The Hacker's Encyclopedia 1998

home *** CD-ROM | disk | FTP | other *** search

/ The Hacker's Encyclopedia 1998 / hackers_encyclopedia.iso / zines / eff / eff818.txt < prev next >

Wrap

Text File | 2003-06-11 | 88.3 KB | 1,912 lines

========================================================================= ________________ _______________ _______________ /_______________/\ /_______________\ /\______________\ \\\\\\\\\\\\\\\\\/ ||||||||||||||||| / //////////////// \\\\\________/\ |||||________\ / /////______\ \\\\\\\\\\\\\/____ |||||||||||||| / ///////////// \\\\\___________/\ ||||| / //// \\\\\\\\\\\\\\\\/ ||||| \//// ========================================================================= EFFector Online Volume 08 No. 18 Nov. 6, 1995 editors@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 IN THIS ISSUE: ALERT: Net Censorship: Christian Coalition Tops Even Exon The Latest News What You Can Do Now The letter & suggested legislation from Ed Meese and the Christian Right Chronology of the CDA For More Information List Of Participating Organizations ALERT: Digital Telephony Action - Nov. 15 Deadline! Background: FBI Draft Capacity Requirements What You Can Do Now Congress May Just Not Buy It House Rejects First DT/CALEA Funding Attempt Sen. Leahy Definitely Not Buying It Canadian Law Enforcement Taking the FBI Hint The Text of the FBI's Federal Register Notice Newsbytes EFF Relocation Complete EFF Rated in Top 5% of the Net by Point Survey Commerce Dept. IPWG Report on Online Intellectual Property Meets Resistance IPWG Report's Suggested Legislation: Passed and Pending (+ Canada Tie-In) Upcoming Articles Upcoming Events Quote of the Day What YOU Can Do Administrivia * See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more information on current EFF activities and online activism alerts! * ---------------------------------------------------------------------- Subject: ALERT: Net Censorship, and Christian Coalition v. Human Rights Watch ----------------------------------------------------------------------------- CAMPAIGN TO STOP THE EXON/COATS COMMUNICATIONS DECENCY ACT (SEE THE LIST OF CAMPAIGN COALITION MEMBERS AT THE END) Update: -Latest News: The Christian Coalition is pushing Congress to censor the net more heavily than even Sen. J.J. Exon ever imagined. There is the very real possibility that they may succeed. You should be very worried. We are. -What You Can Do Now: Follow the directions below and call House Speaker Gingrich and Senate Leader Dole. Implore them to allow parents to make choices for their children, instead of government censors. Volunteer to join the fight by helping organize in your home town. CAMPAIGN TO STOP THE UNCONSTITUTIONAL COMMUNICATIONS DECENCY ACT Nov 2, 1995 PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT WITH THIS BANNER INTACT REDISTRIBUTE ONLY UNTIL December 1, 1995 REPRODUCE THIS ALERT ONLY IN RELEVANT FORUMS ________________________________________________________________________ CONTENTS The Latest News What You Can Do Now The letter & suggested legislation from Ed Meese and the Christian Right Chronology of the CDA For More Information List Of Participating Organizations ________________________________________________________________________ THE LATEST NEWS Since the very first day that Senator J.J. Exon (D-NE) proposed censorship legislation for the Internet, the Christian Right has pushed for the most restrictive regulations they could think of. The Religious Right (which does not necessarily speak for all religious people concerned with this issue) recently tipped their hand in a letter to Sen. Larry Pressler (R-SD) and Rep. Thomas Bliley (R-VA) requesting a new and more restrictive net censorship proposal. There are essentially three new dangerous elements of their campaign to shut down cyberspace: INTERNET PROVIDERS, ONLINE SERVICES, AND LIBRARIES CRIMINALLY LIABLE FOR EXPRESSION ONLINE The Religious Right has proposed to hold anyone who provides access to the Internet or other interactive media, including online services providers, ISP's, BBS's, Libraries, and Schools, criminally liable for all speech carried on the network. In order to avoid liability under this provision, service providers would be forced to monitor user's electronic communications to be assured that no "indecent" material is transmitted across their networks. This proposal is MORE RESTRICTIVE than the Exon Communications Decency Act, or any other net censorship legislation currently in Congress. In their letter to Congress, the Religious Right says: [Providers] would simply be required to avoid KNOWING violations of the law. [emphasis added] However, the "knowing" standard is vague enough that the mere knowledge that such material exists could be sufficient to trigger criminal liability. A single complaint or even a news report could force a service provider to take down a web page, remove posts to chat rooms or other discussion forums, or shut down listservs in order to avoid going to jail and facing huge fines. A STANDARD FOR INDECENCY The proposals pushed by the Christian Coalition relies on the unconstitutional "indecency standard". Like the Exon Communications Decency Act, the Christian Coalition seeks to regulate all indecent speech online. Indecency is a broad category that includes everything from George Carlin's "seven dirty words" to such classic novels and "The Catcher in the Rye" and "Lady Chatterly's Lover". The Supreme Court has ruled that restrictions on indecent speech are Constitutional only if they rely on the "least restrictive means". Broad indecency restrictions on interactive media do not satisfy the "least restrictive means" test, because interactive media allows users and parents tremendous control over the information they receive. Any legislation which attempts to apply an indecency restriction to the Internet is unconstitutional on its face. The Christian Coalition's proposal that relies on an indecency restriction contemplates dumbing down every conversation, web page, newsgroup, and mailing list on the Internet to the level of what is not offensive to children. What kind of discussions between adults are possible in an arena where everything has been reduced to the level of the Lion King? UNPRECEDENTED CONTROL OVER ONLINE SPEECH FOR THE FCC The Christian Coalition would give the FCC broad jurisdiction over cyberspace. It would allow the FCC jurisdiction over your online speech, and over the design Internet software, such as web browsers and filtering programs that parents can use to control their children's access to the Internet. The Internet has developed from a government project to a market-driven economic boom for thousands of businesses. Giving the FCC authority over this medium would significantly hinder the growth of this new industry. ________________________________________________________________________ WHAT YOU CAN DO NOW 1. The proposals from the Religious Right will literally destroy online speech as we know it. The odds of stopping this are not certain. There is a very real chance that this legislation will pass, and we will experience a period of uncertainty and chilling of speech while an appropriate test case attempts to reach the Supreme Court (should it even get there!) The Religious Right has a strong grass-roots network. We need to counter their energy and ensure cyberspace is not lost due to them. IMMEDIATELY CALL House Speaker Gingrich (R-GA) and Senate Leader Dole (R-KS) and urge them to oppose the Christian Coalition's proposal. Name, Address, and Party Phone Fax ======================== ============== ============== R GA Gingrich, Newt 1-202-225-4501 1-202-225-4656 R KS Dole, Robert 1-202-224-6521 1-202-224-8952 If you're at a loss for words, try one of the following: Please oppose the recent proposal from the Religious Right to censor the Internet. The only effective way to address children's access to the Internet is through parental control tools outlined by the Cox/White/Wyden approach. or As a religious person and a parent, I oppose the Religious Right's attempts to censor the Internet. I am the best person to monitor my child's access to the Internet using parental control tools as outlined in the Cox/White/Wyden approach. 2. Join the online fight by becoming a volunteer for your district! Check to see if your legislator is in the list below. If they are not, consult the free ZIPPER service that matches Zip Codes to Congressional districts with about 85% accuracy at: URL:http://www.stardot.com/~lukeseem/zip.html The conference committee legislators are: House: Barr (R-GA), Barton (R-TX), Berman (R-CA), Bliley (R-VA), Boucher (D-VA), Brown (D-OH), Bryant (D-TX), Buyer (R-IN), Conyers (D-MI), Dingell (D-MI), Eshoo (D-CA), Fields (R-TX), Flanagan (R-IL), Frisa (R-NY), Gallegly (R-CA), Goodlatte (R-VA), Gordon (D-TN), Hastert (R-IL), Hoke (R-OH), Hyde (R-IL), Jackson-Lee (D-TX), Klug (R-WI), Lincoln (D-AR), Markey (D-MA), Moorhead (R-CA), Oxley (R-OH), Paxon (R-NY), Rush (D-IL), Schaefer (R-CO), Schroeder (D-CO), Scott (D-VA), Stearns (R-FL), White (R-WA) Senate: Burns (R-MT), Exon (D-NE), Ford (D-KY), Gorton (R-WA), Hollings (D-SC), Inouye (D-HI), Lott (R-MS), McCain (R-AZ), Pressler (R-SD), Rockefeller (D-WV), Stevens (R-AK) If your legislator is on the conference committee, you have a chance to influence their vote on this issue with your power as a constituent. Volunteer to help educate your legislator by sending mail to volunteer@vtw.org. A coalition volunteer will be in touch with you. You can starting working to help spread the word in your district by sending this letter to five friends. Ask them to call Dole and Gingrich as well. 3. The People for the American Way (PFAW) and the American Civil Liberties Union are organizing a letter from ORGANIZATIONS to the Conference Committee to oppose the censorship provisions. If you are a representative of an organization that would like to signon to this letter, you should contact jlesser@pfaw.org IMMEDIATELY. 