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EFF305.TXT
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########## ########## ########## | A GUIDE TO EFF LEGAL SERVICES
########## ########## ########## |
#### #### #### |
######## ######## ######## | EFF TESTIMONY ON DIGITAL PRIVACY
######## ######## ######## | AS GIVEN BY DAVID FARBER
#### #### #### |
########## #### #### | WHAT EFF DID ON YOUR SUMMER VACTION
########## #### #### |
=====================================================================
EFFector Online September 18, 1992 Issue 3.05
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
=====================================================================
EFF LEGAL SERVICES
by Mike Godwin
EFF Staff Counsel, Cambridge
Because the EFF has spent the last year developing and publicizing
our policy-focused efforts at our new Washington office, many of our
constituents have wondered whether EFF is still active on the
civil-liberties front. The answer to that question is an unqualified
"Yes!" This activity has been less well-publicized, however, often
because of the privacy interests of most of the people who seek EFF help
with their individual cases. I want to take this opportunity to let our
members and constituents know what kind of legal services we offer, and
what kind of casework we do.
The primary legal services I provide are basic counselling and
referrals. EFF does not charge for this, and you do not have to be an
EFF member to call or write and ask for help. I answer general questions
about computer law and telecommunications law at the federal level as
well as in the jurisdictions in which I am admitted to the bar
(currently Texas and Washington, D.C.). When appropriate, I instruct
people to seek further consultation with lawyers in their respective
jurisdictions, giving them referrals to specific lawyers when possible.
(EFF maintains a database of attorneys who've volunteered to do some
kinds of work on these kinds of cases.) I often mail out source
materials to individuals and organizations. (One of the most frequently
requested materials is the original complaint filed by Steve Jackson
Games in its lawsuit against the U.S. government--many lawyers find that
the complaint is a good primer on civil-liberties issues raised by the
search and seizure of a computer bulletin-board system.) More
frequently, I talk to people on the telephone. The kinds of questions I
deal with tend to fall into the following four general areas:
GENERAL QUESTIONS ABOUT LEGAL ISSUES
A caller may be a sysop who's been told by someone that it's against the
law to read users' e-mail, and she wants to know whether this is true.
Or it may be a user who wants to know if it's legal to upload a scanned
image of a copyrighted photograph to a BBS for downloading by other
users. Or it may be a hobbyist programmer who wonders if he may be held
liable if a computer virus he writes somehow "escapes" and infects and
damages other systems. Usually these questions are aimed at
*anticipated* legal risks (the caller wants to know ahead of time if her
actions will lead to legal trouble), but a significant number of the
calls are from people who wonder if their *current* activities are
illegal or create risks of legal liability. For example, a lot of
sysops of "pirate" BBSs have acquired the notion that they can't be held
liable for providing access to unauthorized copies of commercial
software because it's "the guy downloading the stuff who's doing the
copying"--I tell them they are mistaken and point out the legal risks of
providing such access. A small but consistent fraction of callers prefer
to remain anonymous. I respect their wishes, and try to give just as
much help to anonymous callers as to those who identify themselves.
REQUESTS FOR HELP IN CRIMINAL CASES
Basically, these types of requests fall into two categories, which I
call "target cases" and "non-target cases":
A "target case" is one in which the request is from some one
(the "target") who is very likely to become, or who has already become,
a defendant in a state or federal case. I may get the request from the
target personally, or I may get a call from the target's lawyer. (If the
target doesn't have a lawyer, my first priority is to do what I can to
help him get one. Although EFF does not normally provide funds for legal
representation in criminal cases, I can tell a caller how to go about
contacting a private defense lawyer or a public defender.) I'll ask the
caller for basic facts about the case, and, once I'm in contact with his
lawyer, I'll do what I can to help the lawyer learn the relevant law and
gather the necessary facts to prepare the case. Even the very best
defense lawyers are likely to be unfamiliar with the legal and
evidentiary issues raised by computer-crime investigations--I'm often
able to give them a running start on their case preparation. On a few
occasions, a case may raise a particularly unusual and important
civil-liberties issue, and I'll make a recommendation to EFF management
as to whether EFF should formally support the case in some way.
A "non-target case" is one in which the person asking for
assistance or advice is not an actual or prospective defendant, but her
rights or interests have somehow been affected by a criminal
investigation or by the actions of law-enforcement officials. (The
classic example is one in which a non-target sysop's BBS or networked
computer has been seized as part of an investigation of one the system's
users.) As in target cases, I may advise her lawyer, but I often can
resolve things quickly by acting directly as a representative for the
person asking for help. For example, in a recent Washington State case,
I helped a non-target negotiate a quick return of his equipment, which
federal agents had seized and searched as part of a multi-state criminal
investigation.
REQUESTS FOR HELP IN CIVIL CASES. Normally, EFF won't take sides in a
civil case unless it clearly raises an important civil-liberties issue.
One such case involved the manufacturers of a VCR-programming device who
threatened to sue individuals participating in a discussion of their
coding algorithms on the Usenet newsgroup sci.crypt. The company's
lawyer insisted that the Usenetters' efforts at figuring out the
algorithms by deducing them from the codes published in TV Guide
listings and elsewhere was a violation of their copyright, patent, and
trade-secret interests.
I researched their claim and confirmed the Usenet posters' belief
that their research did not violate any intellectual-property
protections of the manufacturers' products, and I represented their
position to the manufacturer, telling the company that the posters were
engaged in Constitutionally protected speech and inquiry. After several
convesations between me and the company's lawyer, the company dropped
its claims. (The sci.crypt posters' research was eventually published as
a paper in the journal CRYPTOLOGIA--Vol. XVI, Number 3, July 1992--in
which the authors thanked EFF for their legal assistance.)
REQUESTS FOR HELP IN SITUATIONS WHERE THERE'S NO CRIMINAL OR CIVIL CASE
This category includes situations in which, for example, a college
student has his computer-access privileges suspended because a "hacker
newsletter" is discovered by a system administrator rummaging through
the student's directory. (I've explained to more than one system
administrator that mere possession of such information does not make one
a computer intruder, and that their rummaging may have violated the
students' rights.) Or a university computer center may decide to suspend
some kinds of Usenet newsgroups, justifying their actions by saying
they're afraid the sexually oriented newsgroups are illegal. (I've
written and spoken to university administrators to explain that
virtually none of the discussions in the sexually oriented new