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From: geoff@fernwood.mpk.ca.us (Geoff Goodfellow)
Newsgroups: comp.misc,misc.legal,alt.bbs,alt.cosuard
Subject: LEGAL OVERVIEW - THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS
Message-ID: <5123@fernwood.mpk.ca.us>
Date: 10 Jul 90 14:58:58 GMT
Followup-To: eff@well.sf.ca.us
Organization: Anterior Technology, Menlo Park, CA USA
Lines: 560
LEGAL OVERVIEW
THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS
Advances in computer technology have brought us to a new frontier in
communications, where the law is largely unsettled and woefully
inadequate to deal with the problems and challenges posed by electronic
technology. How the law develops in this area will have a direct impact
on the electronic communications experiments and innovations being
devised day in and day out by millions of citizens on both a large and
small scale from coast to coast. Reasonable balances have to be struck
among:
% traditional civil liberties
% protection of intellectual property
% freedom to experiment and innovate
% protection of the security and integrity of computer
systems from improper governmental and private
interference.
Striking these balances properly will not be easy, but if they are
struck too far in one direction or the other, important social and legal
values surely will be sacrificed.
Helping to see to it that this important and difficult task is done
properly is a major goal of the Electronic Frontier Foundation. It is
critical to assure that these lines are drawn in accordance with the
fundamental constitutional rights that have protected individuals from
government excesses since our nation was founded -- freedom of speech,
press, and association, the right to privacy and protection from
unwarranted governmental intrusion, as well as the right to procedural
fairness and due process of law.
The First Amendment
The First Amendment to the United States Constitution prohibits the
government from "abridging the freedom of speech, or of the press," and
guarantees freedom of association as well. It is widely considered to
be the single most important of the guarantees contained in the Bill of
Rights, since free speech and association are fundamental in securing
all other rights.
The First Amendment throughout history has been challenged by every
important technological development. It has enjoyed only a mixed record
of success. Traditional forms of speech -- the print media and public
speaking -- have enjoyed a long and rich history of freedom from
governmental interference. The United States Supreme Court has not
afforded the same degree of freedom to electronic broadcasting,
however.
Radio and television communications, for example, have been subjected to
regulation and censorship by the Federal Communications Commission
(FCC), and by the Congress. The Supreme Court initially justified
regulation of the broadcast media on technological grounds -- since
there were assumed to be a finite number of radio and television
frequencies, the Court believed that regulation was necessary to prevent
interference among frequencies and to make sure that scarce resources
were allocated fairly. The multiplicity of cable TV networks has
demonstrated the falsity of this "scarce resource" rationale, but the
Court has expressed a reluctance to abandon its outmoded approach
without some signal from Congress or the FCC.
Congress has not seemed overly eager to relinquish even
counterproductive control over the airwaves. Witness, for example,
legislation and rule-making in recent years that have kept even
important literature, such as the poetry of Allen Ginsberg, from being
broadcast on radio because of language deemed "offensive" to regulators.
Diversity and experimentation have been sorely hampered by these rules.
The development of computer technology provides the perfect opportunity
for lawmakers and courts to abandon much of the distinction between the
print and electronic media and to extend First Amendment protections to
all communications regardless of the medium. Just as the multiplicity
of cable lines has rendered obsolete the argument that television has to
be regulated because of a scarcity of airwave frequencies, so has the
ready availability of virtually unlimited computer communication
modalities made obsolete a similar argument for harsh controls in this
area. With the computer taking over the role previously played by the
typewriter and the printing press, it would be a constitutional disaster
of major proportions if the treatment of computers were to follow the
history of regulation of radio and television, rather than the history
of freedom of the press.
To the extent that regulation is seen as necessary and proper, it should
foster the goal of allowing maximum freedom, innovation and
experimentation in an atmosphere where no one's efforts are sabotaged by
either government or private parties. Regulation should be limited by
the adage that quite aptly describes the line that separates reasonable
from unreasonable regulation in the First Amendment area: "Your liberty
ends at the tip of my nose."