4. We can't suggest relaxing at this point. The stakes are too high, and the risk is too great. Everything now hangs in the balance. ________________________________________________________________________ THE LETTER & SUGGESTED LEGISLATION FROM ED MEESE AND THE CHRISTIAN RIGHT October 16, 1995 The Honorable Thomas J. Bliley, Jr. Chairman Committee on Commerce United States House of Representatives Washington, DC 20515 The Honorable Larry Pressler, Chairman Committee on Commerce, Science, and Transportation United States Senate Washington, DC 20510 Re: Computer Pornography Provisions in Telecommunications Bill Dear Mr. Chairmen: We are writing to urge the conference committee seeking to reconcile the telecommunications bills passed by the House and Senate include in the final bill the strongest possible criminal law provisions to address the growing and immediate problem of computer pornography without any exemptions, defenses, or political favors of any kind accorded to those who knowingly participate in the distribution of obscenity to anyone or indecency to children. While there is no perfect solution to the problem of computer pornography, Congress could not hope to solve this problem by holding liable only some who are responsible for the problem. The recent Justice Department prosecution project targeting those who violated federal child pornography law using America On-Line is instructive in this regard. More than ninety individuals were targeted for prosecution although many others, perhaps as many as 3,000 according to one press report, were originally targeted by the Department of Justice as potential violators of child pornography laws. Apparently due to a shortage of investigative and prosecutorial resources, the project was limited. Since there are insufficient resources to investigate and prosecute but a fraction of those that are trafficking in child pornography by computer, then there will likely be even fewer resources available to investigate and prosecute those involved in obscenity and indecency. Thousands of individuals both in this country and abroad are regularly placing obscenity and indecency on the Internet. It is not possible to make anything more than a dent in the serious problem of computer pornography if Congress is willing to hold liable only those who place such material on the Internet while at the same time giving legal exemptions or defenses to service or access providers who profit from and are instrumental to the distribution of such material. The Justice Department normally targest the major offenders of laws. In obscenity cases prosecuted to date, it has targeted large companies which have been responsible for the nationwide distribution of obscenity and who have made large profits by violating federal laws. Prosecution of such companies has made a substantial impact in curbing the distribution of obscenity, with many such offenders going out of business altogether. So too will prosecution of access providers which _knowingly_ traffic in obscenity have a substantial impact, a far greater impact than just the prosecution of a person who places one or a few prohibited images on the Internet. Such a person could not traffic in pornography without the aid or facilitation of the service or access providers. Indeed, if Congress includes provisions protecting access or service providers in whatever bill is finally passed, it is likely that most in this country who are trafficking in indecency to children or obscenity would continue to do so since the threat of prosecution would be minuscule, given the numbers of those currently involved in this activity. It is also likely that those outside our country who are engaged in these activities would continue to do so since it would be nearly impossible to extradite them to the United States for prosecution. Thus, unless all who knowingly participate in such matters are subject to the law, the Internet will remain the same and Congress will have failed in its responsibilities to the children and families of America. Federal law has traditionally assigned equal liability both for those who commit a crime and those who aid and abet a crime. See Title 18 U.S.C. Code Section 2: "(a) whoever [sic] commits an offense against the United States or aids, abets, councils [sic], commands, induces, or procures its commission, is punishable as a principle [sic]." Service or access providers who knowingly participate in the distribution of indecency to children or in obscenity to anyone are aiders and abettors in the commission of those crimes and thus should have liability under any law Congress passes. Current federal law on child pornography provides no no exemption or defense for access providers. Thus, the child pornography law provides a strong deterrent against trafficking in child pornography for those who would otherwise knowingly participate in its distribution by computer whether pedophile or access provider. The changes in law which we support would not hold an access provider criminally liable for all illegal pornography on the Internet which their services may be used to obtain. Nor would it require that access providers check all communications to ensure that no violations of the law are occurring. They would simply be required to avoid knowing violations of the law. This is an obligation imposed on all citizens. Technology exists today for access providers, through a simple process, to target or flag and remove files containing objectionable material. We support the House-passed language insofar as it addresses obscenity by amendment Title 18, Sections 1462, 1465, and 1467 of the United States Code. The provision restricting transmission of indecency in the House-passed bill, an amendment to Section 1465, is inadequate, and we urge that it be substantially revised. Attached is the specific language we support which includes the House passed language on obscenity and includes revisions on both the House passed language on indecency, which would amend Title 18 and the Senate-passed language on indecency, which would amend Title 47. The combination of these provisions, we believe, would provide effective laws to curb obscenity and indecency on the Internet by establishing that all who knowingly participate in the distribution or facilitation of obscenity to anyone or indecency to children would be subject to the law. Thank you for your concern and attention to this matter. [signed] Edwin Meese III Ralph Reed Christian Coalition Donald E. Wildmon American Family Association Alan Sears, Former Executive Director Atty General's Commission on Pornography Phyllis Shafly Eagle Forum Beverly LaHaye Concerned Women for America Reverend Louis P. Sheldon Traditional Values Coalition Jay Sekulow American Center for Law and Justice Paul Weyrich Free Congress Foundation Paul McGeady Morality in Media Len Munsil National Family Legal Foundation Robert Peters Morality in Media Kenneth Sukhia Former United States Attorney, N.D., FL Former Chairman, Atty General's Advisory Committee Subcommittee on Child Exploitation and Obscenity __________________________ Section 1465 of Title 18, United States Code, is amended to punish distribution by computer of indecent material to minors by adding at the end the following: Whoever knowingly communicates, transmits, or makes available for communication or transmission, in or effecting interstate or foreign commerce an indecent communication by computer to any person the communicator or transmitter believes has not attained the age of 18 years of age, knowing that such communication will be obtained by a person believed to be under 18 years of age, shall be fined under this title or imprisoned not more than five years, or both. TITLE IV -- OBSCENE, HARASSING, AND WRONGFUL UTILIZATION OF TELECOMMUNICATIONS FACILITY SEC. 401. SHORT TITLE This title may be cited as the "Communications Decency Act of 1995". Sec. 402. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934 Section 223 (47 U.S.C. 223) is amended -- (1) by striking subsection (a) and inserting in lieu of [sic]: ``(a) Whoever-- ``(1) in the District of Columbia or in interstate or foreign communications -- ``(A) by means of telecommunications device knowingly-- ``(i) makes, creates, or solicits, and ``(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; ``(B) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communication; ``(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or ``(D) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication; ``(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years, or both.''; and (2) by adding at the end the following new subsections: ``(d) Whoever-- ``(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any indecent communication in any form including any comment, request, suggestion, proposal, or image, to any person under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; or ``(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years or both. ``(e) Defenses to subsections (a) and (d), restrictions on access, judicial remedies respecting restrictions for persons providing information services and access to information services-- "(1) It is a defense to prosecution that a person has complied with regulations designed to restrict access to indecent communications to those 18 years old or older as enacted by the Federal Communications Commission which shall prepare final regulations within 120 days of the passage of this bill. Until such regulations become effective, it is a defense to prosecution that the person has blocked or restricted access to indecent communications to any person under 18 years of age through the use of verified credit card, adult access code, or adult personal identification number (PIN). Nothing in this subsection shall be construed to treat enhanced information services as common carriage." "(2) No cause of action may be brought in any court or any administrative agency against any person on account of any activity which is not in violation of any law punishable by criminal or civil penalty, which activity the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. (f) Nothing in this subsection shall preclude any State or local government from enacting and enforcing laws and regulations which do not result in the imposition of inconsistent obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by subsection (d)(2)." (g) Nothing in subsection (a), (d), or (e) or in the defenses to prosecution under (e) shall be construed to affect or limit the application or enforcement of any other Federal law. (h) The use of the term 'telecommunications device' in this section shall not impose new obligations on (one-way) broadcast radio or (one-way) broadcast television operators licensed by the Commission or (one-way) cable services registered with the Federal Communications Commission and covered by obscenity and indecency provisions elsewhere in this Act. Sec. 403. OBSCENE PROGRAMMING ON CABLE TELEVISION. Section 639 (47 U.S.C. 559) is amended by striking "10,000" and inserting "$100,000" Sec. 404. BROADCASTING OBSCENE LANGUAGE ON THE RADIO. Section 1466 of Title 18, United States Code, is amended by striking out "$10,000" and inserting "$100,000". Sec. 405 SEPARABILITY "(a) If any provision of this Title, including amendments to this Title of [sic] the