The Hacker's Encyclopedia 1998/hackers_encyclopedia.iso/zines/cud/cud738.txt

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Computer underground Digest    Sun  May 14, 1995   Volume 7 : Issue 38
                           ISSN  1004-042X

       Editors: Jim Thomas and Gordon Meyer ([e-mail]
       Archivist: Brendan Kehoe
       Shadow Master: Stanton McCandlish
       Field Agent Extraordinaire:   David Smith
       Shadow-Archivists: Dan Carosone / Paul Southworth
                          Ralph Sims / Jyrki Kuoppala
                          Ian Dickinson
       Goddess of Judyism Editor:   J. Tenuta

CONTENTS, #7.38 (Sun, May 14, 1995)

File 1-- Jacking in from the "One Flew Over the Cuckoo's Nest" Port
File 2-- Jacking in from the Narco-Terrorist Encryption Port
File 3--CDT Testifies At Sen. Jud. Comm. Hrg. on Bombs (CDT #13/fwd)
File 4--Cu Digest Header Info (unchanged since 19 Apr, 1995)

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

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

Date: Sat, 13 May 1995 14:06:13 -0500
From:  [e-mail](Brock Meeks)
Subject: File 1-- Jacking in from the "One Flew Over the Cuckoo's Nest" Port


 CyberWire Dispatch // Copyright (c) 1995 //

 Jacking in from the "One Flew Over the Cuckoo's Nest" Port:

 Washington, D.C. -- The Internet had its head placed on the chopping
 block during a Congressional hearing today (May 11th).

 Sen. Arlen Specter (R-Pa.) put it there.  Sen. Herb Kohl (D-Wis.)
 tied its hands, while Sen. Dianne Feinstein (D-Calif.) welded the
 axe.

 Specter, as chairman of the Subcommittee on Terrorism, Technology and
 Government Information, called the hearing to investigate "The
 Availability of Bomb Making Information on the Internet."  The
 hearing focused on "the use of the Internet by a variety of groups
 and individuals to propagate 'mayhem manuals,' which as their name
 suggests, are guides to assist people in committing acts of
 violence," Specter said.

 Specter didn't mince words about his intentions.  The subtext of the
 hearing was that the Internet, somehow, now represents a "clear and
 present danger" to the American way of life, threatening innocent
 citizens and children.  "There are serious questions about whether it
 is technologically feasible to restrict access to the Internet or to
 censor certain messages," Specter said.

 Feinstein rode into the hearing with blinders on.  "I have a problem
 with people teaching others" how to build bombs that kill, she said.
 The First Amendment doesn't extend to the that kind of information,
 she said, especially when it resides in electronic format so easily
 available.

 Her remarks were directed at a panel of experts who had, for the most
 part, acknowledged that such information was readily available on the
 Net, but nonetheless was indeed protected by the First Amendment.

 The First Amendment argument didn't fly with Feinstein, who railed at
 the panel's testimony.  "You really have my dander up," she said.
 "This is not what this country is about."

 That remark drew a sharp response from Jerry Berman, executive
 director of the Washington-based Center for Democracy and Technology:
 "Excuse me, Senator, but that *is* what this nation is all about."

 Feinstein would hear nothing of it.  "I believe there is a difference
 between free speech and teaching someone to kill," she said,  "And
 all we're doing here is protecting [terrorist information] under the
 mantle of free speech."

 Feinstein, former mayor of San Francisco, one of America's most
 liberal cities, carried a lot of baggage into the hearing;  she was
 once the failed target of a letter bomb addressed to her office while
 mayor, according to a Subcommittee staffer.

 Sen. Kohl waded into the hearing reading from a tired script, saying
 that America would "be shocked" if they knew about "dark back alleys"
 of the "information superhighway."   Kohl paid lip-service to the
 Constitution, saying that government shouldn't "be in the business of
 telling people what they can and cannot think."  However, that didn't
 stop him from suggesting that government has every right to "prevent
 people from endangering public safety," which really means
 restricting access --somehow -- to the "dangerous" (ooohhh....) "dark
 back alleys" of the Internet.

