The Hacker's Encyclopedia 1998/hackers_encyclopedia.iso/zines/cud/cud728.txt

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Computer underground Digest    Sun  Apr 9, 1995   Volume 7 : Issue 28
                           ISSN  1004-042X

       Editors: Jim Thomas and Gordon Meyer ([e-mail])
       Archivist: Brendan Kehoe
       Semi-retiring Shadow Archivist: Stanton McCandlish
       Intelligent Agent:  David Smith
       Shadow-Archivists: Dan Carosone / Paul Southworth
                          Ralph Sims / Jyrki Kuoppala
                          Ian Dickinson
       Monster Editor:    Loch Nesshrdlu

CONTENTS, #7.28 (Sun, Apr 9, 1995)

File 1--CuD FidoNet Distribution Site in Belgium
File 2--GovAccess.114v2:: The Persecution of Phil Zimmermann, American
File 3--In Response to Censorship at University of Memphis (#7.26)
File 4--Cu Digest Header Info (unchanged since 19 Mar, 1995)

CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.

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

Date: 06 Apr 95 17:48:26 +0100
From: Jerome De Greef <[e-mail]>
Subject: File 1--CuD FidoNet Distribution Site in Belgium

I'm the sysop of Stratomic BBS (Brussels, Belgium) and I'm connected
to FidoNet (2:291/759).  I receive CuD (great thing ;-) ) through
UUCP since Nr 7.15 and it's available via File Request (magic word
'CUD') on my system (unlisted nodes and points welcome).  I have even
created a file echo to distribute it to the nodes and points that
poll on my system.

Would it be possible to get the dist site status and to add my system
in the CU Digest Header Info ?  I think my system is the only one in
Europe who distribute CuD via File Request so I think it would be a
great thing to inform the european CuD readers that it is possible to
get it from Stratomic BBS (via FREQ or via a connection to the file
echo).

I know there's another Dist Site in Belgium (Virtual Access BBS) but
they are not on FidoNet (so no FREQ) and their CuD collection is not
very up-to-date (I send them some old Nr).

Well, I hope I'll get an answer and... thanks for the work !

Peace...
Jerome

email:
[e-mail]
2:291/[e-mail]

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

Date: Mon, 3 Apr 1995 20:22:53 -0700
From: Jim Warren <[e-mail]>
Subject: File 2--GovAccess.114v2:: The Persecution of Phil Zimmermann, American

This is a copy of my now-available MicroTimes report of a visit from
federal investigators, three days after I publicly critized the FBI and NSA
about a related matter, in an op-ed in the San Francisco Examiner.

Following the report, there are implications as to how similarly-outraged
citizens might take effective action to halt the gross miscarriage of
justice herein detailed.

And there are supplementary thoughts following my visit with a federal
prosecutor who, like the guards at the concentration camps, is just doing
his job.

When I finished it, I could no longer see the keyboard.  I was crying -
with frustration and rage and shame that MY nation and MY government could
be doing this.

--jim


&&&&&&&&&&&&&&&&&&&&


[Written on March 2nd, this is appearing in the April, 1995, editions of
MicroTimes, with total circulation exceeding 230,000 in California.]


Is Phil Zimmermann being persecuted?  Why?  By whom?  Who's next?

by Jim Warren  (c) 1995
345 Swett Road, Woodside CA 94062; email/[e-mail]
Permission herewith granted to redistribute-in-full for any nonprofit use.

I write this today, March 2nd, because I envision the possibility of
somehow being enjoined from speaking or writing about this, by a federal
grand jury in San Jose, next Tuesday.


Subpoena follows op-ed

On Wednesday, February 22nd, an op-ed piece that I wrote appeared in the
San Jose Mercury News, captioned, "Encryption could stop computer
crackers." In the wake of massive Internet break-ins, I urged adopting
nationwide, standardized, by-default, end-to-end data-communications and
file encryption using the most-secure scrambling technologies that are
publicly known and published worldwide. I criticized the FBI and NSA
(National Security Agency) for zealously - and successfully - opposing all
such protection, thus seriously endangering innocent citizens and
law-abiding businesses.
        On February 26th, a similar op-ed of mine appeared in the Sunday
edition of the combined San Francisco Examiner and San Francisco Chronicle,
emphasizing the unnecessary danger and billions of dollars of losses
resulting from the government's preoccupation with protecting and
greatly-enhancing its evesdropping capabilities.
        Three days later, two U.S. Customs Special Agents appeared at my
home, unannounced, and soon handed me a federal grand jury subpoena. I am,
"commanded to appear and testify before the Grand Jury of the United States
District Court," on March 7th.

