hours.
"He'd fix things for free," recalls Paul Graham, a computer science graduate
student and close friend. "There was no question that he was the most
technical person."
RTM's breadth of knowledge was exceptional: Unix, networking, hardware,
graphics, and several other languages. Andrew Sudduth, Aiken's system
manager, hired RTM, and like many who employed him on campus, Sudduth found
that RTM was too busy chasing the latest computer problem to punch a time
clock or do his class work. "A professor would say, 'Wouldn't it be nice if
we had this?'" he recalls. "And Robert would go and do it."
He began by pacing the halls. There was no evidence he was working on the
problem. After sufficient gestation, he settled in at a terminal, preferably
"a lousy one," with a black and white display, a throwback, says Graham, to
his days on his father's mechanical, screenless terminal. There were no
distractions, no interruptions, and once he began, the pace was fierce, for
TRM could program as fast as he could type.
Rail-thin, RTM ate little, and when classmates invited him to lunch, two
hours later he would still be hunched over his keyboard, typing furiously.
Friends would stand over him, calling out his name, but the transfixed
programmer seemed to hear nothing. When a few nights of intense programming
finally gelled, RTM would snap out of his spell. "He would jump up and rub
his hands when he figured something out," says Sudduth.
Not all of his achievements were altruistic. RTM could do "anything he
wanted" when friends were logged on to a Sun workstation, according to Graham
and others. One of his most playful pranks was creating a subliminal message
that would flash for less than half a second on the screen of an unsuspecting
user. Graham said he saw the fleeting message, "Help, I'm being held
prisoner within a VAX 750!" and then wondered if he'd imagined it all.
Occasionally RTM took the game further, demanding a response to his whimsical
intrusions. Classmates sometimes found their work interrupted by a sage
called The ORacle. "Ask me a question and I will answer you," asked RTM, The
Oracle. "But first you must answer me."
Some of his pranks tested a user's technical knowledge. On a lark, RM
reverse-engineered the Harvard network into an older, defunct interface.
Everything worked, but the commands were different, and "true" hackers seemed
to enjoy the challenge. Roommate Greg Kuperberg, a nationally ranked college
mathemaician (also prone to feverish pacing) who befriended RTM and
collaborated with him on an elaborate graphics program, says his friend's
forays into Harvard's computers were exagerrated and misunderstood. RTM was
simply inquisitive, says Kuperberg, and his experiments were not much
different from those of a young chemist who occasionally mixed the wrong
chemicals.
But RTM's experiments were not without side effects, and there were some who
didn't consider it good, clean fun. One night, Robert Ziff, a Harvard
engineering student, watched the program he was working on slow to a snail's
pace. He complained to the deparmtent's system manager, who checked to see
who was tying up the computer's resources and exclaimed, "Oh God! It's
Robert Morris."
RTM had programs simultaneously running off his accounts on the engineering
and robotics computers--in addition to Aiken's. It wasn't the first time he
had "hogged" computer time. Ziff was instructed to warn RTM that "if it
happens again, they'll take you off the account."
Ziff was by no means the only one at Harvard who was unhappy with RTM and his
experiments. A few were "mistrustful of Robert because he was smarter and
better," says a friend. To those individuals, RTM sometimes sent commands
that mysteriously crept onto their computer screens. There was never any
doubt who had sent the ominous commands. Only RTM knew the secret security
holes. And there was never any doubt that he would keep his dark knowledge
secret. "He wouldn't tell them how he did it," says the friend. "He didn't
trust them." Instead, RTM left his enemies hanging, wondering whether he
might just decide to execute the REMOVE FILE commands he dangled on their
screens. "I did in fact break into other people's computers [at Harvard],"
Morris later admitted in court, "but I ... knew that they wouldn't mind."
In one sense, RTM was no different from other hackers. The first commandment
of hacking is to not waste computer time, to push and pull every electron's
worth of processing might. It is a boy's pursuit, a masculine display of
virtuosity. Test pilots call it "pushing the envelope." No longer protected
by his father or the understanding researchers at Bell Labs, RTM began
testing his wings, and, like the Shockwave Rider, he thrived in his new
environment:
"Meantime, taking advantage of the corporation's status, he could gain access
to data nets that were ordinarily secure. That was the whole point of coming
to KC. He wanted--more, he needed--data..."
RTM never did carry out the ominous threats, and at the same time he was
building professional credentials as a dedicated computer security expert.
"The Unix software is very flexible and convenient, but it places too much
trust in a protocol that provides very little security," he warned in a 1985
Bell Labs paper that described how to attack "trusting" host on the vast
national computer network known as Internet.
Two years later, while still at Harvard, RTM delivered several long talks on
his extensive knowledge of computer security at the National Computer Science
Security Center and the Naval Research Lab. During his summers he hacked for
computer companies on both coasts.
As he became more technically accomplished, his two personas--the mischievous
RTM and the dedicated computer security expert, Robert Morris, Jr.--struck an
uneasy balance. The same friends who detail how RTM inspired fear in his
enemies remember him as a person who believed in the importance of
"character" and who hacked out favors at a moment's notice.
But in his professional role, Morris increasingly found that the real world
was not nearly as responsive to security concerns as the Bell Laboratories of
his childhood. he discovered that if he reported a security bug, companies
often did nothing, or they waited for months before issuing patches. He
worried that unscrupulous hackers would take advantage of his discoveries.
He began to keep the secret openings to himself.
When RTM was taking graduate mathematics and computer science courses in
1985, the combination of his freelance projects, his generosity, and the
"difficulty and the boredom" of graduate work became too much for him. RTM
did not excel in every course, as his father had. So he dropped out and went
to work at the Convex Computer Corporation, in Richardson, Texas.
The young hacker's education began to have more in common with that of the
Shockwave Rider:
"Shortly thereafter, he began to concentrate on data processing techniques at
the expense of his other study subjects."
The following year, Morris junior returned to his Harvard studies eager to
learn. Friends remember his pacing about their homes or apartments, picking
up things to see how they worked. Often his excitement bubbled over. "He
was always breaking things," says Graham. "And he was insatiably curious."
The love of the classics his father had inspired had not diminished. "He
might be interested in medieval art, English history (a poster of English
kings adorned his dorm room), Homer, the Renaissance, or Greek art," recalls
a Harvard classics professor RTM helped with some computing problems. "His
knowledge was pretty encyclopedic." But the serious topics didn't keep the
Harvard student from classic adventure stories like the Norse sagas and one
of his favorites, The Three Musketeers.
Something of an adventurer himself, RTM and a classmate spent a week buying
copies of The Racing Form at six in the morning and entering "tons of data
about correlations of past performances." Then the budding computer bookies
took in their first horse race at nearby Suffolk Downs. "It was so
depressing," says RTM's friend about the crowd of retired, alcoholic
pensioners. Deciding it "criminal" to beat such sorry bettors, the two
abandoned their get-rich-quick scheme.
Computer graphics became a new infatuation. With Kuperberg, RTM created an
advanced ray-tracing graphics program. When he found that higher mathematics
were not enough to create beautiful forms, he turned to the ancients,
studying the works of Vitruvius, the inventor of proportion standards for
classical columns. One of RTM's finest creations was of a temple standing in
the middle of a blue sea.
Excited by their success, the talented duo entertained the idea of launching
a computer graphics firm. "We had this picture of a kid running a lemonade
stand who one day turned into Donald Trump," says Kuperberg, who, like his
friend, had a "default plan" of graduate school.
BACK AND FORTH, BACK AND FORTH. It was the way RTM entertained an idea, as
if by the movement of his light steps he might nudge the completed thought
from his brain. But this time he seemed more driven than usual.
He had come the nearly 300 miles from his graduate computer science studies
at Cornell to pore over the Unix source code at Harvard's Aiken Lab and visit
his friend, Paul Graham. "He had discovered a big hole and he had to tell
someone," recalls Graham. Excitedly, RTM paced the small office, telling
Graham how he had isolated holes in Unix that could enable him to be a super
user--not at Cornell or Harvard, but across the country and around the world.
Both of the bugs were communications holes, but RTM explained how the FTP
(File Transfer Protocol) bug could conceivably grant an invader root
privileges--the ability to read or delete anything on a compromised machine.
"It was an experiment," Morris later testified. "I had never heard of
anything like it before ... to see if I could write a program that would
spread as widely as possible in Internet." His friend was similarly
entranced. "I thought it was the greatest idea," says Graham, "All over the
world. A big living organism. No one had ever done it before." Of course,
it had been done before by the Shockwave Rider:
"This is indeed the father and mother of a tapeworm. You'll have noticed how
much use it makes of terminology derived from the study of living animals.
And with reason. Not for nothing is a tapeworm called a tapeworm. It can be
made to breed ... my newest--my masterpiece--breeds by itself."
To Graham, the worm was not only an incredible creation, it was a bold strike
for freedom, and later in court he would compare RTM to Mathias Rust, the
West German pilot who landed in Moscow's Red Square in May 1987. Encouraged
by his starry-eyed friend, RTM paced, describing how he wanted every computer
on the Internet to receive one innocuous probe, one worm that would wriggle
its way into each computer's memory.
Finally, the excitement grew too great for Morris.
"RTM, you're on his desk," said Graham, as he watched RTM's feet pad by on
top of their colleague's desk.
"Oh," said RTM, for the first time aware of his rise in elevation. This
behavior was typical of Morris when he was absorbed in thought.
Later, on that cool October night in 1988, RTM and Graham continued talking
about the probe as they stood in front of a Boston seafood restaurant waiting
for Sudduth, a champion rower, whom they would toast as a winner of the
annual Head of the Charles regatta. As they waited, Graham suggested that
the worm write something to the computers it wriggled its way into.
"No, no, we can't do writes," his friend said, explaining that any writes, no
matter how well-intended, might be dangerous.
What the two couldn't figure out was how to protect a single worm on each
machine. "It would have been very simple for someone to write a program that
just acted as if it was a worm [an antiworm]," tricking new worms into
believing a computer had already been penetrated and stopping "my worm from
growing at all," Morris testified. And so, he decided it might be all right
to have two, or maybe three, worms per machine.
But neither knew much about population growth, and if RTM had any technical
shortcoming, it was his ambivalence toward higher mathematics. There on the
sidewalk, the two decided that the second worm to invade a machine should
have a one-in-seven rate of survival.
No particular formula was used, Morris later told a jury. "It was based on
the intuition I had on how rapidly it would spread." He figured a new worm
might appear once every few hours. As the Shockwave Rider explained,
everything was under control:
"And, no, it can't be killed. It's indefinitely self-perpetuating so long as
the net exists ... incidentally, though, it won't expand to indefinite size
and clog the net for other use. It has built-in limits."
When Sudduth arrived at the restaurant, the two collaborators abruptly
changed the subject. "When we were on a project," says Graham, "it was
understood that it was secret." But RTM couldn't keep everything under his
hat. Without hinting that he planned an attack, he excitedly told Sudduth
about the bugs he had uncovered.
And at first, in the ensuing days, it seemed that RTM's wild idea might go
the way of his racetrack betting and computer graphics schemes. For several
days after RTM had returned to Cornell, Graham heard nothing from his friend.
The two had an old practice of sending elliptical messages over Internet--for
security's sake. "Any news on the brilliant project?" Graham asked in his
electronic message.
There was no response.
RTM HAD BEEN BUSY. More than a week before his visit to Harvard, he had
created a wish list for his worm on his university computer. It was
strangely appropriate that he began the work at Cornell. Officials would
later say it was his reputation as a hacker that gained him admittance to the
university's prestigious graduate school in computer science.
RTM's list was divided into the two main goals he had for his worm: attack
and defense. The target was Internet, an umbrella of three national
communication networks, including ARPAnet, run by the Department of Defense
to link research computers at military sites and universities; MILnet, used
by military and civilian researchers to send routine, unclassified
communications; and NSFnet, a National Science Foundation network.
In the beginning, RTM and Graham used the popular term virus to describe the
worm, but as the creation took shape it came to resemble the prehistoric
worm. Viruses exist by invading and altering their host cells, and their
computer counterparts are similar. They cannot "live" or run without
attaching themselves to other programs. But a computer worm is independent.
Self-propagating and self-running, worms can exist without directly
endangering a network or its users. Some early computer worms were actually
loosed to perform network management tasks. The Shockwave Rider's worm had a
higher social and moral goal:
"The primary my worm is designed to invade is that privacy under whose cover
justice is not done and injustice is not seen."
RTM designed his worm to clone itself, spreading throughout the net.
Searching out new nesting locations, the worm scanned address lists of
computers, selecting the most directly linked machines, such as gateways, and
then began cycling through its attacks. If one method failed, the tireless
invader quickly picked another from its arsenal. The attacks fell into three
categories: nooking a foothold through a security hole, taking advantage of
"trusting" computers, and cracking passwords. RTM playfully named his worm's
attack engine the "cracksome" routine.
Footholds could be gained through either of two techniques. One involved a
utility designed to elicit such information as a user's full name, office,
and phone number. It was fittingly named Fingered. The worm overflowed the
program's small buffer and tricked unsuspecting machines into downloading,
compiling, and running a tiny source code "grappling hook"--the worm's scout.
Once ensconced within the target computer, the hook called the original worm
and "pulled" back sections of a new version of the original worm compiled to
run on either a VAX or a Sun workstation, the two most common computers on
the network (if the hook guessed wrong, it pulled over the other version).
Finally, the hook linked the sections together and the new worm began
running.
By compiling his worm for the two machines in advance, RTM avoided the risk
of sending an easily decipherable source code copy of the program. Only the
tiny "grappling hook" was written in source code, to ensure that the first
cast would draw a bite. The drawback, of course, was that the worm could
successfully invade only VAX or Sun workstations.
A similar attack was launched on an electronic mail program called Sendmail.
RTM had discovered that the program's seldom-used debugging utility allowed
users to send a set of commands instead of a user's address. Through the
gaping security hole went the worm's grappling hook, and, as in the Fingerd
attack, in less than a minute a new, fully functioning copy of the worm was
running on the target machine.
The worm made another attack, not so much on a security hole but on the
network's community of trust. Once a machine was invaded, the worm attempted
to connect with remote machines that "trusted" the invaded machine and didn't
require a password. The techniques were similar to what RTM had described as
a teenager in a Bell Labs paper he wrote about a "weakness" in security that
allows "users on untrusted and possibly very distant hosts to masquerade as
users on trusted hosts."
These were the cracked windows, loose hinges, and open doors upon which the
worm directed its principal attacks. But the worm also tried to find keys
lying around, checking to see if an account had no password, and then
attempting simple heuristics using a combination of words from a user's
account, including names, nicknames, and names spelled backward.
If these attacks failed, the worm would try its internal dictionary of 432
passwords. But the task of cracking new passwords was a time-consuming
process. The only passwords publicly available were encrypted. To figure
out the true password behind its encrypted double, the worm had to encrypt
its own internal list of probable passwords against those it attempted to
crack.
If two encrypted passwords matched, the worm knew that its original password
(before the worm encrypted it) was identical to the password it was trying to
crack. Since virtually every target password was encrypted under a different
key, each target password forced the worm to re-encrypt its list of possible
passwords. After trying this strategy for a few seconds, the worm tried
words from Unix's online dictionary, using the same tedious encryption
method. Cycling through its arsenal of attacks, the worm continually
camouflaged and transformed itself. Immediately upon arriving in a new
computer, the worm deleted the disk copy of itself and ran only in memory
under the alias of an innocuous command interpreter, the kind often used in
shell scripts or automatic commands.
Every three minutes, the worm forked, splitting into a dead parent and a
child. The child started off "fresh," using to apparent resources such as
processing time or memory usage. The short dashes made the worm more
difficult to seize, even if it happened to be spotted.
THE WORM LEFT FEW CLUES. It read all its support files into memory, deleting
file system copies that might be noticed. And by turning off the generation
of core files, if the worm made a mistake and accidentally died, it left no
corpse behind. Once every 15 infections, the worm attempted to connect to a
Berkeley computer. RTM had hoped the "red herring," as he called it, might
by itself shift suspicion onto the computer center, but it never actually
made the connection.
Finally, if the worm, or parts of it, were somehow captured, the binary (near
machine-level) program would require many hours of complex decompilation
before its nuts and bolts could be understood.
For nearly three weeks RTM worked sporadically on the worm, increasing the
number and complexity of its potential assaults. Its diverse collection of
attack strategies gave it a character more like that of a bulky battleship
than a sleek submarine, and one friend and security expert later called it
"everything but the kitchen sink."
RTM collected password files form computers at Stanford, Harvard, Berkeley,
and other universities around the country; he found the fast encryption
routine he needed in a program written at Bell Labs; he incorporated
password-breaking techniques his father had discussed in his classic paper on
Unix security. RTM didn't want to omit anything, and he feverishly threw a
decade of security training into the worm. There was little time to check
for errors; besides, the Shockwave Rider didn't make mistakes:
"'How the hell were you able to build a tapeworm this complicated"' It's a
talent, like a musician's or a poet's. I can play a computer read-in
literally for hours at a time and never hit a wrong note."
Everything seemed to be going exactly as planned. On Wednesday, November 2,
1988, RTM logged on to his terminal at Cornell's Upson Hall at a little after
10 a.m. and worked until lunch. In the afternoon, the trouble began.
RTM noticed a posting from Keith Bostic, of Berkeley: a patch to the FTP bug
he had discovered on his fateful visit to Harvard. RTM quickly typed out an
electronic mail message to Sudduth, asking whether he had been the source of
the leak.
"I didn't think it was a good idea to spread information about random
security holes," Morris later testified.
Sudduth sensed panic in his friend. "Maybe he worried that the [other] bugs
would be patched before he sent his worm."
At 8 p.m. EST, sitting at his Upson Hall terminal, RTM copied the worm to an
account at MIT known to be frequented by hackers. "I wanted to start it out
so it wouldn't be obvious that I had started the worm myself," Morris
testified. (The final version of the worm did not include attacks on the now
patched FTP bug.) For the next 20 minutes, RTM tried to track the worm's
path, but as far as he could tell, "it wasn't working right. It seemed to
have been getting bogged down, not really doing very much."
And so, having begun his experiment, RTM left his terminal and walked home.
ON INTERNET, THE WORM WAS AWAKENING. One hour and 24 minutes after its
release, the worm squirmed its way across the country and into the computers
of a Santa Monica defense contractor, the Rand Corporation.
In two hours it hit the major gateway at the University of California,
Berkeley; the Lawrence Livermore Laboratories, in Berkeley and Livermore; and
the Los Alamos National Laboratory, in New Mexico. Very quickly it became
apparent that something had gone terribly wrong. Individual machines became
infected by not one or two but several worms. Then, the infection erupted.
Since university and military computers are rarely used so late at night,
they generally register only a 1 or 2 load average of a possible 100. But by
9:21 p.m. PST, computers at the University of Utah had already documented a
load of 5. Twenty minutes later, the load reached 7; in another 20 minutes,
16; and incredibly, in just another five minutes, the system topped out at
100, choking to a standstill.
Of course, as his lawyer later argued, RTM had been careful to ensure that
his worm not read, delete, or in any way damage targeted computers. But he
hadn't counted on a more insidious risk. Simply by reproducing, the worm was
sucking the oxygen out of Internet the way algae strangle a dying sea.
RTM's birth control wasn't working quite the way he had planned. Only the
first virus on a machine listened for others. Subsequent worms didn't hear
each other and didn't submit to the killer dice roll. And those few worms
that lost the roll were allowed to continue their efforts to propagate new
copies of themselves on other machines, even after they'd received death
sentences.
Emergency teams at Berkeley, MIT, and other computer centers worked
frantically to stop the invader. Though the worm didn't appear to be
directly damaging files, the rescue workers desperately searched for hidden
trap doors, Trojan horses, or time bombs. By midnight EST, NASA's Ames
Research Center, in Silicon Valley, had shut off all communications with
outside researchers, stranding 52,000 computer users. Minutes earlier, one
of the Berkeley scientists on the front line had sent out an electronic
S.O.S. over the net: "We are under attack from an Internet virus..."
"No. We can't stop it! There's never been a worm with that tough a head or
that long a tail. It's building itself, don't you understand? Already it's
passed a billion bits and it's still growing ... and now it's so goddamn
comprehensive that it can't be killed. Not short of demolishing the net!"
While computer experts across the country raced to salvage what they could of
the worm's wreckage, RTM sat dazed. When he telephoned Sudduth, his voice
was deathly quiet. Sudduth passed the receiver to Graham, who listened to
the barely audible voice and wondered whether Morris had broken up with his
girlfriend.
"I really F_____ed up," said Morris as he quietly described how his worm was
reproducing like a virulent cancer, jamming Internet with resource-sapping
copies of itself. Graham was stunned. He had thought the project was far
off in the future.
"RTM, you idiot!" he yelled, angry at his friend for "blowing" such a great
idea. Then he asked, "How did this happen?"
"Well, you remember the number I picked?"
The two worked on possible cures. It was nearly midnight, and the worm had
been racing through Internet for four hours. Graham suggested that they
create a Pac-Man cannibal worm to gobble up the worms. "I didn't do that,
because I had messed up with the first one," Morris later testified.
The two couldn't agree on a strategy, and the conversation ended. Graham
went to Sudduth's office practically bursting with his secret. "Something
really big is up. I can't tell you."
"F_____k you, Paul!" shot back the Olympic rower.
"Well ... Robert wrote this virus," Graham said, "and it's taking over every
computer in the country!"
Sudduth punched out an e-mail message. Though surprised that Morris wasn't
doing more to stop the worm, he guessed his friend was finding it hard to
admit that "something he created was out of control!" Morris phoned back and
told Sudduth how to stop the worm from spreading on Harvard's computers.
Later, at about 1:30 a.m., Morris called Sudduth from his home phone. The
two decided that Sudduth should publish the worm antidotes on
Internet--anonymously.
"I was scared," Morris later testified. "I knew people would be annoyed
about this because it was causing problems, and I wasn't particularly eager
to catch the blame for this at that time."
Why didn't Morris send the warning?
"Well, I was at home," testified the driven programmer, who had been known to
work till dawn. "I don't have computer access at home. I suppose I could
have walked back to Cornell at 2 in the morning ... but even then I wasn't
sure I could get access to the network." Critics later questioned why Morris
didn't simply telephone computer experts at Berkeley or MIT, but somehow,
after having grown up online, in the electronic net, that direct,
non-computer solution seemed to have escaped him.
Friends have a simpler explanation. Morris, quite unlike his hero, the
Shockwave Rider, was simply "frightened out of his wits."
"'Precipice is going to be attacked with nukes at 0130!' [The Shockwave
Rider] launched into a burst of furious activity, punching his board with
fingers that flew faster than a pianist's. '... Run like hell--because this
may not work'"
SUDDUTH WORKED TO GET THE WORD OUT. By now, the system was clogged. the
only connection he could find was to a bulletin board at Brown University,
hardly a center for Unix or Internet. The tired system manager typed out the
antidote, describing how to close the holes and protect against new attacks,
ending with the odd phrase, "I hope this helps, but even more, I hope it's a
hoax."
At about 4 a.m., Sudduth finally dragged himself to bed. Computer centers
around the nation were in the process of shutting down the relay centers that
might pass the worm--and its antidote. His friend had already been fast
asleep for two hours.
The next morning, Morris worked on some school-work he had neglected and
"just generally tried to relax." In the evening he went to choir practice.
Almost 24 hours had passed since he'd released the worm. When he returned to
Upson Hall, he logged on to read his mail. The system seemed to be working
fine. Morris read several Cornell notices about a "loose virus" that seemed
under control, although users were warned to "be careful"; some notices from
Keith Bostic about patching security holes that the worm had used; and a
message from Paul Graham asking him to call. There was something else Morris
did at Upson Hall on November 3:
"Yes, I believe I cleaned up some of my files."
"By 'cleaned up,' you mean you deleted some of the files?" probed the
prosecution.
"I deleted some of my files, yes."
"And that copy of the virus you left on your account, that was encrypted,
that was in an encrypted form, wasn't it?
"It was. Yes."
Once again, Morris left Upson Hall and returned home to make a phone call.
Graham excitedly informed him that the worm and disclosure of its staggering
impact "was about to get into newspapers, and that it might be a big sort of
media event."
Morris "screwed up" his courage and called his father, the computer security
expert, because he "felt that he ought to know." Morris senior was not
amused. He told his son to go home and not to talk to anybody. "So then I
went to bed and I left Cornell the next day," Morris testified.
But the true Shockwave Rider never abandoned the front line. With a nuclear
bomber zeroing in, he bravely hacked out the commands to avert the attack:
"And you did it in less than ten minutes?"
"Looking back on it, I feel I had all the time in the world."
MEANWHILE, MORRIS WAS RETREATING, though not as smoothly as planned. One of
his friends had inadvertently let RTM's log-on and nickname slip to John
Markoff, a reporter from The New York Times who happened to have written
extensively on computer security and who counted among his friends one of the
nation's leading computer security experts, Robert Morris, Sr.
The reporter used an Internet account to "Fingerd" RTM, and the program
faithfully flashed the name Robert T. Morris. When the reporter called
Morris senior and noted the similarity of their names, the elaborate
"experiment" unraveled. Morris junior's secret trail of anonymous accounts,
red herrings, and encrypted files suddenly became the machinations of an
adolescent playing war games.
Officials at MIT estimated that 6,000 of the nation's 60,000 Internet
computers had been invaded. The country's top computer experts spent several
sleepless days and nights battling and cleaning up after the attack, while
tens of thousands of military and university researchers went without
computer power. (Blocked at the relay point, Sudduth's antidote had not been
delivered for two days.) The tab for the wasted time and resources was
estimated at $15 million.
Three days after the attack, The New York Times began a series of front-page
stories about the missing Internet attacker, Robert Tappan Morris. While
Morris maintained a public silence ordered first by his father and then by
his Washington, D.C., attorney, the FBI began an investigation, and
government and university officials harshly criticized the hacker.
Old Bell Labs colleagues like Douglas McIlroy were puzzled by their progeny's
slip. "What I don't understand is the secrecy part of it. All of the
juvenile tricks, encrypting source files to launch from some other machine,
encrypting the program," says the scientist. "That's not consonant with a
fun-loving kid."