 His suggestions:  (1) Parents should be notified every time their
 kids get an online account.  (2) Every parent should be able to block
 a kid's access to whatever areas they want.  "If we have the
 technology to get kids on the Internet, we should have the technology
 to get them off it," he said.  (3) Online companies should rip out a
 page from the video game industry, where "industry-wide cooperation
 to restrict access to minors has forestalled government
 intervention," he said.

 The vid-game industry, right, those cozy folks that bring Mortal
 Kombat into your living room and shopping malls, where even 8-year
 olds know how to punch in the infamous "blood codes"  which, when
 enabled, show defeated characters being gutted while still alive,
 leaving the screen oozing.  And this is the same video industry which
 drew a sharp rebuke from Sen. Specter himself last December when he
 found out that the so-called "industry-wide cooperation" to label
 games with "ratings" wasn't being implemented on anything more than a
 piecemeal basis.

 Fueling this hysteria-circus was Robert Litt, deputy assistant
 attorney general, Criminal Div. of the Department of Justice.  Litt
 mouthed to the Subcommittee  what will certainly become the "Scare
 Monger's Anthem":  "Not only do would-be terrorists have access to
 detailed information on how to construct explosives, but so do
 children."

 ... And so do children...

 "This problem can only grow worse as more families join the Internet
 'society,'" Litt warned.   .

 "... And so do children..."

 But does any of this so-called terrorist information require any kind
 of congressional Constitutional tweaking?  Not according to Litt's
 own testimony.  There are, on the books now, "a number of federal
 laws" that can be used to "prosecute bomb-related offenses," and
 those can be directly transferred to any such investigations linked
 to the Internet, Litt testified, adding that such laws "can be
 applied even when the offense is accomplished through speech."

 Read it again:  "[A]pplied even... through speech."  If that was the
 sound of a hammer falling -- or an axe -- you're right.

 Litt outlined how current laws protect even bomb making materials on
 the Internet as expressions of free speech;  however, he noted, with
 some glee, that the proposals before Congress right now, offered up
 by the White House, will "permit the government to better track and
 prosecute those who misuse information available on the Internet...."

 The hysteria of these doomsayers, however, ran into an unexpected
 brick wall during the hearing.  Sen. Specter asked Litt point-blank
 if he had *any* kind of statistics or "direct knowledge" of any
 "criminal act" that had resulted from anyone obtaining information
 off the Internet.  "No Senator, we do not," Litt answered somewhat
 shyly.  Specter reframed the question -- twice -- giving Litt a
 chance to weasel an answer, but there was no weasel room.

 The cold, hard facts are and remain:  No law enforcement agency has
 been able to link any criminal act to any information now residing on
 the Internet.

 But this wasn't good enough for Specter, who asked Litt to go back
 and "investigate" the question and report his findings back to the
 Subcommittee.

 Another blow to Internet foes was the testimony of Frank Tuerkheimer.
 Tuerkheimer, a professor of law at the U. of Wisconsin, made his fame
 in the 1970s as the U.S. Attorney which successfully argued to stop
 the publication of the "How to Make an H-Bomb" article in the
 _Progressive_ magazine.  He won that case, which he admitted today,
 he had little enthusiasm for trying because the information in the
 article was gathered from public domain sources. However, all of that
 effort was moot point, he noted:  Some other publication printed the
 article anyway.

 Information will find a way to get out, Tuerkheimer said.  "We're not
 talking about regulating information," he said, "we're talking about
 regulating 'information-plus."  That's when the information is taken
 and used in the commission of a criminal act, and it's that
 combination that needs to be addressed, not the information, he said.

 Putting a fine point on his arguments, Tuerkheimer noted in his
 testimony that the Encyclopedia Britannica "reveals great detail on
 explosive manufacture."  [It's all right there on on pages 275-282 of
 Vol.  21 of the 1986 edition.]   Adding insult to injury, he pointed
 out that on page 279 of that section, there is a description of the
 Ammonium Nitrate/Fuel oil mixture bomb like that used in the Oklahoma
 City bombing!