application thereof to any person or circumstance is held invalid, the remainder of this Title and the application of such provision to other persons or circumstances shall not be affected thereby." ________________________________________________________________________ CHRONOLOGY OF THE COMMUNICATIONS DECENCY ACT Sep 26, '95 Sen. Russ Feingold urges committee members to drop Managers Amendment and the CDA from the Telecommunications Deregulation bill Aug 4, '95 House passes HR1555 which goes into conference with S652. Aug 4, '95 House votes to attach Managers Amendment (which contains new criminal penalties for speech online) to Telecommunications Reform bill (HR1555). Aug 4, '95 House votes 421-4 to attach HR1978 to Telecommunications Reform bill (HR1555). Jun 30, '95 Cox and Wyden introduce the "Internet Freedom and Family Empowerment Act" (HR 1978) as an alternative to the CDA. Jun 21, '95 Several prominent House members publicly announce their opposition to the CDA, including Rep. Newt Gingrich (R-GA), Rep. Chris Cox (R-CA), and Rep. Ron Wyden (D-OR). Jun 14, '95 The Senate passes the CDA as attached to the Telecomm reform bill (S 652) by a vote of 84-16. The Leahy bill (S 714) is not passed. May 24, '95 The House Telecomm Reform bill (HR 1555) leaves committee in the House with the Leahy alternative attached to it, thanks to Rep. Ron Klink of (D-PA). The Communications Decency Act is not attached to it. Apr 7, '95 Sen. Leahy (D-VT) introduces S.714, an alternative to the Exon/Gorton bill, which commissions the Dept. of Justice to study the problem to see if additional legislation (such as the CDA) is necessary. Mar 23, '95 S314 amended and attached to the telecommunications reform bill by Sen. Gorton (R-WA). Language provides some provider protection, but continues to infringe upon email privacy and free speech. Feb 21, '95 HR1004 referred to the House Commerce and Judiciary committees Feb 21, '95 HR1004 introduced by Rep. Johnson (D-SD) Feb 1, '95 S314 referred to the Senate Commerce committee Feb 1, '95 S314 introduced by Sen. Exon (D-NE) and Gorton (R-WA). ________________________________________________________________________ FOR MORE INFORMATION Web Sites URL:http://www.vtw.org/exon/ URL:http://epic.org/ URL:http://www.eff.org/pub/Alerts/ URL:http://www.cdt.org/cda.html URL:http://outpost.callnet.com/outpost.html FTP Archives URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech/00-INDEX.FREESPEECH URL:ftp://ftp.eff.org/pub/Alerts/ Gopher Archives: URL:gopher://gopher.panix.com/11/vtw/exon URL:gopher://gopher.eff.org/11/Alerts Email: vtw@vtw.org (put "send alert" in the subject line for the latest alert, or "send cdafaq" for the CDA FAQ) cda-info@cdt.org (General CDA information) cda-stat@cdt.org (Current status of the CDA) ________________________________________________________________________ LIST OF PARTICIPATING ORGANIZATIONS In order to use the net more effectively, several organizations have joined forces on a single Congressional net campaign to stop the Communications Decency Act. American Civil Liberties Union * American Communication Association * American Council for the Arts * Arts & Technology Society * Association of Alternative Newsweeklies * biancaTroll productions * Boston Coalition for Freedom of Expression * Californians Against Censorship Together * Center For Democracy And Technology * Centre for Democratic Communications * Center for Public Representation * Citizen's Voice - New Zealand * Cloud 9 Internet *Computer Communicators Association * Computel Network Services * Computer Professionals for Social Responsibility * Cross Connection * Cyber-Rights Campaign * CyberQueer Lounge * Dutch Digital Citizens' Movement * ECHO Communications Group, Inc. * Electronic Frontier Canada * Electronic Frontier Foundation * Electronic Frontier Foundation - Austin * Electronic Frontiers Australia * Electronic Frontiers Houston * Electronic Frontiers New Hampshire * Electronic Privacy Information Center * Feminists For Free Expression * First Amendment Teach-In * Florida Coalition Against Censorship * FranceCom, Inc. Web Advertising Services * Friendly Anti-Censorship Taskforce for Students * Hands Off! The Net * Inland Book Company * Inner Circle Technologies, Inc. * Inst. for Global Communications * Internet On-Ramp, Inc. * Internet Users Consortium * Joint Artists' and Music Promotions Political Action Committee * The Libertarian Party * Marijuana Policy Project * Metropolitan Data Networks Ltd. * MindVox * MN Grassroots Party * National Bicycle Greenway * National Campaign for Freedom of Expression * National Coalition Against Censorship * National Gay and Lesbian Task Force * National Public Telecomputing Network * National Writers Union * Oregon Coast RISC * Panix Public Access Internet * People for the American Way * Republican Liberty Caucus * Rock Out Censorship * Society for Electronic Access * The Thing International BBS Network * The WELL * Voters Telecommunications Watch (Note: All 'Electronic Frontier' organizations are independent entities, not EFF chapters or divisions.) ________________________________________________________________________ End Alert ------------------------------ Subject: ALERT: Digital Telephony Action - Nov. 15 Deadline! ------------------------------------------------------------ In Oct. 16's Federal Register, the FBI published a request for public comments *due November 15 1995* and a request for surveillance capacity. This is the first major step, since passage of the Digital Telephony legislation in 1994, in setting up the FBI's dream and our nightmare: forced compliance with law enforcement and intellegence demands to make all communications networks wiretappable. * Background: FBI Draft Capacity Requirements The 1994 "Digital Telephony and Privacy Improvement Act" (DT), passed as the more honestly-titled "Communications Assistance to Law Enforcement Act" (CALEA), did add significant statutory privacy protections and public oversight provisions for surveillance actions, but in essence requires telecommunications carriers including "plain old telephone service" companies and related telphonic services, to make their networks wiretap-friendly. There are several steps to implementation: 1) Approval of capability requirements (can the network be tapped?) 2) Approval of capacity requirements (how many wiretaps can be done?) 3) Approval of funding to pay for this mess The subject of the FBI's request, reproduced below, is capacity. The capacity request specifies the number of simultaneous wiretaps (by which term we simplify a bit: it includes actual communications intercepts, pen register (dialed number) information captures, and trap-and-trace actions) the government estimates that it will need to conduct authorized surveillance. Telecom companies will have 6 months to respond to this final notice published after the public comment period, and outline what part of their systems are not wiretap-friendly, at which point the government may opt to pay for a system to be "upgraded" or decide to let it slide. The demanded capacities range from .05% of "engineered capacity" (which according to the FBI initially means the maximum number of subscribers to a particular service or facility) to a full 1% of engineered capacity. In a worst-case scenario this could mean that 1 person on every residential city block could be wiretapped at all times - or, enough to wiretap 20,000 people at the same time in New York City alone - one of the cities targetted for the higher capacity. According to industry executives, there have never been more than 7 simultaneous wiretaps conducted from a single US telco location. Current wiretapping activity is roughly one tap per 170,000 phone lines. Isn't increasing wiretapping capacity more than a thousand times over a just a wee bit excessive? Clark Matthews, writing for _The_Spotlight_ estimates that under the current proposal, as many as 500,000 to 1,500,000 simultaneous wiretaps could be conducted nation-wide, given sufficient law enforcement resources. Compare this to the average of less than 1000 court-authorized wiretaps annually (though up to 1730 in 1994), less than half of them done for federal law enforcement. Recent reports indicate that there may have been an error in someone's figures somewhere (perhaps even in the Fed. Register notice, which pretty clearly states "1%"), and that the real number is 1 out of 1000 *lines*, but 1 out of 100 phone *calls*. Even if this is true, that's a staggering increase in wiretapping capacity. Considerably after-the-fact, the FBI revised its statements of what "engineered capacity" means, saying it means "total number of simultaneous phone calls" rather than subscriber lines. This appears to be a smokescreen, and is irrelevant anyway: the capacity to tap 1% of all ongoing phone calls is still frighteningly Big-Brotherish. And EPIC claims that the FBI's estimate of how many calls correspond to how many lines may be at least 100% less than the real figures. Even using the lowest of the percentages, .05% in rural areas until 1998 (five times that, later), the Bureau wants the capacity to conduct surveillance on 1 out of every 20000 lines, and one out of every 2000 calls. Again, the current ratio is 1 to 170,000 or thereabouts. Even in the deepest woods of Maine or the deserts of Nevada, the FBI wants to tap more than 8 times as many people as it currently can spy on - 40 times as many in 1999. FBI director Louis Freeh continues to deny, deny, deny, saying "We have not and are not asking for the ability to monitor 1 out of every 100 telephone numbers or any other ridiculous number like that. To obtain that many court orders and conduct that extent of wiretapping would be nearly impossible." His denials, however, simply don't match the Fed. Register notice, and furthermore ignore the fact that warrants only need be sought when the evidence to be gained from the surveillance is to be used in court (to quote from the statute itself: wiretaps conducted "pursuant to a court order *or other legal authorization*", emphasis added.) Not to mention that this legislation isn't for this year, it's for the future. Who knows what will be possible under a bloated FBI budget in future years? An AP article quotes Deputy Attorney General Jamie Gorelick as saying, "There is no intention to expand the number of wiretaps or the extent of wiretapping ... . I don't think the American people should be worried about that." Well, please forgive us if we "worry". The capability to tap one out of every 100 or 1000 phone lines simultaneously, even in "high crime areas", is truly wretched excess, even presuming that wiretaps