========================================================================= ________________ _______________ _______________ /_______________/\ /_______________\ /\______________\ \\\\\\\\\\\\\\\\\/ ||||||||||||||||| / //////////////// \\\\\________/\ |||||________\ / /////______\ \\\\\\\\\\\\\/____ |||||||||||||| / ///////////// \\\\\___________/\ ||||| / //// \\\\\\\\\\\\\\\\/ ||||| \//// ========================================================================= EFFector Online Volume 09 No. 04 Apr. 17, 1996 editors@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 IN THIS ISSUE: Privacy & Free Speech Victory in Early Phase of Bernstein Case EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia CDA Case Updates: Net 1, Government 0 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: Privacy & Free Speech Victory in Early Phase of Bernstein Case ----------------------------------------------------------------------- FEDERAL COURT DENIES GOVERNMENT'S MOTION TO DISMISS BERNSTEIN CASE, ACKNOWLEDGES SOURCE CODE AS SPEECH PRESS RELEASE Electronic Frontier Foundation Contacts: April 17, 1996 Shari Steele, Staff Counsel 301/375-8856, ssteele@eff.org Lori Fena, Executive Director 415/436-9333, lori@eff.org Denying the government's motion for dismissal in mathematician Daniel Bernstein's suit against the State Department, Judge Marilyn Hall Patel in the Northern District of California ruled Monday that source code in Bernstein's cryptographic algorithm, "Snuffle," is speech that is protected from prior restraint by the First Amendment. * LANDMARK RULING This is the first time a U.S. court has ruled that source code is speech under First Amendment analysis. Previously, courts have held that software is speech for copyright law only. The decision states in part: "This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French....Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it....Thus, even if Snuffle source code, which is easily compiled into object code for the computer to read and easily used for encryption, is essentially functional, that does not remove it from the realm of speech....For the purposes of First Amendment analysis, this court finds that source code is speech." The full text of the decision can be found at http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/Decision_041596/ in GIF image format (ASCII text will be made available as soon as possible, at http://www.eff.org/pub/Legal/Cases/Bernstein_v_DOS/Legal/041596.decision Judge Patel's acknowledgment that source code enjoys Constitutional protection has implications that reach far beyond cases involving the export of cryptography. The decision holds importance to the future of secure electronic commerce and lays the groundwork needed to expand First Amendment protection to electronic communication. Because of its far-reaching implications, the Bernstein case is being watched closely not only by privacy advocates, but by the entire computer industry, the export and cryptography communities and First Amendment advocates. * CASE WILL PROCEED The decision allows Bernstein to continue with his lawsuit that the International Traffic in Arms Regulation (ITAR) acts as a prior restraint on speech and that the ITAR is overbroad and vague. EFF is very pleased with Judge Patel's ruling and believes that it bodes well for Bernstein's ultimate success in trial, which is now scheduled to proceed with the normal pre-trial and trial sequence of events. The court drew an important distinction between the Bernstein case and other cases involving export controls on cryptography. The government has cited several cases involving the Export Administration Act as reasons why the Bernstein case should be dismissed. Judge Patel recognized that the Constitutional questions being raised by Bernstein differ significantly from the policy questions raised in the cases introduced by the government. Judge Patel also ruled that Bernstein could bring his case even though the Arms Export Control Act specifically precludes judicial review, because what Bernstein is asking the court to review (i.e., the constitutionality of the statute and its regulations) was not what had been precluded (i.e., the government's determination in a particular instance whether or not something was exportable). "With respect to constitutional questions, the judicial branch not only possesses the requisite expertise to adjudicate these issues, it is also the best and final interpreter of them." * CASE BACKGROUND As part of her decision, Judge Patel determined that only the source code was at issue in the case, not Bernstein's academic paper describing the source code. Bernstein tried to get the government to rule separately on the paper and the code back in 1993 by filing separate commodity jurisdiction requests. The State Department merged the requests and rejected them all. On June 29, 1995, after Bernstein and EFF filed suit, the government sent Bernstein a letter saying that the paper could be published and never had been forbidden. While Judge Patel claimed that the issue of the paper now appeared to be moot, she commented, "It is disquieting than an item defendants now contend could not be subject to regulation was apparently categorized as a defense article and subject to licensing for nearly two years, and was only reclassified after plaintiff initiated this action." * THE ELECTRONIC FRONTIER FOUNDATION EFF, a non-profit civil liberties organization working in the public interest to protect privacy, free expression, and access to online resources and information, is a primary sponsor of the Bernstein case. EFF helped to find Bernstein pro bono legal counsel, is a member of the Bernstein legal team, and organized amicus briefs from members of the academic community and computer industry to support this case. ------------------------------ Subject: EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia ---------------------------------------------------------------------- [Note: That's the