 I wonder, now, if Sen. Feinstein will rush to outlaw the
 encyclopedia... or maybe she'll introduce a bill that will have
 librarians issued X-acto knives to cut out just those pages. "...so
 the children" won't have access....

 Perhaps Tuerkheimer's finest blow was when he noted that the
 Department of Agriculture Forestry Service publishes the "Blaster's
 Handbook" (written with taxpayer money) that also includes a recipe
 for the Ammonium Nitrate/Fuel oil bomb like that used to blow little
 kids into chunks in the Oklahoma City bombing.

 America's online sweetheart, America Online, was represented ably by
 William Burrington.  He admitted to the Subcommittee that although
 his company monitored "selected areas" for violations of the
 company's terms of service, there was no possible to keep an eye on
 every public message.  The point he hammered on -- and rightly so --
 is that the "information ocean" that is the Internet is impossible to
 place restrictions on "because of its international nature," he said,
 more than once.  Any laws the U.S. might try to apply don't mean shit
 internationally, as Burrington tried to point out, a point that
 apparently fell on deaf ears.

 One pair of ears that didn't fail to hear were those of Sen. Patrick
 Leahy (D-Vermont).  This old warhorse continued to be what
 increasingly sounds like the only voice of reason on Capitol Hill.
 "Before we head down a road that leads to censorship," he said, "we
 must think long and hard about its consequences."

 Leahy is bothered about "tragic events" such as the Oklahoma bombing
 as much as anyone, he said.  However, the "same First Amendment that
 protects each of us and our right to think and speak as we choose,
 protects others as well," he said.  It is "harmful and dangerous
 *conduct*, not speech, that justify adverse legal consequences,"
 Leahy noted.

 There is "little to be gained in the way of safety by banning" access
 to so-called terrorist information "over electronic media," Leahy
 said, especially when it's so readily available in paper form... even
 from the Agriculture Department.  Hell, there's probably even an
 government sponsored 800 number you can call to order the "Blaster's
 Handbook."

 In one lengthy discussion, Specter cited an Internet posting in which
 the poster asked for bomb making information that he (or she, gender
 wasn't noted) could use against "zionist government officials."
 Specter asked the panel if such a message could be considered a
 crime.

 "No," said the Justice Department's Litt.  "But what about the
 response to the message?" Specter asked.  Such a response
 "approaches, if it hasn't already crossed the line, a prosecutorial
 offense," Litt said.

 Tuerkheimer disagreed.  "Too general," he said.  There's "no target"
 identified, "it's hard to see how the Justice Department could
 prosecute" the responder to that message, he said.

 Of course, Specter's query begs the question:  Would it be a crime to
 respond to the "bomb information wanted" message by sending them a
 copy of the taxpayer funded, government-sponsored "Blaster's
 Handbook"?  You make the call, because if you don't, Congress will.

 "In other words, the industry acts now or Congress will do it for
 you," Kohl said.

 I doubt he was joking.

 Meeks out...

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

Date: Sat, 13 May 1995 14:06:13 -0500
From:  [e-mail](Brock Meeks)
Subject: File 2-- Jacking in from the Narco-Terrorist Encryption Port

 CyberWire Dispatch// Copyright (c) 1995//

 Jacking in from the Narco-Terrorist Encryption Port:

Washington, DC --  The other shoe has dropped.  Several times.

In the political backlash and emotional fallout of the bombing of of
the federal building in Oklahoma City, FBI Director Louis Freeh has
begun to wage his own private war on the use of private, encryption
schemes.

According to Administration sources, several different proposals are
now being discussed on how to implement a policy of government
mandated, government "certified" encryption.  The most hardline of
these proposals would outlaw the public's ability to choose an
encryption scheme which the government couldn't break, under the
authority of a court order.

Freeh has left no doubts about his intentions.  Not satisfied with a
proposal he successfully rammed through Congress last year -- the bill
that gives law enforcement agencies "easy wiretap access" to digital
conversations, at a cost of $500 million in taxpayer money -- his next
target is private encryption.