As usual, the law lags well behind the development of technology. It is
important to educate lawmakers and judges about new technologies, lest
fear and ignorance of the new and unfamiliar, create barriers to free
communication, expression, experimentation, innovation, and other such
values that help keep a nation both free and vigorous.
The Fourth Amendment
The Fourth Amendment guarantees "the right of the people to be secure in
their persons, houses, papers, and effects, agaihe warrant
demonstrates the existen Oath or
affirmation, and particularly describing the place to be searched, and
zed." In short, the scope of the search
has to be as narrow as possible, and there has to be good reason to
believe that the search will turn up evidence of illegal activity.
The meaning of the Fourth Amendment's guarantee has evolved over time in
response to changing technologies. For example, while the Fourth
Amendment was first applied to prevent the government from trespassing
onto private property and seizing tangible objects, the physical
trespass rationale was made obsolete by the development of electronic
eavesdropping devices which permitted the government to "seize" an
individual's words without ever treading onto that person's private
property. To put the matter more concretely, while the drafters of the
First Amendment surely knew nothing about electronic databases, surely
they would have considered one's database to be as sacrosanct as, for
example, the contents of one's private desk or filing cabinet.
The Supreme Court responded decades ago to these types of technological
challenges by interpreting the Fourth Amendment more broadly to prevent
governmental violation of an individual's reasonable expectation of
privacy, a concept that transcended the narrow definition of one's
private physical space. It is now well established that an individual
has a reasonable expectation of privacy, not only in his or her home
and business, but also in private communications. Thus, for example:
% Government wiretapping and electronic eavesdropping are now limited
by state and federal statutes enacted to effectuate and even to expand
upon Fourth Amendment protections.
% More recently, the Fourth Amendment has been used, albeit with
limited success, to protect individuals from undergoing certain random
mandatory drug testing imposed by governmental authorities.
Advancements in technology have also worked in the opposite direction,
to diminish expectations of privacy that society once considered
reasonable, and thus have helped limit the scope of Fourth Amendment
protections. Thus, while one might once have reasonably expected
privacy in a fenced-in field, the Supreme Court has recently told us
that such an expectation is not reasonable in an age of surveillance
facilitated by airplanes and zoom lenses.
Applicability of Fourth Amendment to computer media
Just as the Fourth Amendment has evolved in response to changing
technologies, so it must now be interpreted to protect the reasonable
expectation of privacy of computer users in, for example, their
electronic mail or electronically stored secrets. The extent to which
government intrusion into these private areas should be allowed, ought
to be debated openly, fully, and intelligently, as the Congress seeks to
legislate in the area, as courts decide cases, and as administrative,
regulatory, and prosecutorial agencies seek to establish their turf.
One point that must be made, but which is commonly misunderstood, is
that the Bill of Rights seeks to protect citizens from privacy invasions
committed by the government, but, with very few narrow exceptions, these
protections do not serve to deter private citizens from doing what the
government is prohibited from doing. In short, while the Fourth
Amendment limits the government's ability to invade and spy upon private
databanks, it does not protect against similar invasions by private
parties. Protection of citizens from the depredations of other citizens
requires the passage of privacy legislation.
The Fifth Amendment
The Fifth Amendment assures citizens that they will not "be deprived of
life, liberty, or property, without due process of law" and that private
property shall not "be taken for public use without just compensation."
This Amendment thus protects both the sanctity of private property and
the right of citizens to be proceeded against by fair means before they
may be punished for alleged infractions of the law.
One aspect of due process of law is that citizens not be prosecuted for
alleged violations of laws that are so vague that persons of reasonable
intelligence cannot be expected to assume that some prosecutor will
charge that his or her conduct is criminal. A hypothetical law, for
example, that makes it a crime to do "that which should not be done",
would obviously not pass constitutional muster under the Fifth
Amendment. Yet the application of some existing laws to new situations
that arise in the electronic age is only slightly less problematic than
the hypothetical, and the Electronic Frontier Foundation plans to
monitor the process by which old laws are modified, and new laws are
crafted, to meet modern situations.