US state of Georgia, not the Republic of Georgia.] Many state and local governments have passed legislation that appears to be unconstitutional restraints on speech sent over the Internet. One state that recently passed a Bad Law is Georgia. Georgia House Bill 1620 currently sits on the governor's desk awaiting his signature. EFF weighed in and voiced our concerns about this legislation, asking the governor to veto the bill. Among the problems with this legislation is that it would make it a crime to use someone else's trademark in user IDs, domain names, and other online contexts - regardless of the fact that in most cases the trademarks in question would not even apply. It would also criminalize the use of pseudonyms, and furthermore make it illegal to link from your homepage to another site without permission under many circumstances. The constitutionality of the law, as well as its wisdom, is highly questionable, as is the compatibility of it with existing intellectual property law (for example it could essentially grant the first to trademark a term or name in a particular field a monopoly on online use of that term or name, in *all* fields, despite that fact that any number of non-competing companies can have nearly identical trademarks in completely different areas of commerce.) Incidentally, the BellSouth telephone utility appears to be a major mover-'n'-shaker behind this issue - the bill (HB1630) was authored by Rep. Don Parsons, who happens to be a BellSouth employee. BellSouth has filed suit (two days before announcing plans to enter into the Internet service market, no less) against an online service, realpages.com, for alleged trademark violation (BellSouth's tradmark is "The Real Yellow Pages". Confusingly similar? Applicable at all? Not likely.) Very similar legislation has existed in draft form in California for some time, and may hit other states and countries soon. Keep an eye out! EFF Staff Counsel Shari Steele sent the following letter to Georgia Governor Zell Miller, explaining the problems with the new act and encouraging a veto. Electronic Frontier Foundaton 1550 Bryant Street, Suite 725 San Francisco, CA 94103 (415) 668-7171; (415) 668-7007 (fax) Internet e-mail: eff@eff.org Governor Zell Miller State Capitol Atlanta, GA 30334 April 16, 1996 Via Facsimile: (404)656-5948 Dear Governor Miller, I am writing to you in my capacity as Staff Counsel for the Electronic Frontier Foundation (EFF) to ask that you veto Georgia House Bill 1630, Computer or telephone network; transmitting misleading data. EFF was founded in July of 1990 to work on protecting the free speech and privacy rights of users of new technology. Since that time, EFF has been involved in numerous battles against laws and actions that restrict the free speech rights of users of electronic bulletin board systems (BBSs) and the Internet. I fear that the Georgia legislature has just passed a bill which, if signed into law, will significantly hamper the development of the Global Information Infrastructure (GII, frequently referred to the Information Superhighway) and will result in an unconstitutional restraint on the free speech rights of the citizens of Georgia, the United States, and the global Internet. To help you understand the ramifications of this legislation, I'd like to take a minute to explain some basic things about electronic communications. First, individuals are not identified online by their "real world" names. Instead, they are identified by electronic mail addresses, which are composed of a "user ID" and the "location" of the individual's network access provider. Sometimes an individual gets to choose his or her own e-mail user-ID. But sometimes a random user ID is assigned to the individual by the service provider. For example, the online service provider CompuServe assigns user IDs like 102527.2327 and 75223.2153, which do not clearly identify the sender of the electronic message. Even where an individual gets to select his or her own user ID, it is rare that a person identifies him or herself by full name. In fact, many people identify themselves instead by words or heroes in which they have a personal interest. For example, I know a person whose user ID is calliope. I know another whose user ID is mnemonic, named for the character "Johnny Mnemonic" in the science fiction novel of the same name by William Gibson. I know yet another whose user ID is elvis. Even my user ID, which is ssteele, does not clearly distinguish me from others with the last name of Steele and the first initial "S." This brings us to the first problem with the current bill. The language of the bill makes it illegal for a sender of a message to "falsely identify" him or herself. All of the user IDs I've mentioned are false identifications, similar to the "handles" people use on citizen's band radios. It is and has always been legal for people to use any name they choose as long as it isn't for a fraudulent purpose. I can be Samuel Clemens to one set of people and Mark Twain to another set and nobody is harmed. Or Andrew Hamilton and Publius. Or ssteele@eff.org and Shari Steele. While it is true that some people may be harmed when others intentionally create confusion, by sending a message designed to look like it came from an identifiable other person, the bill criminalizes a vast array of everyday conduct in its attempt to reach this harm. Besides, there are already laws on the books that make it illegal to commit fraud or to fraudulently use the likeness of another that can be enforced where harm has occurred. Georgia House Bill 1630 makes criminals of the vast majority of us who communicate online. Next, the Internet is comprised of thousands of computers connected to one another. The World Wide Web is a graphical area of the Internet that allows users to move seamlessly from site to site by simply clicking on a mouse button. This is often referred to as "surfing the net" and is a basic quality to the World Wide Web. For example, I could get to