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1994-07-17
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########## |
########## |
### | THE DOCUMENT CASE
####### |
####### | A collection of briefs, judgments
### | white papers, rulings, and references of
########## | moment to the issues of law and order on
########## | The Electronic Frontier
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########## |
########## |
### | Document #: 3
####### | Title: Constitutional, legal, and ethical
####### | considerations for dealing with electronic
### | files in the age of cyberspace
### | Archived/Published to the Net: August 7, 1991
### |
|
########## |
########## | Anonymous ftp archive maintained by
### | Mike Godwin and Chris Davis at
####### | The Electronic Frontier Foundation (eff.org)
####### |
### | These documents are in the DOCS subdirectory
### | of the ftp directory. Related files may be
### | found in the EFF and SJG subdirectories.
FEDERAL ENFORCEMENT 1991
Georgetown University Law Center
Washington, D.C.
May 16-17, 1991
CONSTITUTIONAL, LEGAL, AND ETHICAL
CONSIDERATIONS FOR DEALING
WITH ELECTRONIC FILES IN THE AGE OF CYBERSPACE
Harvey A. Silverglate and Thomas C. Viles (FN1)
Introduction -- The Reach of
Cybernetic Technology.
Without pause over the past decade, computers have transformed the
physical organization of work in virtually every office in the nation.
Businesses and law firms are spurning the use of paper to deliver and
store information; instead, they have become dependent upon the use of
computers and electronic systems for these functions. Now it is common to
draft, revise, and edit all documents -- from briefs, to business
proposals, to contracts -- without ever generating a paper "hard" copy
until the document is ready for signature and submission.
Furthermore, now it is possible for the personnel of a company or
law firm to conduct all of their in-house discussions on a computer
network which transmits and receives electronic mail ("e-mail"). E-mail
can be used for written messages of great import as well as trivial asides
and gossip. All such messages can be stored for later retrieval. Using
networks and e-mail in tandem, teams of people in different offices can
create, edit and complete lengthy written projects, literally without ever
speaking to each other, or ever looking at paper copy.
Communications between the office workplace and the outside world
also can be conducted through the use of "networks" of computer systems.
For example, the home office of a company can communicate with all of its
affiliates and subsidiaries by the transmission of written messages
between their respective computers ("nodes", in computer argot). In this
way, all operations which can be performed simultaneously within one
office, can be performed with equal facility among many offices, linked by
the computer networks. Such systems also enable the attorney to stay in
close contact with a client when it is necessary to work together on a
project which requires close attention to detail.
Computers and computer networks also promise to substantially and
rapidly transform civil society. There exists a variety of computer
networks, which enable academic institutions and scholars, to conduct
global conferences on matters of common interest. Through e-mail and
electronic bulletin boards, scholars and researchers can share
experimental data and resources. See "Common Electronic Policy," The
Economist, Feb. 16, 1991, at 24. Recently, the volume of academic message
traffic in the United States has been increasing by 30-40% per month. Id.
This session of Congress is considering a bill, introduced by Sen. Albert
Gore, to spend over $1 billion in computer research, of which $400 million
would be dedicated to the construction of a new National Research and
Education Network (NREN), capable of handling computer traffic many times
faster than the networks currently in existence -- analogous to a new
electronic interstate highway system. See id.; Leccese, "Hackers under
Attack: Crackdown Raises Questions about New Forms of Speech," Boston
Phoenix, Sept. 7, 1990, at 8, 18. It is estimated that the entire project
will cost $200 billion to complete. Leccese, supra, at 22.
There also are smaller networks, too numerous to mention, which
are not affiliated with any company, university, government agency, or
other established entity. These independent networks function as forums
for people all over the world to communicate with one another about
matters of interest, from the sublime to the ridiculous. The largest
computer networks in the United States, InterNet and UseNet, are each
actually made up of 2,000 smaller networks. See, e.g., "Common Electronic
Policy," supra, at 24; Costikyan, "Closing the Net," Reason, Jan. 1991, at
22. InterNet reportedly carries the electromagnetic impulses created by
over 500 billion keystrokes per month. Leccese, supra, at 9.
Approximately 5,000 bulletin boards operate over the networks. Costikyan,
supra, at 22.
One notable example of the use of computer networks for purely
expressive purposes is the Whole Earth 'Lectronic Link ("WELL"), which
provides political activists, small businessmen, rock and roll fans, and
hundreds of other groupings of people (including lawyers) a forum in which
to discuss matters of common interest. The WELL is a "node" capable of
running hundreds of different multi-party conversations (or "conferences")
simultaneously. Like an electronic town meeting, groups of people can
communicate together on a multiplicity of bulletin boards, or users can
send each other private messages by e-mail. (FN2)
Other networks, utilizing more modest equipment, can maintain only
one or two bulletin boards at a time. Everyone with a personal computer
and access to a phoneline can participate in any of these open networks --
and, with only a little extra equipment, can start a new bulletin board.
Searches and Seizures
Involving Cybernetic Machines.
Over the past 15 months, the following incidents have come to our
attention:
*On January 24, 1990, a handful of Secret Service agents,
accompanied by two employees of the local telephone company, seized the
equipment of a twenty year old man living with his mother in New York.
From his bedroom, they seized a Commodore 128 computer, 200 floppy disks,
a telephone answering machine, cassette-playing radio, and all of his
musical cassette tapes. Apparently, the Secret Service was searching for
evidence of alleged "computer crimes." See Dibbell, "On Line and Out of
Bounds", Village Voice, July 24, 1990, at 27; Jahnke, "The Cops Come to
Cyberspace," Boston Magazine, November 1990, at 140; J. Barlow, Crime and
Puzzlement 8P9 (1990) According to some reports, this raid (and a few
other raids which were carried out simultaneously) marked the beginning of
the so-called "Operation Sun Devil," described as a "two-year Secret
Service investigation which involved 150 federal agents, numerous local
and state law enforcement agencies, and the combined security resources"
of numerous private telecommunications companies.(FN3) Barlow, supra, at
9; see also "Crime of the Century," Personal Computer World, Mar. 1991, at
187; Zachary, "Group to Defend Civil Rights of Hackers Founded by Computer
Industry Pioneer," Wall Street Journal, July 11, 1990, at B4; Schatz,
"Foundation to Defend PC Users," Washington Post, July 11, 1990, at B8;
Edelman, "Kapor for the Defense in Computer Field," Boston Globe, July 11,
1990, at 33; "Kapor Forms Group to Aid Hackers," USA Today, July 11, 1990,
at 2B.
*On March 1, 1990 the Secret Service raided the offices of Steve
Jackson Games, a small Austin start-up company which designed and
manufactured fantasy role-playing books and games. The Secret Service
seized the company's three computer systems, two laser printers,
miscellaneous hardware, papers, back-up disks, and a single pocket
calculator. The compan