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***  CuD, Issue #1.17 / File 5 of 6 / California Law        ***
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It appears that under California's recent amendments to Sections 502 and
502.7 of the Penal Code, discussion of certain types of knowledge can be
felonious. Although we do not have the final statute (could somebody send
us a copy to TK0JUT2@NIU?), the final "mock ups" are ominous.  Most of the
amended legislation is legitimately aimed at such crimes as theft,
malicious data damage, and other acts to which we all object. However,
tucked within the proposed statute is language that seems sufficiently
vague and ambiguous to warrant concern. A few passages in particular caught
our eye.  Upper case indicates emphasis that we have added.
 
Sec. 6, 502.7 (a) specifies:
 
    "Any 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):"
 
Most of the provisions seem reasonable. One, however, strikes us as
potentially dangerous. 502.7 (a)(5)(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 used to make or assemble the instrument, apparatus, or
     device is guilty of a a misdemeanor or a felony, as provided in
     subdivision (1)."
 
Subdivision (b) of this section indicates that the law applies when a
telephone or telegraph communication either originates or terminates, or
both originates and terminates, in California.  It is not clear whether the
law is limited only to communications that "intend to defraud," or extends
also to information passed over the lines as well. Given the current
liberal extension and use of RICO and anti-drug laws, there is no reason to
expect that law enforcement agents will adopt a narrow interpretation.  We
have already seen the creative use of "fraud" and "theft" (as well as
"conspiracy") employed in the prosecution of Craig Neidorf in Chicago.
 
Just as chilling is subdivisions (g) and (h) of this passage.  The language
in (g) specifics:
 
     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.
 
Section (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.
 
Perhaps we misread the language of all this, but if so, it seems that
control agents also have considerable latitude to "misread." But, it seems
to say that the MERE POSSESSION of information of, for example, how to make
a box, or of an auto-dialer, or of information on altering a telephone
constitutes a crime, whether it is ultimately used or not. The language
seems quite explicit that communicating information about ANY of these
articles is a crime.
 
What does this mean? It seems to mean that if you possess any copy of
PHRACK that describes boxing with diagrammed instructions on how to make
one, you are potentially at risk for both prosecution and forfeiture of
equipment. A counter argument, one that enforcement agents give, is that we
should trust the "good faith" of controllers. We have seen, however, that
"trust your friendly computer cop" is an oxymoron.
 
Would persons in Illinois who have uploaded a textfile on boxing to
California be guilty under this law? It so-appears. Does California have an
extradition agreement with Illinois? Should researchers, journalists, and
just plain folk start to worry?  Looks like you'd better if you possess
profane information.
 
Perhaps we are unduly concerned, but it seems that the language of this, if
this is what actually appears in the final statute, provides a means to
RESTRICT THE FLOW OF INFORMATION, whether used in a crime or not. And this
is what all the fuss is about! It is not about hacking, phreaking, carding,
or illegal behavior. It is about the free flow of information that seems to
be threatened with prosecution, and lots of it. It is about confiscation,
forfeiture, or...fill in your own favorite term...the rip-off of equipment
of legitimate, law-abiding folk merely for possessing (or worse?)
disseminating knowledge. As the California statue reads, even to publish
information that could help others learn how to break into a computer is a
potential felony. This means a restriction on research, literature, or any
other legitimate forum in which presentation of such information is
critical. On feature that made Stoll's work so captivating was the detail
he provided on the cat and mouse game between himself and Marcus Hess.
Should such detail be prohibited under the guise of "protecting the
commonweal?"
 
Our point here is that, until recently, there was no organized constituency
to oppose the excesses of otherwise well-meaning laws. It is one thing to
protect the public. It is quite another to cynically manipulate law in ways
that restrict freedom of information. The California law seems akin to
formatting the hard drive in order to delete a troublesome file. It fails
to distinguish between the nature of computer crimes, and ultimately
penalizes those of us who depend on the free flow of information that we,
perhaps naively, feel is essential to a democracy.
 
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