Yet many computer security experts--some of them friends and former
associates of Morris senior--rose to Morris junior's defense. They said his
experiment was a harmless, overdue warning of gross gaps in computer
security, and argued that Morris should be cheered, not convicted.
"When all is said and done, this kid is going to come down as a folk hero,"
Peter Neuman, a computer security expert at SRI international (one of Morris
junior's former employers) told The New York Times.
Of course, the hacker is the hero--in fiction. The Shockwave Rider liberates
the masses from a corrupt, computer-controlled government with a
freedom-fighting worm, risks his life to foil a nuclear attack, wins his
girl's heart, and is praised by the world. But Morris had no such righteous
intentions. He had no social or moral agenda, and never intended to expose
Internet's well-known security limitations. His worm had no other purpose
than to spread as far and wide as possible, and if it had spread as planned,
slowly, innocuously, most say the response would have been even greater
panic.
The world that Morris's worm entered was far removed from his boyhood
computer security training in the hallowed research halls of Bell Labs. In
the decade since his code-cracking childhood, computers leapt into the
mainstream to become the foundation of business and commerce. Assaults on
computers became assaults on industry, and by the mid-1980s terrorist
computer attacks and malicious break-ins revealed the dark side of hacking,
forever ending the playful era of his father, when hacking was a rite of
passage.
Therein lay the irony and tragedy of the trial of Robert Morris. He was
being tried for what he was taught by his father, his institutions, and his
generation: access, unauthorized. The trouble was, as the would-be security
expert wrote in one of his early papers, "Times have changed."
Some were not prepared for the change. On the day before the verdict, a
Harvard professor warned that "if Robert had wanted to do damage, there would
have been nothing left! All the computers would have gone up in smoke!"
Another Harvard friend suggested that if Morris were "unjustly punished," it
might inspire a less restrained, less idealistic hacker to "do it right."
The reasoning was similar to Morris's main line of defense.
"Was it your intention to have the worm program destroy or damage any files?"
asked the defense attorney.
"No, it was not."
"Was it possible for you to do that?"
"It would have been easy to do that."
The implication was ominous, and at least one close friend of Morris's was
not convinced that everything was OK just because his bored buddy hadn't
pulled the trigger. "On some level I know why he did this, and on some level
I don't," says Kuperberg, glancing away and pacing like the old roommate he
struggle to defend. "On some level [Morris senior's explanation of boredom]
is not satisfactory."
No answer seemed likely to come from the one person who might know. After
the guilty verdict was issued in his trial, Morris and his attorney walked
past the jostling TV crews and newspaper reporters and into the winter night.
His father held back. The press surrounded him and the TV lights shone
eerily on his face. "What do you feel, Mr. Morris? What do you feel?"
He chose his words carefully, stiffly stating that the trial had been fair,
though he was not happy with the verdict. The question came again, and this
time he spoke with conviction: "It's perfectly obvious that there is not a
fraudulent or dishonest bone in his body."
IN THE WORM'S WAKE, there has been no great improvement in security, but
fresh concern that future computer communication tools used by the average
citizen may have to be weighed down by cumbersome locks and chains. For, as
Morris senior wrote in his treatise on Unix security, "It is easy to run a
secure computer system. You merely have to disconnect all dial-up
connections and permit only direct-wired terminals, put the machine and its
terminals in a shielded room, and post a guard at the door."
Such is the bleak reality of total computer security, and if history is any
lesson, computers, too, will move through cycles, bringing periods of cold
war as well as openness. In the end, security is trust, which must be
nurtured and cultivated like any other human quality. Morris wanted to be a
hero, yet he lacked the patience and vision to forge a new direction.
"What would have been great is if he had shut the holes after himself. That
would have been a coup," says Peter McIlroy. "If he had thought of that, I
think he would have done it."
But RTM wanted nothing of the sort. In the private war he waged it was his
duty to hold on to the holes, to wield them in the way he "knew they wouldn't
mind."
And Robert Tappan Morris? He was just a kid.
"He might have been trained to display such powers of judgment; he might have
been specially bred to possess them. One thing was sure: he hadn't lived
long enough to grow into them."
Jonathan Littman is the author of Once Upon a Time in ComputerLand (Simon &
Schuster, 1990). A journalist who covers Silicon Valley and the
high-technology industry, he lives in Sonoma, California.
- ************************************************************************
WORDLESS
By Homer Mandrill
The new era is rapidly upon us, folks, just like it
always has been since the beginning of time. With every
passing moment, with every exhalation, with every beat of our
hearts the potential for this new era is conceived,
disregarded, and thrown away.
The new era of which I write will not be heralded by a
great battle. Neither will it be heralded by rapture,
discernment, the rise of the Anti-Christ, bill HR 4079 (which
EVERYONE needs to learn about REAL quick), or the arrival of
aliens from Planet X.
It will be ushered in by some random but seemingly
'composed' event. Neither I nor anyone else know what it will
be, and there in lies its power. It will not have been
manufactured by any ego, collective or individual. Neither
will it be 'perceived' as a prophecy, 'as it is written'.
In this way, it will catch us unawares; we will stand as
a world, jaws lowered, gasping, trying to conceive of words
that apply to the situation.
Each individual on the planet will be caught in that
breathless Moment of confusion; a tugging on the compassion
of every human alive, simultaneously. A hole in our
collective chest cavity where once beat our hearts, we will
all, simultaneously be forced to come to terms with something
none of us had counted on. We will all be out of our depth.
This Gasp will be felt by everyone, everywhere. This
event will transcend religion, politics, race; no one will be
immune to its effects/affects. It will be universal. And
words won't do it justice.
A billion trillion dollars/yen/deutchmarks/pounds/gold/
frankenscence/myrhh, the cold right hand of fundamentalism
made into a fist, the hopes and prayers of trillions of
people of all races, the actions of every amassed army,
ever, the commercial exploitation of every nation ever to
have existed and which will ever exist, the shaping and
moulding of justice and liberty, the simultaneous reduction
and expansion of freedom around the planet; these things are
not the ends to which civilization aspires, but rather the
tools of our collective psyche, simultaneously raising our
standard of living and raining on our parade.
All these things are representative of our greatest
accomplishments and our greatest folly, and they are the raw
materials of the Moment of the Gasp. Just as the artist forms
the clay into something of sublime beauty, so that Moment
will form our perceptions of ourselves into something we are
not ready to understand. We will stand in the gallery and
look at the work of art that is the culmination of all
humanity throughout the ages encapsulated in that Moment, and
we will find ourselves unable to judge that which is before
us.
The Moment of the Gasp has no analog, no metaphor, no
preconception, no 'safe zone'. The white man will not be able
to blame the black man. The black man will not be able to
blame the white man. The Christians will not be able to blame
the Jews, the Atheists will not be able to blame the
Believers, the Right will not be able to blame the Left, I
will not be able to blame you and you will not be able to
blame me. The very concept of blame will become obsolete, our
internal systems of judgement, already built of flimsy
material, will be dashed to bits on the hard edge of the
Moment.
The cynic will be unable to discount the facts before
him. The idealist will see the cold face of reality. The
ascetic will be filled with compassion for those around him.
Every step we will take to run away from the truth will be
met with more evidence, every word we say will crawl out of
our mouth like a salted slug.
"Q: When will this Moment come? Is it upon us?"
My answer can only be that no one knows. As I mentioned
earlier, it can not be anticipated. And to do so would ruin
its effect/affect. Being practical for a moment, it seems to
be rapidly approaching. But again, we cannot anticipate the
Moment. It will fall down like a bird dropping from a bright
blue cloudless birdless sky. Who's to say?
"Q: What will come after the Moment of the Gasp?"
This is the crucial question, because the answer lies
within the it. Since we can't determine what the event will
be, we can't predict what will come afterward.
"A: It all depends."
This is the frightening realization that has been at the
back of our collective minds for thousands of years. We
really DON'T know what the future holds, and whatever it is,
we in fact are totally unprepared for it. So we listen to
Nostradamus, we re-read Revelations, we consult the Tarot and
I Ching... to what end? We wish to control the future...
When these temporal Holders-Of-The-Power wax poetic of
the New World Order, they are not speaking of what is to come
after the Moment of the Gasp. They are just covering their
tracks. This war in Iraq made some among us humans gasp, but
it was not THE Gasp. I certainly felt cheated by the system
I'd been brought up to 'love and obey, or else'. But once
more, The Gasp will be total, universal, and undeniable. Even
George Bush will feel it.
When that Moment comes and we have floundered and
wallowed and died to our sanity, hopefully we will pick
ourselves up and learn the lesson of that Moment. Q:What is the
lesson? A: What kind of bird dropped that turd on us from the
cloudless birdless sky?
When we find ourselves in the Moment, and all we can do
is Gasp, the time for change is at hand. Hope springs
eternal, but then again, the circumstances of the Moment may
kill us one and all.
Who's to say?
- ************************************************************************
THE STATE OF NATIONAL SECURITY -- HOW MUCH WE (DON'T) KNOW
November 11, 1990
Re-Release April 3, 1991
By The Desert Fox
Transcribed and Edited by Lord Macduff
I have been a member of the modem community for about seven years.
During that time period, I have watched literally hundreds of bulletin boards
go up and go down. A great majority of these systems were based on a public
message and file exchange. But a few of these systems were dedicated to the
exchange and distribution of information... Information that was not usually
available on a regular basis. In my day, I have seen files on VAX/VMS, phone
switching systems, hacking, phreaking, and anything else that one could dream
of. But one thing that constantly has me pondering at all hours of the night
is the state of our national defense.
How close and how often do we come to pressing the button? Defined as
DEFCON-1, the state of panic which is actually sub-defined as World War III,
is something that has not been reached... yet.
There are five levels of International Status. DEFCON-5 is what we'd
all like to be at... unless you're a real nut case and have absolutely no hope
for the future of mankind. DEFCON(s) 4-1 are lesser states of "panic". A dumb
reference, yet a valid one, is the movie "Wargames". Although a liberal dose
of fiction was mixed in as far as the actual methods of hacking and such, it
makes one think "Just how often DO hackers break into systems like that and
cause problems possibly leading to the destruction of the world?" [Editor's
Note -- Not as often as certain federal agencies would like to think. Go
catch some REAL criminals instead of picking on us modem users...]
Another question that comes to mind is "How often do Soviet troop
movements or something of that nature cause a defcon decrease to bring us to
the brink of global extermination... and the public never knows about it?"
During the Kennedy Administration, this country was brought to what is the
equivalent of DEFCON-2 when the Soviets brought their missiles into Cuba in
the early 1960's. From what transcripts say about the incident, we were
seconds away from DEFCON-1... what a pisser, huh? Although that happened seven
years before I was born, my generation would have taken it with a grain of
salt and looked at it as a chance to get a tan. (A real good one, I might
add...) Our country goes seconds from World War III and we never found out
until years later. How often does this happen? Personally, I'd like to know
when Vodka is going to replace Coca-Cola as the national beverage. I'd also
like to know when fish eggs are going to be put on the menu at fast food
joints.
At this very moment [4:27 AM on Sunday, November 11, 1990 if anyone
is curious... -Ed.] United States and Allied troops are in the Middle East
preparing for war. The media reports that all the troops are over there just
sitting around bored to death. [Yet another Editor's Note -- Due to a time
control problem, I will finish this essay instead of Sir Lawrence...
Apologies for the interruption.] It's very possible we could have another
Vietnam on our hands. Hell, Saddam Hussain is not going to stop with the
invasion of Kuwait... There's a very interesting parallel between Hussain and
a short German guy who started World War II... I'm not so sure why everyone's
worried about German Reunification -- It's the Iraqis we SHOULD be worrying
about! Hussain insists that the American citizens that he is holding hostage
in various hotels in Baghdad are "Guests". We might do well to round up every
last Iraqi citizen in this country who has a visa or green card and stick 'em
all in ONE Motel 6 somewhere in the midwest. Let Tom Bodett deal with them for
a while... Perhaps the CIA could go blow up some of their planes or important
buildings... Goodness knows they've done the same to us enough times to make
the average citizen want to puke. If we hurry up and storm the place NOW,
before Saddam figures out how to put together that mail-order nuclear bomb,
we could take the whole place over in a matter of days. We could use that oil.
The weapons manufacturers would make a fortune, perhaps even create new jobs.
Our economy could USE a boost, with the gas prices what they are. [Sidenote:
Who's to say that Exxon isn't financing Saddam Hussain?] Sell the entire
country to Russia for them to use as parking, for that matter.
The projected costs for Operation Desert Shield are in the billions,
while it has accomplished virtually nothing. Truly another case of YOUR TAX
DOLLARS AT WORK.
But who's to say if this is for real? This may be a conspiracy by the
oil companies (who secretly own the government) to make more money. The
government controls the media, which is our only source if information from
over there. Small wonder they want to supress publications like PHRACK...
They aren't from the government-controlled media.
SUPRESSION BREEDS REVOLUTION
- ************************************************************************
:======================================================:
| A Brief Explanation of Beer*Net |
| 10/16/90 |
| |
| Written by Toxic Sock @beernet01 |
| |
| Further information availible on the |
| |
| +-------------------------------------------------------------+
| following | |
| Beer*Net | |
| systems: | Apocalyptic Funhouse (713) 531 -*- 1139 |
| | Sysop: Nuclear Gerbil/Chris 40 megs/2400/1200 |
| | |
| | The Magic Window (713) 356 -*- 7150 |
| | Sysop: Zen Master/Mark 30 megs/2400/1200 |
| | |
| | Malacology Unlimited (713) 356 -*- 6004 |
:===============| Sysop: Dr. Goodnight/Craig 80 megs/2400/1200 |
| |
| Split Infinity (713) FEW -*- BUGS |
| Sysop: Strider Arcadian/Will 40 megs/2400/1200 |
| |
| Rawhide Palace (713) 383 -*- 3961 |
| Sysop: Gurn Blanston/Ron 80 megs/2400/1200 |
+-------------------------------------------------------------+
Why Beer*Net?
-------------
Houston is famed for its intolerance of basic rights and
the opinions of others on its bulletin board systems. This is not
surprising in a city where the most common activity is the proverbial
leechline activity, but is distressing nonetheless to intelligent users
who want to make their opinions known without living in fear of
mysterious account modifications, deletions or message removal. At
times the oppression has been so blatant that users have made the
transition from user to sysop and have run "free speech" systems that
broke all of the established (and stupid) rules and allowed the open
expression of intelligence. They have always met with opposition from
the petty tyrants who run their own digital kingdoms for the
gratification of having power, no matter how unconnected to reality it
is. And, since these types generally invest a good deal of money in
their systems, they are the ones who have what the common user covets -
file transfers - and use this as the basis of their power. When
something threatening such as a board with free speech allowed or a no
ratio file transfer system appears, they often band together and assault
the sysop, especially if he is a minor, where they know they can
sufficiently confuse his parents into forcing them to remove the
offending bulletin board system. This has happened to more than one
reputable user-turned-sysop, and with the emergence of Beer*Net, will
hopefully be eradicated.
Free Speech
-----------
Simply put, "free speech" is the right to say whatever the user
pleases without any immediate repercussions other than the responses of
fellow users. On a free speech BBS, a user may say whatever he wishes
without trepidation, because the sysop is honor bound not to take action
against the user. This is not easy for a sysop, especially when said
user espouses neanderthal beliefs such as racism or bigotry. However,
the overall outlook is much better for a BBS that allows intellectual
development and interesting posts through free speech than for a
squeaky-clean and silent BBS. This is a basic right we hold to be
necessary, and we, the Beer*Net sysops, are committed to defend it.
We agree that by allowing free speech we are exempting the users
from action taken by the sysop against them for what they say publicly
or privately on a BBS, with the exception of illegal activity such as
passing long distance codes or passwords. We also agree that we will
not read private mail, nor will we ever use a user's account for our own
purposes. Any change in access level, change in user information or
deletion of a part or the whole of the user's account in response to
user posting is considering a violation, as are passing on to any other
sysop, user or official all or part of a user's information and
confronting anyone but the user himself with details of a supposed
infraction.
In addition, we are committed to helping others interested in
maintaining free speech on bulletin board systems. If we hear of a case
where unwarranted harrassment is being delivered by other sysops, we are
pledged to combat it by whatever means necessary. Rights must be
preserved above all.
The Systems
-----------
The systems listed on the file header are all committed to the
Beer*Net ideals and have implemented them. They do not support
blacklisting, and do not pass on user information between systems or to
other users. Moreover, the sysops will NOT call up parents or deal with
anyone besides the user himself regarding the user's conduct. The
sysops do reserve the right to preserve in copy buffer form all or part
of any chats, posts, or e-mail directed to the sysop or in a public
area. These policies are implemented at the verification of this file
by all of the sysops involved.
History
-------
Beer*Net was an idea developed in part by the sysops of TURD
(the "original" true free speech system), namely Royal Flush, Vile Scent
(Toxic Waste, Yeast Infection) and Captain Crapp (Vehicular Slaughter,
Nuclear Gerbil) and in part by Zen Master, an original user on TURD and
now sysop of the Magic Window.
TURD had its origins in the Apple II community, where the sysops
observed that more than the normal amount of petty didactic types
reigned, and committed themselves to do something about it. Today, the
remnants of TURD are to be found in Apocalyptic Funhouse (713-531-1139),
as are parts of the Metal Hell and Dead Animal Pickup.
Malacology Unlimited and Magic Window are later additions to the
free speaking world, but are viable systems worthy of investigation by
any user. They are running Hermes on the Macintosh and TAG on a clone,
respectively. All are open systems.
Attribution
-----------
The credit for the impetus and ideas behind Beer*Net go to the
following people:
Yeast Infection: part of original brainstorm project
Myself: Captain Crapp had to be involved...
Zen Master: stimulated us to further develop the idea
Dr. Goodnight: for helping to break the power of didactic
sysops in Houston
Jesse Helms: For proving that pro-rights people are
smarter...
- ************************************************************************
THE LAW OF TORTS
James J. Spinelli
The Activity Bulletin Board Service - ABBS - (914) 779-4273
=====================================================================
This paper is NOT intended as a substitute for a lawyer NOR as a
do-it-yourself kit. It provides basic information to help you under-
stand certain legal principles. In any serious situation or when you
are in doubt, there is no substitute for competent professional legal
advice. Trying to act as your own lawyer can be costly and, in some in-
stances, dangerous. The author assumes no responsibility, accountabil-
ity or liability whatsoever in the use or misuse of any information
presented herein. The information herein is of a general nature.
=====================================================================
Most of us are generally aware of what crimes are (murder, arson,
theft, for example) but are vague about what the law refers to as
torts. There's a good reason: leading legal writers agree that no one
has satisfactorily defined a tort. This is partly because torts are so
common, so widespread and so varied. You are far more likely to be the
victim of a tort than a crime, and you are also far more likely to com-
mit a tort than a crime.
The purposes of this paper are sevenfold:
1. To explain torts;
2. To show how they differ from crimes;
3. To stress the importance, in the law of torts, of
negligence, intent and liability;
4. To indicate what relief is available to you when a
tort has been committed against you or your property;
5. To show you how to seek that relief by starting a
lawsuit;
6. To explain how such a suit is tried;
7. To relate all of the above purposes to a specific
classification of circumstances, i.e., how they relate
to the role and responsibilities of a systems operator
(Sysop) of an electronic bulletin board service (BBS).
TORTS VERSUS CRIMES - A tort is a civil wrong against an individual. A
crime, on the other hand, is an offense against the public at large, or
the state. For example, an automobile driver who carelessly bumps into
your car in a parking lot and crumples the fender has committed a tort
against your property. Because the law recognizes your legal right to
freedom from injury to your property caused by other people's careless-
ness, you are entitled to sue the driver and be awarded damages for his
breach of your tight. But, he has committed no crime.
Once again, a tort is an act that violates your private or personal
rights. Unless the act that is a tort is also a crime, the state will
do nothing about it. If you believe someone has violated your personal
rights -- but has not acted against the interests of the public as a
whole -- it is entirely up to you to seek relief by suing the person in
the civil courts. If the person who you believe has legally aggrieved
you is found liable -- that is, the judge or jury finds that the person
did in fact injure you or your property -- the person may be required
to:
1. give you relief by paying you "damages" for the injury or
property loss you suffered,
2. discontinue the wrongful acts, or
3. restore to you what was taken from you.
In some cases the person may be imprisoned.
If the tort is also a crime, two separate legal actions confront the
wrongdoer: your's and the state's.
A tort is usually committed when someone injures you physically, dam-
ages or misuses your property, attacks your reputation arbitrarily or
takes away your liberty and freedom of action without just cause. To
recover damages for a tort you must prove either that the act was com-
mitted with deliberate intent (as when someone spreads false accusa-
tions about you) or that it was the result of negligence.
In most cases you must prove that the act inflicted actual damage or
injuries. A malicious act that does you no harm is not sufficient cause
for legal action.
A person who is proved to have committed a tort will be held respon-
sible for all the damages proved to have resulted from the act, includ-
ing damages to "third parties."
WHO IS RESPONSIBLE FOR COMMITTING A TORT - Generally speaking, any per-
son, young or old, mentally competent or not, is responsible for
his/her torts, i.e., for the consequences of the actions to others in-
jured by those actions. Here is an interesting distinction between
torts and crimes. Children below a certain age not usually liable for
crimes they commit, on the ground that children of their age really do
not understand the significance of their actions. For basically the
same reason, persons who have been adjudged mentally incompetent are
not liable for their crimes. BUT, these SAME persons may be liable for
their torts, whether they are deliberate or the result of carelessness.
Intent is an essential element in such torts as libel and trespass. Al-
most all employers are liable for the torts of their employees if the
employee committed the harmful act during the course of employment.
(This also applies to "agent" and "principal" relationships.) The point
to keep in mind is that the law usually holds an employer liable for
what happens when his employee is carrying out instructions and/or
working on behalf on the employer. But, not all employers -- especially
not governmental ones. The doctrine of sovereign immunity -- that the
state cannot be sued except by its own consent -- severely limits your
right to sue governments and governmental bodies for the torts of their
employees. However, the US government and the government of many states
have in recent years passed laws that do permit such suits to be
brought against them. In some instances separate courts, usually called
courts of claims, have been established to handle these actions.
Some people may not be held liable in tort actions. Among them are hus-
bands and wives, who are not considered responsible for each other's
torts, and parents, who are not usually liable for the torts of their
children. The situation changes, however, if the parent knows that the
child has developed what lawyers call a vicious propensity to commit
acts that injure other people or their property. In addition, some
states have passed laws that do make the parents responsible for will-
ful damage caused by their minor children.
Of course, if it can be established that the husband or wife or parent
or other adult actually thought up the tortious action, planned it and
coerced or persuaded the spouse or child into committing it, than that
adult or spouse WILL be held responsible for the act and liable for the
damage it caused.
Except for so-called acts of God, any interference with your personal
or property rights, whether intentional or through negligence, is a
tort.
When it comes to personal rights, torts typically deal with one or more
of the following intentional violations: (negligence comes later)
1. Interference with your freedom of movement
2. Misuse of the legal process
3. Interference with your person
4. Interference with your peace of mind
5. Interference with your privacy
6. Interference with your reputation
For our purposes, we shall examine only items 4, 5 and 6 -- interfer-
ence with your peace of mind, your privacy and your reputation.
INTERFERENCE WITH YOUR PEACE OF MIND - The growth in the sciences of
medicine and psychology has brought about an expansion of the idea of
freedom from fear or apprehension. You may have an action against some-
one who intentionally inflicts mental suffering on you. You have a
right to freedom from the consequences of mentally abusing malicious
acts, and the courts protect that right by awarding damages -- nominal,
or small, if the harm is slight; punitive, or large, if the damage is
great or the act particularly outrageous. Consider the mental anguish
if you are worried that someone will come into your home and cause dam-
age, or that someone will "attack" your computer system while you are
not around to protect it. The more expensive the equipment (your prop-
erty), the more punitive the damages. At times, the intent alone, par-
ticularly if shown to be an act of vengeance or malice, can be suffi-
cient to award punitive damages that are considerably greater than the
cost or value of property, depending on the mental anguish suffered. If
such an act disrupts a business, the mental anguish can be quite se-
vere, and the tort may be punishable by stiff fines and/or a jail term.
In some cases, such torts can be classified as a crime, which then ne-
cessitates the state to step in, since some states view the mental an-
guish to be associated with acts of violence that concern the public at
large. This applies since other businesses may be subjected to similar
malfeasance.
INTERFERENCE WITH YOUR PRIVACY - This is another right protected by the
courts -- your right to be let alone. Such interference can take many
forms, some obvious, others not so obvious. One of the not-so-obvious,
or less direct violations to privacy, is the objectionable publicity to
private information about you.
INTERFERENCE WITH YOUR REPUTATION - As important as any freedom to
which you are entitled is freedom from unwarranted, untruthful attacks
on your character. This kind of attack, if made in the presence of
other people, constitutes defamation, for which you are entitled to
nominal or punitive damages, as the case may be. If you are defamed
orally, you have been slandered. If the defamation is in writing and
shown to or seen by someone else, you have been libeled. Slander is the
less serious of the two torts because it is fleeting. The spoken words
of defamation exist only as they are uttered and then disappear for-
ever. Libel is permanent, and the damages awarded are therefore usually
larger. Generally speaking, defamatory statements made over radio and
television, and via computer are now considered libelous rather than
slanderous.
You can recover damages for slander or libel without proving actual fi-
nancial loss if you are accused of something considered serious. The
reason is that, since the good reputation of a professional person is
essential to his/her ability to make a living, the law assumes that
such accusations will diminish that ability and will therefore damage
the individual. This kind of attack slander or libel is called slander
or libel per se. Spreading lies about others, especially when the lies
affect their ability to make a living or may hurt them in their family
or public relationships, constitutes slander if spoken to others and
libel if written or transmitted to others.
With property rights, torts are generally concerned with the following
intentional violations: (negligence comes later)
1. Nuisances
2. Keeping others off your property
3. Misuse of your personal property
4. Interference with your contractual and business
relationships
5. Fraud, deceit and misrepresentation
For our purposes, we shall examine items 3, 4 and 5 above, i.e., misuse
of your personal property, interference with contractual/business rela-
tionships, and fraud, etc.