The subpoena was dated February 27th - the first workday after the Sunday
Examiner's op-ed piece.
        Whoever said government is inefficient?


Interview recording prohibited

The agents - two pleasant, businesslike young women - said they were here
about Phil Zimmermann and his encryption software known as PGP, "Pretty
Good Privacy."
        I laughed and said, "Oh - okay, come on in," and led them up to my
office, grabbing a tape-recorder along the way.
        I sat down and - prominently turning on the recorder - said,
without being confrontational, that I'd like to record the interview.

Woppps! - flag on the play. They said they would want to take a copy of the
tape with them when they left. That was fine with me, so I turned off my
recorder and went for a second recorder from my car.
        Drat! - I wish I'd left the recorder running, because when I
returned, they had decided they needed approval from Assistant U.S.
Attorney Bill Keane, the AUSA in charge of investigating Zimmermann and
PGP.
        They called Keane. He was out. They left a message, then said that
- in the absence of his approval - they would have to forego the interview,
and made motions to leave. I was curious about what they wanted, and it
occurred to me that I probably couldn't record my testimony before the
grand jury, anyway. So after some discussion, we agreed not to record. In
the process, they offered to allow me to copy their interview notes - which
I thought was a rather-neat show of good faith.
        However, before we began, the senior agent looked at me with a
moment of clear hesitancy and suspicion, and asked several times that I
verify that our conversation was not being recorded. I did, pointing out
that it would be a criminal misdemeanor - in California - if I recorded
them in this private place without their knowledge.
        Part-way through the interview, Keane returned his agent's call. I
asked if he say why we couldn't record the interview, with both of us
having a tape. He said only that he didn't wish to have it done.

Apparently we citizens aren't the only ones who are paranoid.


Realworld Big Brother

The interview was relaxed, candid and cordial. The agents said they were
just seeking the facts of what actually happened - to wit:

On April 10, 1991, shortly after the Gulf War, a message from
[e-mail] cascaded across the computer nets, warning
about one sentence in buried in a massive "anti-terrorism" bill authored by
Senators Biden and DeConcini. Their Senate Bill 266 declared, "It is the
sense of Congress that providers of electronic communications services and
manufacturers of electronic communications service equipment shall ensure
that communications systems permit the government to obtain the plain text
contents of voice, data, and other communications when appropriately
authorized by law."
        Bill Murray, then a computer-security consultant to the NSA, wrote:
        "The referenced language requires that manufacturers build
trap-doors into all cryptographic equipment and that providers of
confidential channels reserve to themselves, their agents, and assigns the
ability to read all traffic.
        "Are there readers of this list that believe that it is possible
for manufacturers of crypto gear to include such a mechanism and also to
reserve its use to those "appropriately authorized by law" to employ it?
        "Are there readers of this list who believe that providers of
electronic communications services can reserve to themselves the ability to
read all the traffic and still keep the traffic "confidential" in any
meaningful sense?
        "Is there anybody out there who would buy crypto gear or
confidential services from vendors who were subject to such a law?
        "David Kahn asserts that the sovereign always attempts to reserve
the use of cryptography to himself.  Nonetheless, if this language were to
be enacted into law, it would represent a major departure. An earlier
Senate went to great pains to assure itself that there were no trapdoors in
the DES [federally-adopted Data Encryption Standard]. Mr. Biden and Mr.
DeConcini want to mandate them.
        "The historical justification of such reservation has been
"national security;" just when that justification begins to wane, Mr. Biden
wants to use "law enforcement." Both justifications rest upon appeals to
fear.
        "In the United States the people, not the Congress, are sovereign;
it should not be illegal for the people to have access to communications
that the government cannot read. We should be free from unreasonable search
and seizure; we should be free from self-incrimination.
        "The government already has powerful tools of investigation at its
disposal; it has demonstrated precious little restraint in their use.
        "Any assertion that all use of any such trap-doors would be only
"when appropriately authorized by law" is absurd on its face.  It is not
humanly possible to construct a mechanism that could meet that requirement;
any such mechanism would be subject to abuse.
        "I suggest that you begin to stock up on crypto gear while you can
still get it."

The net went ballistic over this Orwellian mandate.


PGP - Pretty Good Privacy

Prior to this, Phil Zimmermann, a sometime cryptographer and small computer
consultant near the University of Colorado in Boulder, had been developing
a PC implementation of public-key encryption, as described in the open
literature, published worldwide more than a decade earlier. He had idle
thoughts of possibly making it available as shareware, perhaps for
educational purposes for fellow crypto hobbyists. He called it, "PGP" -
Pretty Good Privacy.
        But public-key crypto using any reasonably-robust key-sizes is
reputed to be uncrackable. And intentionally building a back-door into a
beautiful crypto implementation is about like welding a tractor tire on the
back of a classic '63 Corvette - obscene!