During an appropriations hearing May 11th, Freeh told a congressional
panel: "[W]e're in favor of strong encryption, robust encryption.  The
country needs it, industry needs it.  We just want to make sure we
have a trap door and key under some judge's authority where we can get
there if somebody is planning a crime."

That means an end to private, non-government encryption, which don't
have keys the government can use.

Private encryption schemes allow a person to scramble an electronic
message that, if intercepted by an unintended party, renders it
unreadable.  These scrambling programs are useful from to a wide range
of people and interests, including researchers that want to keep their
proprietary breakthroughs safe from prying eyes to corporations
sending trade secrets to a distant office across the Net to ordinary
folks sending a steamy love letter to a lover.

But these same encryption programs are being used by "terrorists and
international drug traffickers," as well, claims FBI Director Freeh,
and that makes private encryption schemes a threat to national
security.

Freeh's crusade against encryption has been enjoined by members of the
Justice Department, with the gleeful back alley goading the nation's
top spook group, the National Security Agency.

And when it comes right down to it, your privacy rights don't stand a
snowball's chance in hell of outweighing pictures of dead babies or
pieces of dead babies.

During an April 27th Senate Judiciary Committee on terrorism, Freeh
boldly told a panel of lawmakers eager to give his agency more
latitude to "catch the bad guys" (and civil rights violations be
damned... as long as we don't have to watch the guts of little kids
being splattered on steel girders and broken concrete...): "The FBI
cannot and should not tolerate any individuals or groups... which
would kill innocent Americans, which would kill *'America's kids.'*"

To meet the "challenges of terrorism," Freeh said, several things must
be done, among them, deal with "encryption capabilities available to
criminals and terrorists" because such technology endangers "the
future usefulness of court-authorized wiretaps.  This problem must be
resolved."

While Freeh used the Oklahoma City bombing as convenient "news hook"
to again make a pitch to "resolve" the private encryption "problem,"
the Director was basically reading from a dog-eared script.  Within
the last 3 months he repeatedly has testified publicly before Congress
about the "evils" of encryption.

On March 30 the House Judiciary Committee's Subcommittee on Crime he
said:  "Even though access is all but assured [by the passage of the
Digital Wiretap Act] an even more difficult problem with
court-authorized wiretaps looms. Powerful encryption is becoming
commonplace.  The drug cartels are buying sophisticated communications
equipment.... This, as much as any issue, jeopardizes the public
safety and national security of this country.
 Drug cartels, terrorists, and kidnappers will use telephones and
other communications media with impunity knowing that their
conversations are immune from our most valued investigative
technique."

 Then during a May 3 appearance before the same Committee, Freeh said:
 "Encryption capabilities available to criminals and terrorists, both
 now and in days to come, must be dealt with promptly.  We will not
 have an effective counterterrorism counterterrorism strategy if we do
 not solve the problem of encryption."

But there's nothing to be alarmed at here, according to Freeh.  Just
because he's asking the Congress and the White House to strip you of
the right to choose how you scramble your messages, using a program
that the government doesn't hold all the keys too, doesn't mean that
the Director isn't a sensitive guy or that he has suddenly taken a
liking to wearing jackboots.

Freeh steadfastly maintains all these new powers he's asking for are
simply "tools" and "not new authorities."  These new powers are "well
within the Constitution," Freeh told Congress.

Freeh hasn't publicly outlined just how he proposes to "resolve" the
"encryption problem."  However, according to an FBI source, several
plans are in the works.  The source refused to detail any specific
plan, but added:  "Let's just say everything is on the table."  Does
that include outlawing private encryption schemes?  "I said
'everything,'" the source said.

The encryption debate has been raging for years.  Two years ago the
Clinton Administration unveiled a new policy in which it proposed to
flood the market with its own home-grown encryption devices -- a
product of the National Security Agency -- called the "Clipper Chip."