are a good idea in the first place. As Brock Meeks reported ("Riding a Straw Horse", _Cyberwire_Dispatch_, Sept. 13 1994), "In 1991, the latest year figures are available, most Americans, across all age groups, disapproved when asked the question: 'Everything considered, would you say that you approve or disapprove of wiretapping?' Some 67% of all 18-20 year olds gave the thumbs down, as did 68% of the Gen[eration]-X crowd...Boomers disapproved of wiretapping almost 3-to-1 while 67% of those 50 and over disapproved." The _New_York_Times_ reports that the FBI refuses to elaborate on its internally perceived need to increase wiretapping capacity to this extent, saying only that "The full implementation is absolutely essential for law enforcement and public safety. We are in ongoing discussions with the communications industry. Therefore it would be inappropriate to comment further at this point." Apparently the FBI considers their discussions more imporant than your rights. And those discussions may even be on the subject of negotiating, outside of public review, for even *more* wiretapping capacity that the Bureau has already asked for in the Federal Register. Enough is enough. DT/CALEA's *capability* requirements are still under development. In short, the FBI will state what it wants, and the industry must try to comply with this, within certain limits, including the right of members of the public to challenge the requirments before the FCC. The funding issue: Congress authorized but did not appropriate US$500million to implement CALEA in 1994. The Justice dept. has proposed that a 30%-40% extra fine ("surcharge") be attached to all civil and criminal penalties and fines to pay for this, and has attached this proposal to both the stalled and in many cases unconsitutional anti-terrorism legislation, and a pending appropriations bill. EFF is committed to opposing any such funding efforts for the wiretap bill's provisions. * What You Can Do Now See the FBI Federal Register notice below. It includes instructions on how to submit comments. Remember, these comments are part of the public record. The FBI cannot hide them, and they *do* matter. THE DEADLINE IS NOV. 15! Act now, or perhaps forever hold thy peace! Remember that FBI director Louis Freeh himself states: "There is no intention to expand the number of wiretaps or the extent of wiretapping. Those who use the public comment notice to argue the contrary are wrong." If your comments focus on a the (nonetheless quite reasonable) proposition that the FBI intends to wiretap an order of magnitude more people that they do now, your comments may end up being disregarded. Instead, criticize the ridiculous draft requirement for this much wiretap capacity in the first place if the FBI doesn't intend to use it. Remember, you have them, either way. The current proposal is simply senseless. Next steps: Contact your legislators, and keep an eye on the progress of bills that the FBI has attached DT/CALEA funding language to - sending letters to the members of committess examining such legislation is important. In your letter to your own Senators and Representatives, please stress that * the FBI has not shown that it effectively uses wiretapping to prevent domestic terrorism, despite its claims and despite this being the prime reason the FBI has expressed for this legislation; * the FBI has not provided the public or Congress any of the information that it claims supports its outrageous requests for wiretapping capacity, orders of magnitude greater than present-day capacity in some areas; * the FBI may be, counter to the specifications of CALEA, entering into negotiations with telecom industry leaders that are hidden from the public; * the FBI has shown no evidence to back up its claims that digital telephone technology is actually thwarting effective law enforcement; * FOIA-obtained documents from the FBI itself indicate that the above-mentioned Bureau claim is a complete fabrication anyway; * Citizen privacy is not to be stripped for the convenience of law enforcement. Congress contact information is available at: ftp.eff.org, /pub/Activism/Congress_contact/ gopher.eff.org, 1/Activism/Congress_contact http://www.eff.org/pub/Activism/Congress_contact/ A list of Congress-member email addresses is available at: gopher://una.hh.lib.umich.edu:70/00/socsci/poliscilaw/uslegi/conemail * Congress May Just Not Buy It The FBI did not once seek a warrant for a wiretap in cases involving "weapons, arson, or explosives" since the 1980s. Yet they claim that one of the main motivations for CALEA is to combat domestic terrorism. Where were they when the Oklahoma City federal building was blown up? Investigations are also underway into the decidely poor law enforcement handling of several cases, such as the Waco incident and the Randy Weaver seige. In the wake of CIA honcho Aldrich Ames's rooting-out as a traitor, the same _NYT_ issue that covered the FBI Fed. Register notice also reveals that the CIA and other intelligence agencies - the same national security interests behind DT and crypto key "escrow" - have lied consistently to the President and Congress, and have been riddled with Soviet and other double agents for decades. The article suggests that the CIA is a "laughingstock" in Washington right now. The new Congress may at times be only too willing to censor, but we can hope they won't fall for this surveillance rigamarole. * House Rejects First DT/CALEA Funding Attempt On Oct. 25, the House of Representatives voted to *not* include the FBI's CALEA funding language in the Omnibus Budget Bill (which is expected to be vetoed anyway). This version of the measure called for a 40% "surcharge" to be added to all criminal fines, to raise US$500mil. to pay for implementation of the "upgrades" to telephonic equipment that the FBI hopes to require. Other versions of the FBI legislation are, however, still appended to various appropriations and terrorism bills - the Bureau can be said to be hedging its bets. The Electronic Privacy Information Center reported this event as a victory, though others have suggested that the reason the measure was rejected was not because of privacy concerns, but rather because some arch-conservatives consider the suggested funding measure to be a form of tax increase. The anti-tax conservatives may have been "thrown a bone" on a bill expected to die anyway, so they'll have already played their cards when the issue comes up in other bills. Whatever's really going on in Congressional minds, (and a _New_York_Times_ article tends to, believe it or not, support *both* viewpoints), the FBI's loss here certainly remains cause for very guarded celebration. But the issue *will* be back. * Sen. Leahy Definitely Not Buying It Nov. 3, Senator Patrick Leahy (D-VT) sent a public letter to FBI Director Louis Freeh. It stated in part: The Federal Bureau of Investigation recently published in the Federal Register a proposed notice of law enforcement's capacity demands predicated upon an historical baseline of electronic surveillance activity and an analysis of that activity. The Federal Register notice did not include publication of those two documents. Please provide me with copies of those two documents, which I also urge you to release to the public and publish in the Federal Register to ensure the fullest dissemination of the information. I appreciate your prompt attention to this matter. EFF joins CDT in commending Sen. Leahy for his no-nonsense approach, and for his consideration of the public interest in making this request. EFF, EPIC, or any other organization could obtain this information via Freedom of Information Act lawsuits, but that could take years, and it'd be much better if the FBI released the information voluntarily. The full text of Sen. Leahy's letter is available at: ftp.eff.org, /pub/Privacy/Digital_Telephony_FBI/leahy_freeh_110395.letter gopher.eff.org, 1/Privacy/Digital_Telephony_FBI, leahy_freeh_110395.letter http://www.eff.org/pub/Privacy/Digital_Telephony_FBI/leahy_freeh_110395.letter * Canadian Law Enforcement Taking the FBI Hint Electronic Frontier Canada reports that Canadian police chiefs are clamoring for some kind of "back door" into citizen communications, right on the heels of many other governments put under pressure by the US Administration to support its privacy-invasive policies. Canadian law enforcement may be shying away from Clipper-like crypto key "escrow" (possibly because they realize what a ridiculous idea it is?), but are already considering a ban on cellular phones that prevent eavesdropping. The 90th Annual Conference of the Canadian Association of Chiefs of Police (Regina, Saskatchewan, August 24, 1995) produced numerous policy recommendations and resolutions, including an unsupported decision that "violent" media programming has "no" value at all and should be banned (including an explict recommendation that online material that "exploits violence" be attacked); that "the Internet System [sic] is devoid of any standards and controls necessary to regulate the nature of information being disseminated worldwide", that anonymity should be banned, and that the Canadian government should "enact legislation that will effectively control and regulate the Internet System" [sic]; that roadway video surveillance be instituted; that crime *suspect* be subject to "DNA warrants" and have their genetic information added to a federal database; and (surprised?) that "new communications technology is threatening the ability of...police agencies to conduct court-approved electronic surveillance". This is the same, unsubstantiated, claim being made by the US Federal Bureau of Investigation. The Canadian proposal continues: "the telecommunications systems and networks are often used to further serious criminal activities, including drug trafficking, terrorism, organized crime, extortion, corruption, and money laundering" [not unlike cars, fingers, shoes, etc. And they forgot that favorite buzzphrase: "child molestation and pornography".] The rest of the recommendations regarding police surveillance and modern communications is all but plagiarized from the FBI's statements and legislation, and concludes, "the Canadian Association of Chiefs of Police urges the Government of Canada to enact the appropriate legislation requiring that all present and new telecommunications technologies contain capabilities that will provide law enforcement agencies with the technical assistance necessary to accomplish court-authorized interceptions pursuant to the applicable sections of the Criminal Code of Canada (s.184.2, 184.3, 186, 188, 487.01, 492.1, 492.2)." To our northern