Kelly Goen, located in the San Francisco Bay area, was also interested in
crypto. He and Zimmermann became acquainted - as is common among technoids
with similar interests. In that context, Zimmermann apparently gave Goen a
copy of PGP - also common behavior among us propeller-heads.


S. 266 goads guerrilla crypto

When Murray's message flashed across the nets, thousands of us were
infuriated - and frightened. In the wake of the Gulf War, S. 266 seemed
likely to become law, permanently prohibiting Americans from having the
privacy protection that technology could easily provide.
        S. 266 would also prohibit PGP - at least in any respectable form.
        So - with more than a little of the spirit of freedom that is the
heritage of all Americans - and the help citizens "stock up on crypto gear
while you still can," it was decided to make this privacy protection tool
available to everyone, immediately. Goen would upload copies - fully
annotated sources, binaries and documentation - to as many BBSs (bulletin
board systems) and host-computers around the United States as possible.
Zimmermann agreed - especially since S. 266 would soon outlaw PGP.


A night-time call

Goen sent email to MicroTimes on May 24th, saying, "the intent here is to
invalidate the socalled trap-door provision of the new senate bill coming
down the pike before it has a possibility of making it into law." He said
we could publish details about it, "provided of course mum is the word
until the code is actually flooded to the networks at large."
        He also called me - as a MicroTimes columnist, and probably because
I had organized the recently-completed First Conference on Computers,
Freedom & Privacy, or maybe because of my comments on the net critical of
the S. 266 mandate.
        I had several conversations with Goen, and later with Zimmermann -
who seemed more passive about the project. Now, four years after the fact,
this is re-constructed from random notes I took at the time, plus my
recollections - some of which remain quite vivid.


D-Day, defending freedom

On a weekend around the first of June, Goen began uploading complete PGP to
systems around the U.S. He called several times, telling me his progress.
        He was driving around the Bay Area with a laptop, acoustic coupler
and a cellular phone. He would stop at a pay-phone; upload a number of
copies for a few minutes, then disconnect and rush off to another phone
miles away.
        He said he wanted to get as many copies scattered as widely as
possible around the nation before the government could get an injunction
and stop him.

I thought he was being rather paranoid. In light of the following, perhaps
he was just being realistic.


Government counter-attacks

About two years after the PGP uploads, the government began threatening to
prosecute Zimmermann for illegal trafficking in munitions - cryptography.
[He was first visited by U.S. Customs agents on Feb. 17, 1993.]  For more
than two years, they have been investigating whether he "exported" PGP. It
appears at press-time that they will probably prosecute him.
        The allegation seems to be that, since he permitted someone else -
over whom he had no control anyway - to upload PGP to some Internet hosts
inside the United States, Zimmermann thus exported this controlled
munition!
        This ignores the fact that most of those same Internet hosts also
have DES crypto software from AT&T, Sun, SCO and BSD, part of their
standard domestic Unix systems. The DES is under the same export
prohibition as PGP. The same is true for RSA's public-key crypto tools that
reside on thousands of Internet hosts around the nation.
        This bizarre lunacy also ignores that public-key was published,
worldwide, fifteen years ago, and is available from numerous foreign
software competitors including entrepreneurs in former Easter Bloc
countries - as is the DES.

Based on what they told me at the time and everything I've learned since then:
        Zimmermann never even uploaded PGP files for public access.
        Goen studiously limited his uploads to U.S. systems, as permitted
by law and routinely done with identically-regulated AT&T and RSA software.
        They certainly didn't care about exporting PGP. Hell, most of the
rest of the world already purchases public-key products from numerous
vendors except U.S. companies.

They did want to pre-empt S. 266 before it became law - just as millions of
people do all the time regarding all sorts of pending legislation. And the
offending mandate was later deleted from S. 266, anyway.
        Zimmermann and Goen wanted to protect this nation's citizens. S.
266 wasn't threatening other nation's citizens; it was threatening
Americans!


Why the persecution?

Some apologists say the government is just trying to clarify the law. Bull!
        If that's what they want, they should investigate and prosecute
AT&T or Sun or SCO or RSA. Each makes millions peddling systems to U.S.
Internet host-owners that include identically-controlled crypto modules,
particularly including RSA public-key packages that are at-least as
powerful as PGP.
        But thugs don't pick on targets that can defend themselves. Goons
go for the frail and weak and helpless - like Phil Zimmermann.