The Clipper is based on a "key-escrow" system.  Two government
agencies would hold the keys "in escrow", which are unique to each
chip, in a kind of "data vault."  Any time the FBI-- or your local
sheriff -- wanted to tap your phone conversations, they would have to
ask a judge to give the two government agencies to turn over the keys
to you Clipper chip.  With those keys, the FBI could then unscramble
any of your conversations at will.

That policy raised a huge firestorm of controversy and the Clipper
sunk from sight, down, but not out.  The intent of the White House,
acting as a front man for the NSA and other intelligence agencies
along with the FBI, was to have Americans adopt Clipper voluntarily.
The FBI took it on good faith -- and I'm not joking here -- that
criminals, too, would buy Clipper equipped phones, allowing the
government to easily unscramble their wiretapped conversations.

Why would criminals knowingly use a device they knew the government
could easily tap?  "Because criminals are stupid," was the FBI's party
line.  No, I'm not making this up.

The "voluntary" aspect didn't stop the controversy.  Indeed, buried in
the Administration's own background briefing papers on the Clipper was
the no nonsense statement that the Administration, after reviewing the
Constitution, had determined that "American's have no Constitutional
right to choose their own method of encryption."  Call it a peremptory
strike on privacy.

The  end of freely chosen encryption comes as no surprise to Jim
Dempsey, currently the executive director of the Center for National
Security Studies.  Dempsey, you might remember, walked point for
former Congressman Don Edwards during last year's tussle over the
FBI's Digital Wiretap access bill.  Dempsey, in fact was one of the
bill's principal authors. "I always felt [the Administration] had to
know they would ultimately go to [some kind of government] mandatory
encryption scheme," Dempsey said.  "I don't think it's a big leap for
the government to think of private encryption like they do kiddie
porn."

An NSA source, when questioned about his agency's role in the process,
was reluctant to speak.  He did say that Clipper was merely "Act One"
of a "Three part play."  Pressed for further details, he said, "do
your own homework."

During the Senate Subcommittee on Terrorism hearing May 11, Robert
Litt, deputy assistant attorney general for the Criminal Division of
Justice, said the "widespread use of reliable, strong encryption that
allows government access, with appropriate restrictions... is designed
to achieve" a "delicate balance" between privacy rights and law
enforcement needs.

When Dispatch asked Litt to elaborate, he said his comments refereed
to the use of the Clipper Chip.  But what if criminals bypass Clipper,
using private encryption schemes, such as those now being decried by
Freeh?  "If one solution doesn't work, then we have to go to the next
step," he said.  Is that next step the outlawing of private
encryption?  Litt smiled and repeated his answer.

Dispatch has learned that one proposal being seriously discussed
would, indeed, outlaw all private, non-government approved encryption
schemes.  Here's how the government plan breaks out, according to
sources familiar with the proposal:

(1)  The government would "certify" a few so-called "Commercial
Key-Escrow" programs.  These are similar in design to the government's
Clipper Chip, but industry would hold the keys and some of these
systems might not be classified, as is the software underlying
Clipper.  However, the companies producing such "certified" programs
could claim trade secrets, not allowing the public access the
underlying programs.

(2)  The government, tossing a bone to industry, would lift export
controls on all "certified" encryption programs.  Currently, it's
against the law to export encryption programs, as they are controlled
by the State Department under the same classification as munitions.

(3)  The use of government certified encryption would become a federal
mandate, making it illegal to use private encryption schemes that had
not passed the "certification" test.

The plans are "still really liquid," said an Administration source.
"We all know what a bitch this going to be trying to sell it to the
selling public," he said.  "The flashpoint potential of this idea
isn't lost on anyone."

The Administration is hoping the public will buy off on the fact that:
(1) It's private industry holding the keys, not government agencies.
(2)  The availability of "choice" among several different vendors will
squash the imagery of Big Brother.

Expect the rise of an off-shore, black market "encryption" trade.  It
will surely come.  And it will have to be a black market;  the FBI has
already gone around the world preaching the evils of private
encryption, trying to get other law enforcement groups to push for
outlawing such programs in their own countries.  And they already have
a convert:  Russia.  That country recently adopted such a policy...
nice to know we're following in Mr. Yeltsin's footsteps.