One area in which old laws and new technologies have already clashed and
are bound to continue to clash, is the application of federal criminal
laws against the interstate transportation of stolen property. The
placement on an electronic bulletin board of arguably propriety computer
files, and the "re-publication" of such material by those with access to
the bulletin board, might well expose the sponsor of the bulletin board
as well as all participants to federal felony charges, if the U.S.
Department of Justice can convince the courts to give these federal laws
a broad enough reading. Similarly, federal laws protecting against
wiretapping and electronic eavesdropping clearly have to be updated to
take into account electronic bulletin board technology, lest those who
utilize such means of communication should be assured of reasonable
privacy from unwanted government surveillance.
Summary
The problem of melding old but still valid concepts of constitutional
rights, with new and rapidly evolving technologies, is perhaps best
summed up by the following observation. Twenty-five years ago there was
not much question but that the First Amendment prohibited the government
from seizing a newspaper's printing press, or a writer's typewriter, in
order to prevent the publication of protected speech. Similarly, the
government would not have been allowed to search through, and seize,
one's private papers stored in a filing cabinet, without first
convincing a judge that probable cause existed to believe that evidence
of crime would be found.
Today, a single computer is in reality a printing press, typewriter, and
filing cabinet (and more) all wrapped up in one. How the use and output
of this device is treated in a nation governed by a Constitution that
protects liberty as well as private property, is a major challenge we
face. How well we allow this marvelous invention to continue to be
developed by creative minds, while we seek to prohibit or discourage
truly abusive practices, will depend upon the degree of wisdom that
guides our courts, our legislatures, and governmental agencies entrusted
with authority in this area of our national life.
For further information regarding The Bill of Rights please contact:
Harvey Silverglate
Silverglate & Good
89 Broad Street, 14th Floor
Boston, MA 02110
617/542-6663
ELECTRONIC FRONTIER FOUNDATION
LEGAL CASE SUMMARY
July 10, 1990
The Electronic Frontier Foundation is currently providing litigation
support in two cases in which it perceived there to be substantial civil
liberties concerns which are likely to prove important in the overall
legal scheme by which electronic communications will, now and in the
future, be governed, regulated, encouraged, and protected.
Steve Jackson Games
Steve Jackson Games is a small, privately owned adventure game
manufacturer located in Austin, Texas. Like most businesses today,
Steve Jackson Games uses computers for word processing and bookkeeping.
In addition, like many other manufacturers, the company operates an
electronic bulletin board to advertise and to obtain feedback on its
product ideas and lines.
One of the company's most recent products is GURPS CYBERPUNK, a science
fiction role-playing game set in a high-tech futuristic world. The
rules of the game are set out in a game book. Playing of the game is
not performed on computers and does not make use of computers in any
way. This game was to be the company's most important first quarter
release, the keystone of its line.
On March 1, 1990, just weeks before GURPS CYBERPUNK was due to be
released, agents of the United States Secret Service raided the premises
of Steve Jackson Games. The Secret Service:
% seized three of the company's computers which were used in the
drafting and designing of GURPS CYBERPUNK, including the computer used
to run the electronic bulletin board,
% took all of the company software in the neighborhood of the computers
taken,
% took with them company business records which were located on the
computers seized, and
% destructively ransacked the company's warehouse, leaving many items
in disarray.
In addition, all working drafts of the soon-to-be-published GURPS
CYBERPUNK game book -- on disk and in hard-copy manuscript form -- were
confiscated by the authorities. One of the Secret Service agents told
Steve Jackson that the GURPS CYBERPUNK science fiction fantasy game book
was a, "handbook for computer crime."
Steve Jackson Games was temporarily shut down. The company was forced
to lay-off half of its employees and, ever since the raid, has operated
on relatively precarious ground.