Maybe this is a rogue prosecutor trying to make a name for himself. But
apparently Keane can't seek a grand jury indictment for this "crime"
without clearance from the Department of Justice in Washington.

Maybe it's just our government wasting thousands of staff hours and
millions of dollars to publicly flog Zimmermann as a lesson to any other
pissant citizen who dares to do what AT&T, Sun and RSA can do with
impunity.

This appears to be nothing less than an arrogant, oppressive government
using all of its might and all of its power to flail and torture one poor
citizen, to teach him that he is dirt and intimidate everyone else.

Is this what our nation has become?  Is this the America we want?


Coincidental subpoena?

As a footnote, I must say that my initial assumption was that the agents'
arrival two days after my op-ed piece appeared was simply coincidental -
that they were just-now getting around to tying-up loose ends of this
wasteful multi-year investigation. They said they were responding to a
letter I had sent to the grand jury a year or two earlier, when I first
heard they were investigating Zimmermann.
        As I write this, and try to maintain some slight semblance of
reason, about half the time I think the timing was accidental - and half
the time I think I'm being naive.


A frightening experience

But I gotta tell ya, I awakened hours before dawn this morning, wondering
if somehow I was going to be the next victim of this governmental
obscenity. The government's stated policy is to attack opponents with
overpowering force. They are certainly doing that to Zimmermann.
        I feel threatened and intimidated - and furious and outraged that
it should be happening in MY nation, prosecuted by MY government.

I cry for what Phil Zimmermann must be going through. He had little
financial resources to begin with; this has already cost him, dearly. For
almost two years, he has been under the horrifying threat of wasting all of
his assets including his home, just to defend himself against the
outrageous abuse of a federal government that will go to any expense to
"win."
        And if Zimmermann looses, he goes to prison for years of mandatory
incarceration. When he comes out, his young daughter will be a teen-ager.
All because he dared to write a cryptographic program that the government
couldn't crack, that someone else made available to U.S. citizens.

If there is any justice remaining in this nation, this screams out for
immediate redress!

Folks who care can send much-needed donations to the Zimmermann legal
defense fund in care of his attorney, Phil DuBois, 2305 Broadway, Boulder
CO 80304; 303-444-3885; [e-mail] .

---

Warren has received the Hugh M. Hefner First Amendment Award (1994), the
James Madison Freedom-of-Information Award from the Society of Professional
Journalists - Northern California (1994) and the Electronic Frontier
Foundation Pioneer Award in its first year (1992). He led the successful
1993 effort to make state legislation and statutes available via the public
nets without state charge and organized and chaired the landmark First
Conference on Computers, Freedom & Privacy (1991).
        He founded InfoWorld, was founding host of PBS' "Computer
Chronicles," founding editor of Dr. Dobb's Journal, and has chaired various
computer and mathematics organizations. He holds graduate degrees in
computing (Stanford), medical information science (UC Medical Center) and
mathematics & statistics, began working as a programmer in 1968, and was a
mathematics teacher and professor for ten years before that. He also serves
on Autodesk's Board of Directors.


&&&&&&&&&&&&&&&&&&&&


Give Us Your Poor, Your Weak ... for Harassment & Intimidation

Copies of other cryptographic software that fall under exactly the same
export controls and prohibitions as PGP - sold by Hewlett-Packard, AT&T,
Sun, SGI, SCO, BSD, etc. - as part of their standard domestic Unix systems
are available on hundreds of thousands of host-computers connected to the
global Internet in the United States.  ViaCrypt in Phoenix AZ sells copies
of PGP.  MIT provides several versions of PGP - including full source-code
- for free downloading from one of their Internet host computers.  US News
and World Reports' Vic Sussman tells me a copy is on Compu$erve.

The prosecutor knows this; I have discussed it with him.

But there is no attempt to indict AT&T, Sun, H-P, SGI, SCO, BSD, etc.
There is no attempt to prosecute MIT or CompuServe for continuing to make
what Phil created freely available via the Internet and CPN.  After all,
Compu$erve has a warning in capital letters saying that CI$ customers
outside of the U.S. should not download it.  ViaCrypt is not being
investigated for selling PGP throughout the nation - not even to computer
stores located near the Iranian or North Korean Consulates.  MIT restricts
access:  A PGP recipient must first type "yes" to four questions, and may
have to connect to MIT through one of the more-than-two-million Internet
host-computers in the U.S., by telnet if they are outside the nation.

But PGP's creator - who is not known to have uploaded *any* copies for
public access - and his aquaintance, are the only ones being investigated.


Most of the remainder of this edition of GovAccess details what I know -
and opine (!!) - of why Washington is spending hundreds of thousands of
tax-dollars and thousands of limited staff hours of experienced
investigators and talented legal professionals on this lunatic persecution.