Meeks out...

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

From: [e-mail] (Jonah Seiger)
Subject: File 3--CDT Testifies At Sen. Jud. Comm. Hrg. on Bombs (CDT #13/fwd)
Date: 12 May 1995 16:04:54 -0500

 --------------------------------------------------------
   ******    ********    *************
  ********   *********   *************
  **         **      **       ***               POLICY POST
  **         **      **       ***
  **         **      **       ***               May 12, 1995
  **         **      **       ***               Number 13
  ********   *********        ***
   ******    ********         ***

  CENTER FOR DEMOCRACY AND TECHNOLOGY
 ----------------------------------------------------------
  A briefing on public policy issues affecting civil liberties online
 --------------------------------------------------------
CDT POLICY POST Number 13                       May 12, 1995

CONTENTS: (1) CDT Testifies at Senate Judiciary Subcommittee Hearing
              On the Availability of Bomb-Making Materials on the Internet
          (2) About the Center for Democracy and Technology

This document may be re-distributed freely provided it remains in its
entirety.
 ------------------------------------------------------

SUBJECT: CDT Testifies at Senate Judiciary Subcommittee Hearing
         On the Availability of Bomb-Making Materials on the Internet

The availability of bomb-making information and 'mayhem manuals' on the
Internet was the subject of a hearing yesterday (5/11/95) before the Senate
Judiciary Committee Subcommittee on Terrorism, Technology, and Government
Information. CDT Executive Director Jerry Berman testified before the
panel. Berman's testimony is available on CDT's online archives (URL's
below).

The bombing in Oklahoma City has brought the Internet under new scrutiny by
Congress and the Clinton Administration. In his opening statement,
Subcommittee Chair Arlen Spector (R-PA) made clear the First Amendment
issues raised by government efforts to censor certain material in
cyberspace. However, Spector acknowledged that the availability of so
called "mayhem manuals" (one of which he displayed before the hearing)
raises concerns about public safety and national security.

Senator Patrick Leahy (D-VT), in his opening statement, urged caution and
careful consideration of the benefits new communications technologies can
bring before Congress rushes to restrict and limit its use.

"Before we head down a road that leads to censorship, we must think long
and hard about its consequences. The same First Amendment that protects
each of us and our right to think and speak as we choose, protects these
others as well. The rule of this free society has long been that it is
harmful and dangerous conduct, not speech, that justify adverse legal
consequences", Leahy said.

Senator Leahy, an opponent of Senator Exon's Communications Decency Act (S.
314), and strong advocate of freedom of speech and the free flow of
information in cyberspace, recently introduced S. 714, an alternative to
Senator Exon's bill (the text of Leahy's bill is available from CDT, URL
below).

Witnesses on the panel included:

* Jerry Berman, Executive Director, Center For Democracy and Technology
* Rabbi Marvin Hier, Dean of the Simon Wiesenthal Center
* Robert Litt, Deputy Assistant Attorney General, US Detp. of Justice
* William Burrington, Assistant General Counsel. America Online
* Prof. Frank Tuerkheimer, U. of Wisconsin Law School


What Does It Mean To "Shout Fire In Cyberspace?"
 -----------------------

CDT's Jerry Berman acknowledged the availability of bomb-making
instructions and terrorist manuals on the Internet, but argued that such
materials deserve the same degree of protection as identical materials
available in bookstores or libraries.

"As an open society, governed by the democratic principles of the First and
Fourth Amendments, we tolerate and even encourage robust debate, advocacy
and exchange of information on all subjects and in all media of expression,
without exception.  Prior restraint or any government action which might
chill speech have long been labeled intolerable, expect in the few
circumstances in which that speech advocates imminent violence and is
likely to produce such violence.  Even in these cases, Constitutional law
and long-standing law enforcement policy have dictated great restraint in
order to avoid chilling legitimate speech activity."