Steve Jackson Games, which has not been involved in any illegal activity
insofar as the Foundation's inquiries have been able to determine, tried
in vain for over three months to find out why its property had been
seized, why the property was being retained by the Secret Service long
after it should have become apparent to the agents that GURPS CYBERPUNK
and everything else in the company's repertoire were entirely lawful and
innocuous, and when the company's vital materials would be returned. In
late June of this year, after attorneys for the Electronic Frontier
Foundation became involved in the case, the Secret Service finally
returned most of the property, but retained a number of documents,
including the seized drafts of GURPS CYBERPUNKS.
The Foundation is presently seeking to find out the basis for the search
warrant that led to the raid on Steve Jackson Games. Unfortunately, the
application for that warrant remains sealed by order of the court. The
Foundation is making efforts to unseal those papers in order to find out
what it was that the Secret Service told a judicial officer that
prompted that officer to issue the search warrant.
Under the Fourth Amendment to the United States Constitution, a search
warrant may be lawfully issued only if the information presented to the
court by the government agents demonstrates "probable cause" to believe
that evidence of criminal conduct would be found on the premises to be
searched. Unsealing the search warrant application should enable the
Foundation's lawyers, representing Steve Jackson Games, to determine the
theory by which Secret Service Agents concluded or hypothesized that
either the GURPS CYBERPUNK game or any of the company's computerized
business records constituted criminal activity or contained evidence of
criminal activity.
Whatever the professed basis of the search, its scope clearly seems to
have been unreasonably broad. The wholesale seizure of computer
software, and subsequent rummaging through its contents, is precisely
the sort of general search that the Fourth Amendment was designed to
prohibit.
If it is unlawful for government agents to indiscriminately seize all of
the hard-copy filing cabinets on a business premises -- which it surely
is -- that the same degree of protection should apply to businesses
that store information electronically.
The Steve Jackson Games situation appears to involve First Amendment
violations as well. The First Amendment to the United States
Constitution prohibits the government from "abridging the freedom of
speech, or of the press". The government's apparent attempt to prevent
the publication of the GURPS CYBERPUNK game book by seizing all copies
of all drafts in all media prior to publication, violated the First
Amendment. The particular type of First Amendment violation here is the
single most serious type, since the government, by seizing the very
material sought to be published, effectuated what is known in the law as
a "prior restraint" on speech. This means that rather than allow the
material to be published and then seek to punish it, the government
sought instead to prevent publication in the first place. (This is not
to say, of course, that anything published by Steve Jackson Games could
successfully have been punished. Indeed, the opposite appears to be the
case, since SJG's business seems to be entirely lawful.) In any effort
to restrain publication, the government bears an extremely heavy burden
of proof before a court is permitted to authorize a prior restraint.
Indeed, in its 200-year history, the Supreme Court has never upheld a
prior restraint on the publication of material protected by the First
Amendment, warning that such efforts to restrain publication are
presumptively unconstitutional. For example, the Department of Justice
was unsuccessful in 1971 in obtaining the permission of the Supreme
Court to enjoin The New York Times, The Washington Post, and The Boston
Globe from publishing the so-called Pentagon Papers, which the
government strenuously argued should be enjoined because of a perceived
threat to national security. (In 1979, however, the government sought
to prevent The Progressive magazine from publishing an article
purporting to instruct the reader as to how to manufacture an atomic
bomb. A lower federal court actually imposed an order for a temporary
prior restraint that lasted six months. The Supreme Court never had an
opportunity to issue a full ruling on the constitutionality of that
restraint, however, because the case was mooted when another newspaper
published the article.)
Governmental efforts to restrain publication thus have been met by
vigorous opposition in the courts. A major problem posed by the
government's resort to the expedient of obtaining a search warrant,
therefore, is that it allows the government to effectively prevent or
delay publication without giving the citizen a ready opportunity to
oppose that effort in court.
The Secret Service managed to delay, and almost to prevent, the
publication of an innocuous game book by a legitimate company -- not by
asking a court for a prior restraint order that it surely could not have
obtained, but by asking instead for a search warrant, which it obtained
all too readily.