&&&&&&&&&&&&&&&&&&&&


A Grand Jury is Usually the Lapdog of the Prosecutor - BUT ...

There are at least three members of this grand jury who have Internet
accounts, according to cryptographer Charlie Merritt who was testifying
before them and asked them.  And the grand jury has been assembled in the
heart of Silicon Valley.

The best address that I can think of for the federal grand jury - composed
of concerned citizens - from which Keane is seeking this indictment, is:

  Fore-person and Members
  Federal Grand Jury in the Zimmermann/Goen case
  280 S. First St.
  San Jose CA 95113

I'm told that there are about 25 members, and I doubt that they have a
copier in the grand jury room.

I don't know whether Keane would be violating postal regulations if he
opened and withheld from those addressees, first-class mail addressed in
this manner.  I have no evidence to believe that he would withhold it.


&&&&&&&&&&&&&&&&&&&&


Washington is Often Not Involved in a Local Prosecution - BUT ...

My assumption is that Keane is being directed to persecute <sic> this
investigation by his superiors in Washington - that it wouldn't be
happening if Washington didn't want it.  When I said that to him, he told
me only that his superiors in Washington are kept informed of his actions
and the progress on the case - as one would certainly hope.  In fact, I'm
told that he cannot seek an indictment in this kind of case without
approval from Washington.

He's a good lieutenant.  Personally, I think he's doing what he's told.

Keane's most-senior superior in the Department of Justice is:
  Unived States Attorney General Janet Reno
  Department of Justice, Room 5111
  10th St & Constitution Ave NW
  Washington DC 20530
  fax/202-514-4371
My belief is that USAG Reno *does* have the authority to stop this idiocy.

Keane's ultimate superior is:
  President Bill Clinton
  1600 Pennsylvania Ave
  Washington DC 20500
  fax/202-456-2461
  [e-mail]
His official, public response would undoubtedly be that he should not get
involved in an ongoing criminal investigation.

But BYTE columnist and sci fi writer Jerry Pournelle has pointed out that
that's absolute nonsense.

1.  Our elected officials damn-well *better* be in charge of their
bureaucrats.  And if this President isn't, he needs to be replaced.
2.  The President certainly has the power to pardon and halt criminal
investigations before-the-fact, as Gerald Ford illustrated with Nixon.

Much of Pournelle's June column in BYTE will focus on this case.  Pournelle
is urging that the President simply pardon Zimmermann for any possible
wrong-doing, and let him get back to his family and on with his life.
[announced here with Jerry's explicit prior permission]

So what do *you* think?

Don't tell me - tell the folks, above, who *can* make a difference.

--jim


&&&&&&&&&&&&&&&&&&&&


Later Thoughts - After Meeting with Asst US Attorney Keane on Friday, 3/10

On Monday, 3/6, before I was to appear for the grand jury on the following
day, I finally reached Keane.  He agreed that I did not need to come down
for the grand jury (now why do I think he wouldn't want me speaking to his
lap-dog? :-), and we agreed instead, that I would come in for an interview
with him and his agents at the end of the week.

As soon as we began, he volunteered that he didn't anticipate that I had
any exposure and didn't consider me a target of their investigation.  I
appreciated that.  He also said he would tell me if that changed.  Oh.

We met for about four hours (folks rarely accuse me of brevity).  I was
completely candid, and told them all of the above and lots more - including
most of the opinions ... with which he was very patient.  <grin>

I found Keane reasonable, attentive, even-handed and probably a very good
prosecutor (and we *need* good prosecutors).  However, my impression was
that he had rather-limited understanding of the nets - e.g., he'd never
even heard of Fidonet, and seemed convinced that the primary way that PGP
was distributed was by USENET from the WELL!  (He said that's why they are
pursuing the investigation in California rather than back in Colorado.)

I continued to be favorably impressed by the Customs investigators, and I
honestly don't think Keane is one of the bad guys - though I suspect that
he may be too focused on on the nitty-gritty of seeking evidence for
prosecution, and too-little focused on seeking principled, equitable
*Justice*.

The fact is, I honestly feel a bit sorry for him - because I think he's a
good prosecutor, and I believe Washington is telling him to pursue this
case, which is probably turning into a public relations debacle as its
capricious injustice becomes more and more clear ... and it's Bill Keane's
name and reputation that is going to be trashed.

The real responsibility lies with the anonymous Washington gang, who never
have to face their victims, who are blindly intent on intimidating all of
us by making an example of Zimmermann - just like street-thugs always pick
the frail and weak to terrorize, so as to intimidate a community into
submission.