MISUSE OF YOUR PERSONAL PROPERTY - You have the right to the unre-
stricted and uninterrupted enjoyment of your personal property. The law
provides remedies for the intentional interruption of your right or in-
terference with it. Interference with your personal property is called
the tort of conversion. It can be conduct intended to affect your per-
sonal property or conduct that, even though not intentionally wrong, is
inconsistent with your right of ownership.
Examples of conversion are:
1. Someone intentionally alters the property
2. Someone uses your property in a manner inconsistent
with your wishes or requirements
In both of these cases, your control of your property has been inter-
fered with, and you are entitled to sue for the tort of conversion.
INTERFERENCE WITH YOUR CONTRACTUAL AND BUSINESS RELATIONSHIPS - You
have a right to freedom from interference by others with the contrac-
tual relationships you have entered into. This applies even when, after
the contractual or business relationship, admission of errors are ac-
knowledged by the offending party. (Remember, contracts occur into com-
mon forms: oral and written. NOTE: The law of contracts is beyond the
scope of this paper, and will only be referred to as sufficient to re-
late to torts as defined herein.) Damages can be punitive if you can
convince the court that the defendant specifically set out to interfere
with the relationship or set out to ruin your reputation within the
confines of your relationship. Proof need only be beyond a reasonable
doubt and not necessarily overwhelmingly convincing. Potential disrup-
tion also is considered, since business relationships can be both
short- and long-term.
FRAUD, DECEIT AND MISREPRESENTATION - You have a right to freedom from
being improperly induced or persuaded to do something, or not to do
something, by someone's trickery. What is involved in this tort is:
1. A conscious or knowing false statement made to you,
2. by someone who knew the statement was false,
3. with the intention that you would rely on it,
4. followed by your actual reliance on it, and
5. your "suffering" as a result.
The main thing here is for the person suing to establish that he/she
was consciously tricked and that if the correct information had been
given, the suing person would not have acted as he/she did.
We now move onto the Law of Torts as it applies to the accidental in-
terference with your personal or property rights. This is typically
classified under the general heading of NEGLIGENCE.
Earlier, we were concerned with the intentional interferences with your
various rights as a member of society. In each of the torts presented
the harm was intended or the result of an intended act. But, there is a
large area of the law of torts that is basically different -- the area
of civil wrongs or torts that are the result of negligence, or mere
carelessness.
In our increasingly complex society, wrongs resulting from carelessness
are becoming more numerous than intentional torts. In any case, there
is a major difference between the two kinds of wrong: to recover from
someone's negligent conduct toward you, you must prove actual damages
-- you must establish that the person really did injure your person or
your property. By contrast with intentional torts, such as trespass,
you are entitled to some damages just by proving the tort was commit-
ted.
Unintentional interference can result either from negligence or from
accident.
WHAT IS NEGLIGENCE - Legal actionable negligence exists when:
1. You have a legal duty or obligation to conform to a
certain standard of conduct to protect others against
unreasonable risk;
2. You fail to conform to that standard;
3. Your conduct is so closely related to the resulting
injury that it can be said to have caused it --
to have been its proximate cause, and
4. Actual damages results from your conduct.
If these four elements are present in a situation in which you are in-
volved, you may be sued and you will find it hard to defend yourself.
These elements of negligence are reasonably clear. But, you should rec-
ognize that the existence of "a legal duty or obligation" to others may
depend on the circumstances of the case in which you are being sued.
You have a legal duty to others only if the court or a statute says you
do. You have no obligation if the court finds none.
When a tort suit is tried, the standard of care expected of the defen-
dant is defined by the judge (or the jury). The judge (or the jury, if
there is one) determines the facts of the case and applies them in
light of his/her (or their) definition.
In groping around for guidelines as to whether you do or do not have a
duty to act a certain way, and in deciding whether your conduct meets
the required standard, the courts compare your conduct with the pre-
sumed conduct of a reasonable or prudent man. If this imaginary reason-
able or prudent man would have acted a certain way, the person who does
is liable. You are supposed to do what the prudent man would do, and
you are not supposed to do what the prudent man would not do.
As A.P. Herbert, the English legal humorist, put it:
He is an ideal, a standard, the embodiment of all
those qualities which we demand of the good citizen...
He is one who invariably looks where he is going,
and is careful to examine the immediate foreground
before he executes a leap or a bound...who never swears,
gambles or loses his temper; who uses nothing except
in moderation....In all that mass of authorities which
bears upon this branch of the law there is no single
mention of a reasonable woman.
A key element in a successful negligence suit is the connection between
what was done and the injury that supposedly resulted from the act. The
person suing must prove that the defendant caused injury to his/her
person or property. Some courts in trying to decide whether an act was
the proximate cause of subsequent damage have applied what is called
the "foreseeability test." They hold that the negligence is not the
proximate cause unless the consequence was one that, in the light of
all circumstances, our reasonably prudent man could have foreseen as a
probably result of his actions or his failure to act.
(NOTE: There is modification to the prudent man rule when professionals
or experts in given fields are involved. Here, the court views the
facts in light of the nature of the knowledge of the expert. For ex-
ample, a computer programmer is not viewed the same way as a casual
computer user. Actions attributable to an expert are viewed in terms of
how the typical expert in that field would have acted or would not have
acted. If a casual computer user unintentionally damaged your computer
system, it would not be given the same consideration as if an "expert"
did the same thing. Remember, we are dealing with reasonableness, and
expertise or skills above the "ordinary person" can weigh heavily in
determining the final outcome of a tort-based lawsuit.
Other circumstances can apply, particularly if a business transaction
occurs and/or a contract is in force.)
YOUR DUTY TO OTHERS WHO COME ONTO YOUR PROPERTY - If you own property
(any kind of property, not just real estate, e.g., computer bulletin
board systems), you have definite responsibilities to persons coming
onto that property legally or otherwise. Even to a trespasser, someone
entering your property illegally, you have an obligation to give warn-
ing of any genuinely dangerous (or injurious/harmful) condition known
only to you. If you hobby is a computer bulletin board, you'd be wise
to post a warning sign (or disclaimer) so that casual trespassers real-
ize that there may be a danger in wandering around your property.
(NOTE: You must be able to prove that the warning was in fact in such a
place, state or condition that it could not have been bypassed or mis-
interpreted. A warning (or disclaimer) that people cannot easily view
or is not reasonably obvious is no warning at all. For example, a
typical news item that can be bypassed on a bulletin board log-on is
not considered a reasonable posting of a warning because it can be by-
passed -- is not necessarily obvious to all.)
You owe a stricter responsibility to trespassing children (minors) be-
cause they are children and unlikely to realize or care about the fine
points of the law of trespass. To protect young trespassers and to com-
pensate them for injuries they may suffer in behaving like children,
the courts have thrown over them a mantle called the attractive nui-
sance doctrine. This doctrine requires the property owner who maintains
on his property anything attractive to young children, and dangerous to
them because of their immaturity and unawareness of possible risks, to
exercise reasonable care in protecting them against the dangers of the
attraction.
(Think about this should you be carrying pornographic material on your
bulletin board, or other such attractions that children can be harmed
from. Computer games may become a potential source of difficulty given
the current lawsuit against the manufacturers and distributors of Dun-
geons & Dragons -- the "game" being blamed as a teenager's cause for
committing a crime. As "ludicrous" as it may sound, the case is going
to court.)
There is a group of people called licensees who may come onto your
property with your implied permission. They are different from tres-
passers who have no permission, and you have a somewhat stronger obli-
gation to protect them. You have a duty to warn them of dangerous or
hazardous or harmful conditions they may not anticipate or easily see.
(The law regarding your obligation to casual guests in your computer
system is specialized and evolving.)
Invitees are the people coming onto your property to whom you owe the
maximum duty of protection, not only against risks you actually do know
about, but also against dangers that you should know about if you exer-
cised reasonable care. Invitees are persons who enter your property
upon your business and upon your express or implied invitation.
As in most tort cases, the court and the jury will carefully consider
the facts in each situation before coming to a decision about whether
or not the defendant was negligent. One rule commonly applied is that
the standard of care required of the property owner is greater to the
degree that the presence of people on his property is helpful or prof-
itable to the property owner. In other words, a bulletin board sysop,
who gains a benefit from your visiting his/her system, has a greater
duty to you than does a friend who invites you to his/her home as a so-
cial guest. (Note: the benefit need NOT be monetary.). The application
of general rules is up to the court. The liability to trespassers,
invitees and licensees is the owner's or that of the person in legal
possession. (For example, if you lend your computer system to someone,
and harm is done, the liability belongs to the person in legal posses-
sion, which may or may not be your's., depending on the nature of the
possession and of the restrictions thereof.)
Torts frequently occur under circumstances in which, although it is im-
possible to prove negligence on anyone's part, what happens is so ex-
traordinary that negligence is presumed. As the courts say, the thing
speaks for itself: res ipsa loquitur.
The doctrine of res ipsa loquitur may also be invoked where damage is
caused by the breakdown of a device that is under the complete owner-
ship and control of the defendant.
THE IMPORTANCE OF LIABILITY - Underlying all of this is your right to
recover for injuries you suffer from interference with your right to be
free from a variety of wrongs, some well established and others just
becoming established. If you feel that you have been wronged, you
should carefully consider still another factor that will influence your
decision whether or not to sue.
This is the question, which only your lawyer should decide, of whether
there is any liability on the part of the person who has wronged you.
He will be liable, and your legal action against him will succeed, only
if he/she has actually violated a legal duty which is owed to you as an
individual. Forgetting momentarily the question of your responsibility
for what happened, you can recover only where what was done or failed
to be done violated the course of conduct that the reasonably prudent
man would have done.
If the conduct of the person you want to sue has not, judged by the
presumed conduct of the reasonably prudent man, violated a duty to you,
the chances are you have no action. Liability is essential: you can win
your suit only if the person you are suing acted or failed to act in
such a way as to make the person liable. Liability results from conduct
that violates or interfers with one of your rights that the law recog-
nizes. If there is no such conduct there is no liability, no matteer
how aggrieved you may feel.
However, remember that the "prudent man" standard can also vary. Pro-
fessionals, i.e., doctors, lawyers, computer specialists, and the like,
are not your "ordinary" layperson. As such, the standards that govern
their conduct are viewed as a prudent practioner within the area of
speciality. These standards are gauged at a higher level than the ordi-
nary citizen's.
RIGHTING THE WRONG - Let's say that your lawyer has decided that, on
the basis of the facts you have given, the person who has wronged you
had a duty not to do so and that a court can therefore find the person
liable for violation of that duty. The question of which remedy you
should seek becomes all-important. Underlying the answer to this ques-
tion is the subject of damages. Also, keep in mind that many inten-
tional torts are or can be crimes.
Someone, for example, breaks into your computer system and destroys all
of the information you had stored there. It would take you weeks, if
not months, if at all, to be able to restore that information. However,
in the process you are severely compromised for work that you were per-
forming for someone for a fee. What is the "cost" of the damage? You
need to decide whether what you've lost is worth the expense of suing.
Also, is the person you are suing "judgment-proof?" That is, is the
person being sued broke or without assets? Sure you can sue, but if you
can't recover anything, you've gained nothing. You've lost the expense
of the legal action. You may, therefore, decide to sue on principle.
Provided you have the funds to take legal action, and do not care very
much about recovering money damages, you may continue your efforts. In
this example, some states would view the action as a crime. If so,
"punishment" may no longer be simply "monetary" in nature.
You are not limited to asking for money damages when you have been de-
prived of your property. You may try to get back the property itself,
or a reasonable facsimile. Let's say that someone causes damage to your
equipment. You may sue to get back equipment of equal value.
There are certain other torts for which money damages are not the re-
lief you want. If you are bothered by the neighbor who persists in
walking across your property despite all your requests that he stop,
money damages don't help you much. What you want in such a case is a
court order that he stop. Such an order is called an "injunction."
Now, let's apply all of this to the BBS environment.
ABBS wishes to thank Frank Levine, Attorney at Law and Co-Sysop
at ABBS, for the following. We are uncertain as to its origin,
but know that it has come from another bulletin board system.
This and our paper on the Law of Torts, represent our efforts
to provide information to fellow Sysops/BBS operators in hopes
to enlighten and contribute toward the growth and success of
the services we all provide and the communities we all serve.
James J. Spinelli
Sysop, ABBS
(914) 779-4273
ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986
H.R. 4952
Some of its provisions are important to BBS sysops and users.
The following is an excerpt from the House Report (
99-647).
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS
AND TRANSACTION RECORDS ACCESS
Section 2701. Unlawful access to stored communications
(a) Offense.--Except as provided in subsection 9c) of
this section whoever--
(1) intentionally accesses without authorization a
facility through which an electronic
communiation service is provided; or
(2) intentionally exceeds an authorization to ac-
cess that facility and thereby obtains, alters,
or prevents authorized access to a
wire or electronic communication while it is
in electronic storage in such system shall be
punished as provided in subsection (b) of this
section.
(b) Punishment.-- The punishment for an offense under
sub section (a) of this section is--
(1) if the offense is committed for purposes of
commercial advantage, malicious destruction or
damages, or private commercial gain--
(A) a fine of not more than $250,000 or
imprisonment for not more than one
year, or both, in the case of a first
offense under this subparagraph; and
(B) a fine under this title or imprison-
ment for not more than two years or
both for an subsequent offense under
this subparagraph; and
(2) a fine of not more than $5,000 or imprisonment
for not more than six months, or both in any
other case.
Section 2702. Disclosure of Contents
(a) Prohibitions.--Except as provided in subsection
(b)--
(1) a person or entitle providing an electronic
communication service to the public shall not
knowingly divulge to any person or entity the
contents of a communication while in
electronic storage by that service; and
(2) a person or entity providing remote computing
service to the public shall not knowingly di-
vulge to any person or entity the contents of
any communication which is carried or main-
tained on that service--
(A) on behalf of, and received by means
of electronic transmission from (or
created by means of computer
processing of communications received
by means of electronic transmission
from), a subscriber or customer of
such service; and
(B) solely for the purpose of providing
storage or computer processing ser-
vices to such subscriber or customer,
if the provider is not authorized to
access the contents of any such
communications for purposes of pro-
viding any services other than
storage or computer processing.
(b) Exceptions.--A person or entity may divulge the con-
tents of a communication ---
(1) to an addressee or intended recipient of such
communication or an agent of such addressee or
intended recipient;
(2) as otherwise authorized in section 2516,
2511(2)(a) or 2703 of this title;
(3) with the lawful consent of the originator or an
addressee or intended recipient of such
communication, or the subscriber in the case of
remote computing service;
(4) to a person employed or authorized or whose fa-
cilities are suited to forward such communication
to its destination;
(5) as may be necessarily incident to the rendition
of the service or to the protection of the
rights or property of the provider of that ser-
vice; or
(6)to a law enforcement agency, if such contents--
(A) were inadvertently obtained by ser-
vice provider; and
(B) appear to pertain to the commission
of a crime.
REPORT LANGUAGE
Proposed section 2701 provides a new criminal offense. The
offense consists of either: (1) intentionally accessing,
without authorization, a facility through which an electronic
communication service is provided or (2) intentionally exceeding
the authorization of such facility.
In addition, the offense requires that the offender must, as
a result of such conduct, obtain, alter, or prevent
unauthorized access to a wire or electronic communication
while it is in electronic storage in such a system. The
term electronic storage is defined in section 2510(17) of
Title 18. Electronic storage means any temporary,
intermediate storage of a wire or electronic communication
incidental to the electronic transmission thereof and the
storage of such communication by an electronic communications
service for the purpose of back-up protection of such
communication.
Section 2701(a) makes it an offense intentionally to access
without authorization, or to exceed an authorization to ac-
cess, an electronic communication service and thereby obtain,
or prevent authorized access to a wire or electronic
communication while it is in electronic storage in such sys-
tem. This provision addresses the growing problem of unautho-
rized persons deliberately gaining access to, and sometimes
tampering with, electronic or wire communication that are not
intended to be available to the public.
The Committee recognizes however that some electronic com-
munication services offer specific features, sometimes known
as computer "electronic bulletin boards," through which
interested person may communicate openly with the public to
exchange computer programs in the public domain and other
types of information that may be distributed without legal
constraint.
It is not the intent to hinder the development or use of
"electronic bulletin boards" or other comparable services.
The Committee believes that where communciations are
readily accessible to the general public, the sender has,
for purposes of Section 2701(a), extended an "authorization"
to the public to access those communications. A person may
reasonably conclude that a communication is readily acces-
sible to the general public if the telephone number of the
system and other means of access are widely known, and if a
person does not, in the course of gaining access, encounter
any warnings, encryptions, password requests or other indicia
of intended privacy. To access a communication on such a
system should not be a violation of the law.
Some communcation systems offer a mixture of services, some,
such as bulletin boards, which may be readily accessible to
the general public, while others--such as electronic
mail--may be intended to be confidential. Such a system
typically has two or more distinct levels of security. A
user may be able to access electronic bulletin boards and
the like merely with a password he assigns to himself,
while access to such features as electronic mail ordinarily
entails a higher level of security (i.e., the mail must be
addressed to the user to be accessible specifically).
Section 2701 would apply differently to the different
services. These wire or electronic communications which the
service provider attempts to keep confidential would be
protected, while the statute would impose no liability for
access to feature configured to be readily accessible to the
general public.
Section 2702 specifies that a person or entity providing wire
or electronic communication service to the public may
divulge the contents of a communication while in electronic
storage by that service with the lawful consent of the
originator or any addressee or intended addressee or
intended recipient of such communication. The committee
emphasizes that "lawful consent" in this context, need not
take the form of a formal written document of consent. A
grant of consent electronically would protect the service
provider from liability for disclosure under section 2702.
Under various circumstances, consent might be inferred to
have arisen from a course of dealing between the service
provider and the customer or subscriber--e.g. where a
history of transactions between the parties offers a basis
for a reasonable understanding that a consent to disclosure
attaches to a particular class of communications. Consent
may also flow from a user having had a reasonable basis for
knowing that disclosure or use may be made with respect to a
communications, and having taken action that evidences
acquiescence to such disclosure or use--e.g., continued use
of such an electronic communication system. Another type of
implied consent might be inferred from the very nature of
the electronic transaction. For example, a subscriber who
places a communication on a computer "electronic bulletin
board," with a reasonable basis for knowing that such
communications are freely made available to the public,
should be considered to have given consent to the disclosure
or use of the communication. If conditions governing
disclosure or use are spelled out in the rules of an
electronic communication service, and those rules are
available to users or in contracts for the provision of such
services, it would be appropriate to imply consent on the
part of a user to disclosures or uses consistent with those
rules.
Section 2702(a) specifies that a person or entity providing
a wire or electronic communication service or remote
computer services to the public shall not knowingly divulge
the contents of any communication while in electronic
storage by that service to any person or entity other than
the addressee or intended recipient of such communication or
an agent of such addressee or intended recipient of the
communications. Under some circumstances, however, a
customer or subscriber to a wire or electronic communication
service may place a communication on the service without
specifying an addressee.
The Committee intends, in that situation, that the communica-
tion at a minimum be deemed addressed to the service provider
for purposes of Section 2702(b). Because an addressee may
consent to the disclosure of a communication to any other
person, a service provider or system operator, as implied
addressee, may disclose the contents of an unaddressed
communcation.
A person may be an "intended recipient" of a
communication, for purpose of section 2702, even if he is
not individually identified by name or otherwise. A
communication may be addressed to the members of a group,
for example. In the case of an electronic bulletin board,
for instance, a communication might be directed to all
members of a previously formed "special interest group" or,
alternatively, to all members of the public who are
interested in a particular topic of discussion. In such an
instance, the service provider would not be liable for
disclosure to any person who might reasonably be considered
to fall in the class of intended recipients.
COMMENTS
The entire document has to be read and studied to draw final
conclusions on a number of important issues. However, the
following observations can be made:
1. SYSOPS are to be considered providers of an electronic
communications service. In other words, whenever a BBS
goes up, it becomes an electronic communication service
subject to the requirements of the law.
2. Users of the BBS are protected and may have grounds to take
action against or ask that criminal charges be brought if
their communications are improperly disclosed.
3. SYSOPs do have added protection against hackers, and
federal law enforcement is available.
4. Any "general" messages addressed to all members of the
board, provided the board is open to the general public, may
be disclosed and are not protected.
5. However:
a. It is unclear whether a sysop may legally read pri-
vate mail on his board addressed to another user, un-
less sysop discloses in a warning message that
he/she may read such messages.
b. Conferences that are not generally open to the pub-
lic may create an expectation of privacy and there
will be limited rights to disclose information.
c. Major changes in security procedures may require
user consent, or their messages may have to be re-
moved.
6. It would be prudent to have a major disclaimer in the in-
troduction of each BBS session, stating that there is no ex-
pectation of privacy and that anything left on the board
may be read or disclosed by the sysop.
Next, we present the "LEGAL" view.
We wish to thank our friend, Ruel Hernandez, for the information in
this section of our report.
COMPUTER_ELECTRONIC_MAIL_AND_PRIVACY
INTRODUCTION
Four years ago, Congress introduced legislation which sought to
provide federal statutory guidelines for the privacy protection of
electronic communications, including electronic mail (e-mail) found on
commercial computer-based services and on other remote computer systems such
as electronic bulletin board systems (BBS). The old federal wiretap law
only gave protection to normal audio telephone communications. Before the
legislation culminated into the Electronic Communications Privacy Act of
1986 (ECPA), which went into effect on January 20, 1987, there was no
contemplation of computer-based electronic communications being transmitted
across telephone lines and then being stored on disk for later retrieval by
or forwarding to its intended recipient. Federal law did not provide
guidelines for protecting the transmitted electronic messages once they were
stored on these computer-based communications services and systems.
QUESTIONS
(1) Whether electronic mail and other intended private material stored
on an electronic computer communications service or system have Fourth
Amendment privacy protection?
(2) Should private electronic mail and other such material be accorded
federal statutory protection guidelines such as those enjoyed by the U.S.
Mail?
PROBLEM
Law enforcement seeks criminal evidence stored as e-mail either on a
commercial computer service, such as CompuServe, GEnie or The Source, or on
a hobbyist-supported BBS. (Note, this situation is equally applicable to
personal, private data stored on a remote system for later retrieval, such
as with CompuServe's "personal file" online storage capabilities.)
For example, a computer user calls up a computer communication system.
Using the electronic mail function, he leaves a private message that can
only be read by an intended recipient. The message is to inform the
recipient of a conspiracy plan to violate a federal or state criminal
statute. Law enforcement gets a tip about the criminal activity and learn
that incriminating evidence may be found on the computer system.
In 1982, such a situation occurred. (Meeks, Life_at_300_Baud:_Crime_on
the_BBS_Network, Profiles, Aug. 1986, 12-13.) A Detroit federal grand jury,
investigating a million-dollar cocaine ring, issued a subpoena ordering a
commercial service, The Source, to hand over private subscriber data files.
The files were routinely backed up to guard against system crashes. The
grand jury was looking for evidence to show that the cocaine ring was using
The Source as a communications base to send messages to members of the ring.
With such evidence, the grand jury could implicate and indict those
suspected of being part of the cocaine ring. The Source refused to obey the
subpoena on the basis of privacy. The prosecution argued The Source could
not vicariously assert a subscriber's privacy rights. Constitutional rights
are personal and could only be asserted by the person whose rights are
invaded. Additionally, since the files containing messages were duplicated
by the service, any user expectation of privacy would be extinguished. A
court battle ensued. However, before a ruling could be made, the kingpin of
the cocaine ring entered a surprise preemptive guilty plea to federal drug
trafficking charges. The case against The Source was discontinued.
Publicly posted messages and other public material may be easily
retrieved by law enforcement. It is the private material, such as e-mail,
which posed the problem.
Law enforcement's task was then to gather enough evidence to
substantiate a criminal case. Specifically, they would want the e-mail, or
other private files, transmitted by suspected criminals. In opposition, the
provider or systems operator of a computer communications service or system,
in his assumed role as keeper of transmitted private electronic messages,
would not want to turn over the private data.
INADEQUACY OF OLD LAW
Meeks noted that as of August, 1986, "no ... protection exist[ed] for
electronic communications. Any law enforcement agency can, for example,
confiscate a local BBS and examine all the message traffic," including all
private files and e-mail. (Id.)
CASE LAW
There is little case law available on computer communications and
Fourth Amendment constitutional problems. (See_generally M.D. Scott,
Computer Law, 9-9 (1984 & Special Update, Aug. 1, 1984).) If not for the
preemptive guilty plea, the above described Detroit case may have provided
some guidance on computer-based communications and privacy issues.
Of the available cases, there are those which primarily dealt with
financial information found in bank and consumer credit organization
computers. In U.S._v._Davey, 426 F.2d 842, 845 (2 Cir. 1970), the
government had the right to require the production of relevant information
wherever it may be lodged and regardless of the form in which it is kept and
the manner in which it may be retrieved, so long as it pays the reasonable
costs of retrieval. In a California case, Burrows_v._Superior_Court, 13
Cal. 3d 238, 243, 118 Cal. Rptr. 166, 169 (1974), a depositor was found to
have a reasonable expectation that a bank would maintain the confidentiality
of both his papers in check form originating from the depositor and the
depositor's bank statements and records of those checks. However, in
U.S._v. Miller, 425 U.S. 435, 96 S.Ct. 1619 (1976), customer account
records on a bank's computer were held to not be private papers of the bank
customer, and, hence, there was no Fourth Amendment problem when they are
subpoenaed directly from the bank.
Although these cases have more of a business character in contrast to
personal e-mail found on computer systems such as CompuServe or a hobbyist-
supported BBS, they would hold that there would be very little to legally
stop unauthorized access to computer data and information.
