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1992-09-26
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Date: 19 September, 1990
From: Moderators
Subject: California Computer Abuse Law revisited
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*** CuD #2.04: File 4 of 7: California Computer Abuse Law ***
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In a previous issue of Computer underground Digest (1.17, File 5), the
California revision of Title 13 Sections 502 and 502.7 was described as an
example of the potential dangers in "cracking down" on computer hackers.
Upper case indicates emphasis that we have added.
Title 13 Sect. 502.7:
"(a) A person who, knowingly, willfully, and with intent to
defraud a person providing telephone or telegraph service,
avoids or attempts to avoid, OR AIDS ABETS OR CAUSES ANOTHER
TO AVOID the lawful charge, in whole or in part, for
telephone or telegraph service by any of the following means
is guilty of a misdemeanor or a felony, as provided in
subdivision (f):"
There follows a list of proscribed means, including charging to
non-existence credit cards and tampering with telecom facilities, most of
which seem reasonable. One, however, strikes us as potentially dangerous.
502.7 (b) states:
"Any person who MAKES, POSSESSES, SELLS, GIVES, OR OTHERWISE
TRANSFERS TO ANOTHER, OR OFFERS OR ADVERTISES ANY
INSTRUMENT, APPARATUS, OR DEVICE WITH INTENT TO USE IT or
with knowledge or reason to believe it is intended to be
used to avoid any lawful telephone or telegraph toll charge
or to conceal the existence or place of origin of
destination of any telephone or telegraph message; or (2)
sells, gives, or otherwise transfers to another, or
advertises plans or instruments for making or assemblying an
instrument, apparatus, or device described in paragraph (1)
of this subdivision with knowledge or reason to believe that
they MAY BE {emphasis added} used to make or assemble the
instrument, apparatus, or device is guilty of a
misdemeanor or a felony, as provided in subdivision (f)."
The broad wording of this laws would make it illegal to possess information
on "boxing" or to possess an autodialer. The problematic language here is
"with knowledge or reason to believe it is intended to avoid. . .". We have
seen from Operation Sun Devil that, contrary to normal Constitutional
procedures, the burden of proof of innocence lies on the "suspect." A BBS
operator who puts boxing files in a text section, knowing that some users
might try to apply the knowledge illegally, could, under the current
philosophy of the Secret Service and others, be indicted. This may seen a
remote possibility, but we have seen from recent activity that we simply
cannot rely on good faith interpretations of the law by some prosecutors,
especially those willing to distort "evidence" to strengthen a case.
Further, the term "may be" is unnecessarily vague. Generally, the term
means "expressing ability, permission, freedom, possibility, contingency,
chance, competence..." (Chambers 20th Century Dictionary, 1972: p. 811). An
automobile dealer presumably knows that a customer "may" use a car in the
commission of a crime, or "may" drive the car while intoxicated. Yet, it is
absurd to consider holding the dealer criminally liable for the sale in the
event the customer "may" be able to do so. Our point is that the language
of this Bill seems unnecessarily restrictive and open to potential abuses
by law enforcement agents, especially those willing to seek "test cases" to
test the laws. Californians should write their legislators with their
concerns in hopes that the language would be revised in a way that allows
legitimate targeting of "real" computer criminals, but reduces the
potential for using the law to persecute those for whom less stringent and
more productive responses are appropriate.
Just as chilling is subdivision (g) of this passage. The language
in (g) specifies:
Any instrument, apparatus, device, plans, instructions, or
written publication described in subdivision (b) or (c) may
be seized under warrant or incident to a lawful arrest, and,
upon the conviction of a person for a violation of
subdivision (a), (b), or (c), the instrument, apparatus,
device, plans, instructions, or written publication may be
destroyed as contraband by the sheriff of the county in
which the person was convicted or turned over to the person
providing telephone or telegraph service in the territory in
which it was seized.
This section seems reasonable to the extent that it specifies confiscation of
an illegal "instrument" upon conviction. The problem, however, is the
apparent tendency in some states to seize equipment even when indictments are
not forthcoming. The wording would seem to offer incentives to agents to
secure an arrest as a means to confiscate equipment, even if charges were
subsequently dropped. Again, this may seem far-fetched, but the undeveloped
state of computer law and the actions of prosecutors in early 1990 leave
little room for confidence in good faith interpretation of the wording. Take
an example: If a person were to be indicted for posession of an auto-dialer
(which generally has but one purpose) pursuant to a search warrant for
unrelated reasons, computer equipment could be confiscated. We have seen from
the actions of agents that the definition of "equipment" is quite broad, and
can include printers, modems, answering machines, or even books and pictures.
If the person is convicted of possession, then the equipment could be lost.
Again, "common sense," that sixth sense that tells us the world is flat, would
tell us that such a possibility seems absurd. However, the zealousness of Sun
Devil agents reduces the absurdity to the level of a "could be," and it is
because of their actions that we are concerned with this wording.
Title 13, Sect 502 (h) provides that:
Any computer, computer system, computer network, or any
software or data, owned by the defendant, which is used
during the commission of any public offense described in
this section any computer, owned by the defendant, which is
used as a repository for the storage of software or data
illegally obtained in violation of this section shall
be subject to forfeiture.
The chilling aspect of this passage is that is says nothing about
conviction. Does "subject to forfeiture" mean that, even if found innocent,
one could lose their equipment? A good faith reading suggests that the
intent of the language at least implies that a conviction must occur. But,
in reading the indictments of Craig Neidorf and Len Rose (neither from
California), we should be cautious before assuming that prosecutors will
not resort to creative interpretations to file an indictment. We should
also be aware that at least one California prosecutor has published
statements advocating an aggressive enforcement policy against "hackers"
and has advocated responses that he acknowledges are probably
unconstitutional.
Given the broad interpretation of the law, and considering how companies
such as BellSouth have grossly inflated the value of products (such as in
the Neidorf case, in which information available for $13 was valued,
according to the first indictment, at $79,449, and in the second indictment
reduced to $23,900). Given their public statements in the media and the
hyperbole of indictments, we cannot assume "good faith" prosecution by law
enforcement, and the language of the California Act seems wide open for
abuse.
Our purpose is not simply to criticize this law, but to use it as an icon
for other state and federal law. Some states are revising their laws, and
it is crucial that computerists be aware of, and offer input into, their
wording to assure that legitimate enforcement needs are met and potential
for abuse or misuse removed. There must be a balance, and without public
input such a balance is unlikely. We find Jim Warren's article (File 5,
following) significant. It suggests that computerists introduce this as an
issue in political campaigns as a means of educating both the public and
the politicians.
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