The only difference is that this time, the community can't turn to the
law-enforcement officials for help.

I told Keane that, okay, WE GOT THE MESSAGE.


God!, I'm ashamed of my government's myopic, self-serving leadership.


&&&&&&&&&&&&&&&&&&&&


Trial attorneys - prosecutors and defense - too-often seem more interested
in "winning" the trial "game" than they are interested in Truth or Justice.
Too-often, they excuse such immorality by saying that the costly, abusive,
terrifying adversarial system will assure Truth and Justice.

Attorneys are the gun-slingers of the 20th Century - but only their clients
get shot.

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

From: [e-mail](Carl M Kadie)
Subject: File 3--In Response to Censorship at University of Memphis (#7.26)
Date: 3 Apr 1995 16:59:11 GMT

>>Apparently the motivation behind David Hooper's case was a thing called
>>"Title IX", which requires the school to provide an environment free of
>>sexual or racial hostility.

This alt.comp.acad-freedom.talk FAQ file seem relevant:

=========== ftp://ftp.eff.org/pub/CAF/faq/censorship-and-harassment =========
q: Must/should universities ban material that some find offensive
(from Netnews facilities, email, libraries, and student publications,
etc) in order to comply with antiharassment laws?

a: No. U.S. federal courts have said that harassing speech is
different from offensive speech. While face-to-face harassment can be
prohibited, mere offensive speech is protected by the principles of
academic freedom and, at state universities, by the Constitution.

The courts have also said that that it is unconstitutional at state
universities to base campus speech restrictions on EEOC rules. Here is
part of a decision:

==============Excerpt uwm-post-v-u-of-wisconsin ==========

 (3) PARALLEL TO TITLE VII LAW
 The Board of Regents argues that this Court should find the UW Rule
constitutional because its prohibition of discriminatory speech which creates a
hostile environment has parallels in the employment setting.  The Board notes
that, under Title VII, an employer has a duty to take appropriate corrective
action when it learns of pervasive illegal harassment.  See Meritor Savings
Bank v. Vinson, 477 U.S. 57, 72 (1986).
 The Board correctly states Title VII law.  However, its argument regarding
Title VII law has at least three difficulties.  First, Title VII addresses
employment, not educational, settings.  Second, even if Title VII governed
educational settings, the Meritor holding would not apply to this case.  The
Meritor Court held that courts should look to agency principles when
determining whether an employer is to be held liable for its employee's
actions.  See id.  Since employees may act as their employer's agents, agency
law may hold an employer liable for its employees actions.  In contrast, agency
theory would generally not hold a school liable for its students' actions since
students normally are not agents of the school.  Finally, even if the legal
duties set forth in Meritor applied to this case, they would not make the UW
Rule constitutional.  Since Title VII is only a statute, it cannot supersede
the requirements of the First Amendment.
============================

The intellectual freedom principles developed by libraries offer some
guidance. The American Library Association statement on Challenged
Materials says: "Freedom of expression is protected by the
Constitution of the United States, but constitutionally protected
expression is often separated from unprotected expression only by a
dim and uncertain line.  The Constitution requires a procedure
designed to focus searchingly on challenged expression before it can
be suppressed.  An adversary hearing is a part of this procedure."

Private institutions are legally free to violate the standards set by
the Constitution and academic freedom. They should not, however, try
to justify their violations with appeals to government rules.

- Carl

ANNOTATED REFERENCES

(All these documents are available on-line. Access information follows.)

=================<a href="ftp://ftp.eff.org/pub/CAF/academic/speech-codes.aaup">
academic/speech-codes.aaup
=================</a>
* Speech Codes (AAUP)

On Freedom of Expression and Campus Speech Codes Expression - An
official statement of the American Association of University
Professors (AAUP)

It says in part: "On a campus that is free and open, no idea can be
banned or forbidden.  No viewpoint or message may be deemed so hateful
or disturbing that it may not be expressed."

=================<a
 href="ftp://ftp.eff.org/pub/CAF/law/uwm-post-v-u-of-wisconsin">
law/uwm-post-v-u-of-wisconsin
=================</a>
* Expression -- Hate Speech -- UWM Post v. U Of Wisconsin

The full text of UWM POST v. U. of Wisconsin. This recent district
court ruling goes into detail about the difference between protected
offensive expression and illegal harassment. It even mentions email.

It concludes: "The founding fathers of this nation produced a
remarkable document in the Constitution but it was ratified only with
the promise of the Bill of Rights.  The First Amendment is central to
our concept of freedom.  The God-given "unalienable rights" that the
infant nation rallied to in the Declaration of Independence can be
preserved only if their application is rigorously analyzed.