Under the old law, a prosecutor, as in the Detroit case, may try to
analogize duplicated and backed up e-mail to business situations where data
on business computer databases are also backed up. Both types of computer
data are stored on a system and then later retrieved. The provider or
systems operator of a computer electronic communications system would
counterargue that the nature of computers always require the duplication and
backup of any computer data, whether the data files be e-mail or centrally-
based financial or credit data. Data stored on magnetic media are prone to
possible destruction. Duplication does not necessarily make e-mail the same
as financial or credit data stored in business computers. Centrally-based
business information is more concerned with the data processing. That
information is generally stored and retrieved by the same operator. E-mail
is more concerned with personal communications between individuals where the
sender transmits a private message to be retrieved only by an intended
recipient. The sender and the recipient have subjective expectations of
privacy that when viewed objectively are reasonable. Therefore, there would
be a constitutionally protected expectation of privacy under Katz_v._U.S.,
389 U.S. 347, 88 S.Ct. 507 (1967).
However, the prosecution would note under California_v._Ciraolo, --
U.S. --, 106 S.Ct. 1809 (1984), users would have to protect their electronic
mail from any privacy intrusion. The provider or operator of the service or
system has ultimate control over it. He has complete access to all areas of
the system. He could easily examine the material. The prosecution would
note the user could not reasonably protect his private data from provider or
operator invasion. This "knot-hole," where an observer can make an
observation from a lawful position, would exclude any reasonable expectation
of privacy. If there is no privacy, there can be no search and therefore no
Fourth Amendment constitutional violation. Law enforcement can retrieve the
material.
The Justice Department noted the ambiguity of the knothole in a
response to Senator Leahy's question whether the then existing wiretap law
was adequate to cover computer communications. (S. Rep. No. 541, 99th
Cong., 2d Sess. 4 reprinted_in 1986 U.S. Code Cong. & Ad. News 3558.) It
was "not always clear or obvious" whether a reasonable expectation of
privacy existed. (Id.)
FEDERAL WIRETAP STATUTES
The old federal wiretap statutes protected oral telephone
communications from police interceptions. This protection was made during
1968 in response to electronic eavesdropping conducted by government.
(Cohodas, Congress_Races_to_stay_Ahead_of_Technology, Congressional
Quarterly Weekly Report, May 31, 1986, 1235.) Although e-mail appears to
come under the old 18 U.S.C. sec. 2510(1) definition of "wire
communication," it was limited to audio transmissions by wire or cable. The
old 18 U.S.C. sec. 2510(4) required that an interception of a wire
communication be an oral acquisition of the communication. By being
"oral," the communication must be "heard." There would be a problem as to
whether an electronic communication could be "heard." Data transmissions
over telephone lines generally sound like unintelligible noisy static or
high pitched tones. There would certainly be no protection after a
communication has completed its transmission and been stored on a computer.
The communication's conversion into computer stored data, thus no longer in
transmission until later retrieved or forwarded as transmission to another
computer system, would clearly take the communication out of the old
statutory protected coverage.
"Eighteen years ago ... Congress could not appreciate - or in some
cases even contemplate - [today's] telecommunications and computer
technology...." (132 Cong. Rec. S7992 (daily ed. June 19, 1986) (statement
of Sen. Leahy).)
COMPARISON WITH U.S. MAIL PROTECTION
A letter sent by first class mail is given a high level of protection
against unauthorized intrusion by a combination of federal and U.S. Postal
Service statutes and regulations. For instance, the unauthorized taking out
of and examining of the contents of mail held in a "depository for mail
matter" before it is delivered to the mail's intended recipient is
punishable by fine, imprisonment, or both. (18 U.S.C. sec. 1702.) In
comparison, under the old law, electronic communications had no protection.
Federal protection for U.S. Mail provided a suggested direction as to how
electronic communications should be protected when it was no longer in
transmission.
SOLUTION - THE NEW LAW
There are two methods towards a solution: (1) court decisions; or (2)
new legislated privacy protection.
COURT DECISIONS
Courts may have chosen to read computer communications protection into
the old federal wiretap statute or into existing state law. However, they
were reluctant to do so. Courts "are in no hurry to [revise or make new law
in this area] and some judges are openly asking Congress for help....
[F]ederal Appeals Court Judge Richard Posner in Chicago said Congress needed
to revise current law, adding that 'judges are not authorized to amend
statutes even to bring them up-to-date.'" (Cohodas, 1233.)
NEW STATUTE
On October 21, 1986, President Reagan signed the new Electronic
Communications Privacy Act of 1986 amending the federal wiretap law. ECPA
went into effect during the beginning of 1987. (P.L. 99-508,
Title I, sec. 111, 100 Stat. 1859; P.L. 99-508, Title II, sec. 202, 100
Stat. 1868.) ECPA created parallel privacy protection against both
interception of electronic communications while in transmission and
unauthorized access to electronic communications stored on a system.
The new ECPA first provides privacy protection for any
'electronic communication' ... [by] any transfer of signs,
signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that
affects interstate or foreign commerce...."
(18 U.S.C. secs. 2510(12), 2511.) The Senate Report noted examples of
electronic communications to include non-voice communications such as
"electronic mail, digitized transmissions, and video teleconferences." (S.
Rep. No. 541, 99th Cong., 2d Sess. 14 reprinted_in 1986 U.S. Code Cong. &
Ad. News 3568.) Electronic communication is defined in terms of how it is
transmitted. So long as the means by which a communication is transmitted
affects interstate or foreign commerce, the communication is covered ECPA.
(18 U.S.C. sec. 2510(12).) Generally, that would include all telephonic
means including private networks and intra-company communications. (S.
Rep. No. 541, 99th Cong., 2d Sess. 12 reprinted_in 1986 U.S. Code Cong. &
Ad. News 3566.)
Second, ECPA protects the electronic communication when it has been
stored after transmission, such as e-mail left on an electronic computer
communication system for later pickup by its intended recipient. (18 U.S.C.
sec. 2510(17).) The legislation makes it a federal criminal offense to
break into any electronic system holding private communications or to exceed
authorized access to alter or obtain the stored communications. (18 U.S.C.
sec. 2701(a).)
The legislation would protect electronic computer communication systems
from law enforcement invasion of user e-mail without a court order. (18
U.S.C. secs. 2517, 2518, 2703.) Although the burden of preventing
disclosure of the e-mail is placed on the subscriber or user of the system,
the government must give him fourteen days notice to allow him to file a
motion to quash a subpoena or to vacate a court order seeking disclosure of
his computer material. (18 U.S.C. sec. 2704(b).) However, the government
may give delayed notice where there are exigent circumstances as listed by
the Act (18 U.S.C. sec. 2705.) Recognizing the easy user destruction of
computer data, ECPA allows the government to include in its subpoena or
court order the requirement that the provider or operator retain a backup
copy of electronic communications when there is risk of user destruction.
(18 U.S.C. sec. 2704(a).)
The legislation gives a civil cause of action to the provider or
operator, subscriber, customer or user of the system aggrieved by an
invasion of an electronic communication in the system in violation of the
ECPA. (18 U.S.C. secs. 2520, 2707.) If the provider or operator has to
disclose information stored on his system due to a court order, warrant,
subpoena, or certification under ECPA, no cause of action can be brought
against him by the person aggrieved by such disclosure. (18 U.S.C. sec.
2703(e); see_also 18 U.S.C. secs. 2701(c), 2702(b), 2511(2)(a)(i),
2511(3)(b)(iii) where the systems operator or provider is not held
criminally liable, may observe a private communication while performing
employment duties or according to authorization, etc., may intercept private
communication while making quality control checks or during the course of
forwarding communications to another system.)
SYSTEMS COVERED
Clearly, the national commercial services in the United States,
including CompuServe, MCI Mail or a company using a contracted e-mail
service, such as GE QUIK-COM (See S. Rep. No. 99-541, 99th Cong., 2d Sess.
8 reprinted_in 1986 U.S. Code Cong. & Ad. News 3562) are covered by ECPA.
However, there may be some confusion as to whether ECPA would protect
electronic communications found on a mere user-supported BBS. For
instance, language in ECPA does not expressly state the term "bulletin
board." Nonetheless, ECPA would indeed cover electronic bulletin boards.
What are electronic bulletin boards? Generally, they are personal
computers provided for and maintained by computer users out of their own
personal resources. These systems traditionally allow free access to
computer/modem-equipped members of local communities and provide for both
public and private electronic mail exchange. Some sophisticated systems,
such as the ProLine system written for Apple II computers, provide callers
with personal user areas where they may keep private files much like the
CompuServe personal file areas.
Augmenting the single stand-alone BBS, there are networks of bulletin
boards linked together, often with the assistance of university mainframes,
with other bulletin boards or mainframe computers by sophisticated "mail
routing" systems (such as ARPAnet and FIDOnet). These networks use
sophisticated message addressing instructions and computer automation where
networked computers make calls to other networked computers to exchange
"net-news" or private mail between users of the different bulletin boards.
Given the proper address routing instructions, a user may communicate with
another user on a cross-town BBS or on a BBS in another part of the country.
Although there is some delay with messages being routed through a network,
these networks help to reduce or eliminate the computer user's need to
make direct toll or long distance calls to faraway systems. (Note, there
are also network exchange systems and "gateways" between commercial
services.)
Businesses have been turning to the use of BBS's and BBS mailing
networks for increased productivity, paperwork reduction, improved client
contact and the elimination of "telephone tag." (See Keaveney,
Custom-Built_Bulletin_Boards, Personal Computing, Aug. 1987, 91.)
A number of these corporate BBS's are open to the public with
restricted access to business and client system areas. Examples of
such systems include (a) two Washington D.C. area boards run by Gannet
Company Inc. ("[f]or all Gannet/USA Today employees and other computer
users"), Issue Dynamics Inc. (catering to the consulting company's clients),
and (b) A Westchester County (NY) area board run by VITRON Management
Consulting, Inc. (catering to the general business community).
ECPA language would show protection for bulletin boards. 18 U.S.C.
sec. 2510(15) provides that "'electronic communication service' means any
service which provides to users thereof the ability to send or receive wire
or electronic communications". A "remote computing service" was defined in
the Act as an electronic communications system that provides computer storage
or processing services to the public. (18 U.S.C. sec. 2710(2).)
Intra-company communications systems, corporate BBSes, would also be
protected. (S. Rep. No. 541, 99th Cong., 2d Sess. 12 reprinted_in 1986 U.S.
Code Cong. & Ad. News 3566.) Language in ECPA refers to "the person or entity
providing the wire or electronic communication service," such as in 18 U.S.
secs. 2701(c)(1) and 2702(a)(1). Such language would indicate the inclusion
of individuals and businesses who operate bulletin board systems.
The Senate report, in addition to defining "electronic mail," gave a
separate definition of "electronic bulletin boards":
Electronic "bulletin boards" are communications networks created
by computer users for the transfer of information among computers.
These may take the form of proprietary systems or they may be commercial,
or noncommercial systems operating among computer users sharing special
interests. These systems may [or may not] involve fees covering
operating costs and may require special "passwords" which restrict
entry to the system. These bulletin boards may be public or
semi-public in nature, depending on the degree of privacy sought by
users, operators or organizers of such systems.
(S. Rep. No. 541, 99th Cong., 2d Sess. 8-9 reprinted_in 1986 U.S. Code
Cong. & Ad. News 3562-3563.)
ECPA, as enacted, takes note of the different levels of security found
on user-supported BBS's, i.e. the difference between configured system
areas containing private electronic mail and other areas configured to
contain public material. (18 U.S.C. sec. 2511(2)(g)(i).) The electronic
communications which a user seeks to keep private, through methods provided
by the system, would be protected by ECPA. In contrast, there would be no
liability for access to features configured by the system to be readily
accessible by the general public. An indicia of privacy on the system, with
no notice to show otherwise, would trigger ECPA coverage. An indicia of
privacy may include passwords and prompts asking if a message is to be kept
private.
House Representative Kastenmeier noted that there was an unusual
coalition of groups, businesses and organizations interested in ECPA.
(Kastenmeier, Communications_Privacy, Communications Lawyer, Winter 1987,
1, 24.) Among those interested included the BBS community. Reporters in
the BBS community noted how Senator Leahy and others were receptive to their
concerns. They report Leahy to have been "soliciting [users and BBS
operators'] comments and encourag[ing] sensitivity to the needs of BBS's in
the legislation.... [Senators and congressional members] are ... willing to
listen to our side of things." (BBSLAW02.MSG, dated 07/24/85, information
from Chip Berlet, Secretary, National Lawyers Guild Civil Liberties
Committee, transmitted by Paul Bernstein, SYSOP, LAW MUG, Chicago, Illinois
regarding Federal Legislation Affecting Computer Bulletin Boards, deposited
on The Legacy Network in Los Angeles, California.)
ESCAPING COVERAGE
There are at least two possible ways to escape ECPA coverage. The
first is to provide adequate notice that all material on a service or system
may be publicly accessible even though methods of providing privacy remain.
The bulletin board system maintained by DePaul University College of Law
Chicago, Illinois, provides an example of an electronic notice (displayed
upon user access):
PURSUANT TO THE ELECTRONIC AND COMMUNICATIONS PRIVACY ACT OF 1986, 18
USC 2510 et. seq., NOTICE IS HEREBY GIVEN THAT THERE ARE NO FACILITIES
PROVIDED BY THIS SYSTEM FOR SENDING OR RECEIVING PRIVATE OR
CONFIDENTIAL ELECTRONIC COMMUNICATIONS. ALL MESSAGES SHALL BE DEEMED
TO BE READILY ACCESSIBLE TO THE GENERAL PUBLIC.
Do NOT use this system for any communication for which the sender
intends only the sender and the intended recipient or recipients to
read.
Note, although the DePaul notice states otherwise, user-operated message
privacy toggles remain on the board. The second possible method to escape
ECPA coverage would be to merely not provide any means of privacy.
One way of foiling the intent of a government subpoena or court order
requirement to keep duplicate copies of private electronic communications
would be the use of passworded private e-mail. For instance, the private
e-mail capabilities of GEnie Mail and GE QUIK-COM include user-toggled
passwording which utilizes an encryption technique that no one, not even the
provider, knows how to decipher. Bill Louden, General Manager of GEnie
(General Electric Network for Information Exchange), noted how GEnie Mail
and GE QUIK-COM passworded e-mail cannot be read by anyone who did not know
the password. "[N]ot even our 'god' number could ever read the [passworded]
mail." (Message from Bill Louden, GEnie, Legacy RoundTable (LAW), category
1, topic 7, message 6 (May 15, 1987).) The writer of the encryption
software has since left General Electric and no one has had success in
breaking the code. (Message from Bill Louden, GEnie, Legacy RoundTable
(LAW), category 1, topic 7, message 10 (May 17, 1987).)
CONCLUSION
With ECPA, e-mail and other private electronic communications stored on
computer communication systems have privacy protection. Unfortunately,
before ECPA, federal statutory guidelines for such protection were not
articulated. Case law also did not provide any helpful guidance. The
peculiarities of computers and computer storage were not addressed by the
old wiretap laws. Electronic communications privacy could not stand up
against constitutional privacy law as defined by the United States Supreme
Court. The then existing law was "hopelessly out of date." (S. Rep. No.
541, 99th Cong., 2d Sess. 2 reprinted_in 1986 U.S. Code Cong. & Ad. News
3556 (statement of Sen. Leahy).) Fortunately, a legislative solution to
bring privacy law up to date with the advancing computer communication and
information technology was provided for in ECPA.
OBSERVATIONS
One should note that ECPA was designed as a statutory solution to fill a
loop-hole in federal constitutional law where computer-communication
messages (e.g., email) are not protected. Under traditional Fourth
Amendment Search and Seizure law, email and similar computer-communication
material are not considered to have any constitutional privacy protection
against government intrusion. ECPA provides statutory privacy protection
where there is no constitutional protection.
Generally, a BBS may fall under the coverage of ECPA if there is some
indicia of privacy found on the BBS. There are various degrees of privacy
found on a BBS ranging from the opening login password to the sending of a
private message via UUCP. Under ECPA, a sysop or online service employee
may not be found civilly liable for intercepting (i.e., reading/viewing)
private information or private messages between users who call in to a BBS
so long as he is performing "quality control checks" or other similar
duties. This may include passive maintenance activity and intermail or
echomail forwarding. ECPA thus provides some protection for a sysop from
civil liability if his system is found to fall under ECPA coverage.
To escape coverage from ECPA, a BBS sysop may place a disclaimer at the
"front door" or throughout his system (such as an automatic notice whenever
if the caller wishes to send private email) giving the caller adequate
notice that the system has no privacy privileges. (Note: what I mean by
privileges, in the legal sense, is much broader than mere privacy toggle
commands found on a BBS.) Giving such notice would work to negate any
indicia of privacy that may be found on the system. For instance, the sysop
may say that he has access to all private email, he will read all private
email, and he will disclose all improper or criminal information left on his
system to the appropriate authorities even if there are privacy toggle
commands found on the system -- and suggest the caller try another system if
he/she wishes to send secure private messages. The sysop may then stand a
better chance of not being found liable under ECPA.
The DePaul University College of Law BBS Disclaimer:
----------------------------------------------------
This type of disclaimer, dealing with communications, should not be found to
be applicable to private login passwords -- in other words, passwords should
maintain their privileged private status. (Note, some attorney may try to
argue that passwords are messages and therefore are excluded from ECPA by
the disclaimer and may be disclosed.)
Note, ECPA is primarily first a statutory solution to providing
statutory protection against government intrusion into private computer
communications in order to be more in tune with traditional Fourth Amendment
Search and Seizure law. Generally, in order for police or other government
authorities to intrude into private computer communications, a court order,
subpeona, or warrant must be obtained. A sysop may be ordered to provide
copies of particular information -- the warrant should particularly describe
what is sought, such as the author of the message, subject matter, etc. The
author of the private information may also be given 14 days notice of the
search unless there are exigent circumstances, e.g., the author has the
ability to destroy the information. Note, although there may be the
possibility that a sysop may be held in contempt of court for not providing
copies, this does not necessarily mean the sysop has the affirmative duty to
make and keep copies of all information kept on his system if it is not
reasonable for him to do so, e.g., the system program does not keep backups,
old messages are automatically destroyed after a certain period of time such
as on an HBBS system, etc. -- he may only have to provide copies when
ordered to do so and if reasonable (my interpretation).
Although a sysop may not be found liable under the federal ECPA statute,
there may be alternative liability found under state law. Generally, at the
state level, there is either state statutory or common law protection
against INVASION OF PRIVACY. In particular, this would include (1) public
disclosure of private facts and (2) intrusion upon seclusion. A possible
situation would include not only public disclosure of private email, but
also public discussion or private system passwords. A good attorney may be
able to make good arguments to find liability under either one of the two
tort law causes of action -- particularly when a sysop holds himself or
herself out as a provider of private or semi-private information exchange.
Note, under either the federal ECPA or state invasion of privacy laws, a
sysop or caller to a system may be able to sue users who break into the
closed or private areas of the system. Of course, evidence would have to be
obtained to prove causation and liability and evidence is a completely
different issue problem....
Finally, there are several issues that are currently being reviewed for
possible statute inclusion. Such issues involve, but are not limited to:
1. The dissemination and distribution of elements contributing to
the delinquency or corruption of minors:
- pornography
- advocacy of games of chance (gambling)
2. The maintenance of the integrity of electronically stored data
and information within communication systems, including electronic
bulletin boards.
These issues are the subject of a subsequent paper. In addition, they are
topics that represent areas of discussion within the potential PCBRelay
Legal conference.
We at VITRON (and ABBS) would greatly appreciate your feedback and input
regarding this paper. If you have any questions, comments, observations or
suggestions, please leave us a message. Your message will receive as prompt
a reply as is feasible (usually within 24 to 48 hours).
- ************************************************************************
Subject: HR 4079 is for REAL!
Date: 29 Jun 90 20:04:36 GMT
(Thant Tessman) writes:
>A new bill, HR 4079 [...]
This posting bothered me enough even after dismissing the alarming rhetoric
that I placed a call to my Representative's local office. Two days later I
received a copy of HR 4079 in the mail. (I recommend others do the same - it
is too long for a lousy typist such as me to enter).
I found some errors in the claims made about it - but it is pretty bad stuff
anyway! Some notes follow:
>[...] would open the way for American concentaration camps to be built,
It does. It calls for housing prisoners in "tent housing or other shelters
placed on available military bases and at other suitable locations." [P10L3-5]
It does not restrict the prisoners to those convicted of drug crimes.
In case that is insufficient, it calls for "any property that is determined
to be excess to the needs of a Federal agency that may be suitable for use as
a correctional facility shall be made available for such use..." [P15L5-7]
Oh, yes, it also says, "a Federal court shall not hold prison or jail
crowding unconstitutional under the eighth amendment except to the extent
that an individual plaintiff proves that the crowding causes the infliction
of cruel and unusual punishment of that inmate." [P8L14-18] The remedy?
"(2) The relief in a case described in paragraph (1) shall extend no
further than necessary to remove the conditions that are causing the cruel
and unusual punishment of the plaintiff inmate." [P8L19-22]
>and thereafter permit the state to round up suspected drug users
This one is a little difficult. Maybe I missed it, but it still requires
conviction. However, it does say, "Evidence which is obtained as a result of
a search or seizure shall not be excluded in a proceeding in a court of the
United States on the ground that the search or seizure was in violation of
the fourth amendment to the Constitution of the United States, if the search
or seizure was carried out in circumstances justifying a reasonably objective
belief that is was in conformity with the fourth amendment." [P35L25-P36L7]
This is followed by (and this has been mentioned before): "The fact that
evidence was obtained pursuant to and within the scope of a warrant
constitutes prima facie evidence of the existence of such circumstances."
[P36L7-9]
>so they can be forced to work without compensation for the state.
This is wrong. On Page 27, "Subtitle C - Mandatory Work Requirements for
Prisoners, Withholding Federal Benefits, and Drug Testing of Prisoners", it
does say "It is the policy of the Federal Government that convicted prisoners
confined in Federal prisons, jails, and other detention facilities shall
work." [P27L7-9]
However, it also says, "(2) Prisoners shall be paid a share of funds
generated by their labor conducted pursuant to this section." [P28L10-11]
>"The Drug Crime Emergency Act" drips with patriotism as Gingrich tries to
>vaguely connect the freedom movement in eastern Europe with America falling
>deeper and deeper into "the slavery of drug addiction."
I didn't find anything even remotely resembling this.
>The bill proposes suspending the Constitution for five years so millions of
>illegal drug users can be held by the state in concentration camps. All
>internees will be forced to work and if anyone is caught with drugs in the
>camps they will have one year added to their sentence each time - with no
>right to appeal.
One small nit, there are exceptions listed to "All internees".
>HR 4079 calls for the declaration of a five year national state of
>emergency - in essence, martial law. It proposes reopening the
>concentration camps of WWII, using active and inactive military bases as
>prisons, and a new privately owned prison system as well. To aid in
>accomplishing this, the 4th Amendment, the 8th Amendment, and habeas corpus
>are either superseded, redefined, or disallowed.
The 4th and 8th have been mentioned. There is a lengthy section called the
"Strom Thurmond Habeus Corpus Reform Initiative" [P37-43] which I cannot
reasonably comment on.
>A provision has been built in to allow the government to purchase goods
>manufactured by prison slave labor. To insure the duration of this labor
>force, all previous maximum sentences would be changed to minimum sentences.
Just to clarify: This is a sentencing change - those already sentenced would
not be affected by this section.
>New mandatory sentences would be established, and probation, parole, and
>suspension of sentences revoked.
True.
>To provide an even greater pool to draw from, mandatory drug testing of
>just about everyone above junior high school level has been included. The
>resolution carefully avoids addressing the funding necessary.
It says "no institution of higher education shall be eligible to receive
funds or any other form of financial assistance under any Federal program,
including participation in any federally funded or guaranteed student loan
program, unless it certifies to the Secretary that it has adopted and has
implemented a program to prevent the use of illicit drugs and the abuse of
alcohol by students and employees that, at a minimum, includes -
(1) the annual distribution to each student and employee of -
(A-E) [...information...]
(2) provisions for drug testing; and
(3) a biennial review by the institution of its program to -
[...]"
[P57L19-P59L5]
It repeats essentially the same as above for "local educational agency".
[P60L13-P63L20]
>Even after 30 press releases were sent to all the national and local news
>outlets by Maryland LP members, there has been practically no mention of
>the bill in the media. The state evidently is hoping to sweep this bill
>into law right under our noses while we are all preoccupied with other
>events taking place around the world. Surprisingly, the response from
>libertarians as well as mainstream folks has been one of complacency.
There is even more in this bill than the authors of the quoted newsletter
mentioned. For example, it calls for:
-revoking the driver's license of those convicted of drug crimes,
-expansion of the "war on drugs" to include alcohol abuse,
-the RICO-like seizure of property alleged to be used in or obtained through
profits from drug crimes (with the burden upon victim/defendant to *prove*
that it was not - could you *prove* you didn't buy your car with profits
from illicit transactions?)
-division of "profits" from such seizures, upon conviction, to be shared
between the state and individuals who provided information leading to the
conviction...
>Everyone needs to make phone calls and write letters. Direct your
>correspondence to the media and your representatives, as well as Gingrich
>and Gramm. If they don't think you care about this bill becoming law - it
>will! Act now or cry behind the barbwire later.
--
~~
From: bill@flash.UUCP (bill)
Newsgroups: alt.conspiracy
Subject: Bye, bye, 6th
Summary: another "right" going down the drain
Keywords: public defenders, 6th Amendment, Bill of Rights, War on Drugs, Sh*t
Date: 13 Jul 90 15:42:04 GMT
Organization: Prodisestablishmentarianism, Inc. :-)
(Andrew Duane):
> DRUG SUSPECTS BARRED FROM PUBLIC DEFENDERS
>Danbury, CT. - A judge has said he will not appoint free legal aid
>lawyers for people arrested on drug charges who say they cannot
>afford lawyers.
> "I don't appoint public defenders to people in drug cases,"
>Judge Joseph Sylvester of Superior Court told a defendant on Tuesday
>at his arrignment. [...] Lawyers at the courthouse said 60 suspects
>had been denied public defenders.
>[...]
>The judge has also denied public defenders in drunken-driving cases.
>[ End of Article ]
>
>Well, there goes the sixth amendment. [...]
>Does anyone else find this as scary as me?
Yes! (and thank you, Andrew, for posting this!)