The seizure of the company's computer hardware is also problematic, for
it prevented the company not only from publishing GURPS CYBERPUNK, but
also from operating its electronic bulletin board. The government's
action in shutting down such an electronic bulletin board is the
functional equivalent of shutting down printing presses of The New York
Times or The Washington Post in order to prevent publication of The
Pentagon Papers. Had the government sought a court order closing down
the electronic bulletin board, such an order effecting a prior restraint
almost certainly would have been refused. Yet by obtaining the search
warrant, the government effected the same result.
This is a stark example of how electronic media suffer under a less
stringent standard of constitutional protection than applies to the
print media -- for no apparent reason, it would appear, other than the
fact that government agents and courts do not seem to readily equate
computers with printing presses and typewriters. It is difficult to
understand a difference between these media that should matter for
constitutional protection purposes. This is one of the challenges
facing the Electronic Frontier Foundation.
The Electronic Frontier Foundation will continue to press for return of
the remaining property of Steve Jackson Games and will take formal
steps, if necessary, to determine the factual basis for the search.
The purpose of these efforts is to establish law applying the First and
Fourth Amendments to electronic media, so as to protect in the future
Steve Jackson Games as well as other individuals and businesses from
the devastating effects of unlawful and unconstitutional government
intrusion upon and interference with protected property and speech
rights.
United States v. Craig Neidorf
Craig Neidorf is a 20-year-old student at the University of Missouri who
has been indicted by the United States on several counts of interstate
wire fraud and interstate transportation of stolen property in
connection with his activities as editor and publisher of the
electronic magazine, Phrack.
The indictment charges Neidorf with: (1) wire fraud and interstate
transportation of stolen property for the republication in Phrack of
information which was allegedly illegally obtained through the accessing
of a computer system without authorization, though it was obtained not
by Neidorf but by a third party; and (2) wire fraud for the publication
of an announcement of a computer conference and for the publication of
articles which allegedly provide some suggestions on how to bypass
security in some computer systems.
The information obtained without authorization is a file relating to the
provision of 911 emergency telephone services that was allegedly removed
from the BellSouth computer system without authorization. It is
important to note that neither the indictment, nor any briefs filed in
this case by the government, contain any factual allegation or
contention that Neidorf was involved in or participated in the removal
of the 911 file.
These indictments raise substantial constitutional issues which have
significant impact on the uses of new computer communications
technologies. The prosecution of an editor or publisher, under
generalized statutes like wire fraud and interstate transportation of
stolen property, for the publication of information received lawfully,
which later turns out to be have been "stolen," presents an
unprecedented threat to the freedom of the press. The person who should
be prosecuted is the thief, and not a publisher who subsequently
receives and publishes information of public interest. To draw an
analogy to the print media, this would be the equivalent of prosecuting
The New York Times and The Washington Post for publishing the Pentagon
Papers when those papers were dropped off at the doorsteps of those
newspapers.
Similarly, the prosecution of a publisher for wire fraud arising out of
the publication of articles that allegedly suggested methods of
unlawful activity is also unprecedented. Even assuming that the
articles here did advocate unlawful activity, advocacy of unlawful
activity cannot constitutionally be the basis for a criminal
prosecution, except where such advocacy is directed at producing
imminent lawless action, and is likely to incite such action. The
articles here simply do not fit within this limited category. The
Supreme Court has often reiterated that in order for advocacy to be
criminalized, the speech must be such that the words trigger an
immediate action. Criminal prosecutions such as this pose an extreme
hazard for First Amendment rights in all media of communication, as it
has a chilling effect on writers and publishers who wish to discuss the
ramifications of illegal activity, such as information describing
illegal activity or describing how a crime might be committed.
In addition, since the statutes under which Neidorf is charged clearly
do not envision computer communications, applying them to situations
such as that found in the Neidorf case raises fundamental questions of
fair notice -- that is to say, the publisher or computer user has no
way of knowing that his actions may in fact be a violation of criminal
law. The judge in the case has already conceded that "no court has
ever held that the electronic transfer of confidential, proprietary
business information from one computer to another across state lines
constitutes a violation of [the wire fraud statute]." The Due Process
Clause prohibits the criminal prosecution of one who has not had fair
notice of the illegality of his action. Strict adherence to the
requirements of the Due Process Clause also minimizes the risk of
selective or arbitrary enforcement, where prosecutors decide what
conduct they do not like and then seek some statute that can be
stretched by some theory to cover that conduct.