"Justice Holmes taught that the First Amendment does not protect a person
from punishment for "falsely shouting fire in a theater and causing a
panic,"  Schenk v. United States, 249 U.S. 47, 52 (1919), but what does it
mean to "shout fire" in cyberspace?  We believe that shouting fire in
cyberspace is actually far less threatening, and thus less deserving of
censure, than the equivalent act in the physical world.  Though one can
shout fire in an email message or on an Internet newsgroup, the likelihood
that it will incite readers to imminent, criminal action is much reduced
because the readers are dispersed around the country, and even around the
world."

Berman added,

"The Center for Democracy and Technology believes that any prosecutorial or
investigative activity must be predicated on speech **plus** a reasonable
indication that the speech will lead to imminent violence.  Speech alone is
not enough to prosecute or investigate in other media, and it should not be
sufficient in interactive media.  Moreover, we assert that current law and
the FBI's strict interpretation of the existing Attorney General
investigative guidelines are adequate to serve both law enforcement
purposes and First Amendment interests.

In the sharpest exchange of the hearing, Senator Dianne Feinstein (D-CA),
expressed strong concern about the ability of children to access
bomb-making material on the Internet. Visibly outraged by the testimony,
Feinstein said, "I have a problem with people who use the First Amendment
to teach others how to kill [other people]" Protecting such speech, "... is
not what this country is about."

CDT's Jerry Berman responded, "Excuse me, Senator, but that *is* what this
nation is all about."

Feinstein countered that she believes that there is a " difference between
free speech and teaching someone how to kill others", and suggested that
the government should take a greater role in preventing the availability of
such materials.

Deputy Assistant Attorney General Robert Litt, agreeing with CDT's
assertion that the First Amendment protects bomb-making manuals and other
such material regardless of the medium of distribution, added that the
Justice Department has the authority under current law to prosecute
individuals who use the Internet to commit crimes relating to  "extortion,
threats, conspiracy, and aiding and abetting the violation of other federal
laws".  But Litt emphasized that such prosecutions must be predicated by
**conduct**.

Litt said:

"We can, therefore, clearly act to punish conduct that falls within the
scope of existing laws. But when we address not conduct by possibly
protected speech, the power of law enforcement is restricted by the First
Amendment. As the Committee well knows, we must guard the public's right to
free speech even while protecting the public from criminal activity. The
Constitution imposes stringent limits on our ability to punish the mere
advocacy of principals or the mere dissemination of information, without
more, even if the communications in question are utterly repugnant".

However, the Justice Department staked out a more aggressive line on the
issues of encryption and anonymity. On anonymity, Litt acknowledged the
necessity of confidentiality for whistle-blowers and informants, but argued
that the availability of complete anonymity on the Internet is of serious
concern to law enforcement.

In his prepared testimony, Litt echoed FBI Director Louis Freeh's recent
comments that "... unless the encryption issue is adequately addressed,
criminal communications over the telephone and the Internet will be will be
encrypted and inaccessible to law enforcement even if a court has approved
electronic surveillance," and pledged to continue to work to find solutions
to this issue.

In a statement which appears to dredge up previous arguments from the
Department in support of the Clipper Chip government key escrow proposal,
Litt said:

"We believe that it is possible to deal with both of these issues --
encryption and anonymity.  Privacy rights should generally be protected,
but society should continue to have, under appropriate safeguards and when
necessary for law enforcement, the ability to identify people and hold them
accountable for their conduct. In the case of encryption, the appropriate
balance can be achieved by the widespread use of reliable, strong
cryptography that allows for government access, with appropriate
restrictions, in criminal investigations and for national security
purposes. The federal escrowed encryption standard issued last year is
designed to achieve this delicate balance for voice telephony."