>What is his rationale disallowing use of public defenders in drug cases?
What else can it be but that "this problem has become so serious we must
take special measures!"?
Sooo... if you're *accused* of drug offences, you no longer have a Sixth
Amendment right to the assistance of counsel. What issue of easy political
popularity will be next, I wonder: child abuse cases? Crimes against women
or the elderly? Flag desecration?
[And people wonder at my concern that we have passed the point where the
Bill of Rights is used to enumerate specifically the rights of the people,
as opposed to the idea expressed in the Tenth that: "The powers not
delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States, respectively, or to the people."]
--
~~
Subject: Re: stoke up the ovens
Date: 13 Jul 90 16:08:59 GMT
Organization: Prodisestablishmentarianism, Inc. :-)
(Michael Carr) writes:
>>The Senate proposes the death penalty for the following crimes:
>>Destruction of aircraft (better not crash that plane )
>>Destruction of motor vehicle (this surely warrants the death penalty)
I'd be pretty sure that "destruction" means "as with a bomb", not your
typical highway accident or plane crash.
>>Espionage
>>Arson of federal property (watch those campfires in the Natl. forests)
>>Arson of property in interstate commerce
Arson is most likely deliberate arson, again not accidents (but I'd sure
like to see the actual text of the bill, whatever it is).
>>Wrecking a train
>>Mailing of injurious articles (better not mail a pack of cigarettes)
Probably letter bombs and the like.
>>Bank robbery
>>Treason (don't talk bad about the good old USA)
Treason: The offence of *attempting* by overt act to overthrow the
government, or (Art. III section 3 US Constitution), "only
in levying war against them [the States], or in adhering
to their enemies, giving aid and comfort to them."
Well, maybe you got a point.
>>Kidnapping
>>Hostage taking
>>Major crime by drug kingpin (what major crimes aren't covered in this list
>>already??)
>>Attempted homicide by drug kingpin while seeking to obstruct justice
>>Unintentional killing by drug felon involving aggravated recklessness
>>(does this include drunk drivers??)
>>Use of a firearm in violent crime or drug trafficking
>>Murder of family member of federal official
>>Murder of member of congress, cabinet, or Supreme court
>>Murder of nuclear regulatory inspector,federal official,federal witness,
>>horse inspector,meat inspector, poultry inspector, egg products inspector,
>>foreign official, Agriculture dept. official
Hmmm... note how the Ruling Class now gets special "privileges" under the
law... Oligarchy, here we come.
> This is serious??!!! How much of this was in that bullshit crime bill
>that just passed in the Senate? Is this it? This is way out of hand.
I also would a pointer to the source of that posting...
> I've only listed what I thought were some of the more outrageous ones
>( I'm against the death penalty in general, but don't want to start that war
>again ). BTW, what the hell constitutes "treason" ??? This country is getting
>scarier every day.
> Does anyone know how close this is to being law? All the congress-
>critters are wetting their pants trying to look tough on crime for the
>upcoming elections so this kind of dangerous stuff is probably going to
>pass.
> Argghh, you just ruined my day! :-( See you on death row!
> Mike Carr carr@cs.unc.edu
>
>OK, so maybe I'm a little alarmist, but if we don't fight back we'll wake up
>some morning with the FBI/CIA in our face, it seems sometimes.
I'm a big alarmist (I outmass most of my friends :-), but you are correct.
This stuff doesn't go away by wishful thinking, nor when you close your eyes.
Recommended reading:
_They thought they were free; the Germans, 1933-45_
by Milton Mayer. (1955, U. of Chicago Press).
(excerpts from an earlier posting)
"What no one seemed to notice, ... was the ever widening gap
... between the government and the people. ... And it became
always wider. ...
"... the whole process of its coming into being, was above all
*diverting*. It provided an excuse not to think for people who
did not want to think anyway. ... Nazism gave us some dreadful,
fundamental things to think about ... and kept us so busy with
continuous changes and 'crises' and so fascinated ... by the
machinations of the 'national enemies,' without and within,
that we had no time to think about these dreadful things that
were growing, little by little, all around us. ...
"Each step was so small, so inconsequential, so well explained
or, on occasion, 'regretted,' that ... unless one understood
what the whole thing was in principle, what all these 'little
measures' ... must some day lead to, one no more saw it developing
from day to day than a farmer in his field sees the corn growing. ...
"... Each act ... is worse than the last, but only a little worse.
You wait for the next and the next. You wait for one great
shocking occasion, thinking that others, when such a shock
comes, will join with you in resisting somehow. You don't want
to act, or even talk, alone; you don't want to 'go out of your
way to make trouble.' ... And it is not just fear ... that
restrains you; it is also genuine uncertainty.
"... And you *are* an alarmist. You are saying that *this* must
lead to *this*, and you can't prove it. ...
"But the one great shocking occasion, when tens or hundreds or
thousands will join with you, never comes. *That's* the
difficulty. ...
"... The forms are all there, all untouched, all reassuring, the
houses, the shops, the jobs, the mealtimes, the visits, the
concerts, the cinema, the holidays. But the spirit, which you
never noticed because you made the lifelong mistake of identifying
it with the forms, is changed. Now you live in a world of hate
and fear, and the people who hate and fear do not even know it
themselves; when everyone is transformed, no one is transformed. ...
"... You have accepted things you would not have accepted five years
ago, a year ago, things that your father ... could not have imagined.
Cheers.
--
~~
Subject: Full text of H.R. 4079, very long (3,122 lines)
Date: 7 Aug 90 15:22:43 GMT
Here again is the full text of House Resolution 4079. To answer some questions
I have seen since I posted it the first time: You can get copies of bills by
asking your Congressional representatives for them. You can locate your
representatives by looking in local phone books under "United States" or by
calling Washington, D.C., information at 1-202-555-1212. And, yes, this was
typed by hand, not scanned in.
-- edp (Eric Postpischil)
"Always mount a scratch monkey."
101st Congress
2d Session
H.R. 4079
To provide swift and certain punishment for criminals in order to deter
violent crime and rid America of illegal drug use.
------------------------------------------------
IN THE HOUSE OF REPRESENTATIVES
February 22, 1990
Mr. Gingrich (for himself, Mr. Armey, Mr. Hunter, Mr. Smith of New
Hampshire, Mr. Hansen, Mr. Hiler, Mr. Ireland, Mr. Kyl, Mr. Barton of
Texas, Mr. McEwen, Mr. Bliley, Mr. Condit, Mr. Weldon, Mr. Fields, Mr.
Stearns, Mr. Schuette, Mr. Douglas, Mr. Livingston, Mr. Oxley, Ms.
Ros-Lehtinen, Mr. Hancock, Mr. Schaefer, Mr. Bartlett, Mr. Shumway, Mr.
Inhofe, Mr. Nielson of Utah, Mr. Donald Lukens, Mr. Paxon, Mr. Herger,
Mr. Robinson, Mr. Lagomarsino, Mr. Sensenbrenner, Mr. James, Mr. Upton,
Mr. Bilirakis, Mr. Ritter, Mr. Dornan of California, Mr. Baker, Mr.
DeLay, Mr. Hyde, Mr. Grandy, Mr. Hefley, Mr. Coughlin, Mr. Craig, Mr.
Shaw, Mr. Dreier of California, Mr. Solomon, and Mr. McCollum)
introduce the following bill; which was referred jointly to the
Committees on the Judiciary, Energy and Commerce, Public Works and
Transportation, Education and Labor, and Armed Services
------------------------------------------------
A BILL
To provide swift and certain punishment for criminals in order to deter
violent crime and rid America of illegal drug use.
_Be it enacted by the Senate and the House of Representatives of the
United States of America in Congress assembled,_
SECTION 1. SHORT TITLE.
This Act may be cited as the "National Drug and Crime Emergency Act".
SEC. 2. TABLE OF CONTENTS.
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Findings and declaration of a national drug and crime
emergency.
Sec. 4. Definitions.
TITLE I--ELIMINATION OF CRIME WITHOUT PUNISHMENT
Subtitle A--National Drug and Crime Emergency Policies
Sec. 101. Judicial remedies for prison crowding.
Sec. 102. Temporary prison facilities and expanded capacity.
Sec. 103. Elimination of early release from prison.
Subtitle B--Imposition of Mandatory Minimum Sentences Without Release
Sec. 111. Increased mandatory minimum sentences without release for
criminals using firearms and other violent criminals.
Sec. 112. Life imprisonment without release for criminals convicted a
third time.
Sec. 113. Longer prison sentences for those who sell illegal drugs to
minors or for use of minors in drug trafficking activities.
Sec. 114. Longer prison sentences for drug trafficking.
Sec. 115. Mandatory penalties for illegal drug use in Federal prisons.
Sec. 116. Deportation of criminal aliens.
Sec. 117. Encouragement to States to adopt mandatory minimum prison
sentences.
Subtitle C--Mandatory Work Requirements for Prisoners, Withholding
Federal Benefits, and Drug Testing of Prisoners
Sec. 131. Mandatory work requirement for all prisoners.
Sec. 132. Repeal of constraints on prison industries.
Sec. 133. Employment of prisoners.
Sec. 134. Withholding prisoners' Federal benefits to offset
incarceration costs.
Sec. 135. Drug testing of Federal prisoners.
Sec. 136. Drug testing of State prisoners.
Subtitle D--Judicial Reform To Protect the Innocent and Punish the
Guilty
Sec. 151. Good faith standards for gathering evidence.
Sec. 152. Strom Thurmond habeas corpus reform initiative.
Sec. 153. Proscription of use of drug profits.
Sec. 154. Jurisdiction of special masters.
Sec. 155. Sentencing patterns of Federal judges.
TITLE II--ACHIEVING A DRUG-FREE AMERICA BY 1995
Sec. 201. Findings.
Sec. 202. Payment of trial costs and mandatory minimum fines.
Sec. 203. Withholding of unearned Federal benefits from drug
traffickers and users who are not in prison.
Sec. 204. Revocation of drug users' driver's licenses.
Sec. 205. Accountability and performance of drug treatment facilities.
Sec. 206. Drug-free schools.
Sec. 207. Drug-free transportation.
Sec. 208. Financial incentives and citizen involvement in the war
against drugs.
TITLE III--MISCELLANEOUS
Sec. 301. Authorization of appropriations.
Sec. 302. Severability.
SEC. 3. FINDINGS AND DECLARATION OF NATIONAL DRUG AND CRIME EMERGENCY.
(a) FINDINGS.--The Congress makes the following findings:
(1) Next to preserving the national security, protecting the
personal security of individual Americans, especially
children, by enacting and enforcing laws against criminal
behavior is the most important single function of government.
(2) The criminal justice system in America is failing to
achieve this basic objective of protecting the innocent and
punishing the guilty.
(3) Reform is needed to ensure that criminals are held
accountable for their actions, that they receive swift and
certain punishment commensurate with their crimes, and that
the protection of innocent citizens takes priority over other
objectives.
(4) The principle of individual accountability should also
dictate policies with respect to drug users. Users should
face a high probability of apprehension and prosecution, and
those found guilty should face absolutely certain measured
response penalties.
(5) According to the Uniform Crime Reports issued in 1989 by
the Federal Bureau of Investigation (FBI), violent crime
known to law enforcement reached an unprecedented high in
1988. A violent crime occurred ever 20 seconds.
(6) The Department of Justice estimates that 83 percent of
Americans will be victimized by violent crime during their
lifetime.
(7) The Federal Bureau of Investigation reports that violent
crime in America rose by 23 percent during the period
1984-1988.
(8) The National Drug Control Strategy reports that in
certain large cities more than 80 percent of the men arrested
have tested positive for illegal drug use.
(9) According to the Department of Justice, the total number
of Federal and State prisoners grew by 90 percent from 1980
to 1988. The growth rate of the total prison population
during the first 6 months of 1989 exceeded the largest annual
increase ever recorded in 64 years of recordkeeping. The
6-month growth rate translates to a need of almost 1,800
additional prison beds per week.
(10) In 1985, 19 States reported the early release of nearly
19,000 prisoners in an effort to control prison populations,
according to the Bureau of Justice Statistics.
(11) According to the United States Bureau of Justice
Statistics, 63 percent of State inmates were rearrested for a
serious crime within 3 years of their discharge from prison.
(12) The criminal justice system is overloaded and does not
deliver swift and certain penalties for violating the law.
In America today, there exists crime without punishment.
Such conditions imperil the public safety, jeopardize the
rule of law and undermine the preservation of order in the
community.
(b) DECLARATION OF NATIONAL DRUG AND CRIME EMERGENCY.--(1) Guided by
the principles that energized and sustained the mobilization
for World War II, and in order to remove violent criminals
from the streets and meet the extraordinary threat that is
posed to the Nation by the use and trafficking of illegal
drugs, the Congress declares the existence of a National Drug
and Crime Emergency beginning on the date of enactment of
this Act and ending on the date that is 5 years after the
date of enactment of this Act.
(2) During the National Drug and Crime Emergency declared in
paragraph (1), it shall be the policy of the United States
that--
(A) every person who is convicted in a Federal
court of a crime of violence against a person or a
drug trafficking felony (other than simple
possession) shall be sentenced to and shall serve a
full term of no less than 5 years' imprisonment
without release;
(B) prisoners may be housed in tents, and other
temporary facilities may be utilized, consistent
with security requirements; and
(C) the Federal courts may limit or place a "cap"
on the inmate population level of a Federal or
State prison or jail only when an inmate proves
that crowding has resulted in cruel and unusual
punishment of the plaintiff inmate and no other
remedy exists.
SEC. 4. DEFINITIONS.
For the purposes of this Act--
(1) the term "crime of violence against a person" means a
Federal offense that is a felony and--
(A) has as an element the use, attempted use, or
threatened use of physical force against the person
or property of another; or
(B) that by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of committing
the offense; and
(C) for which a maximum term of imprisonment of 10
years or more is prescribed by law; and
(2) the term "drug trafficking crime," (other than simple
possession) means any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et seq.) or
the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et
seq.), other than a felony constituting a simple possession
of a controlled substance for which the maximum term of
imprisonment of 10 years or more is prescribed by law.
TITLE I--ELIMINATION OF CRIME WITHOUT PUNISHMENT
Subtitle A--National Drug and Crime Emergency Policies
SEC. 101. JUDICIAL REMEDIES FOR PRISON CROWDING.
(a) PURPOSE.--The purpose of this section is to provide for reasonable
and proper enforcement of the eighth amendment.
(b) FINDINGS.--The Congress finds that--
(1) the Federal courts are unreasonably endangering the
community by sweeping prison and jail cap orders as a remedy
for detention conditions that they hold are in conflict with
the eighth amendment; and
(2) eighth amendment holdings frequently are unjustified
because of the absence of a plaintiff inmate who has proven
that detention conditions inflict cruel and unusual
punishment of that inmate.
(c) AMENDMENT OF TITLE 18, UNITED STATES CODE.--(1) Subchapter C of
chapter 229 of part 2 of title 18, United States Code, is
amended by adding at the end thereof the following new
section:
"Section 3626. Appropriate remedies with respect
to prison crowding.
"(a)(1) During the period of the National Drug and
Crime Emergency, a Federal court shall not hold
prison or jail crowding unconstitutional under the
eighth amendment except to the extent that an
individual plaintiff proves that the crowding
causes the infliction of cruel and unusual
punishment of that inmate.
"(2) The relief in a case described in paragraph
(1) shall extend no further than necessary to
remove the conditions that are causing the cruel
and unusual punishment of the plaintiff inmate.
"(b)(1) A Federal court shall not place an inmate
ceiling on any Federal, State, or local detention
facility as an equitable remedial measure for
conditions that violate the eighth amendment unless
crowding itself is inflicting cruel and unusual
punishment on individual prisoners.
"(2) Federal judicial power to issue equitable
relief other than that described in paragraph (1),
including the requirement of improved medical or
health care and the imposition of civil contempt
fines or damages, where appropriate, shall not be
affected by paragraph (1).
"(c) Each Federal court order seeking to remedy an
eighth amendment violation shall be reopened at the
behest of a defendant for recommended alteration at
a minimum of two-year intervals.".
(2) Section 3626 of title 18, United States Code, as added by
paragraph (1), shall apply to all outstanding court orders on
the date of enactment of this section. Any State or
municipality shall be entitled to seek modification of any
outstanding eighth amendment decree pursuant to that section.
(3) The table of sections for subchapter C of chapter 229 of
title 18, United States Code, is amended by adding at the end
thereof the following new item:
"3626. Appropriate remedies with respect to prison
overcrowding.".
SEC. 102. TEMPORARY PRISON FACILITIES AND EXPANDED CAPACITY.
(a) IN GENERAL.--In order to remove violent criminals from the streets
and protect the public safety, the Attorney General shall take such
action as may be necessary, subject to appropriate security
considerations, to ensure that sufficient facilities exist to house
individuals whom the courts have ordered incarcerated. During the
period of the National Drug and Crime Emergency, these facilities may
include tent housing or other shelters placed on available military
bases and at other suitable locations. The President may direct the
National Guard and the Army Corps of Engineers to design and construct
such temporary detention facilities.
(b) USE OF MILITARY INSTALLATIONS.--(1)In order to provide facilities
for incarceration authorized by subsection (a), the Secretary
of Defense, the Commission on Alternative Utilization of
Military Facilities, and the Director of the Bureau of
Prisons shall--
(A) identify military installations that could be
used as confinement facilities for Federal or State
prisoners; and
(B) examine the feasibility of using temporary
facilities for housing prisoners with a specific
examination of the successful use of tent housing
during the mobilization for World War II.
(2) Not later than 90 days after the date of enactment of
this Act, the Director of the Bureau of Prisoners shall
submit to the Congress a description and summary of the
results of the examination conducted pursuant to paragraph
(1).
(c) PRIORITY FOR DISPOSAL OF CLOSED MILITARY INSTALLATIONS.--Section
204(b)(3) of the Defense Authorization Amendments and Base Closure and
Realignment Act (10 U.S.C. 2687 note) is amended to read as follows:
"(3)(A) Notwithstanding any provision of this title and any
other law, before any action is taken with respect to the
disposal or transfer of any real property or facility located
at a military installation to be closed or realigned under
this title the Secretary shall--
"(i) notify the Attorney General and the Governor
of each of the territories and possessions of the
United States of the availability of such real
property or facility, or portion thereof; and
"(ii) transfer such real property of facility or
portion thereof, as provided in subparagraph (B).
"(B) Subject to subparagraph (C), the Secretary shall
transfer real property or a facility, or portion thereof,
referred to in subparagraph (A) in accordance with the
following priorities:
"(i) If the Attorney General certifies to the
Secretary that the property or facility, or portion
thereof, will be used as a prison or other
correctional institution, to the Department of
Justice for such use.
"(ii) If the Governor of a State, the Mayor of the
District of Columbia, or the Governor of a
territory or possession of the United States
certifies to the Secretary that the property or
facility, or portion thereof, will be used as a
prison or other correctional institution, to that
State, the District of Columbia, or that territory
or possession for such use.
"(iii) To any other transferee pursuant to the
Federal Property and Administrative Services Act of
1949 (40 U.S.C. 471 et seq.).
"(C) Within each priority specified in clauses (i) and (ii)
of subparagraph (B), the Secretary shall give a priority for
the transfer of any real property or facility referred to in
that subparagraph, or any portion thereof, to any department,
agency, or other instrumentality referred to in such clauses
that agrees to pay the Department of Defense the fair market
value of the real property, facility, or portion thereof.
"(D) In this paragraph, the term 'fair market value' means,
with respect to any real property or facility, or any portion
thereof, the fair market value determined on the basis of the
use of the real property or facility on December 31, 1988.".
(d) REVIEW OF CURRENT STANDARDS OF PRISON CONSTRUCTION.--(1) The
Director of the Bureau of Prisons (referred to as the
"Director") shall--
(A) review current construction standards and
methods used in building Federal prisons; and
(B) examine and recommend any cost cutting measures
that could be employed in prison construction
(consistent with security requirements), especially
expenditures for air conditioning, recreational
activities, color television, social services, and
similar amenities.
(2) Not later than 90 days after the date of enactment of
this Act, the Director shall submit to Congress a description
and summary of the results of the review conducted pursuant
to paragraph (1).
(e)(1) Chapter 301 of title 18, United States Code, is amended by
adding at the end thereof the following new section:
"Section 4014. Private construct and operation of
Federal prisons
"(a) IN GENERAL.--The Attorney General may contract
with private persons to--
"(1) construct, own, and operate Federal
prison facilities; or
"(2) construct or operate Federal prison
facilities owned by the United States,
including the provision of subsistence, care, and
proper employment of United States prisoners.
"(b) COOPERATION WITH STATES.--The Attorney General
shall consult and cooperate with State and local
governments in exercising the authority provided by
subsection (a).
"(c) FINANCING OPTIONS FOR PRISON CONSTRUCTION AND
OPERATION.--(1) To the greatest extent possible,
the Attorney General shall utilize
creative and cost-effective private
financing alternatives and private
construction and operation of prisons.
"(2) Operating cots of privately-operated
prisons shall be covered through rent
charged to participating units of
Government placing inmates in a prison.
"(3) The Attorney General may finance the
construction of facilities through lease
or lease-purchase agreements.
"(4) In order to gain full costs
advantages from economies of scale and
specialized knowledge from private
innovation, the Attorney General may
contract with consortia or teams of
private firms to design, construct, and
manage, as well as finance, prison
facilities.".
(2) The table of sections for chapter 301 of title 18, United
States Code, is amended by adding at the end thereof the
following new item:
"4014. Private construct and operation of Federal
prisons.".
(f) SURPLUS FEDERAL PROPERTY.--(1) For the purpose of expanding the
number of correctional facilities, the Administrator of the
General Services Administration, in consultation with the
Attorney General, shall, not later than 1 year after the date
of enactment of this Act, identify and make available a list
of not less than 20 parcels of surplus Federal property,
which the Attorney General has certified are not needed for
Federal correctional facilities but which may be suitable for
State or local correctional facilities.
(2) During the National Drug and Crime Emergency declared in
section 3(b)(1), notwithstanding any other law, any property
that is determined to be excess to the needs of a Federal
agency that may be suitable for use as a correctional
facility shall be made available for such use, in order of
priority, first, to the Attorney General, and second, to a
State, the District of Columbia, or a local government.
(g) STATE AND LOCAL GOVERNMENT USE OF FACILITIES.--State and local
governments shall be permitted to use Federal temporary incarceration
facilities, when they are not needed to accommodate Federal prisoners,
for the purpose of incarcerating prisoners at a per diem fee to be paid
to the Bureau of Prisons.
SEC. 103. ELIMINATION OF EARLY RELEASE FROM PRISON.
During the National Drug and Crime Emergency declared in section
3(b)(1), notwithstanding any other law, every person who is convicted
in a Federal court of committing a crime of violence against a person
or a drug trafficking crime (other than simple possession), shall be
sentenced to and shall serve a full term of no less than 5 years'
imprisonment, and no such person shall be released from custody for any
reason or for any period of time prior to completion of the sentence
imposed by the court unless the sentence imposed is greater than 5
years and is not a mandatory minimum sentence without release.
Subtitle B--Imposition of Mandatory Minimum Sentences Without Release
SEC. 111. INCREASED MANDATORY MINIMUM SENTENCES WITHOUT RELEASE FOR
CRIMINALS USING FIREARMS AND OTHER VIOLENT CRIMINALS.
(a) USE OF FIREARMS.--Section 924(c)(1) of title 18, United States
Code, is amended to read as follows:
"(c)(1) Whoever, during and in relation to any crime of
violence or drug trafficking crime (including a crime of
violence or drug trafficking crime which provides for an
enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States--
"(A) possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or
drug trafficking crime, be sentenced to
imprisonment for 10 years without release;
"(B) discharges a firearm with intent to injure
another person, shall, in addition to the
punishment provided for such crime of violence or
drug trafficking crime, be sentenced to
imprisonment for 20 years without release; or
"(C) possesses a firearm that is a machinegun, or
is equipped with a firearm silencer or firearm
muffler shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime, be sentenced to imprisonment for
30 years without release.
In the case of a second conviction under this subsection, a
person shall be sentenced to imprisonment for 20 years
without release for possession or 30 years without release
for discharge of a firearm, and if the firearm is a
machinegun, or is equipped with a firearm silence or firearm
muffler, to life imprisonment without release. In the case of
a third or subsequent conviction under this subsection, a
person shall be sentenced to life imprisonment without
release. If the death of a person results from the discharge
of a firearm, with intent to kill another person, by a person
during the commission of such a crime, the person who
discharged the firearm shall be sentenced to death or life
imprisonment without release. A person shall be subjected to
the penalty of death under this subsection only if a hearing
is held in accordance with section 408 of the Controlled
Substances Act (21 U.S.C. 848). Notwithstanding any other
law, a court shall not place on probation or suspend the
sentence of any person convicted of a violation of this
subsection, nor shall the term of imprisonment under this
subsection run concurrently with any other term of
imprisonment including that imposed for the crime of violence
or drug trafficking crime in which the firearm was used. No
person sentenced under this subsection shall be eligible for
parole, nor shall such person be released for any reason
whatsoever, during a term of imprisonment imposed under this
paragraph.".
SEC. 112. LIFE IMPRISONMENT WITHOUT RELEASE FOR CRIMINALS CONVICTED A
THIRD TIME.
Section 401(b) of the Controlled Substances Act is amended by striking
"If any person commits a violation of this subparagraph or of section
405, 405A, or 405B after two or more prior convictions for a felony
drug offense have become final, such person shall be sentenced to a
mandatory term of life imprisonment without release" and inserting "If
any person commits a violation of this subparagraph or of section 405,
405A, or 405B or a crime of violence as defined in section 924(c)(3) of
title 18, United States Code, after two or more prior convictions for a
felony drug offense or for a crime of violence as defined in section
924(c)(3) of that title or for any combination thereof have become
final, such person shall be sentenced to a mandatory term of life
imprisonment without release.".
SEC. 113. LONGER PRISON SENTENCES FOR THOSE WHO SELL ILLEGAL DRUGS TO
MINORS OR FOR USE OF MINORS IN DRUG TRAFFICKING ACTIVITIES.
