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*** EFF News #1.03 (March 7, 1991) ***
*** The Electronic Frontier Foundation, Inc. ***
*** Welcome ***
************************************************************
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Editors: Mitch Kapor (mkapor@eff.org)
Mike Godwin (mnemonic@eff.org)
REPRINT PERMISSION GRANTED: Material in EFF News may be reprinted if you
cite the source. Where an individual author has asserted copyright in
an article, please contact her directly for permission to reproduce.
************************************************************
*** EFF News #1.03: EFF update ***
*** By Mitch Kapor ***
************************************************************
EFF Report
Compiled by Mitch Kapor
1/15/91 - 2/28/91
*** CASE UPDATES, by Mike Godwin***
Len Rose
EFF's support and Mitch's independent funding of Len's defense
have led to good results. Our efforts have limited the extent to which
Len is being made an example of, and the extent to which he can be
used as justification for increased law-enforcement activity in this area.
Had we not intervened in Len's support, it seems likely not only that
he would have faced far harsher penalties after a plea bargain or trial,
but also that bad law would have been made by his federal and state
cases.
Acid, Optik, and Scorpion
"Acid Phreak" and "The Scorpion" received preindictment
letters from federal prosecutors in New York, while "Phiber Optik" was
indicted by a state grand jury. Phiber's case has been resolved; he pled
guilty to a misdemeanor count, and at this writing his sentence is
expected to be limited to community service when he is sentenced on
April 4.
EFF has chosen not to become involved in these cases at this
early stage, primarily because it is unclear whether the cases will raise
important Constitutional or civil-liberties issues, but we are tracking
them closely.
Washington v. Riley
Although we initially favored involvement in this case, EFF's
legal committee later decided that prudent management of our
financial and legal resources dictated that we withhold our formal
involvement here. This case raises important issues, but control of our
costs and management of our time has forced us to make some hard
decisions about investing in new cases, and in this light we determined
that this case would not represent the best investment of our limited
resources.
We have remained in touch with Riley's attorney, however, and
we have offered to act informally as a legal and technical resource for
her to the extent it does not detract from our work on other projects;
she has accepted our offer.
Other
Other important legal matters are currently receiving
considerable attention. Because these are of a sensitive nature, we will
not be able to disclose details until some time in the future. Please bear
with us.
*** LEGAL CASE MANAGEMENT, by Mitch Kapor ***
On February 6, Harvey Silverglate, Sharon Beckman, Tom
Viles, and Gia Baresi (all of Silverglate and Good), Mike Godwin, and I
all had dinner together at Harvey's house. We reached a number of
important conclusions about improving the effectiveness and reducing
the cost of the legal programs of the foundation.
S&G want are willing to allocate additional people to the EFF
account in order to have some extra capacity to handle peak loads.
Tom Viles will be working with us. He's very ACLU-knowledgeable.
He is serving on a national ACLU committee which has just
recommended that the ACLU take a position on national info
infrastructure.
S&G sees EFF as being its ongoing client, as opposed to their
usual mode of operation which is to represent an individual or
organization for a particular case. In essence, S&G is becoming the
EFF's outside litigation counsel. With both parties located in Boston, it
will make coordination more convenient and less expensive. They
have also agreed to work at a very large discount from their usual
client fee schedule.
We discussed streamlining the legal review process. Everyone
felt that it's wasteful and inefficient to have several lawyers looking
into each possible new case and to have conference calls for making
decisions. Mike and Sharon are going to prepare a joint plan on how
we will manage the legal process efficiently. Now that there are fewer
parties involved and that all of the lawyers are in town, it should be
simpler.
*** LEGAL AND POLICY PROJECTS, by Mitch Kapor ***
Sysop liability
We are engaged in an internal discussion about the limits of
sysop liability. We hope to build a consensus on what the law should
be in this area in order to provide a philosophical framework for
whatever action we choose to take in current and future BBS seizure
cases.
Massachusetts Computer Crime Bill
We are once again working with the Mass. Computer Software
Council in an effort to pass a progressive computer crime bill which
protects civil liberties as well as security interests. Two different bills
have been filed: one is our bill, while the other has serious problems of
overbreadth. Sharon, Mike, and I are all working on this. Sharon has
prepared testimony which will be used in public hearings nest week.
There will be a series of briefings for legislators and other other parties
as well.
Guidelines for Computer Search and Seizure
Previously Terry Gross and Nick Poser of Rabinowitz, Boudin
had developed a series of guidelines for the conduct of computer-based
searches for an ABA sub-committee working on this issue.
Subsequently, Mike Godwin revised those for a paper and presentation
to be given at the Computer Virus conference upcoming shortly. At
the recent CPSR Policy Roundtable, it became apparent that we needed
to take more of top-down approach in order to gain adoption and
implementation of these guidelines by federal and state law
enforcement agencies.
We are now in the process of structuring an important project,
to be led by Mike, which will target the FBI and other key agencies for a
series of events to formally develop and present our finding and
recommendations. Jerry Berman of the ACLU has offered to assist us
in navigating our way through the bureaucratic maze in Washington.
Computer Bulletin Boards, Computer Networks, and the Law
In addition to the computer crime bill work and development of
search guidelines, the third major legal project is to develop a position
on the legal issues surrounding computer bulletin boards. There has
already been a great deal of discussion about this issue on the net on
the Well's EFF conference. There have been a small number of law
papers published on the subject as well. Nothing to date though has
offered a comprehensive proposal as to how to place BBSes and
network carriers in the same legal framework as print publications,
common carriers, and broadcasters.
This project, which will involve a collective effort of all EFF
principals, and which is being driven by Mike, will seek to identify both
the fundamental common aspects and differentiating attributes of
digital computer media as compared with their predecessors. This will
be done in order to propose basic approaches to issues of government
censorship, rights and restrictions of private network carriers and
system operators to control content ("private" censorship) and
liabilities of system operators and users for activities and
communication using network facilities.
This is an ambitious undertaking, which will commence with a
formal issues development process, the deliverable of which will
initially take some written form such as a published paper or position
st