neighbors: Be afaid. The full text of the CACP recommendations can be found at: http://insight.mcmaster.ca/org/efc/pages/law/doc/cacp.24aug95.html * The Text of the FBI's Federal Register Notice [Federal Register: October 16, 1995 (Volume 60, Number 199)] [Notices] [Page 53643-53646] >From the Federal Register Online via GPO Access [wais.access.gpo.gov] DEPARTMENT OF JUSTICE Federal Bureau of Investigation Implementation of the Communications Assistance for Law Enforcement Act AGENCY: Federal Bureau of Investigation (FBI). ACTION: Initial notice and requests for comments. _________________________________________________________ SUMMARY: The FBI is providing initial notification of law enforcement capacity requirements as mandated in section 104 of the Communications Assistance for Law Enforcement Act. Comments regarding this initial notice will be considered in the development of the final capacity notice. DATES: Written comments must be received on or before November 15, 1995. ADDRESSES: Comments should be submitted in triplicate to the Telecommunications Industry Liaison Unit (TILU), Federal Bureau of Investigation, P.O. Box 220450, Chantilly, VA 22022-0450. FOR FURTHER INFORMATION CONTACT: Contact TILU at (800) 551-0336. Please refer to your question as a capacity notice question. I. Background On October 25, 1994, the President signed into law the Communications Assistance for Law Enforcement Act (CALEA) (Public Law 103-414; 47 U.S.C. 1001-1010). This law presents law enforcement's requirements for the surveillance of wire or electronic communications. The primary purpose of the CALEA is to clarify a telecommunications carrier's duty to assist law enforcement agencies with the lawful interception of communications and the acquisition of call-identifying information in an ever-changing telecommunications environment. To ensure that law enforcement agencies can continue to conduct authorized surveillance of wire or electronic communications, the CALEA states that telecommunications carriers must meet the assistance capability requirements set forth in section 103 of the Act (and restated in Appendix A of this notice). Section 104 of the CALEA mandates that the Attorney General of the United States provide notice of estimates for the actual and maximum number of pen register, trap and trace, and communication intercepts that law enforcement agencies may conduct and use simultaneously. The definitions for ``actual capacity'' and ``maximum capacity'' are included below: Actual Capacity--``notice of the actual number of communication interceptions. pen registers, and trap and trace devices, representing a portion of the maximum capacity that the Attorney General estimates that government agencies authorized to conduct electronic surveillance may conduct and use simultaneously by the date that is 4 years after the date of enactment of the CALEA'' (CALEA, section 104(a)(1)(A)). Maximum Capacity--``notice of the maximum capacity required to accommodate all of the communication interceptions, pen registers, and trap and trace devices that the Attorney General estimates that government agencies authorized to conduct electronic surveillance may conduct and use simultaneously after the date that is 4 years after of enactment of the CALEA'' (CALEA, section 104(a)(1)(B)). This Federal Register announcement serves as the initial notice of the government's actual and maximum capacity requirements. These requirements will aid telecommunications carriers in developing and deploying solutions to meet the assistance capability requirements set forth in section 103 of the CALEA. A final notice will be issued in accordance with the CALEA requirements after considering comments to this initial notice. The actual and maximum capacity requirements were developed by the FBI in coordination with law enforcement. By order of the Attorney General of the United States, as codified in 28 CFR 0.85 (o), government implementation responsibilities under the CALEA were delegated to the FBI. The FBI, in turn, is establishing TILU to carry out the government's implementation responsibilities, including the publication of capacity notices. For the purposes of this document, the terms defined in section 2510 of title 18, United States Code, and section 102 of the CALEA (section 1001 of title 47, United States Code) have, respectively, the meanings stated in those sections. Additional clarification of terms is provided in Appendix B of this notice. II. Introduction The capacity figures in this notice reflect the combined number of simultaneous pen register, trap and trace, and communication interceptions that law enforcement may conduct by October 25, 1998. All telecommunications carriers must, within 3 years after the publication of the final notice of capacity requirements or within 4 years after the date of enactment of the CALEA, whichever is longer, ensure that their systems are capable of accommodating simultaneously the number of pen register, trap and trace, and communication interceptions identified in the actual capacity requirements. Furthermore, all telecommunications carriers shall ensure capabilities exist to expeditiously accommodate any increase in the actual number of pen register, trap and trace, and communication interceptions that authorized agencies may seek to conduct and use, up to the maximum capacity requirement. Some carriers may not need to make modifications to their equipment, facilities, and services in response to this notice because they currently meet all law enforcement capacity and capability requirements for electronic surveillance. The capacity requirements are not intended to specify, required or prohibit adoption of any particular system design or configuration by a telecommunications carrier, equipment manufacturer, or support services provider. These entities must develop an appropriate solution to comply with the capacity requirements set forth in this notice and with the assistance capability requirements found in section 103 of the CALEA. In developing solutions, carriers should consider the effect that particular services and features may have on capacity requirements. For example, the required number of ports, lines, or other network resources may vary depending upon the use of particular services and features by an intercept subject. The FBI, along with other law enforcement agencies, will be available, through the consultative process, to discuss these engineering issues. In accordance with the intent of the CALEA, carriers must ensure that their equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of meeting the capability and capacity requirements mandated by the CALEA. These requirements apply to existing and future telecommunications carriers. III. Capacity Requirements Derivation The capacity figures that are presented in this initial notice were derived as a result of a thorough analysis of electronic surveillance needs. Information regarding electronic surveillance activities for a specific time period was obtained from telecommunications carriers, law enforcement, U.S. District Courts, State Courts, State Attorneys General, and State District Attorneys to establish a historical baseline of activity. The historical baseline of electronic surveillance activity was determined after examination of both the location and occurrence of each electronic surveillance reported. The historical baseline was then analyzed to derive the total and simultaneous electronic surveillance activity by switch and within specific geographic areas. Future capacity needs were then determined after consideration of the impact of demographics, market trends, and other factors on the historical baseline. The analysis indicates that electronic surveillance activity varies by geographic area. Therefore, the capacity requirements will vary by geographic area. The capacity requirements are reported by category, with each geographic area being assigned to one of three distinct categories. The use of categories enables capacity requirements to be stated in a manner that reasonably represents law enforcement electronic surveillance needs in all geographic areas, yet does not overburden the telecommunications industry by holding all carriers to the same level of capacity. Category I (the highest category) and Category II (the intermediate category) represent those geographic areas where the majority of electronic surveillance activity occurs. Only a few of the most densely populated areas, which have historically been areas of high electronic surveillance activity, are grouped into Category I. Other densely populated areas and some suburban areas, with moderate electronic surveillance activity, are grouped into Category II. The numbers for these categories were derived based on the analysis described above. Category I and Category II apply to approximately 25 percent of the equipment, facilities, and services covered by the survey over the time period. Category III (the lowest category) represents law enforcement's minimum acceptable capacity requirements for electronic surveillance activity. This category covers all other geographic areas. The numbers for Category III were derived by analyzing areas of historically low electronic surveillance activity and projecting future needs in order to establish a requirement for a minimum level of capacity for electronic surveillance. All telecommunications carriers are expected to meet the minimum capacity requirements of Category III. Carriers will be individually notified of those specific geographic areas within the areas they serve that exceed Category III and warrant a Category I or Category II capacity requirement. The individual carrier notifications will occur contemporaneously with the publication of the final notice. It is anticipated that the majority of the area served by a carrier will fall into Category III; however, if Category I and Category II capacity requirements are necessary, they are likely to affect only a small portion of their area served. This initial capacity notice includes the actual and maximum capacity requirements for Categories I, II, and III. After considering comments to this initial notice, a final notice will be published. Future changes to the maximum capacity requirements issued in the final notice will be published in the Federal Register, as necessary, in accordance with section 104(c). IV. Initial Statement of Actual and Maximum Capacity The actual and maximum capacity requirements are presented as a percentage of the engineered capacity of the equipment, facilities, and services that provide a customer or subscriber with the ability to