The problems of bigotry and discrimination sought to be addressed here
are real and truly corrosive of the educational environment.  But
freedom of speech is almost absolute in our land and the only
restriction the fighting words doctrine can abide is that based on the
fear of violent reaction.  Content-based prohibitions such as that in
the UW Rule, however well intended, simply cannot survive the
screening which our Constitution demands."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/doe-v-u-of-michigan">
law/doe-v-u-of-michigan
=================</a>
* Expression -- Hate Speech -- Doe v. U of Michigan

This is Doe v. University of Michigan. In this widely referenced
decision, the district judge down struck the University's rules
against discriminatory harassment because the rules were found to be too
broad and too vague.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/broadrick-v-oklahoma">
law/broadrick-v-oklahoma
=================</a>
* Expression -- Vague Regulation -- Broadrick v. Oklahoma, et al.

Summary of case law on overly vague regulation of expression. It says
a statute is unconstitutionally vague when "men of common intelligence
must necessarily guess at its meaning."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/naacp-v-button">
law/naacp-v-button
=================</a>
* Expression -- Overbroad Regulation -- NAACP v. Button, et al.

Summary of case law on overly broad regulation of expression. It says
"[b]ecause First Amendment freedoms need breathing space to survive,
government may regulate in the area only with narrow specificity."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/pd-of-chicago-v-mosley">
law/pd-of-chicago-v-mosley
=================</a>
* Expression -- Content Regulation -- Police Department of Chicago v. Mosley

Summary of case law on content-based regulation of expression. It says
that "above all else, the First Amendment means that government has no
power to restrict expression because of its message, its ideas, its
subject matter, or its content."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/rav-v-st-paul.1">
law/rav-v-st-paul.1
=================</a>
* Expression -- Hate Speech -- RAV v. St Paul -- 1

The Supreme Court's _R.A.V. v. City of St. Paul_ decision about hate crimes.

The Court overturned St. Paul's Bias-Motivated Crime Ordinance, which
prohibits the display of a symbol which one knows or has reason to
know "arouses anger, alarm or resentment in others on the basis of
race, color, creed, religion or gender."

By 9-0, the Court said the law as overly broad. By 5-4, the Court said
that the law was also unfairly selective because it only tried to protect
some groups.

Included: summary, majority opinion, 3 concurring opinions.

=================<a
 href="ftp://ftp.eff.org/pub/CAF/law/young-conservatives-v-sau">
law/young-conservatives-v-sau
=================</a>
* Expression -- Offensive -- Young Conservatives v. SAU

A UPI story that tells how Stephen F. Austin University originally
banned a group's "sexist" flyers, but when challenged, the ban was
lifted and a cash settlement was given to the students whose
free-speech was violated by the ban.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/cohen-v-california.1">
law/cohen-v-california.1
=================</a>
* Expression -- Offensive -- Cohen v. California -- 1

Definition of "fighting words"; why no right not to be offended

The definition of fighting words from _Chaplinsky v. New Hampshire_
and then _Cohen v. California_. Also, says quotes the Supreme Court
saying that there is no universal right to not hear offensive
expression.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/cohen-v-california.2">
law/cohen-v-california.2
=================</a>
* Expression -- Offensive -- Cohen v. California -- 2

Netnews article with reference _Cohen v. California_, "in which the
court ruled that Cohen's jacket, which stated "Fuck the Draft" was a
protected form of free speech, even though he wore it in a county
courthouse."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/cohen-v-california.3">
law/cohen-v-california.3
=================</a>
* Expression -- Offensive -- Cohen v. California -- 3

Here are excerpts from several Supreme Court decisions inclusing
_Cohen v. Calfiornia_. They say that offensive public expression is
protected if those offended can "effectively avoid further bombardment
of their sensibilities simply by averting their eyes."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/cohen-v-california.4">
law/cohen-v-california.4
=================</a>
* Expression -- Regulation of Tone -- Cohen v. California -- 4

A short quote from _Cohen v. California_: "We cannot sanction the view
that the constitution, while solicitous of the cognitive content of
individual speech, has little or no regard for that emotive function
which, practically speaking, may often be the more important element
of the overall message sought to be communicated."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/quiet-reading">
law/quiet-reading
=================</a>
* Expression -- Harassment -- Quiet Reading of _Playboy_

Excerpts from a newspaper report that a federal district judge has
said that "quiet reading" of a _Playboy_ magazine by a firefighter
does not create a sexually harassing atmosphere. [Editorial comment: I
think this supports the idea that rather banning "porn" from a general
academic computer, it is more appropriate to ban harassment.]