(a) DISTRIBUTION TO PERSONS UNDER AGE 21.--Section 405 of the
Controlled Substances Act (21 U.S.C. 845) is amended--
(1) in subsection (a) by striking "Except to the extent a
greater minimum sentence is otherwise provided by section
401(b), a term of imprisonment under this subsection shall be
not less than one year." and inserting "Except to the extent
a greater minimum sentence is otherwise provided by section
401(b), a term of imprisonment under this subsection shall be
not less than 10 years without release. Notwithstanding any
other provision of law, the court shall not place on
probation or suspend the sentence of any person sentenced
under the preceding sentence and such person shall not be
released during the term of such sentence."; and
(2) in subsection (b) by striking "Except to the extent a
greater minimum sentence is otherwise provided by section
401(b), a term of imprisonment under this subsection shall be
not less than one year." and inserting "Except to the extent
a greater minimum sentence is otherwise provided by section
401(b), a term of imprisonment under this subsection shall be
not less than 20 years without release. Notwithstanding any
other provision of law, the court shall not place on
probation or suspend the sentence of any person sentenced
under the preceding sentence and such person shall not be
released during the term of such sentence.".
(b) EMPLOYMENT OF PERSONS UNDER 18 YEARS OF AGE.--Section 405B of the
Controlled Substances Act (21 U.S.C. 845b) is amended--
(1) in subsection (a) by striking "Except to the extent a
greater minimum sentence is otherwise provided, a term of
imprisonment under this subsection shall be not less than one
year." and inserting "Except to the extent a greater minimum
sentence is otherwise provided by section 401(b), a term of
imprisonment under this subsection shall be not less than 10
years without release. Notwithstanding any other provision
of law, the court shall not place on probation or suspend the
sentence of any person sentenced under the preceding sentence
and such person shall not be released during the term of such
sentence"; and
(2) in subsection (c) by striking "Except to the extent a
greater minimum sentence is otherwise provided, a term of
imprisonment under this subsection shall be not less than one
year." and inserting "Except to the extent a greater minimum
sentence is otherwise provided by section 401(b), a term of
imprisonment under this subsection shall be not less than 20
years without release. Notwithstanding any other provision
of law, the court shall not place on probation or suspend the
sentence of any person sentenced under the preceding sentence
and such person shall not be released during the term of such
sentence.".
SEC. 114. LONGER PRISON SENTENCES FOR DRUG TRAFFICKING.
(a) SCHEDULE I AND II SUBSTANCES.--Section 401(b)(1)(C) of the
Controlled Substances Act (21 U.S.C. 841(b)(1)(C)) is amended--
(1) in the first sentence by striking "of not more than 20
years" and inserting "which shall be not less than 5 years
without release nor more than 20 years"; and
(2) in the second sentence by striking "of not more than 30
years" and inserting "which shall be not less than 10 years
without release nor more than 30 years".
(b) MARIHUANA.--Section 401(b)(1)(D) of the Controlled Substances Act
(21 U.S.C. 841(b)(1)(D)) is amended--
(1) in the first sentence by striking "of not more than 5
years" and inserting "not less than 5 years without release";
(2) in the second sentence by striking "of not more than 10
years" and inserting "which shall be not less than 10 years
without release"; and
(3) by adding the following new sentence at the end thereof:
"Not withstanding any other provision of law, the court shall
not place on probation or suspend the sentence of any person
sentenced under this subparagraph, nor shall a person so
sentenced be eligible for parole during the term of such a
sentence.".
(c) SCHEDULE IV SUBSTANCES.--Section 401(b)(2) of the Controlled
Substances Act (21 U.S.C. 841(b)(2)) is amended--
(1) in the first sentence by striking "of not more than 3
years" and inserting "which shall be not less than 5 years
without release";
(2) in the second sentence by striking "of not more than 6
years" and inserting "which shall be not less than 10 years
without release"; and
(3) by adding the following new sentence at the end thereof:
"Notwithstanding any other provision of law, the court shall
not place on probation or suspend the sentence of any person
sentenced under this subparagraph, nor shall a person so
sentenced be eligible for parole during the term of such a
sentence.".
(d) SCHEDULE V SUBSTANCES.--Section 401(b)(3) of the Controlled
Substances Act (21 U.S.C. 841(b)(3)) is amended--
(1) in the first sentence by striking "of not more than one
year" and inserting "which shall be not less than 5 years
without release";
(2) in the second sentence by striking "of not more than 2
years" and inserting "which shall be not less than 10 years
without release"; and
(3) by adding the following new sentence at the end thereof:
"Notwithstanding any other provision of law, the court shall
not place on probation or suspend the sentence of any person
sentenced under this subparagraph, nor shall a person so
sentenced be eligible for parole during the term of such a
sentence.".
SEC. 115. MANDATORY PENALTIES FOR ILLEGAL DRUG USE IN FEDERAL PRISONS.
(a) DECLARATION OF POLICY.--It is the policy of the Federal Government
that the use or distribution of illegal drugs in the Nation's Federal
prisons will not be tolerated and that such crime shall be prosecuted
to the fullest extent of the law.
(b) AMENDMENT.--Section 401(b) of the Controlled Substances Act (21
U.S.C. 841(b)) is amended by adding the following new paragraph and the
end thereof:
"(7)(A) In a case involving possession of a controlled
substance within a Federal prison or other Federal detention
facility, such person shall be sentenced to a term of
imprisonment of 1 year without release in addition to any
other sentence imposed for the possession itself.
"(B) In a case involving the smuggling of a controlled
substance into a Federal prison or other Federal detention
facility or the distribution of a controlled substance within
a Federal prison or other Federal detention facility, such
person shall be sentenced to a term of imprisonment of 10
years without release in addition to any other sentence
imposed for the possession or distribution itself.
"(C) Notwithstanding any other law, the court shall not place
on probation or suspend the sentence of a person sentenced
under this paragraph. No person sentenced under this
paragraph shall be eligible for parole during the term of
imprisonment imposed under this paragraph.".
SEC. 116. DEPORTATION OF CRIMINAL ALIENS.
(a) DEPORTATION OF ALIENS CONVICTED OF CRIMES OF VIOLENCE.--Section
241(a)(14) of the Immigration and Nationality Act (8 U.S.C.
1251(a)(14)) is amended by inserting after "convicted" the following:
"of a drug trafficking crime or a crime of violence (as those terms are
defined in paragraphs (2) and (3) of section 924(c) of title 18, United
States Code), or".
(b) REENTRY OF DEPORTED ALIENS.--Section 276(b)(2) of the Immigration
and Nationality Act (8 U.S.C. 1326(b)(2)) is amended to read as
follows:
"(2) whose deportation was subsequent to a conviction for a
drug trafficking crime or a crime of violence (as those terms
are defined in sections 924(c) (2) and (3) of title 18,
United States Code), such alien shall be fined under such
title and imprisoned for 20 years without release, and in the
case of a second violation of subsection (a) shall be
imprisoned for life without release. Notwithstanding any
other law, the court shall not place on probation or suspend
the sentence of any person sentenced under this paragraph and
such person shall not be released during the term of such
sentence.".
SEC. 117 ENCOURAGEMENT TO STATES TO ADOPT MANDATORY MINIMUM PRISON
SENTENCES.
(a) PRIORITY.--Beginning on the date that is 2 calendar years after the
date of enactment of this Act, a request for Federal drug law
enforcement assistance funds from the Bureau of Justice Assistance
Grant Programs by a State whose law provides for--
(1) mandatory minimum sentences equal to or greater than the
sentences authorized in sections 111, 112, 113, 114, and 115
for the commission of crimes against the State that are
equivalent to the Federal crimes punished in those sections;
(2) elimination of early release from prison of persons
convicted in a State court of committing a crime of violence
against a person or drug trafficking crime (other than simple
possession), equivalent to the requirements of section 103;
and
(3) payment of trial costs and mandatory fines equivalent to
that imposed by section 202,
shall receive priority over a request by a State whose law does not so
provide.
(b) REDISTRIBUTION.--Beginning on the data that is 2 calendar years
after the date of enactment of this Act, the formula for determining
the amount of funds to be distributed from the Drug Control and System
Improvement Grant Program to state and local governments shall be
adjusted by--
(1) reducing by 10 percent the amount of funds that would,
except for the application of this paragraph, be allocated to
States whose laws do not provide as stated in subsection (a);
and
(2) allocating the amount of the reduction pro rata to the
other States.
Subtitle C--Mandatory Work Requirements for Prisoners, Withholding
Federal Benefits, and Drug Testing of Prisoners
SEC. 131 MANDATORY WORK REQUIREMENT FOR ALL PRISONERS.
(A) IN GENERAL.--(1) It is the policy of the Federal Government that
convicted prisoners confined in Federal prisons, jails, and
other detention facilities shall work. The type of work in
which they will be involved shall be dictated by appropriate
security considerations and by the health of the prisoner
involved. Such labor may include, but not be limited to--
(A) local public works projects and infrastructure
repair;
(B) construction of new prisons and other detention
facilities;
(C) prison industries; and
(D) other appropriate labor.
(2) It is the policy of the Federal Government that States
and local governments have the same authority to require all
convicted prisoners to work.
(b) PRISONERS SHALL WORK.--Medical certification of 100 percent
disability, security considerations, or disciplinary action shall be
the only excuse to remove a Federal prisoner from labor participation.
(c) USE OF FUNDS.--(1) Subject to paragraph (2), any funds generated by
labor conducted pursuant to this section shall be deposited
in a separate fund in the Treasury of the United States for
use by the Attorney General for payment of prison
construction and operating expenses or for payment of
compensation judgements. Notwithstanding any other law, such
funds shall be available without appropriation.
(2) Prisoners shall be paid a share of funds generated by
their labor conducted pursuant to this section.
SEC. 132. REPEAL OF CONSTRAINTS ON PRISON INDUSTRIES.
(a) SUMNERS-ASHURST ACT.--(1) Chapter 85 of part 1 of title 18, United
States Code, is repealed.
(2) The table of chapters for part 1 of title 18, United
States Code, is amended by striking the item for chapter 85
and inserting the following:
"[85. Repealed.]".
(3) The repeal made by this subsection shall not affect the
performance to completion of the pilot projects authorized by
section 1761(c) of title 18, United States Code, prior to
enactment of this act.
(b) FEDERAL PRISON INDUSTRIES.--(1) Section 4122(a) of title 18, United
States Code, is amended to read as follows:
"(a) Federal Prison Industries shall determine in
what manner and to what extent industrial
operations shall be carried on in Federal penal and
correctional institutions for the product of
commodities for consumption in such institutions
or for sale to governmental departments and
agencies and to the public.".
(2) The first paragraph of section 4124 of title 18, United
States Code, is amended to read as follows:
"The several Federal departments and agencies and
all other Government institutions of the United
States may purchase such products of the industries
authorized by this chapter as meet their
requirements and may be available.".
(3) The second sentence of section 4126(f) of title 18,
United States Code, is amended to read as follows: "To the
extent that the amount of such funds is excess to the needs
of the corporation for such purposes, such funds may be
transferred to the Attorney General for the construction or
acquisition of penal and correctional institutions, including
camps described in section 4125.".
(c) WALSH-HEALY ACT.--Subsection (d) of the first section of the Act
entitled "An Act to provide conditions for the purchase of supplies and
the making of contracts by the United States, and for other purposes",
approved June 30, 1936, (41 U.S.C. 35(d)), is amended--
(1) by striking "and no convict labor"; and
(2) by striking ", except that this section, or any law or
Executive order contrasting similar prohibitions against
purchase of goods by the Federal Government, shall not apply
to convict labor which satisfies the conditions of section
1761(c) of title 18, United States Code".
(d) LEGISLATIVE RECOMMENDATIONS.--The Attorney General shall submit to
Congress a report making recommendations for legislation to--
(1) ensure that private businesses and labor do not suffer
unfair consequences from the repeal in subsection (a); and
(2) encourage greater private sector participation in prison
industries and create incentives for cooperative arrangements
between private businesses and prisons providing for such
participation.
SEC. 133. EMPLOYMENT OF PRISONERS.
(a) IN GENERAL.--The Attorney General may enter into contracts with
private businesses for the use of inmate skills that may be of
commercial use to such businesses.
(b) USE OF FEES AND PAYMENTS.--A portion of the fees and payments
collected for the use of inmate skills under contracts entered into
pursuant to subsection (a) shall be deposited in the fund described in
section 131(c)(1), and a portion shall be paid to the prisoners who
conduct the labor.
(c) SECURITY REQUIREMENT.--In the case of contracts described in
subsection (a) in which the provision of inmate skills would require
prisoners to leave the prison--
(1) prisoners shall be permitted to travel directly to a work
site and to remain at the work site during the work day and
shall be required to return directly to prison at the end of
each work day; and
(2) only prisoners with no history of violent criminal
activity and who are able to meet strict security standards
to insure that they pose no threat to the public, shall be
eligible to participate.
SEC. 134. WITHHOLDING PRISONERS' FEDERAL BENEFITS TO OFFSET
INCARCERATION COSTS.
(a) IN GENERAL.--The Federal benefits received by any prisoner (not
including those of a prisoner's spouse or dependents) who has been
convicted of a crime of violence against a person or drug trafficking
crime (other than simple possession) under Federal or State law and who
is incarcerated in a Federal or State prison shall, during the period
of the prisoner's incarceration, be withheld to offset the costs of--
(1) any victim compensation award against such prisoner; and
(2) any incarceration costs of the prisoner incurred by the
prison system.
(b) PAYMENT.--(1) In the case of a Federal Prisoner, Federal benefits
withheld for the purpose of subsection (a)(2) shall be paid
into the fund established by section 131(c).
(2) In the case of a State prisoner, Federal benefits
withheld for the purpose of subsection (a)(2) shall be paid
to the State.
(c) EXCEPTION.--The withholding of Federal benefits of a prisoner with
a spouse or other dependents under subsection (a) shall be adjusted by
the court to provide adequate support to and to prevent the
impoverishment of dependents.
(d) DEFINITIONS.--As used in this section the term "Federal benefit"
means the issuance of any payment of money, by way of grant, loan, or
statutory entitlement, provided by an agency of the United States or by
appropriated funds or trust funds of the United States but does not
include a right to payment under a contract.
SEC. 135. DRUG TESTING OF FEDERAL PRISONERS.
(a) DRUG TESTING PROGRAM.--(1) Subchapter A of chapter 229 of title 18,
United States Code, is amended by adding at the end thereof
the following new section:
"Section 3608. Drug testing of defendants on
post-conviction release
"(a) The Attorney General, in consultation with the
Director of the Administrative Office of the United
States Courts shall, as soon as is practicable
after the effective date of this section, establish
by regulation a program of drug testing of targeted
classes of arrestees, individuals in jails,
prisons, and other correctional facilities, and
persons on conditional or supervised release before
or after conviction, including probationers,
parolees, and persons released on bail.
"(b)(1) The Attorney General shall, not later than
6 months after the date of enactment of
this section, promulgate regulations for
drug testing programs under this section.
"(2) The regulations issued pursuant to
paragraph (1) shall be based in part on
scientific and technical standards
determined by the Secretary of Health
and Human Services to ensure reliability and
accuracy of drug test results. In
addition to specifying acceptable methods
and procedures for carrying out drug
testing, the regulations may include
guidelines or specifications concerning--
"(A) the classes of persons to
be targeted for testing;
"(B) the drugs to be tested
for;
"(C) the frequency and duration
of testing; and
"(D) the effect of test results
in decisions concerning the
sentence, the conditions to be
imposed on release before or
after conviction, and the
granting, continuation, or
termination of such release.
"(c) In each district where it is feasible to do
so, the chief probation officer shall arrange for
the drug testing of defendants on a post-conviction
release pursuant to a conviction for a felony or
other offense described in section 3563(a)(4) of
this title.".
SEC. 136. DRUG TESTING OF STATE PRISONERS.
(a) IN GENERAL.--Title I of the Omnibus Crime Control and Safe Streets
Act of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the end of
part E (42 U.S.C. 3750-3766b) the following:
"DRUG TESTING PROGRAMS
"SEC. 523. (a) PROGRAM REQUIRED.--No funding shall be
provided under this part, whether by direct grant,
cooperative agreement, or assistance in any form, to any
State or any political subdivision or instrumentality of a
State that has not formulated and implemented a drug testing
program, subject to periodic review by the Attorney General,
as specified in the regulations described in subsection (b),
for targeted classes of arrestees, individuals in jails,
prisons, and other correctional facilities, and persons on
conditional or supervised release before or after conviction,
including probationers, parolees, and persons released on
bail.
"(b) REGULATIONS.--(1) The Attorney General shall, not later
than 6 months after the enactment of this section,
promulgate regulations for drug testing programs
under this section.
"(2) The regulations issued pursuant to paragraph
(1) shall incorporate the standards applicable to
drug testing of Federal prisoners under section
3608 of title 18, United States Code.
"(c) EFFECTIVE DATE.--This section shall take effect with
respect to any State, subdivisions, or instrumentality
receiving or seeking funding under this subchapter at a time
specified by the Attorney General, but no earlier than the
date of promulgation of the regulations required by
subsection (b).".
(b) AMENDMENT TO TABLE OF CONTENTS.--The table of contents of title I
of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3711 et seq.) is amended by inserting at the end of the item relating
to part E the following:
"Sec. 523. Drug testing program.".
Subtitle D--Judicial Reform to Protect the Innocent and Punish the
Guilty
SEC. 151. GOOD FAITH STANDARDS FOR GATHERING EVIDENCE.
(a) IN GENERAL.--Chapter 223 of title 18, United States Code, is
amended by adding at the end thereof the following new section:
"Section 3509. Admissibility of evidence obtained by search
or seizure
"(a) EVIDENCE OBTAINED BY OBJECTIVELY REASONABLE SEARCH OR
SEIZURE.--Evidence which is obtained as a result of a search
or seizure shall not be excluded in a proceeding in a court of
the United States on the ground that the search or seizure
was in violation of the fourth amendment to the Constitution
of the United States, if the search or seizure was carried
out in circumstances justifying an objectively reasonable
belief that it was in conformity with the fourth amendment.
The fact that evidence was obtained pursuant to and within
the scope of a warrant constitutes prima facie evidence of
the existence of such circumstances.
"(b) EVIDENCE NOT EXCLUDABLE BY STATUTE OR RULE.--Evidence
shall not be excluded in a proceeding in a court of the
United States on the ground that it was obtained in violation
of a statute, an administrative rule or regulation, or a rule
of procedure unless exclusion is expressly authorized by a
statute or by a rule prescribed by the Supreme Court pursuant
to statutory authority.
"(c) RULE OF CONSTRUCTION.--This section shall not be
constructed to require or authorize the exclusion of evidence
in any proceeding.".
(b) TECHNICAL AMENDMENT.--The table of sections at the beginning of
chapter 223 of title 18, United States Code, is amended by adding at
the end the following:
"3509. Admissibility of evidence obtained by search or
seizure.".
SEC. 152. STROM THURMOND HABEAS CORPUS REFORM INITIATIVE.
(a) FINALITY OF DETERMINATIONS.--Section 2244 of title 28, United
States Code, is amended by adding at the end thereof the following new
subsections:
"(d) When a person in custody pursuant to the judgment of a
State court fails to raise a claim in State proceedings at
the time or in the manner required by State rules of
procedure, the claim shall not be entertained in an
application for a writ of habeas corpus unless actual
prejudice resulted to the applicant from the alleged denial
of Federal right asserted and--
"(1) the failure to raise the claim properly or to
have it heard in State proceedings was the result
of State action in violation of the Constitution or
laws of the United States;
"(2) the Federal right asserted was newly
recognized by the Supreme Court subsequent to the
procedural default and is retroactively applicable;
or
"(3) the factual predicate of the claim could not
have been discovered through the exercise of
reasonable diligence prior to the procedural
default.
"(e) A one-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of the following
times:
"(1) the time at which State remedies are
exhausted;
"(2) the time at which the impediment to filing an
application created by State action in violation to
the Constitution or laws of the United States is
removed, where the applicant was prevented from
filing by such State action;
"(3) the time at which the Federal right asserted
was initially recognized by the Supreme Court,
where the right has been newly recognized by the
Court and is retroactively applicable; or
"(4) the time at which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of reasonable
diligence.".
(b) APPEAL.--Section 2253 of title 28, United States Code, is amended
to read as follows:
"Section 2253. Appeal
"In a habeas corpus proceeding or a proceeding under section
2255 of this title before a circuit or district judge, the
final order shall be subject to review, on appeal, by the
court of appeals for the circuit where the proceeding is had.
"There shall be no right of appeal from such an order in a
proceeding to test the validity of a warrant to remove, to
another district or place for commitment or trial, a person
charged with a criminal offense against the United States, or
to test the validity of the person's detention pending
removal proceedings.
"An appeal may not be taken to the court of appeals from the
final order in a habeas corpus proceeding where the detention
complained of arises out of process issued by a State court,
or from the final order in a proceeding under section 2255 of
this title, unless a circuit justice or judge issues a
certificate of probable cause.".
(c) APPELLATE PROCEDURE.--Rule 22 of the Federal Rules of Appellate
Procedure is amended to read as follows:
"Rule 22. Habeas Corpus and Section 2255 Proceedings
"(a) APPLICATION FOR AN ORIGINAL WRIT OF HABEAS CORPUS.--An
application for a writ of habeas corpus shall be made to the
appropriate district court. If application is made to a
circuit judge, the application will ordinarily be transferred
to the appropriate district court. If an application is made
to or transferred to the district court and denied, renewal
of the application before a circuit judge is not favored; the
proper remedy is by appeal to the court of appeals from the
order of the district court denying the writ.
"(b) NECESSITY OF CERTIFICATE OF PROBABLE CAUSE FOR
APPEAL.--In a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court,
and in a motion proceeding pursuant to section 2255 of title
28, United States Code, an appeal by the applicant or movant
may not proceed unless a circuit judge issues a certificate
of probable cause. If a request for a certificate of
probable cause is addressed to the court of appeals, it shall
be deemed addressed to the judges thereof and shall be
considered by a circuit judge or judges as the court deems
appropriate. If no express request for a certificate is
filed, the notice of appeal shall be deemed to constitute a
request addressed to the judgements of the court of appeals.
If an appeal is taken by a State or the government or its
representative, a certificate of probable cause is not
required.".
(d) STATE CUSTODY.--Section 2254 of title 28, United States Code, is
amended--
(1) by amending subsection (b) to read as follows:
"(b) An application for a writ of habeas corpus in
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
unless it appears that the applicant has exhausted
the remedies available in the courts of the State,
or that there is either an absence of available
State corrective process or the existence of
circumstances rendering such process ineffective to
protect the rights of the applicant. An
application may be denied on the merits
notwithstanding the failure of the applicant to
exhausted the remedies available in the courts of
the States.";
(2) by redesignating subsection (d), (e), and (f) as
subsections (e), (f), and (g), respectively;
(3) by inserting after subsection (c) the following new
subsection:
"(d) An application for a writ of habeas corpus in
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that has been fully and
fairly adjudicated in State proceedings."; and
(4) by amending subsection (e), as redesignated by paragraph
(2), to read as follows:
"(e) In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a full
and fair determination of a factual issue made in
the case by a State court shall be presumed to be
correct. The applicant shall have the burden of
rebutting this presumption by clear and convincing
evidence.".
(e) FEDERAL CUSTODY.--Section 2255 of title 28, United States Code, is
amended by striking the second paragraph and the penultimate paragraph
thereof, and by adding at the end thereof the following new paragraphs:
"When a person fails to raise a claim at the time or in the
manner required by Federal rules of procedure, the claim
shall not be entertained in a motion under this section
unless actual prejudice resulted to the movant from the
alleged denial of the right asserted and--
"(1) the failure to raise the claim properly, or to
have it heard, was the result of governmental
action in violation of the Constitution or the laws
of the United States;
"(2) the right asserted was newly recognized by the
Supreme Court subsequent to the procedural default
and is retroactively applicable; or
"(3) the factual predicate of the claim could not
have been discovered through the exercise of
reasonable diligence prior to the procedural
default.
"A two-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
latest of the following times;
"(1) The time at which the judgment of conviction
becomes final.
"(2) The time at which the impediment to making a
motion created by governmental action in violation
of the Constitution or laws of the United States is
removed, where the movant was prevented from making
a motion by such governmental action.
"(3) The time at which the right asserted was
initially recognized by the Supreme Court, where
the right has been newly recognized by the Court
and is retroactively applicable.
"(4) The time at which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of reasonable
diligence.".
SEC. 153. PROSCRIPTION OF USE OF DRUG PROFITS.
(a) LIST OF ASSETS.--Section 511(d) of the Controlled Substances Act
(21 U.S.C. 881(d)) is amended by--
(1) inserting "(1)" after (d)"; and
(2) adding at the end thereof the following new paragraph:
"(2)(A) Prior to sentencing a defendant on
conviction in a Federal court of a felony under
this title, the court shall compile a list of all
assets owned by the defendant not subject to
forfeiture.
"(B) After the release of a defendant described in
subparagraph (A), upon request of the Attorney
General, the court shall required the defendant to
provide proof that any asset owned by the defendant
not listed on the list described in subparagraph
(A) was legally obtained.".
"(C) In order to prove that a defendant legally
obtained an asset not listed on the list described
in subparagraph (A), the defendant shall be
required to produce documentation of the same
nature as that required of a taxpayer by the
Internal Revenue Service.
"(D) Assets that a defendant does not prove were
legally obtained under subparagraph (B) may be
seized by the Attorney General through attachment
and foreclosure proceedings, and the proceeds of
such proceedings shall be deposited in the
Department of Justice's Assets Forfeiture Fund and
shall be available for transfer to the building and
facilities account of the Federal prison system.".
SEC. 154. JURISDICTION OF SPECIAL MASTERS.
Notwithstanding any other law, a special master appointed to serve in a
United States court to monitor compliance with a court order, including
special masters who have been appointed prior to the date of enactment
of this Act--
(1) shall be appointed for a term of no more than 1 year;
(2) may be reappointed for terms of 1 year;
(3) shall be given a clear and narrow mandate by the court
and shall have no authority in any area where a specific
mandate is not granted; and
(4) shall not have jurisdiction to enforce any judicial order
with respect to the management of prisons or jails.