Government seizure and liability of bulletin board systems
During the recent government crackdown on computer crime, the government
has on many occasions seized the computers which operate bulletin board
systems ("BBSs"), even though the operator of the bulletin board is not
suspected of any complicity in any alleged criminal activity. The
government seizures go far beyond a "prior restraint" on the publication
of any specific article, as the seizure of the computer equipment of a
BBS prevents the BBS from publishing at all on any subject. This akin
to seizing the word processing and computerized typesetting equipment
of The New York Times for publishing the Pentagon Papers, simply because
the government contends that there may be information relating to the
commission of a crime on the system. Thus, the government does not
simply restrain the publication of the "offending" document, but it
seizes the means of production of the First Amendment activity so that
no more stories of any type can be published.
The government is allowed to seize "instrumentalities of crime," and a
bulletin board and its associated computer system could arguably be
called an instrumentality of crime if individuals used its private
e-mail system to send messages in furtherance of criminal activity.
However, even if the government has a compelling interest in interfering
with First Amendment protected speech, it can only do so by the least
restrictive means. Clearly, the wholesale seizure and retention of a
publication's means of production, i.e., its computer system, is not the
least restrictive alternative. The government obviously could seize
the equipment long enough to make a copy of the information stored on
the hard disk and to copy any other disks and documents, and then
promptly return the computer system to the operator.
Another unconstitutional aspect of the government seizures of the
computers of bulletin board systems is the government infringement on
the privacy of the electronic mail in the systems. It appears that the
government, in seeking warrants for the seizures, has not forthrightly
informed the court that private mail of third parties is on the
computers, and has also read some of this private mail after the systems
have been seized.
The Neidorf case also raises issues of great significance to bulletin
board systems. As Neidorf was a publisher of information he received,
BBSs could be considered publishers of information that its users post
on the boards. BBS operators have a great deal of concern as to the
liability they might face for the dissemination of information on their
boards which may turn out to have been obtained originally without
authorization, or which discuss activity which may be considered
illegal. This uncertainty as to the law has already caused a decrease
in the free flow of information, as some BBS operators have removed
information solely because of the fear of liability.
The Electronic Frontier Foundation stands firmly against the
unauthorized access of computer systems, computer trespass and computer
theft, and strongly supports the security and sanctity of private
computer systems and networks. One of the goals of the Foundation,
however, is to ensure that, as the legal framework is established to
protect the security of these computer systems, the unfettered
communication and exchange of ideas is not hindered. The Foundation is
concerned that the Government has cast its net too broadly, ensnaring
the innocent and chilling or indeed supressing the free flow of
information. The Foundation fears not only that protected speech will
be curtailed, but also that the citizen's reasonable expectation in the
privacy and sanctity of electronic communications systems will be
thwarted, and people will be hesitant to communicate via these networks.
Such a lack of confidence in electronic communication modes will
substantially set back the kind of experimentation by and communication
among fertile minds that are essential to our nation's development. The
Foundation has therefore applied for amicus curiae (friend of the
court) status in the Neidorf case and has filed legal briefs in support
of the First Amendment issues there, and is prepared to assist in
protecting the free flow of information over bulletin board systems and
other computer technologies.
For further information regarding Steve Jackson Games please contact:
Harvey Silverglate or Sharon Beckman
Silverglate & Good
89 Broad Street, 14th Floor
Boston, MA 02110
617/542-6663
For further information regarding Craig Neidorf please contact:
Terry Gross or Eric Lieberman
Rabinowitz, Boudin, Standard, Krinsky and Lieberman
740 Broadway, 5th Floor
New York, NY 10003
212/254-1111