Rabbi Marvin Hier of the Simon Wiesenthal Center, argued that the  nature
of the Internet, including its broad reach and the veil of anonymity,
provides a fertile ground for hate-groups and other potentially dangerous
organizations. While stressing the importance of the First Amendment, Hier
recommended that:

* Law enforcement should have the ability to monitor hate groups and other
  organizations that clearly advocate an intention to commit violence that
  use the Internet to distribute information;

* Online service providers (particularly the commercial services such as
  AOL and Compuserve) should take steps to prevent their networks from
  being used to distribute material from these organizations; and

* To look at the uses of these communications technologies and to examine
  what legal limits can be placed on it.

William Burrington, Assistant General Counsel and Director of Government
Affairs for America Online, stressed that AOL does take steps to address
violations of its terms of service agreement, and has removed users who use
the network to post inappropriate material to public forums.

However, Burrington cautioned that it is impossible and illegal under ECPA
for a service provider to monitor every communication that travels across
their network. Burrington further noted that, while it is possible for
America Online to exercise limited control inside its own networks,
monitoring and controlling content on the Internet is beyond the reach of
any one because of the decentralized nature and global reach of the
network.

Speaking from direct experience, University of Wisconsin Law Professor
Frank Tuerkheimer stressed that the government should not attempt too
prevent or censor the publication of bomb-making manuals or other such
materials -- not only because such action is clearly contrary to the First
Amendment, but also because the material would inevitably be published in
another forum, rendering the government's argument moot.

This is precisely what occurred in 1979 in United States v. Progressive,
Inc (476 F. Supp 990 (W.D. Wisc. 1979). In this case, the government,
sought to prevent the publication of instructions on how to make a hydrogen
bomb.  Professor Tuerkheimer was the federal prosecutor in the Progressive
Case.  The article was ultimately published and the case became moot
because the information was found to be available in a number of public
libraries.

Tuerkheimer noted that it would be futile for the government to attempt to
prosecute someone for distributing bomb making material on the Internet,
since information on how to build an ammonium nitrate bomb similar to the
device used in the Oklahoma City tragedy can be found in encyclopedias and
in publications available from the US Department of Agriculture.

NEXT STEPS:

Although the issue of the availability of bomb-making manuals and the use
of the Internet by malitia and hate-groups has received considerable
attention in the press and on Capitol hill in recent weeks, as of this
writing there has been no legislation introduced, and so far none of the
counter-terrorism proposals specifically address this issue.

CDT will closely track this issue, and will alert you to any developments
as soon as they become available.


Paths to Relevant Documents
 --------------------------

CDT Executive Director Jerry Berman's testimony is available at the
following URL's:

http://www.cdt.org/policy/terrorism/internet_bomb.test.html

ftp://ftp.cdt.org/pub/cdt/policy/terrorism/internet_bomb.test

Additional hearing documents, including the Department of Justice testimony
can be found at the following URL's

http://www.cdt.org/terrorism/May11_hearing.html
ftp://ftp.cdt.org/pub/cdt/policy/terrorism/00-INDEX.terrorism

The Text of S. 714, Senator Leahy's Alternative to the Communications
Decency Act, can be found at:

http://www.cdt.org/policy/legislation/s714.html

ftp://ftp.cdt.org/policy/legislation/s714.bill

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

(2) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY

The Center for Democracy and Technology is a non-profit public interest
organization. The Center's mission is to develop and advocate public
policies that advance constitutional civil liberties and democratic
values in new computer and communications technologies.

Contacting us:

General information on CDT can be obtained by sending mail to
 <[e-mail]>

CDT has set up the following auto-reply aliases to keep you informed on the
Communications Decency Act issue.

For information on the bill, including
CDT's analysis and the text of Senator
Leahy's alternative proposal and
information on what you can do to
help                                         -- [e-mail]

For the current status of the bill,
including scheduled House and
Senate action (updated as events
warrant)                                     -- [e-mail]

World-Wide-Web:

   http://www.cdt.org/

ftp:

   ftp://ftp.cdt.org/pub/cdt/

gopher:

   CDT's gopher site is still under construction and should be operational
   soon.

snail mail:

Center For Democracy and Technology
1001 G Street, NW Suite 700 East
Washington, DC 20001
voice: +1.202.637.9800
fax:   [phone]

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

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

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