SEC. 155. SENTENCING PATTERNS OF FEDERAL JUDGES.
(a) IN GENERAL.--Chapter 49 of title 28, United States Code, is amended
by adding at the end thereof the following new section:
"Section 757 Sentencing patterns
"(a) The Administrative Office of the United States Courts
shall annually publish a cumulative report on sentencing by
United States District Judges. The report shall be compiled
for the purpose of enabling the reader to assess criminal
sentencing patterns among Federal judges and post-sentencing
treatment to determine judicial accuracy of forecasting
future responsible and lawful behavior by those whom they
sentence.
"(b) The report shall--
"(1) personally identify the judge that pronounced
each criminal sentence;
"(2) give a brief description of the crime or
crimes perpetrated by the criminal and the prison,
probation, parole, furlough, recidivism, and other
history of the criminal that is reasonably
available for compilation; and
"(3) include such charts, profiles, and narratives
as are necessary.".
(b) TECHNICAL AMENDMENT.--The table of sections for chapter 49 of title
28, United States Code, is amended by adding at the end thereof the
following:
"757. Sentencing patterns.".
TITLE II--ACHIEVING A DRUG-FREE AMERICA BY 1995
SEC. 201. FINDINGS.
The Congress finds that--
(1) to make America drug-free by 1995 requires a concerted
effort to hold drug users accountable for their actions,
which sustain the drug trade and related criminal activities;
and
(2) the anti-drug policy of the 1990's must emphasize the
principles of zero tolerance, user accountability, and
measured user penalties.
SEC. 202 PAYMENT OF TRIAL COSTS AND MANDATORY MINIMUM FINES.
(a) FINE TO PAY COST OF TRIAL.--(1) A person who is convicted of a
violation of section 404 of the Controlled Substances Act (21
U.S.C. 844) shall pay to the Treasury of the United States
the cost of the trial in which the person is convicted, as
determined by the court, out of the income of such person.
(2) If a person convicted of drug possession has insufficient
income and property to pay the cost of trial as required by
paragraph (1), the court shall determine an appropriate
amount that should be paid in view of the person's income and
the cost of trial.
(3) The amount that a person shall be required to pay out of
the person's income to pay the cost of trial shall not exceed
25 percent of the person's annual income.
(b) ADDITIONAL MANDATORY FINE.--In addition to the fines authorized in
section 404 of the Controlled Substances Act (21 U.S.C. 844) and in
subsection (a), a person who is convicted of section 404 of the
Controlled Substances Act shall be assessed a mandatory fine of at
least 10 percent of the person's income for a first offense and at
least 25 percent of the person's income for a second or subsequent
offense.
(c) INCOME.--For the purposes of this section, a person's annual income
shall be determined to be no less than the amount of income reported on
the person's most recent Federal income tax filing.
(d) FORFEITURE OF PROPERTY.--If a person convicted of a drug crime has
insufficient income to pay the fines imposed under subsections (a) and
(b), the person's property, including wages and other earnings, shall
be subject to forfeiture through attachment, foreclosure, and
garnishment procedures.
(e) The court may order payment of trial costs and fines imposed under
this section in a single payment or in installments, as necessary to
realize the greatest possibility that the entire amount of costs and
fines will be paid.
SEC. 203. WITHHOLDING OF UNEARNED FEDERAL BENEFITS FROM DRUG
TRAFFICKERS AND USERS WHO ARE NOT IN PRISON.
(a) DRUG TRAFFICKERS.--Section 5301(a) of the Anti-Drug Abuse Act of
1988 (21 U.S.C 853a(a)) is amended--
(1) by amending paragraph (1) to read as follows:
"(1) Any individual who is convicted of any State
offense consisting of the distribution of
controlled substances (as such terms are defined
for purposes of the Controlled Substances Act) who
is not sentenced to a prison term or who serves a
prison term of less than the time periods specified
in subparagraph (A), (B), or (C) of this paragraph
shall--
"(A) upon the first conviction for such
an offense be ineligible for unearned
Federal benefits for 5 years after such
conviction;
"(B) upon a second conviction be
ineligible for all unearned Federal
benefits for 10 years after such
conviction; and
"(C) upon a third or subsequent
conviction for such an offense be
permanently ineligible for all unearned
Federal benefits."; and
(2) in paragraph (2) by striking "there is a reasonable body
of evidence to substantiate such declaration" and inserting
"there is clear and convincing evidence to substantiate such
declaration".
(b) DRUG USERS.--Section 5301(b) of the Anti-Drug Abuse Act of 1988 (21
U.S.C. 853a(b)) is amended--
(1) in paragraph (1) by amending subparagraphs (A) and (B) to
read as follows:
"(A) upon the first conviction for such an offense
be ineligible for all unearned Federal benefits for
1 year after such conviction;
"(B) upon a second and subsequent convictions be
ineligible for all unearned Federal benefits for 5
years after such convictions; and
(2) in paragraph (2) by striking "there is a reasonable body
of evidence to substantiate such declaration" and inserting
"there is clear and convincing evidence to substantiate such
declaration".
(c) SUSPENSION OF PERIOD OF INELIGIBILITY.--Subsection (c) of section
5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 853a(c)) is amended
to read as follows:
"(c) SUSPENSION OF PERIOD OF INELIGIBILITY.--A court may
reduce the period of ineligibility referred to in subsection
(b)(1)(A) to 3 months if the individual--
"(1) successfully completes a supervised drug
rehabilitation program which includes periodic,
random drug testing after becoming ineligible
under this section; or
"(2) completes a period of community service
satisfactory to the court and passes period and
random drug tests administered during the 3-month
period of suspension.".
(d) DEFINITIONS.--Subsection (d) of section 5301 of the Anti-Drug Abuse
Act of 1988 (21 U.S.C. 853a(d)) is amended to read as follows:
"(d) DEFINITIONS.--As used in this section--
"(1) the term 'earned Federal benefits' means
programs and benefits that are earned through or by
financial contributions or service, such as Social
Security or veterans' benefits; and
"(2) the term 'unearned Federal benefits' means all
Federal benefits, including the issuance of any
grant, contract, loan, professional license, or
commercial license provided by an agency of the
United States or by appropriated funds of the
United States, but not including earned Federal
benefits, such as Social Security and veteran's
benefits.
(e) MONITORING.--The Attorney General shall establish a system to
monitor implementation of section 5301 of the Anti-Drug Abuse Act of
1988 (21 U.S.C. 853a).
SEC. 204. REVOCATION OF DRUG USERS' DRIVER'S LICENSES AND PILOT'S
LICENSES.
(a) DRIVER'S LICENSES.--(1) Chapter 1 of title 23, United States Code,
is amended by adding at the end thereof the following new
section:
"Section 159. Revocation of the driver's licenses
of persons convicted of drug possession
"(a) Beginning on the date that is 2 calendar years
after the date of enactment of this section, a
request for Federal drug law enforcement assistance
funds from the Bureau of Justice Assistance Grant
programs by a State whose law provides for
revocation of drivers' licenses as provided in
subsection (c) shall receive priority over a
request by a State whose law does not so provide.
"(b) Beginning on the date that is 2 calendar years
after the date of enactment of this section, the
formula for determining the amount of funds to be
distributed from the Drug Control and System
Improvement Grant Program to State and local
governments shall be adjusted by--
"(1) reducing by 10 percent the amount of
funds that would, except for the
application of this paragraph, be
allocated to States whose laws do not
provide as stated in subsection (c); and
"(2) allocated the amount of the
reduction pro rata to the other States.
"(c)(1) A State meets the requirements of this
section if the State has enacted and is enforcing a
law that requires in all circumstances, except as
provided in paragraph(2)--
"(A) the mandatory revocation of the
driver's license for at least 1 year of
any person who is convicted, after the
enactment of such law, of--
"(i) a violation of section 404
of the Controlled Substances
Act (21 U.S.C. 844); or
"(ii) any other Federal or
State drug offense for which a
person serves less than 1 year's
imprisonment; and
"(B) the mandatory denial of any request
for the issuance or reinstatement of a
driver's license to such a person if the
person does not have a driver's license,
or the driver's license of the person is
suspended, at the time the person is so
convicted.
"(2) The State law referred to in paragraph (1) may
provide that the driver's license of a first
offender, but not of a second or subsequent
offender, may be reinstated on performance of 3
months' community service and passes periodic drug
tests administered during the period of community
service.".
"(d) For purposes of this section--
"(1) The term 'driver's license' means a
license issued by a State to any person
that authorizes the person to operate a
motor vehicle on the highways.
"(2) The term 'drug offense' means any
criminal offense which proscribes the
possession, distribution, manufacture,
cultivation, sale, transfer, or the
attempt or conspiracy to possess,
distribute, manufacture, cultivate, sell,
or transfer any substance the possession
of which is prohibited under the
Controlled Substances Act (21 U.S.C. 801
et seq.) and such offenses under State
laws.
"(3) The term 'convicted' includes
adjudicated under juvenile proceedings.".
(2) The table of contents for chapter 1 of title 23, United
States Code, is amended by adding at the end thereof the
following new item:
"159. Revocation of the driver's licenses of
persons convicted of drug offenses.".
(b) PILOT'S LICENSES.--The Secretary of Transportation shall cause the
Federal Aviation Administration to amend its regulations as necessary
to cause the revocation of pilot's licenses on the terms and conditions
prescribed for revocation of driver's licenses in subsection (a).
SEC. 205. ACCOUNTABILITY AND PERFORMANCE OF DRUG TREATMENT FACILITIES.
(a) STATEWIDE DRUG TREATMENT PLANS.--Title XIX of the Public Health
Service Act is amended by inserting after section 1916A (42 U.S.C.
300x-4a) the following new section:
"SEC. 1916B. STATEWIDE DRUG TREATMENT PLAN.
"(a) NATURE OF PLAN.--To receive the drug abuse portion of
its allotment for a fiscal year under section 1912A, a State
shall develop, implement, and submit, as part of the
application required by section 1916(a), an approved
statewide Drug Treatment Plan, prepared according to
regulations promulgated by the Secretary, that shall
contain--
"(1) a single, designated State agency for
formulating and implementing the Statewide Drug
Treatment Plan;
"(2) a description of the mechanism that shall be
used to assess the needs for drug treatment in
localities throughout the State including the
presentation of relevant data;
"(3) a description of a statewide plan that shall
be implemented to expand treatment capacity and
overcome obstacles that restrict the expansion of
treatment capacity (such as zoning ordinances), or
an explanation of why such a plan is necessary;
"(4) a description of performance-based criteria
that shall be used to assist in the allocating of
funds to drug treatment facilities receiving
assistance under this subpart: [sic]
"(5) a description of the drug-free patient and
workplace programs, that must include some form of
drug testing, to be utilized in drug treatment
facilities and programs;
"(6) a description of the mechanism that shall be
used to make funding allocations under this
subpart;
"(7) a description of the actions that shall be
taken to improve the referral of drug users to
treatment facilities that offer the most
appropriate treatment modality;
"(8) a description of the program of training that
shall be implemented for employees of treatment
facilities receiving Federal funds, designed to
permit such employees to stay abreast of the latest
and most effective treatment techniques;
"(9) a description of the plan that shall be
implemented to coordinate drug treatment facilities
with other social, health, correctional and
vocational services in order to assist or properly
refer those patients in need of such additional
services; and
"(10) a description of the plan that will be
implemented to expand and improve efforts to
contact and treat expectant women who use drugs and
to provide appropriate follow-up care to their
affected newborns.
"(b) SUBMISSION OF PLAN.--The plan required by subsection (a)
shall be submitted to the Secretary annually for review and
approval. The Secretary shall have the authority to review
and approve or disapprove such State plans, and to propose
changes to such plans.
"(c) SUBMISSION OF PROGRESS REPORTS.--Each State shall submit
reports, in such form, and containing such information as the
Secretary may, from time to time, require, and shall comply
with such additional provisions as the Secretary may from
time to time find are necessary to verify the accuracy of
such reports but are not overly burdensome to the State.
"(d) WAIVER OF PLAN REQUIREMENT.--At the discretion of the
Secretary, the Secretary may waive any or all of the
requirements of this section on the written request of a
State, except that such waiver shall not be granted unless
the State implements an alternative treatment plan that
fulfills the objectives of this section.
"(e) DEFINITION.--As used in this section, the term 'drug
abuse portion' means the amount of a State's allotment under
section 1912A that is required by this subpart, or by any
other law, to be used for programs or activities relating to
drug abuse.".
(b) REGULATIONS AND EFFECTIVE DATES.--(1) The Secretary of Health and
Human Services shall promulgate regulations to carry out
section 1916B of the Public Health Service Act (as added by
subsection (a)) not later than 6 months after the date of
enactment of this section.
(2)(A)Sections 1916B(a) (4) and (5) of such Act (as added by
subsection (a)) shall become effective on October 1
of the second fiscal year beginning after the date
that final regulations under paragraph (1) are
published in the Federal Register.
(B) The remaining provision of such section 1916B
shall become effective on October 1 of the first
fiscal year beginning after the date final
regulations under paragraph (1) are published in
the Federal Register.
SEC. 206. DRUG-FREE SCHOOLS.
(a) ELEMENTARY AND SECONDARY EDUCATION.--(1) Title XII of the Higher
Education Act of 1965 (20 U.S.C. 1001 et seq.), is amended by
inserting at the end thereof the following new section 1213:
"DRUG AND ALCOHOL ABUSE PREVENTION
"SEC. 1213. (a) Notwithstanding any other law, no
institution of higher education shall be eligible
to receive funds or any other form of financial
assistance under any Federal program, including
participation in any federally funded or guaranteed
student loan program, unless it certifies to the
Secretary that it has adopted and has implemented a
program to prevent the use of illicit drugs and the
abuse of alcohol by students and employees that, at
a minimum, includes--
"(1) the annual distribution to each
student and employee of--
"(A) standards of conduct that
clearly prohibit, at a minimum,
the unlawful possession, use,
or distribution of illicit
drugs and alcohol by students
and employees on its property
or as a part of any of its
activities;
"(B) a description of
applicable legal sanctions
under local, State, or Federal
law for the unlawful
possession or distribution of
illicit drugs and alcohol;
"(C) a description of the
health risks associated with
the use of illicit drugs and
the abuse of alcohol;
"(D) a description of any drug
or alcohol counseling,
treatment, or rehabilitation
programs that are available to
employees or students; and
"(E) a clear statement that the
institution will impose
sanctions on students and
employees (consistent with
local, State, and Federal
laws), and a description of
those sanctions, up to and
including expulsion or
termination of employment and
referral for prosecution, for
violations of the standards of
conduct required by paragraph
(1)(A);
"(2) provisions for drug testing; and
"(3) a biennial review by the institution
of its program to--
"(A) determine its
effectiveness and implement
changes to the program if they
are needed; and
"(B) ensure that the sanctions
required by paragraph (1)(E)
are consistently enforced.
"(b) Each institution of higher education that
provides the certification required by subsection
(a) shall, upon request, make available to the
Secretary and to the public a copy of each item
required by subsection (a)(1) as well as the
results of the biennial review required by
subsection (a)(2).
"(c)(1) The Secretary shall publish regulations to
implement and enforce this section,
including regulations that provide for--
"(A) the periodic review of a
representative sample of
programs required by subsection
(a); and
"(B) sanctions, up to and
including the termination of
any form of financial
assistance, for institutions of
higher education that fail to
implement their programs or to
consistently enforce their
sanctions.
"(2) The sanctions required by subsection
(a)(1)(E) may include the completion of
an appropriate rehabilitation program".
(2) Paragraph (1) shall take effect on October 1, 1990.
(b) DRUG AND ALCOHOL ABUSE PREVENTION.--(1) Part D of the Drug-Free
Schools and Communities Act of 1986 (20 U.S.C. 3171 et seq.)
is amended by adding at the end thereof a new section 5145 to
read as follows:
"CERTIFICATION OF DRUG AND ALCOHOL ABUSE
PREVENTION PROGRAMS.
"SEC. 5145. (a) Notwithstanding any other law, no
local educational agency shall be eligible to
receive funds or any other form of financial
assistance under any Federal program unless it
certifies to the State educational agency that it
has adopted and has implemented a program to
prevent the use of illicit drugs and alcohol by
students or employees that, at a minimum,
includes--
"(1) mandatory, age-appropriate,
developmentally based drug and alcohol
education and prevention programs (which
address the legal, social, and health
consequences of drug and alcohol use and
which provide information about effective
techniques for resisting peer pressure to
use illicit drugs or alcohol) for
students in all grades of the schools
operated or served by the applicant, from
early childhood level through grade 12;
"(2) conveying to students that the use
of illicit drugs and alcohol is wrong and
harmful;
"(3) standards of conduct that are
applicable to students and employees in
all the applicant's schools and that
clearly prohibit, at a minimum, the
possession, use, or distribution of
illicit drugs and alcohol by students and
employees on school premises or as part
of any of its activities;
"(4) a clear statement that sanctions
(consistent with local, State, and
Federal law), up to and including
expulsion or termination of employment
and referral for prosecution, will be
imposed on students and employees who
violate the standards of conduct required
by paragraph (3) and a description of
those sanctions;
"(5) information about any available drug
and alcohol counseling and rehabilitation
programs that are available to students
and employees;
"(6) a requirement that parents,
students, and employees be given a copy
of the standards of conduct required by
paragraph (3) and the statement of
sanctions required by paragraph (4);
"(7) notifying parents, students, and
employees that compliance with the
standards of conduct required by
paragraph (3) is mandatory;
"(8) provisions for drug testing; and
"(9) a biennial review by the applicant
of its program to--
"(A) determine its
effectiveness and implement
changes to the program if they
are needed; and
"(B) ensure that the sanctions
required by paragraph (4) are
consistently enforced.
"(b) Each local educational agency that provides
the certification required by subsection (a) shall,
upon request, make available to the Secretary, the
State educational agency, and the public full
information about the elements of its program
required by subsection (a), including the results
of its biennial review.
"(c) Each State educational agency shall certify to
the Secretary that it has adopted and has
implemented a program to prevent the use of illicit
drugs and the abuse of alcohol by its students and
employees that is consistent with the program
required by subsection (a) of this section. The
State educational agency shall, upon request, make
available to the Secretary and to the public full
information about the elements of its program.
"(d)(1) The Secretary shall publish regulations to
implement and enforce the provisions of
this section, including regulations that
provide for--
"(A) the periodic review by
State educational agencies of a
representative sample of
programs required by subsection
(a); and
"(B) sanctions, up to and
including the termination of
any form of financial
assistance, for local
educational agencies that fail
to implement their programs or
to consistently enforce their
sanctions.
"(2) The sanctions required by subsection
(a)(1) through (4) may included the
completion of an appropriate
rehabilitation program.".
(2) The Drug-Free Schools and Communities Act of 1986 is
further amended in section 5126(c)(2) by--
(A) striking subparagraphs (E), (F), and (G); and
(B) redesignating subparagraphs (H) through (M) as
subparagraphs (E) through (J), respectively.
(3) Paragraphs (1) and (2) shall take effect on October 1,
1990.
SEC. 207. DRUG-FREE TRANSPORTATION.
(a) SHORT TITLE.--This section may be cited as the 'Transportation
Employee Testing Act'.
(b) FINDINGS.--The Congress finds that--
(1) alcohol abuse and illegal drug use pose significant
dangers to the safety and welfare of the Nation;
(2) millions of the Nation's citizens utilize transportation
by aircraft, railroads, trucks, and buses, and depend on the
operators of aircraft, railroads, trucks, and buses to
perform in a safe and responsible manner;
(3) the greatest efforts must be expended to eliminate the
abuse of alcohol and the use of illegal drugs, whether on or
off duty, by persons who are involved in the operation of
aircraft, railroads, trucks, and buses;
(4) the use of alcohol and illegal drugs has been
demonstrated to affect significantly the performance of
persons who use them, and has been proven to have been a
critical factor in transportation accidents;
(5) the testing of uniformed personnel of the Armed Forces
has shown that the most effective deterrent to abuse of
alcohol and use of illegal drugs is increased testing,
including random testing;
(6) adequate safeguards can be implemented to ensure that
testing for abuse of alcohol or use of illegal drugs is
performed in a manner that protects a person's right of
privacy, ensures that no person is harassed by being treated
differently from other persons, and ensures that no person's
reputation or career development is unduly threatened or
harmed; and
(7) rehabilitation is a critical component of any testing
program for abuse of alcohol or use of illegal drugs, and
should be made available to persons, as appropriate.
(C) AMENDMENT OF THE FEDERAL AVIATION ACT.--(1) Title VI of the Federal
Aviation Act of 1958 (49 App. U.S.C. 1421 et seq.) is amended
by adding at the end thereof the following:
"ALCOHOL AND CONTROLLED SUBSTANCES TESTING
"TESTING PROGRAM
"SEC. 613. (a)(1) The Administrator shall, in the
interest of aviation safety, prescribe regulations
not later than 12 months after the date of
enactment of this section. Such regulations shall
establish a program that requires air carriers and
foreign air carriers to conduct preemployment,
reasonable suspicion, random, and post-accident
testing of airmen, crewmembers, airport security
screening contract personnel, and other air
carrier employees responsible for safety-sensitive
functions (as determined by the Administrator) for
use, in violation of law, of alcohol or a
controlled substances. The Administrator may also
prescribe regulations, as the Administrator
considers appropriate in the interest of safety,
for the conduct of periodic recurring testing of
such employees for such use in violation of law.
"(2) The Administrator shall establish a program
applicable to employees of the Federal Aviation
Administration whose duties include responsibility
for safety-sensitive functions. Such programs
shall provide for preemployment, reasonable
suspicion, random, an post-accident testing for
use, in violation of law, of alcohol or a
controlled substance. The Administrator may also
prescribe regulations, as the Administrator
considers appropriate in the interest of safety,
for the conduct of periodic testing of such
employees for such use in violation of law.
"(3) In prescribing regulations under the programs
required by this subsection, the Administrator
shall require, as the Administrator considers
appropriate, the suspension or revocation of any
certificate issued to such a person, or the
disqualification or dismissal of any such person,
in accordance with this section, in any instance
where a test conduct and confirmed under this
section indicates that such person has used, in
violation of law, alcohol or a controlled
substance.
"PROHIBITION OF SERVICE
"(b)(1) No person may use, in violation of law,
alcohol or a controlled substance after the date of
enactment of this section and serve as an airman,
crewmember, airport security screening contract
personnel, air carrier employee responsible for
safety-sensitive functions (as determined by the
Administrator), or employee of the Federal Aviation
Administration with responsibility for
safety-sensitive functions.
"(2) No person who is determined to have used, in
violation of law, alcohol or a controlled substance
after the date of enactment of this section shall
serve as an airman, crewmember, airport security
screening contract personnel, air carrier employee
responsible for safety-sensitive functions (as
determined by the Administrator), or employee of
the Federal Aviation Administration with
responsibility for safety-sensitive functions
unless such person has completed a program of
rehabilitation described in subsection (c).
"(3) Any such person determined by the
Administrator to have used, in violation of law,
alcohol or a controlled substance after the date of
enactment of this section who--
"(A) engaged in such use while on duty;
"(B) prior to such use had undertaken or
completed a rehabilitation program
described in subsection (c) of this
section;
"(C) following such determination refuses
to undertake such rehabilitation program;
or
"(D) following such determination fails
to complete such a rehabilitation
program,
shall not be permitted to perform the duties
relating to air transportation which such person
performed prior to the date of such determination.
"PROGRAM FOR REHABILITATION
"(c)(1) The Administrator shall prescribe
regulations setting forth requirements for
rehabilitation programs which at a minimum provide
for the identification and opportunity for
treatment of employees referred to in subsection
(a)(1) in need of assistance in resolving problems
with the use, in violation of law, of alcohol or
controlled substances. Each air carrier or foreign
air carrier is encouraged to make such a program
available to all of its employees in addition to
those employees referred to in subsection (a)(1).
The Administrator shall determine the circumstances
under which such employees shall be required to
participate in such a program. Nothing in this
subsection shall preclude any air carrier or
foreign air carrier from establishing a program
under this subsection in cooperation with any other
air carrier or foreign air carrier.
"(2) The Administrator shall establish and maintain
a rehabilitation program which at a minimum
provides for the identification and opportunity for
treatment of those employees of the Federal
Aviation Administration whose duties include
responsibility for safety-sensitive functions who
are in need of assistance in resolving problems
with the use of alcohol or controlled substances.
"PROCEDURES
"(d) In establishing the program required under
subsection (a) of this section, the Administrator
shall development requirements which shall--
"(1) promote, to the maximum extent
practicable, individual privacy in the
collection of specimen samples;
"(2) with respect to laboratories and
testing procedures for controlled
substances, incorporate the Department of
Health and Human Services scientific and
technical guidelines dated April 11,
1988, and any amendments thereto,
including mandatory guidelines which--
"(A) establish comprehensive
standards for all aspects of
laboratory controlled
substances testing and
laboratory procedures to be
applied in carrying out this
section, including standards
that require the use of the
best available technology for
ensuring full reliability and
accuracy of controlled
substances tests and strict
procedures governing the chain
of custody of specimen samples
collected for controlled
substances testing;
"(B) establish the minimum list
of controlled substances for
which persons may be tested;
and
"(C) establish appropriate
standards and procedures for
periodic review of laboratories
and criteria for certification
and revocation of certification
of laboratories to perform
controlled substances testing
in carrying out this section;
"(3) require that all laboratories
involved in the controlled substances
testing of any person under this section
shall have the capability and facility,
at such laboratory, of performing
screening and confirmation tests;
"(4) provide that all tests that indicate
the use, in violation of law, of alcohol
or a controlled substance by any person
shall be confirmed by a scientifically
recognized method of testing capable of
providing quantitative data regarding
alcohol or a controlled substance;
"(5) provide that each specimen sample be
subdivided, secured, and labeled in the
presence of the tested person and that a
portion thereof be retained in a secure
manner to prevent the possibility of
tampering, so that if the person's
confirmation test results are positive
the person has an opportunity to have the
retained portion assayed by a
confirmation test done independently at a
second certified laboratory if the person
requests the independent test within 3
days after being advised of the results
of the confirmation test;
"(6) ensure appropriate safeguards for
testing to detect and quantify alcohol in
breath and body fluid samples, including
urine and blood, through the development
of regulations as may be necessary and in
consultation with the Department of
Health and Human Services;
"(7) provide for the confidentiality of
test results and medical information
(other than information relating to
alcohol or a controlled substance) of
employees, except that this paragraph
shall not preclude the use of test
results for the orderly imposition of
appropriate sanctions under this section;
and
"(8) ensure that employees are selected
for tests by nondiscriminatory and
impartial methods, so that no employee is
harassed by being treated differently
from other employees in similar
circumstances.