originate, terminate, or direct communications. Engineered capacity refers to the maximum number of subscribers that can be served by that equipment, facility, or service. Frequently, the percentage is applied to the engineered subscriber capacity of a switch, however, the percentage can also apply to nonswitch equipment (i.e., network peripherals) involved in the origination, termination, or direction of communications. Percentages are being used rather than fixed numbers due to the dynamics and diversity of the telecommunications industry. The use of percentages allows telecommunications carriers the flexibility to adjust to changes in marketplace conditions or changes in the number of subscribers, access lines, equipment, facilities, etc., and still know the required level of capacity. As a result of extensive consultation with federal, State, and local law enforcement agencies, telecommunications carriers, providers of telecommunications support services, and manufacturers of telecommunications equipment, the FBI proposes the following capacity requirements for Categories I, II, and III: Category I Actual Capacity Each telecommunications carrier must provide the ability to meet the capability assistance requirements defined in section 103 of the CALEA for a number of simultaneous pen register, trap and trace, and communication interceptions equal to 0.5% of the engineered capacity of the equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications. Maximum Capacity Each telecommunications carrier must ensure that it can expeditiously increase its capacity to meet the assistance capability requirements defined in section 103 of the CALEA for a number of simultaneous pen register, trap and trace, and communication interceptions equal to 1% of the engineered capacity of the equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications. Category II Actual Capacity Each telecommunications carrier must provide the ability to meet the capability assistance requirements defined in section 103 of the CALEA for a number of simultaneous pen register, trap and trace, and communication interceptions equal to 0.25% of the engineered capacity of the equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications. Maximum Capacity Each telecommunications carrier must ensure that it can expeditiously increase its capacity to meet the assistance capacity requirements defined in section 103 of the CALEA for a number of simultaneous pen register, trap and trace, and communication interceptions equal to 0.5% of the engineered capacity of the equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications. Category III Actual Capacity Each telecommunications carrier must provide the ability to meet the capability assistance requirements defined in section 103 of the CALEA for a number of simultaneous pen register, trap and trace, and communication interceptions equal to 0.05% of the engineered capacity of the equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications. Maximum Capacity Each telecommunications carrier must ensure that it can expeditiously increase its capacity to meet the assistance capability requirements defined in section 103 of the CALEA for a number of simultaneous pen register, trap and trace, and communication interceptions equal to 0.25% of the engineered capacity of the equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications. When translated from percentages to numbers, capacity requirements should be rounded up to the nearest whole number. V. Carrier Statements and Consultation As set forth in section 104(d) of the CALEA, each telecommunications carrier is required to provide within 180 days after publication of the final capacity notice a statement identifying any of its systems or services that do not have the capacity to meet the assistance capability requirements stated in section 103 of the CALEA. These carrier statements will be used in conjunction with law enforcement priorities and other factors to determine the specific equipment, facilities, and services that require immediate modification and that may be eligible for cost reimbursement. The FBI will consult with telecommunications carriers to establish a template for responding to the capability and capacity requirements. Dated: October 10, 1995. Louis J. Freeh, Director. [FR Doc. 95-25562 Filed 10-13-95; 8:45 am] BILLING CODE 4410-02-M [editor's note -- Appendicies have been deleted to save space. The entire text of this document can be found at EFF's and CDT's Digital Telephony Web Pages. See "For More Information", below.] * For More Information See the following Internet sites: ftp.eff.org, /pub/EFF/Privacy/Digital_Telephony_FBI/ gopher.eff.org, 1/EFF/Privacy/Digital_Telephony_FBI http://www.eff.org/pub/EFF/Privacy/Digital_Telephony_FBI/ http://www.epic.org/privacy/wiretap/ http://www.cdt.org/digtel.html [Portions of this alert based on material from CDT, EPIC and VTW, various articles, and several independent reports.] ------------------------------ Subject: Newsbytes ------------------ * EFF Relocation Complete Our new, permanent contact info is: The Electronic Frontier Foundation 1550 Bryant St., Suite 725 San Francisco CA 94103 USA +1 415 436 9333 (voice) <-- That's 436 9EFF +1 415 436 9993 (fax) ask@eff.org (or, for "canned" general info, info@eff.org). Bernstein- or Scientology-case queries should go to EFF Staff Counsel Shari Steele (ssteele@eff.org), +1 301 375 8856. Other Press and legal queries should go to EFF Staff Counsel Mike Godwin (mnemonic@eff.org), +1 510 548 3290. * EFF Rated in Top 5% of the Net by Point Survey Point Survey, one of the most comprehensive WWW site review services on the net, http://www.pointcom.com, rated EFFWeb as one of the top 5% net sites. Their review calls us a "great resource for those who want to protect cyberspace." The full review is available at: http://www.pointcom.com/gifs/reviews/10_29038.htm * Commerce Dept. IPWG Report on Online Intellectual Property Meets Resistance The Information Infrastructure Task Force (IITF) of the National Telecommunications and Information Administration (NTIA) was created by the executive branch of the U.S. government to recommend policy and legislation on the "Information Superhighway". In the wake of the LaMacchia case, The IITF set up a working group to make recommendations on copyright law and intellectual property. The "White Paper" is the report of this working group. The legislation recommended in the White Paper was sent to Congress on Thursday, September 28, 1995. The White Paper is based on a 1994 draft, the "Green Paper", both strongly influenced by the Intellectual Property Rights Working Group chair, Patent & Trademark Office Commissioner Bruce Lehman. The recent White Paper version is available at: ftp.eff.org, /pub/Intellectual_property/ipwg_nii_ip_lehman.report gopher.eff.org, 1/Intellectual_property, ipwg_nii_ip_lehman.report http://www.eff.org/pub/Intellectual_property/ipwg_nii_ip_lehman.report The Green Paper version was the subject of strong criticism from many sides, including Prof. Pamela Samuelson, who opposed the attempt to pass off sweeping recommended changes as "minor". Samuelson, in her critique, states that the Green Paper's recommendations "would abolish longstanding rights that the public has enjoyed to make use of copyrighted works, rights that have been consistently upheld in courts and in the copyright statute." The draft (Green Paper) version, and Prof. Samuelson's critique are available at (respectively): ftp.eff.org, /pub/Intellectual_property/ipwg_nii_ip_lehman_report.draft gopher.eff.org, 1/Intellectual_property, ipwg_nii_ip_lehman_report.draft http://www.eff.org/pub/Intellectual_property/ipwg_nii_ip_lehman_report.draft and ftp.eff.org, /pub/Intellectual_property/ipwg_nii_ip_report_samuelson.comments gopher.eff.org, 1/Intellectual_property, ipwg_nii_ip_report_samuelson.comments http://www.eff.org/pub/Intellectual_property/ ipwg_nii_ip_report_samuelson.comments EFF Board of Directors Chair Esther Dyson and Vice-Chair John Perry Barlow have written forward-looking pieces on online "i-p", both pointing in directions strongly at odds with IITF's vision of intellectual property's future. These articles can be found at (respectively): ftp.eff.org, /pub/Publications/Esther_Dyson/ip_on_the_net.article gopher.eff.org, 1/Publications/Esther_Dyson, ip_on_the_net.article http://www.eff.org/pub/Publications/Esther_Dyson/HTML/ip_on_the_net.html and ftp.eff.org, /pub/Publications/John_Perry_Barlow/idea_economy.article gopher.eff.org, 1/Publications/John_Perry_Barlow, idea_economy.article http://www.eff.org/pub/Publications/John_Perry_Barlow/HTML/ idea_economy_article.html The new "White Paper" version of the IITF report doesn't seem to have fixed anything. Most criticisms that applied to the Green Paper draft hold for the final version. The National Writers Union says of the report, "We are struck by the remote character of the report in that it misses the daily realities of the individual writer, artist or other creator...we must voice concerns that favor the rights of information users at the same time that we seek fair compensation for our work." NWU suggests that the report points fingers at individuals and libraries for copyright infringement, when the real culprits are media conglomerates, and calls the working group's bias against the public interest and toward media centralization "a disconnection from reality", and a failure to uphold the public's fair use rights. NWU closes by saying, "Legislation and regulatory action on intellectual property and the National Information Infrastructure must do a more complete job than has been done by this report to include the concerns of the creators of intellectual property and of the general public." The full NWU comments can be found at: ftp.eff.org, /pub/Intellectual_property/nwu_ipwg_paper.comments gopher.eff.org, 1/Intellectual_property, nwu_ipwg_paper.comments http://www.eff.org/pub/Intellectual_property/nwu_ipwg_paper.comments The Commercial Internet eXchange (CIX) has criticised the white paper as well, in a draft position statement, pointing out that IPWG would criminalize all service providers for the illegal actions of their users. CIX's response paper states in part, "CIX members transmit nearly half a billion messages each day, and cannot realistically be expected to monitor the content of those transmissions. Moreover, the instantaneous nature of digital communications precludes access providers from viewing, judging, monitoring or editing the content of most messages posted or accessed by their subscribers. Finally, [Internet Access Providers] are similar to common