Night Owl 6/Night Owl's Shareware - PDSI-006 - Night Owl Corp (1990).iso/033a/gvtvsbbs.zip/UPDATE.SJG

Internet Message Format | 1990-11-24 | 33KB

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Date:     Tue, 24 Jul 90 15:29:57 EDT
From:     Sue Muuss (VLD/ASB) <[e-mail]>
To:       [e-mail]
Subject:  Constitutional Issues
Message-ID:  <[e-mail]>

Here is some more, really well-reasoned information on recent computer
crime and the U.S. government's (over)reaction to it. The below was
submitted to me by a friend, and after reading it, I felt that the lucid
discussion of the First, Fourth, and Fifth Ammendment with respect to
computers and their users, is something we should all concern ourselves
with.

                Cheers,

                    Sue Muuss, J.D.

--------------------

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Date: Mon, 23 Jul 90 13:36:54 PDT
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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

======================================================

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, against unreasonable searches
and seizures."  Judges are not to issue search warrants for private
property unless the law enforcement officer seeking the warrant
demonstrates the existence of "a probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized." 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