"EFFECT ON OTHER LAWS AND REGULATIONS
"(e)(1) No State or local government shall adopt or
have in effect any law, rule, regulation,
ordinance, standard, or order that is inconsistent
with the regulations promulgated under this
section, except that the regulations promulgated
under this section shall not be construed to
preempt provisions of State criminal law which
impose sanctions for reckless conduct leading to
actual loss of life, injury, or damage to property,
whether the provisions apply specifically to
employees of an air carrier or foreign air carrier
or to the general public.
"(2) Nothing in this section shall be construed to
restrict the discretion of the Administrator to
continue in force, amend, or further supplement any
regulations issued before the date of enactment of
this section that govern the use of alcohol and
controlled substances by airmen, crewmembers,
airport security screening contract personnel, air
carrier employees responsible for safety-sensitive
functions (as determined by the Administrator), or
employees of the Federal Aviation Administration
with responsibility for safety-sensitive functions.
"(3) In prescribing regulations under this section,
the Administrator shall establish requirements
applicable to foreign air carriers that are
consistent with the international obligations of
the United States, and the Administrator shall
take into consideration any applicable laws and
regulations of foreign countries. The Secretary of
State and the Secretary of Transportation, jointly,
shall call on the member countries of the
International Civil Aviation Organization to
strengthen and enforce existing standards to
prohibit the use, in violation of law, of alcohol
or a controlled substance by crewmembers in
international civil aviation.
"DEFINITION
"(f) For the purposes of this section, the term
"controlled substance" means any substance under
section 102(6) of the Controlled Substances Act
(21 U.S.C. 802(6)) specified by the
Administrator.".
(2) The portion of the table of contents of the Federal
Aviation Act of 1958 relating to title VI is amended by
adding at the end thereof the following:
"Sec. 613. Alcohol and controlled substances testing.
"(a) Testing program.
"(b) Prohibition on service.
"(c) Program for rehabilitation.
"(d) Procedures.
"(e) Effect on other laws and regulations.
"(f) Definition.".
(d) AMENDMENT OF THE FEDERAL RAILROAD SAFETY ACT.--Section 202 of the
Federal Railroad Safety Act of 1970 (45 U.S.C. 431) is amended by
adding at the end thereof the following new subsection:
"(r)(1) In the interest of safety, the Secretary shall, not
later than 12 months after the date of enactment of this
subsection, issue rules, regulations, standards, and orders
relating to alcohol and drug use in railroad operations.
Such regulations shall establish a program which--
"(A) requires railroads to conduct preemployment,
reasonable suspicion, random, and post-accident
testing of all railroad employees responsible for
safety-sensitive functions (as determined by the
Secretary) for use, in violation of law, of alcohol
or a controlled substance;
"(B) requires, as the Secretary considers
appropriate, disqualification for an established
period of time or dismissal of any employee
determined to have used or to have been impaired by
alcohol while on duty; and
"(C) requires, as the Secretary considers
appropriate, disqualification for an established
period of time or dismissal of any employee
determined to have used a controlled substance,
whether on duty or not on duty, except as permitted
for medical purposes by law and any rules,
regulations, standards, or orders issued under this
title.
The Secretary may also issue rules, regulations, standards,
and orders, as the Secretary considers appropriate in the
interest of safety, requiring railroads to conduct periodic
testing of railroad employees responsible for such safety
sensitive functions, for use of alcohol or a controlled
substance in violation of law. Nothing in this subsection
shall be construed to restrict the discretion of the
Secretary to continue in force, amend, or further supplement
any rules, regulations, standards, and orders governing the
use of alcohol and controlled substances in railroad
operations issued before the date of enactment of this
subsection.
"(2) In carrying out this subsection, the Secretary shall
develop requirements which shall--
"(A) promote, to the maximum extent practicable,
individual privacy in the collection of specimen
samples;
"(B) with respect to laboratories and testing
procedures for controlled substances, incorporate
the Department of Health and Human Services
scientific and technical guidelines dated April 11,
1988, and any amendments thereto, including
mandatory guidelines which--
"(i) establish comprehensive standards
for all aspects of laboratory controlled
substances testing and laboratory
procedures to be applied in carrying out
this subsection, including standards that
require the use of the best available
technology for ensuring the full
reliability and accuracy of controlled
substances tests and strict procedures
governing the chain of custody of
specimen samples collected for controlled
substances testing;
"(ii) establish the minimum list of
controlled substances for which persons
may be tested; and
"(iii) establish appropriate standards
and procedures for periodic review of
laboratories and criteria for
certification and revocation of
certification of laboratories to perform
controlled substances testing in carrying
out this subsection;
"(C) require that all laboratories involved in the
controlled substances testing of any employee under
this subsection shall have the capability and
facility, at such laboratory, of performing
screening and confirmation tests;
"(D) provide that all tests which indicate the use,
in violation of law, of alcohol or a controlled
substance by any employee shall be confirmed by a
scientifically recognized method of testing capable
of providing quantitative data regarding alcohol or
a controlled substance;
"(E) provide that each specimen sample be
subdivided, secured, and labeled in the presence of
the tested person and that a portion thereof be
retained in a secure manner to prevent the
possibility of tampering, so that in the event the
person's confirmation test results are positive the
person has an opportunity to have the retained
portion assayed by a confirmation test done
independently at a second certified laboratory if
the person requests the independent test within 3
days after being advised of the results of the
confirmation test;
"(F) ensure appropriate safeguards for testing to
detect and quantify alcohol in breath and body
fluid samples, including urine and blood, through
the development of regulations as may be necessary
and in consultation with the Department of Health
and Human Services;
"(G) provides for the confidentiality of test
results and medical information (other than
information relating to alcohol or a controlled
substance) of employees, except that the provisions
of this subparagraph shall not preclude the use of
test results for the orderly imposition of
appropriate sanctions under this subsection; and
"(H) ensure that employees are selected for tests
by nondiscriminatory and impartial methods, so that
no employee is harassed by being treated
differently from other employees in similar
circumstances.
"(3) The Secretary shall issue rules, regulations, standards,
or orders setting forth requirements for rehabilitation
programs which at a minimum provide for the identification
and opportunity for treatment of railroad employees
responsible for safety-sensitive functions (as determined by
the Secretary) in need of assistance in resolving problems
with the use, in violation of law, of alcohol or a controlled
substance. Each railroad is encouraged to make such a
program available to all of its employees in addition to
those employees responsible for safety-sensitive functions.
The Secretary shall determine the circumstances under which
such employees shall be required to participate in such
program. Nothing in this paragraph shall preclude a railroad
from establishing a program under this paragraph in
cooperation with any other railroad.
"(4) In carrying out the provisions of this subsection, the
Secretary shall establish requirements that are consistent
with the international obligations of the United States, and
the Secretary shall take into consideration any applicable
laws and regulations of foreign countries.
"(5) For the purposes of this subsection, the term
'controlled substance' means any substance under section
102(6) of the Controlled Substances Act (21 U.S.C. 802(6))
specified by the Secretary.".
(e) AMENDMENT OF THE COMMERCIAL MOTOR VEHICLE SAFETY ACT.--(1) The
Commercial Motor Vehicle Safety Act of 1986 (49 App. U.S.C.
2701 et seq.) is amended by adding at the end thereof the
following new section:
"SEC. 12020. ALCOHOL AND CONTROLLED SUBSTANCES
TESTING.
"(a) REGULATIONS.--The Secretary shall, in the
interest of commercial motor vehicle safety, issue
regulations not later than 12 months after the date
of enactment of this section. Such regulations
shall establish a program which requires motor
carriers to conduct preemployment, reasonable
suspicion, random, and post-accident testing of the
operators of commercial motor vehicles for use, in
violation of law, of alcohol or a controlled
substance. The Secretary may also issue
regulations, as the Secretary considers appropriate
in the interest of safety, for the conduct of
periodic testing of such operations for such use in
violation of law.
"(b) TESTING.--
"(1) POST-ACCIDENT TESTING.--In issuing
such regulations, the Secretary shall
require that post-accident testing of the
operator of a commercial motor vehicle be
conducted in the case of any accident
involving a commercial motor vehicle in
which occurs loss of human life, or, as
determined by the Secretary, other serious
accidents involving bodily injury or
significant property damage.
"(2) TESTING AS PART OF MEDICAL
EXAMINATION.--Nothing in subsection (a)
shall preclude the Secretary from
providing in such regulations that such
testing be conducted as part of the
medical examination required by subpart E
of part 391 of title 49, Code of Federal
Regulations, with respect to operators of
commercial motor vehicles to whom such
part is applicable.
"(c) PROGRAM FOR REHABILITATION.--The Secretary
shall issue regulations setting forth requirements
for rehabilitation programs which provide for the
identification and opportunity for treatment of
operators of commercial motor vehicles who are
determined to have used, in violation of law or
Federal regulation, alcohol or a controlled
substance. The Secretary shall determine the
circumstances under which such operators shall be
required to participate in such program. Nothing
in this subsection shall preclude a motor carrier
from establishing a program under this subsection
in cooperation with any other motor carrier.
"(d) PROCEDURES FOR TESTING.--In establishing the
program required under subsection (a) of this
section, the Secretary shall develop requirements
which shall--
"(1) promote, to the maximum extent
practicable, individual privacy in the
collection of specimen samples;
"(2) with respect to laboratories and
testing procedures for controlled
substances, incorporate the Department of
Health and Human Services scientific and
technical guidelines dated April 11,
1988, and any subsequent amendments
thereto, including mandatory guidelines
which--
"(A) establish comprehensive
standards for all aspects of
laboratory controlled
substances testing and
laboratory procedures to be
applied in carrying out this
section, including standards
which require the use of the
best available technology for
ensuring the full reliability
and accuracy of controlled
substances tests and strict
procedures governing the chain
of custody of specimen samples
collected for controlled
substances testing;
"(B) establish the minimum list
of controlled substances for
which individuals may be
tested; and
"(C) establish appropriate
standards and procedures for
periodic review of laboratories
and criteria for certification
and revocation of certification
of laboratories to perform
controlled substances testing
in carrying out this section;
"(3) require that all laboratories
involved in the testing of any individual
under this section shall have the
capability and facility, at such
laboratory, of performing screening and
confirmation tests;
"(4) provide that all tests which
indicate the use, in violation of law or
Federal regulation, of alcohol or a
controlled substance by any individual
shall be confirmed by a scientifically
recognized method of testing capable of
providing quantitative data regarding
alcohol or a controlled substance;
"(5) provide that each specimen sample be
subdivided, secured, and labeled in the
presence of the tested individual and
that a portion thereof be retained in a
secure manner to prevent the possibility
of tampering, so that in the event the
individual's confirmation test results
are positive the individual has an
opportunity to have the retained portion
assayed by a confirmation test done
independently at a second certified
laboratory if the individual requests the
independent test within 3 days after
being advised of the results of the
confirmation test;
"(6) ensure appropriate safeguards for
testing to detect and quantify alcohol in
breath and body fluid samples, including
urine and blood, through the development
of regulations as may be necessary and in
consultation with the Department of
Health and Human Services;
"(7) provide for the confidentiality of
test results and medical information
(other than information relating to
alcohol or a controlled substance) of
employees, except that the provisions of
this paragraph shall not preclude the use
of test results for the orderly
imposition of appropriate sanctions under
this section; and
"(8) ensure that employees are selected
for tests by nondiscriminatory and
impartial methods, so that no employee is
harassed by being treated differently
from other employees in similar
circumstances.
"(e) EFFECT ON OTHER LAWS AND REGULATIONS.--
"(1) STATE AND LOCAL LAW AND
REGULATIONS.--No State or local
government shall adopt or have in effect
any law, rule, regulation, ordinance,
standard, or order that is inconsistent
with the regulations issued under this
section, except that the regulations
issued under this section shall not be
construed to preempt provisions of State
criminal law which impose sanctions for
reckless conduct leading to actual loss
of life, injury, or damage to property,
whether the provisions apply specifically
to commercial motor vehicle employees, or
to the general public.
"(2) OTHER REGULATIONS ISSUED BY
SECRETARY.--Nothing in this section shall
be construed to restrict the discretion
of the Secretary to continue in force,
amend, or further supplement any
regulations governing the use of alcohol
or controlled substances by commercial
motor vehicle employees issued before the
date of enactment of this section.
"(3) INTERNATIONAL OBLIGATIONS.--In
issuing regulations under this section,
the Secretary shall only establish
requirements that are consistent with the
international obligations of the United
States, and the Secretary shall take into
consideration any applicable laws and
regulations of foreign countries.
"(f) APPLICATION OF PENALTIES.--
"(1) EFFECT ON OTHER PENALTIES.--Nothing
in this section shall be construed to
supersede any penalty applicable to the
operator of a commercial motor vehicle
under this title or any other provision
of law..
"(2) DETERMINATION OF SANCTIONS.--The
Secretary shall determine appropriate
sanctions for commercial motor vehicle
operators who are determined, as a result
of tests conducted and confirmed under
this section, to have used, in violation
of law or Federal regulation, alcohol or
a controlled substance but are not under
the influence of alcohol or a controlled
substance as provide in this title.
"(g) DEFINITION.--(1) For the purposes of this section, the
term 'controlled substance' means any substance under section
102(6) of the Controlled Substances Act (21 U.S.C. 802(6))
specified by the Secretary.".
(2) The table of contents of the Commercial Motor Vehicle
Safety Act of 1986 (Public Law 99-570; 100 Stat. 5223) is
amended by adding at the end thereof the following:
"Sec. 12020. Alcohol and controlled substances
testing.".
(3) The Secretary shall design within 9 months after the date
of enactment of this subsection, and implement within 15
months after the date of enactment of this subsection, a
pilot test program for the purpose of testing the operators
of commercial motor vehicles on a random basis to determine
whether an operator has used, in violation of law or Federal
regulation, alcohol or a controlled substance. The pilot
test program shall be administered as part of the Motor
Carrier Safety Assistance Program.
(4) The Secretary shall solicit the participation of State
which are interested in participating in such program and
shall select four States to participate in the program.
(5) The Secretary shall ensure that the states selected
pursuant to this section are representative of varying
geographical and population characteristics of the Nation and
that the selection takes into consideration the historical
geographical incidence of commercial motor vehicle accidents
involving loss of human life.
(6) The pilot program authorized by this section shall
continue for a period of one year. The Secretary shall
consider alternative methodologies for implementing a system
of random testing of operators of commercial motor vehicles.
(7) Not later than 30 months after the date of enactment of
this section, the Secretary shall prepare and submit to the
Congress a comprehensive report setting forth the results of
the pilot program conducted under this subsection. Such
report shall include any recommendations of the Secretary
concerning the desirability and implementation of a system
for the random testing of operators of commercial motor
vehicles.
(8) For the purposes of carrying out this subsection, there
shall be available to the Secretary $5,000,000 from funds
made available to carry out section 404 of the Surface
Transportation Assistance Act of 1982 (49 App. U.S.C. 2304)
for fiscal year 1990.
(9) For the purposes of this subsection, the term "commercial
motor vehicle" shall have the meaning given to such term in
section 12019(6) of the Commercial Motor Vehicle Safety Act
of 1986 (49 App. U.S.C. 2716(6)).
(f) AMENDMENT OF THE URBAN MASS TRANSPORTATION ACT.--The Urban Mass
Transportation Act of 1964 is amended by adding at the end thereof the
following new section:
"ALCOHOL AND CONTROLLED SUBSTANCES TESTING
"SEC. 26. (a) REGULATIONS.--The Secretary shall, in the
interest of mass transportation safety, issue regulations
within 12 months after the date of enactment of this section.
Such regulations shall establish a program which requires
each recipient of assistance under this Act to conduct
preemployment, reasonable suspicion, random, and postaccident
testing of the operators of mass transportation vehicles for
use, in violation of law or Federal regulation, of alcohol or
a controlled substance. The Secretary may also issue
regulations, as the Secretary considers appropriate in the
interest of safety, for the conduct of periodic recurring
testing of such operators for such use in violation of law or
Federal regulation.
"(b) POSTACCIDENT TESTING.--In issuing such regulations, the
Secretary shall require that postaccident testing of the
operator of a mass transportation vehicle be conducted in the
case of any accident involving a mass transportation vehicle
in which occurs loss of human life, or, as determined by the
Secretary, other serious accidents involving bodily injury or
significant property damage.
"(c) PROGRAM FOR REHABILITATION.--The Secretary shall issue
regulations setting forth requirements for rehabilitation
programs which provide for the identification and opportunity
for treatment of operators of mass transportation vehicles
who are determined to have used, in violation of law or
Federal regulation, alcohol or a controlled substance. The
Secretary shall determine the circumstances under which such
operators shall be required to participate in such a program.
Nothing in this subsection shall preclude a recipient from
establishing a program under this subsection in cooperation
with any other recipient.
"(d) PROCEDURES FOR TESTING.--In establishing the program
required under subsection (a) of this section, the Secretary
shall develop requirements which shall--
"(1) promote, to the maximum extent practicable,
individual privacy in the collection of specimen
samples;
"(2) with respect to laboratories and testing
procedures for controlled substances, incorporate
the Department of Health and Human Services
scientific and technical guidelines dated April 11,
1988, and any subsequent amendments thereto,
including mandatory guidelines which--
"(A) establish comprehensive standards
for all aspects of laboratory controlled
substances testing and laboratory
procedures to be applied in carrying out
this section, including standards which
require the use of the best available
technology for ensuring the full
reliability and accuracy of controlled
substances tests and strict procedures
governing the chain of custody of
specimen samples collected for controlled
substances testing;
"(B) establish the minimum list of
controlled substances for which
individuals may be tested; and
"(C) establish appropriate standards and
procedures for periodic review of
laboratories and criteria for
certification and revocation of
certification of laboratories to perform
controlled substances testing in carrying
out this section;
"(3) require that all laboratories involved in the
testing of any individual under this section shall
have the capability and facility, at such
laboratory, of performing screening and
confirmation tests;
"(4) provide that all tests which indicate the use,
in violation of law or Federal regulation, of
alcohol or a controlled substance by any individual
shall be confirmed by a scientifically recognized
method of testing capable of providing quantitative
data regarding alcohol or a controlled substance;
"(5) provide that each specimen sample be
subdivided, secured, and labeled in the presence of
the tested individual and that a portion thereof be
retained in a secure manner to prevent the
possibility of tampering, so that in the event the
individual's confirmation test results are positive
the individual has an opportunity to have the
retained portion assayed by a confirmation test
done independently at a second certified laboratory
if the individual requests the independent test
within 3 days after being advised of the results of
the confirmation test;
"(6) ensure appropriate safeguards for testing to
detect and quantify alcohol in breath and body
fluid samples, including urine and blood, through
the development of regulations as may be necessary
and in consultation with the Department of Health
and Human Services;
"(7) provide for the confidentiality of test
results and medical information (other than
information relating to alcohol or a controlled
substance) of employees, except that the provisions
of this paragraph shall not preclude the use of
test results for the orderly imposition of
appropriate sanctions under this section; and
"(8) ensure that employees are selected for tests
by nondiscriminatory and impartial methods, so that
no employee is harassed by being treated
differently from other employees in similar
circumstances.
"(e) EFFECT ON OTHER LAWS AND REGULATIONS.--
"(1) STATE AND LOCAL LAW AND REGULATIONS.--No State
or local government shall adopt or have in effect
any law, rule, regulation, ordinance, standard, or
order that is inconsistent with the regulations
issued under this section, except that the
regulations issued under this section shall not be
construed to preempt provisions of State criminal
law which impose sanctions for reckless conduct
leading to actual loss of life, injury, or damage
to property.
"(2) OTHER REGULATIONS ISSUED BY
SECRETARY.--Nothing in this section shall be
construed to restrict the discretion of the
Secretary to continue in force, amend, or further
supplement any regulations governing the use of
alcohol or controlled substances by mass
transportation employees issued before the date of
enactment of this section.
"(3) INTERNATIONAL OBLIGATIONS.--In issuing
regulations under this section, the Secretary shall
only establish requirements that are consistent
with the international obligations of the United
States, and the Secretary shall take into
consideration any applicable laws and regulations
of foreign countries.
"(f) APPLICATION OF PENALTIES.--
"(1) EFFECT ON OTHER PENALTIES.--Nothing in this
section shall be construed to supersede any penalty
applicable under this title or any other provision
of law..
"(2) DETERMINATION OF SANCTIONS.--The Secretary
shall determine appropriate sanctions for mass
transportation vehicle operators who are
determined, as a result of tests conducted and
confirmed under this section, to have used, in
violation of law or Federal regulation, alcohol or
a controlled substance but are not under the
influence of alcohol or a controlled substance as
provide in this title.
"(g) DEFINITION.--(1) For the purposes of this
section, the term 'controlled substance' means any
substance under section 102(6) of the Controlled
Substances Act (21 U.S.C. 802(6)) specified by the
Secretary.".
SEC. 208. MONETARY AWARDS FOR CERTAIN INFORMATION RELATING TO THE
UNLAWFUL SALE OF CONTROLLED SUBSTANCES.
Section 524z(c)(1) of title 28, United States Code is amended--
(1) by striking "Justice--" and inserting "Justice:";
(2) in subparagraph (A)--
(A) by striking "the" in the first place it appears
and inserting "The"; and
(B) by striking the semicolon at the end and
inserting a period; and
(3) in subparagraph (B)--
(A) by striking "the" the first place it appears
and inserting "The"; and
(B) by striking the semicolon at the end and
inserting a period; and
(4) in subparagraph (C)--
(A) by striking "the" the first place it appears
and inserting "The"; and
(B) by striking the semicolon at the end and
inserting a period;
(5) in subparagraph (D)--
(A) by striking "the" the first place it appears
and inserting "The"; and
(B) by striking the semicolon at the end and
inserting a period;
(6) in subparagraph (E)--
(A) by striking "disbursements" and inserting
"Disbursements"; and
(B) by striking the semicolon at the end and
inserting a period;
(7) in subparagraph (F)--
(A) by striking "for" the first place it appears
and inserting "For"; and
(B) by striking the semicolon at the end and
inserting a period;
(8) in subparagraph (G)--
(A) by striking "for" the first place it appears
and inserting "For"; and
(B) by striking the semicolon at the end and
inserting a period;
(9) in subparagraph (H)--
(A) by striking "after" and inserting "After";
(B) by striking "(H)" and inserting "(I)"; and
(10) by inserting after subparagraph (G) the following:
"(H)(i) For the payment of an award to any person
or persons who provide information leading to the
arrest and conviction under Federal law of any
individual or individuals for the unlawful sale, or
possession for sale, of a controlled substance or a
controlled substance analogue. The aggregate
amount of such award shall be equal to 50 percent
of the fair market value (as of the date of
forfeiture) of all property forfeited to the United
States as a result of such conviction and pursuant
to a law enforced or administered by the Department
of Justice: _Provided_, That payment of such
awards shall not reduce the amount of such moneys
or property available for distribution to State and
local law enforcement agencies.
"(ii) For the payment to the State or States in
which the Federal offense was committed by such
individual or individuals, of an incentive award to
encourage such State or States, at their option, to
establish a program (including outreach) to pay
rewards to persons who provide information leading
to the arrest and conviction under State law of
individuals for the unlawful sale, or possession
for sale, of controlled substances or controlled
substance analogues. The aggregate amount of such
incentive award shall be equal to 5 percent of the
fair market value (as of the date of forfeiture) of
all property forfeited to the United States as a
result of the convictions referred to in clause (i)
and pursuant to a law enforced or administered by
the Department of Justice.
"(iii) For the purposes of this subparagraph--
"(I) the term 'controlled substance' has
the meaning stated in section 102(6) of
the Controlled Substances Act;
"(II) the term 'controlled substance
analogue' has the meaning stated in
section 102(32) of the Controlled
Substances Act; and
"(III) the term 'individual' does not
include an individual who is convicted
under Federal or State law for the
unlawful sale, or possession for sale, of
a controlled substance or a controlled
substances analogue.".
TITLE III--AUTHORIZATION OF APPROPRIATIONS
SEC. 301. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary to
carry out this Act.
SEC. 302. SEVERABILITY.
If any provision of this Act or any amendment made by this Act, or the
application of any such provision or amendment to any person or
circumstance is held invalid, the validity of any other such provision
or amendment, and the application of such provisions or amendment to
other persons and circumstances, shall not be affected thereby.
*********************************************************************
Editor's Comment: Well, I hope you enjoyed the first issue. I have no
reason to believe that there will not be many more to come. I am sorry if
this issue is a somewhat large. We had so much information, that we just
had to pack it in. The Rivendell BBS will be up as of May 1, 1991. We are
not sure of the number yet, but as soon as we find out, we will post it on
the current Rivendell BBS. (713) 481-3448. Please do not call this number
after May 1. I would like to extend my special thanks to Homer Mandrill for
that exclusive editorial and to the dudes at Beer*Net for the input. I hope
all of you are as happy with the first issue as I am. I would love nothing
more than to hear from our readers. Please write, call the BBS, or drop me
a line on Internet. All mailing/calling info is at the top of the magazine.
This issue came out almost two months early. I thought it would be hell to
do, but it was smooth as it could have ever been. But, send in those
articles and editorials. I will fit them in somewhere. Please state if you
would like to remain anonymous, use your handle, or real name. We will give
you the courtesy of any option you desire. Many thanks to the guys at NIA
for the plug. Keep on Rockin JD & LM! Well, thats the show, and I'm outta
here.
The Desert Fox