carriers in that they have no control over which members of the public use their facilities or the content members of the public choose to transmit. For these reasons, access providers should not be treated as a publisher [sic] for copyright purposes. Unfortunately, that is precisely what the Working Group has proposed by including in its suggested revisions to the Copyright Act the undefined word 'transmit' as part of the definition of 'publish.'" The full CIX comments can be found at: ftp.eff.org, /pub/Intellectual_property/cix_ipwg_paper.comments gopher.eff.org, 1/Intellectual_property, cix_ipwg_paper.comments http://www.eff.org/pub/Intellectual_property/cix_ipwg_paper.comments The IITF report recommended that the Copyright Act "be amended to expressly recognize that copies or phonorecords of works can be distributed to the public by transmission, and that such transmissions fall within the exclusive distribution right of the copyright owner." This portion of the suggested legislation has already been passed by both houses of Congress. Whether other aspects will find their way into law remains to be seen. They probably will, though. Criticism of the White Paper is common and solid, but this does not seem to be dissuading legislators from taking the Report's conclusions and recommendations at face value and running with them. * IPWG Report's Suggested Legislation: Passed and Pending (+ Canada Tie-In) Samuelson, CIX, Barlow, NWU, Dyson, Jessica Littman, and numerous others have pointed out, in articles and at conferences, an almost uncountable number of flaws in the IITF NII intellectual property report. Some have labelled it "a wolf in sheep's clothing", which systematically ignores cases which don't support its extreme positions in order to make its radical proposals look more reasonable. At this early stage, the White Paper's endorsement of criminalizing traditionally protected behaviors such as private, non-commercial copying is not well understood. Nor is it well understood how biased a document it is, or how it supposes a view of the world in which every information transaction can be subject to a private tax with the threat of criminal sanction behind it. Critics of the report suggest that its drafting process is heavily dominated by special interests to such an extent that a fair outcome is unlikely - the lobbyists (and former lobbyists like PTO Commissioner Lehman), may be motivated by fear that digitalization will mark the end of the economic hegemony of certain media interests, who seek to bend the law to their exclusive advantage with no regard for the tranditional balance in intellectual property law between i-p rights holders and the public. Then again, others, such as the Software Publisher Association complain loudly of lost profits in the billions due to online copyright violation, and even the NWU supports major changes to current intellectual property law. Few seem to doubt that current law is quite right for the state of modern communications. The disagreement seems largely about what changes must be made, and perhaps more to the point - whether now is a good time to change them or on the other hand whether anyone proposing immediate changes has any idea what they are doing. Senators Orrin Hatch and Pat Leahy think they do, and introduced S. 1284, the "Information Infrastructure Copyright Act of 1995" in September. the IICA is based heavily on the IITF White Paper, and comprises sections. The first, the "NII Copyright Protection Act of 1995", explicitly covers digital transmission of copyrighted works, as one might expect. It also makes it a crime to alter or provide false "copyright management information" on someone else's intellectual property, or to circumvent copy protection schemes or provide software or hardware to do so ("copyright management information" being author and copyright holder name and contact info, terms & conditions of use), Not particularly disturbing? Until you consider that reverse-analysis of software, including copy protection, is useful and legitimate, as are utilities to update one's own information stored by the copy protection features in software. Or until you consider that many copy protection schemes are poorly designed, and essentially require one to break the copy protection to make backups or to install a new copy of the software from backup disks. Or until you get to the section that lays the burden of proving innocence on the accused. Or until you realize that the only way to enforce these provisions would be for system operators (and libraries and other services) to act as "net cops" and spy on users continuously and in great detail. Fines are up to half a million dollars and/or 5 years in prison. The bill panders to large-scale copyright holders, and fails to balance their rights with those of authors & creators, not to mention the public's right of fair use. A coalition of organizations, individuals and a companies, the Digital Future Coalition, further criticizes the bill as hindrance to the development of tele-education and general market innovation. EFF is considering joining DFC and endorsing their upcoming letter to the sponsors of this bill. Ironically, it was Sen. Leahy who said (referring to the Digital Telephony bill) in April 1994, "The part that frightens the hell out of me is the goverment deciding where technology goes." Should this legislation pass, it is likely that the actual authors and creators (as opposed to corporate copyright holders) will make less money than ever from their works, and that information vendors (and access providers - unless and until we have a common-carrier-like liability protection for them) will have to make redoubled efforts to check the copyright and royalty/licensing situation of any information their services provide. This could be the next step on one of two paths: increasing "net.cop" behavior on the part of access providers, or increased civil disobedience of unenforceable laws that are almost physically impossible to abide by for system operators. Senator Leahy, this time with Sen. Feingold, is interested in even more changes to intellectual property law. They introduced S.1122, the "Criminal Copyright Improvement Act of 1995" in August, making it an offense to assist others in the reproduction or distribution of an infringed work, and allowing prosecutors to go after bulletin board operators and other service providers when the end-user cannot be tracked down. Leahy's bill, the inspiration for which appears to be highly questionable statistics from software manufacturers' trade associations, poses fairly clear threats to all system operators that do not track users and get a variety of verified personal information from all customers. In a speech at a conference, Leahy tied S.1122 into his and Sen. Orrin Hatch's new bill to combat the counterfeiting of goods, S.1136, proposing fines up to US$1,000,000. S.1122 has language related to faked goods, including software, as well. It may be that the two bills are intended to be merged. S. 1122 is intended to snare system operators whose systems are used for software piracy by customers. One section states" SEC. 2. CRIMINAL INFRINGEMENT OF COPYRIGHTS. (a) DEFINITION OF FINANCIAL GAIN- Section 101 of title 17, United States Code, is amended by inserting after the undesignated paragraph relating to the term `display', the following new paragraph: `The term `financial gain' includes receipt of anything of value, including the receipt of other copyrighted works.'. (b) CRIMINAL OFFENSES- Section 506(a) of title 17, United States Code, is amended to read as follows: `(a) CRIMINAL INFRINGEMENT- Any person who infringes a copyright willfully either-- `(1) for purposes of commercial advantage or private financial gain; or `(2) by the reproduction or distribution, including by transmission, or assisting others in such reproduction or distribution, of 1 or more copies, of 1 or more copyrighted works, which have a total retail value of $5,000 or more, shall be punished as provided under section 2319 of title 18.'. EFF currently has no position on this legislation, but may take one. The Center for Democracy and Technology will support the bill, provided it is modified (See CDT Policy Post for more info.) On the one hand, few doubt that allowing a system to be used as a sort of "pirated software clearinghouse" should be illegal even if the sysop does not profit from this activity (Cf. the LaMacchia case). However, this bill would appear to be insufficiently narrow, and may hold criminally liable system operators whose users exchange software, audio files or other material copyrighted by others, even without the permission or knowledge of the system operator. EFF remains committed to establishing a form of common-carrier-like liability protection for online service operators so that sysadmins and BBS sysops are not fined or imprisoned for crimes committed by users. The bill also does not appear to adequately take into account the people's rights of fair use. At a conference, Borland Sr. VP Robert Kohn and author of a treatise on online music licensing, pointed out for the audience Internet sites devoted to recording artists such as Frank Sinatra, and noting that they probably were not licensed to have the copies of song lyrics they offered from their sites. As if mirroring Kohn's sentiments, SOCAN, roughly the Canadian equivalent of US music intellectual property clearinghouses BMI and ASCAP, have filed a proposed tariff which will allow licensing of music transmitted over the Internet or BBSs, so that SOCAN can collect royalities for online uses of sound clips or lyric texts. The Society of Composers, Authors and Music Publishers of Canada's Tariff 22 is entitled "Transmission of Musical Subscribers [sic] via a Telecommunications Service not Licensed Under Tariff 16 or 17". The proposed Tariff provides a licence fee of $0.25 for every subscriber on a service that does not earn advertising revenue. For services that do earn revenue from advertising, the licence is based on 3.2% of gross revenues, with a minimum fee of $0.25 per subscriber. A correspondent, John Lax, contacted SOCAN for more details, and found that SOCAN plans that anyone wanting to make online use of songs controlled by SOCAN would have to be licensed by the organization, and be subject to audits and inspection by SOCAN. While some note that sites like IUMA, providing online but copyrighted music information such as song lyrics, should have to pay royalties, the administrator of one such site says that the artists involved are, in at least some cases, not at all pleased by moves like SOCAN's, and will end up paying