=================<a
 href="ftp://ftp.eff.org/pub/CAF/library/challenged-materials.ala">
library/challenged-materials.ala
=================</a>
* Challenged Materials (ALA)

An interpretation by the American Library Association of the "Library
Bill of Rights". It says in part "The Constitution requires a
procedure designed to focus searchingly on challenged expression
before it can be suppressed.  An adversary hearing is a part of this
procedure."

=================<a href="http://www.eff.org/CAF/faq/netnews.liability.html">
faq/netnews.liability
=================</a>
* Netnews -- On University Liability for Netnews

q: Does a University reduce its likely liability by screening Netnews
for offensive articles and newsgroups?

a: Not necessarily. By screening articles and newsgroups the
...

=================<a href="http://www.eff.org/CAF/faq/netnews.reading.html">
faq/netnews.reading
=================</a>
* Netnews -- Policies on What Users Read

q: Should my university remove (or restrict) Netnews newsgroups
because some people find them offensive? If it doesn't have the
resources to carry all newsgroups, how should newsgroups be selected?

a: Material should not be restricted just because it is offensive to
...

=================<a href="http://www.eff.org/CAF/faq/computer-porn.html">
faq/computer-porn
=================</a>
* Banning "porn" from university computers

q: Should universities create a rule banning "porn" on university
computers?

a: In my opinion, no. Such a rule would be unnecessary and too broad.
...

q: Should universities create a rule banning "porn" on university
computers?

a: In my opinion, no. Such a rule would be unnecessary and too broad.
...

=================<a href="ftp://ftp.eff.org/pub/CAF/filters.email">
filters.email
=================</a>
* How Unix users can filter out harassing email by themselves

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

If you have gopher, you can browse the CAF archive with the command
   gopher gopher.eff.org

These document(s) are also available by anonymous ftp (the preferred
method) and by email. To get the file(s) via ftp, do an anonymous ftp
to ftp.eff.org (192.77.172.4), and then:

  cd  /pub/CAF/academic
  get speech-codes.aaup
  cd  /pub/CAF/law
  get uwm-post-v-u-of-wisconsin
  cd  /pub/CAF/law
  get doe-v-u-of-michigan
  cd  /pub/CAF/law
  get broadrick-v-oklahoma
  cd  /pub/CAF/law
  get naacp-v-button
  cd  /pub/CAF/law
  get pd-of-chicago-v-mosley
  cd  /pub/CAF/law
  get rav-v-st-paul.1
  cd  /pub/CAF/law
  get young-conservatives-v-sau
  cd  /pub/CAF/law
  get cohen-v-california.1
  cd  /pub/CAF/law
  get cohen-v-california.2
  cd  /pub/CAF/law
  get cohen-v-california.3
  cd  /pub/CAF/law
  get cohen-v-california.4
  cd  /pub/CAF/law
  get quiet-reading
  cd  /pub/CAF/library
  get challenged-materials.ala
  cd  /pub/CAF/faq
  get netnews.liability
  cd  /pub/CAF/faq
  get netnews.reading
  cd  /pub/CAF/faq
  get computer-porn
  cd  /pub/CAF
  get filters.email

To get the file(s) by email, send email to [e-mail]
Include the line(s):

  connect ftp.eff.org
  cd  /pub/CAF/academic
  get speech-codes.aaup
  cd  /pub/CAF/law
  get uwm-post-v-u-of-wisconsin
  cd  /pub/CAF/law
  get doe-v-u-of-michigan
  cd  /pub/CAF/law
  get broadrick-v-oklahoma
  cd  /pub/CAF/law
  get naacp-v-button
  cd  /pub/CAF/law
  get pd-of-chicago-v-mosley
  cd  /pub/CAF/law
  get rav-v-st-paul.1
  cd  /pub/CAF/law
  get young-conservatives-v-sau
  cd  /pub/CAF/law
  get cohen-v-california.1
  cd  /pub/CAF/law
  get cohen-v-california.2
  cd  /pub/CAF/law
  get cohen-v-california.3
  cd  /pub/CAF/law
  get cohen-v-california.4
  cd  /pub/CAF/law
  get quiet-reading
  cd  /pub/CAF/library
  get challenged-materials.ala
  cd  /pub/CAF/faq
  get netnews.liability
  cd  /pub/CAF/faq
  get netnews.reading
  cd  /pub/CAF/faq
  get computer-porn
  cd  /pub/CAF
  get filters.email

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

Date: Sun, 19 Mar 1995 22:51:01 CDT
From: CuD Moderators <[e-mail]>
Subject: File 4--Cu Digest Header Info (unchanged since 19 Mar, 1995)

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