any SOCAN fees *themselves* because the Internet music sites provide free advertising for them, resulting in far more income from new sales than incoming lost from uncollected penny-ante royalities for online lyric reading or soundclip downloads. This is fairly interesting in light of NWU's criticism of the Lehman paper, that the report reflects not the interests of creators at all, but rather the interests of media mega-corporations who thrive on royalty percentages. While there's no direct tie-in between SOCAN's proposed tarrif and the IETF i-p report, there's an indirect one, in the form of a bill which recently passed both the US Senate and, unanimously, the House of Representatives. H.R.1506, the Digital Performance Right in Sound Recordings Act of 1995", gives copyright holders the authority to collect royalties each time a sound recording is transmitted in digital form. Measures that were suggested independently by both SOCAN and IITF are about to be the law of the land in the US, despite the fact that little debate on this matter has occurred, and some content producers think this will cost, not save, them money. The bills referred to above are available at: ftp.eff.org, /pub/Legislation/Bills_by_number/ gopher.eff.org, 1/Legislation/Bills_by_number http://www.eff.org/pub/Legislation/Bills_by_number/ NOTE: IITF is not to be confused with IETF, the Internet Engineering Task Force, which is a non-governmental volunteer standards body. [Some text in the above two articles borrowed from CIX, SOCAN, and NWU statements; Computer Law Report #11 was also used as source material, as were several action alerts and posts by participants on EFF and EFC mailing lists.] * Upcoming Articles Bernstein Case - Update Public Govt. Info Online - Update Scientology v. Critics - Update A Look at Internet Domain Name Fees and Alternatives to InterNIC EFC Opposes Bell Canada Trademark on "The Net" Arthur Halavais Censored from Internet by Judge Minnesota v. the Whole Wide World PROFS Case - Update Tony Davis Case - Update Lorne Shantz Case - Update Some of these were expected this issue, but have been put off due to the size of the artices in the current issue. ------------------------------ Subject: Upcoming events ------------------------ This schedule lists events that are directly EFF-related. A much more detailed calendar of events likely to be of interest to our members and supporters is maintained at: ftp: ftp.eff.org, /pub/EFF/calendar.eff gopher: gopher.eff.org, 1/EFF, calendar.eff http://www.eff.org/pub/EFF/calendar.eff Nov. 7 * European Summit on the Information Superhighway; Amsterdam, Netherlands. Speakers include EFF co-founder John Perry Barlow. Nov. 9 * Doors of Perception Conference; Amsterdam, Netherlands. Speakers include EFF co-founder John Perry Barlow. Nov. 23- 25 * HyperMedia Conference; Oita Japan. Speakers include EFF boardmember David Farber. Nov. 27 * Internet Society Japan Conference; Kobe Japan. Speakers include EFF boardmember David Farber. Nov. 29 * Japan Ministry of Posts and Telecom. Annual Conference on Advances in Communications; Tokyo Japan. Foreign Keynote speech by EFF boardmember, David Farber. Jan. 17- 18 * Innovation Now; Oregon Convention Center, Portland Oregon. Sponsored by American Electronics Association's Oregon Council, et al. Speakers include EFF chair of the board Esther Dyson. URL: http://www.innovationnow.org/ ------------------------------ Subject: Quote of the Day ------------------------- "You are all optimizing against the imaginable, not the probable. And the imaginable, especially the imaginable evil, has no inertia at all. There is no limit to what it might do and therefore, there is no limit to what one must do to prevent it...If we are to design all of our policies around the worst thing that could possibly happen, if we are trying to achieve a world of such absolute safety that no one in power can ever be blamed for a human-caused catastrophe, we will have to endow law enforcement with powers of surveillance which will make a police state not just imaginable but probable." - EFF co-founder John Perry Barlow, in a letter to Administration staffers regarding the Clipper and Digital Telephony surveillance scheme, on which the Administration refused to back down, citing fear of terrorists using untappable communications to plan a nuclear bombing of the World Trade Center, and the reaction the voting public would have toward the Adminstration in the event of such terrorism. Find yourself wondering if your privacy and freedom of speech are safe when bills to censor the Internet are swimming about in a sea of of surveillance legislation and anti-terrorism hysteria? Worried that in the rush to make us secure from ourselves that our government representatives may deprive us of our essential civil liberties? Concerned that legislative efforts nominally to "protect children" will actually censor all communications down to only content suitable for the playground? Join EFF! Even if you don't live in the U.S., the anti-Internet hysteria will soon be visiting a legislative body near you. If it hasn't already. ------------------------------ Subject: What YOU Can Do ------------------------ * The Communications Decency Act & Other Censorship Legislation The Communications Decency Act and similar legislation pose serious threats to freedom of expression online, and to the livelihoods of system operators. The legislation also undermines several crucial privacy protections. Business/industry persons concerned should alert their corporate govt. affairs office and/or legal counsel. Everyone should write to their own Representatives and Senators, asking them to oppose Internet censorship legislation, and write to the conference committee members to support the reasonable approaches of Leahy, Klink, Cox and Wyden, and to oppose the unconstitutional proposals of Exon, Gorton and others. See the first article in this newsletter for more detailed info. For more information on what you can do to help stop this and other dangerous legislation, see: ftp.eff.org, /pub/Alerts/ gopher.eff.org, 1/Alerts http://www.eff.org/pub/Alerts/ If you do not have full internet access, send your request for information to ask@eff.org. * Digital Telephony/Comms. Assistance to Law Enforcement Act The FBI is now seeking both funding for the DT/CALEA wiretapping provisions, and preparing to require that staggering numbers of citizens be simultaneously wiretappable. To oppose the funding, write to your own Senators and Representatives urging them to vote against any appropriations for wiretapping. To oppose the FBI's wiretapping capacity demands, see the FBI Federal Register notice at the end of the second article in this newsletter, which contains instructions on how to submit formal comments on the ludicrous and dangerous proposal. * Anti-Terrorism Bills Numerous bills threatening your privacy and free speech have been introduced this year. None of them are close to passage at this very moment, but this status may change. Urge your Congresspersons to oppose these unconstitutional and Big-Brotherish bills. * The Anti-Electronic Racketeering Act This bill is unlikely to pass in any form, being very poorly drafted, and without much support. However, the CDA is just as bad and passed with flying colors [the jolly roger?] in the Senate. It's better to be safe than sorry. If you have a few moments to spare, writing to, faxing, or calling your Congresspersons to urge opposition to this bill is a good idea. If you only have time to do limited activism, please concentrate on the CDA instead. That legislation is far more imminent that the AERA. * Find Out Who Your Congresspersons Are Writing letters to, faxing, and phoning your representatives in Congress is one very important strategy of activism, and an essential way of making sure YOUR voice is heard on vital issues. EFF has lists of the Senate and House with contact information, as well as lists of Congressional committees. (A House list is included in this issue of EFFector). These lists are available at: ftp.eff.org, /pub/Activism/Congress_cmtes/ gopher.eff.org, 1/EFF/Issues/Activism/Congress_cmtes http://www.eff.org/pub/Activism/Congress_cmtes/ The full Senate and House lists are senate.list and hr.list, respectively. Those not in the U.S. should seek out similar information about their own legislative bodies. EFF will be happy to archive any such information provided. If you are having difficulty determining who your Representatives are, try contacting your local League of Women Voters, who maintain a great deal of legislative information. * Join EFF! You *know* privacy, freedom of speech and ability to make your voice heard in government are important. You have probably participated in our online campaigns and forums. Have you become a member of EFF yet? The best way to protect your online rights is to be fully informed and to make your opinions heard. EFF members are informed and are making a difference. Join EFF today! For EFF membership info, send queries to membership@eff.org, or send any message to info@eff.org for basic EFF info, and a membership form. ------------------------------ Administrivia ============= EFFector Online is published by: The Electronic Frontier Foundation 1550 Bryant St., Suite 725 San Francisco CA 94103 USA +1 415 436 9333 (voice) +1 415 436 9993 (fax) Membership & donations: membership@eff.org Legal services: ssteele@eff.org General EFF, legal, policy or online resources queries: ask@eff.org Editor: Stanton McCandlish, Online Services Mgr./Activist/Archivist (mech@eff.org) This newsletter is printed on 100% recycled electrons. Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements may be reproduced individ- ually at will. To subscribe to EFFector via email, send message body of "subscribe effector-online" (without the "quotes") to listserv@eff.org, which will add you to a subscription list for EFFector. Back issues are available at: ftp.eff.org, /pub/EFF/Newsletters/EFFector/ gopher.eff.org, 1/EFF/Newsletters/EFFector http://www.eff.org/pub/EFF/Newsletters/EFFector/ To get the latest issue, send any message to effector-reflector@eff.org (or er@eff.org), and it will be mailed to you automagically. You can also get the file "current" from the EFFector directory at the above sites at any time for a copy of the current issue. HTML editions available at: http://www.eff.org/pub/EFF/Newsletters/EFFector/HTML/ at EFFweb. HTML editions of the current issue sometimes take a day or longer to prepare after issue of the ASCII text version. ------------------------------ End of EFFector Online v08 #18 Digest ************************************* $$