Wired magazine's web site by clicking on a button at the Electronic Frontier Foundation's web site. I then would be seamlessly transported to Wired's site. Wired magazine loves this arrangement, because the more people they get visiting their web site, the more successful the site is. Which brings us to the second problem with the current bill. The language of the bill would make it illegal to create a button on our web site with Wired's "trade name" or "logo" without first obtaining "permission or authorization" from Wired magazine. Of course Wired magazine would give us permission -- they do not want to have a web site that no one visits. In fact, the more sites that "link" to Wired's site, the better it is for Wired. It's like making it illegal to take a copy of a newspaper that is labeled "free" on the top without first obtaining permission from the publisher. Or like making it illegal to look up a friend's phone number in the phone book and put it into a neighborhood directory or a bridge club newsletter. The problem is that H.B. 1630 would make criminals out of virtually everyone with a web site (for all web sites link to others) when the sites being linked to would always give permission for the link. Furthermore, because of its vague language, it appears that the bill would make it a crime even to mention Wired magazine in writing an electronic review of their magazine or their articles without first obtaining their permission. The right to criticize other peoples' work is basic to our open society; it is how errors are corrected and differences of opinion are aired. It would be senseless to have the right to criticize a story from the New York Times without being able to mention that the story was printed in the New York Times! Even if reviewers went to the effort contemplated in the bill of contacting the company and asking its permission, many companies would refuse permission to use their names in reviews that disagreed with the companies. This sabotages the whole process of critical review that keeps our society tending toward truth. Finally, the entire purpose of the bill seems to be to protect intellectual property, such as trademarks and logos. But there are already laws in place on both federal and state levels that protect these things. The legislature has created a poorly crafted, unconstitutional law to protect something that is already protected. There is no rational reason to make criminals out of all users of the Internet. I hope that I have helped shed some light on the dangers of this legislation. The Electronic Frontier Foundation urges you to veto H.B. 1630 as an unnecessary and unconstitutional restriction on the free speech right of Internet users. I invite you to contact me if you have any questions or concerns about the legalities surrounding electronic communications as you consider your actions regarding this bill. My telephone number is (301)375-8856. And you can reach me via Internet e-mail at ssteele@eff.org. Thank you for your consideration. Sincerely, Shari Steele Staff Counsel Electronic Frontier Foundation cc: Ms. Mary Beth Westmoreland, Georgia Department of Law, fax: (404) 651-6459 Mr. Michael Bowers, Attorney General, fax: (404) 657-8733 ------------------------------ Subject: CDA Case Updates: Net 1, Government 0 ---------------------------------------------- The first stage of the CDA trial in Philadelphia is over, with the government and pro-censorship forces clearly on the defensive. "Expert" witnesses for the govenment have practically discredited themselves without the plaintiffs even having to cross examine them. The Justice Department's demonstration of how and where to find "cyberporn" was a cheat, and the judges caught it. The government foolishly even tried early on to rely on the Rimm/CMU "study" of online pornography. The court has showed quite a bit of skepticism regarding the government's claims, and a lot of interest in the First Amendment issues at stake. Many participants in the trial have issued updates on the blow-by-blow court action, and we have been collecting it at http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/ so we'll refrain from reprinting it here. Closing arguments in the case are set for May 10. ------------------------------ Subject: Upcoming Events ------------------------ This schedule lists events that are directly EFF-related, or sure to be of interest to our members. A much more detailed calendar of events likely to be of interest to all netizens 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 Apr. 18 - HotWired Electronic Frontiers Forum; online event, 7pm PST "speak"ers will include Ed Cavazos on the topic of Cyberlaw Users can participate via either WWW or telnet. URL: http://www.hotwired.com/club/ Telnet: chat.wired.com 2428. Apr. 18- 19 - Conference on Technological Assaults on Privacy; Rochester Institute of Technology, Rochester, New York. Deadline for submitting papers: Feb. 1 Contact: +1 716 475 6643 (voice), +! 716 375 7120 (fax) Email: privacy@rit.edu Apr. 21 - ACLU forum on "Cyber Liberties," Phoenix, AZ Contact: Bob Hirschfeld Voice: +1 602 265 4692 Fax: +1 602 0259 Email: nolawyer@primenet.com Apr. 24- 25 + Electronic Democracy, sponsored by Riley Information Services; Ottawa, Canada Email: 76470.336@compuser.com URL: http://www.rileyis.com Apr. 25 - HotWired Electronic Frontiers Forum; online event, 7pm PST "speak"ers will include Ann Beeson of the ACLU. Users can participate via either WWW (http://www.hotwired.com/club/) or telnet (chat.wired.com2428). URL: http://www.hotwired.com/club/ Apr. 29 ! Net-savvy U.S. Rep. Robert Goodlatte, and Sens. Conrad Burns and Larry Pressler will speak at "Information Security and the 20th Anniversary of Public Key Cryptography," sponsored by the Churchill Club; Marriott Hotel, Burlingame, CA. Contact: +1 408 371 4460 Fax: +1 408 371 4180 Email: chrchllclb@aol.com May 4 - ACLU forum on Censorship and the Internet User; Souls Unitarian Church, 4500 Warwick, Kansas City, MO; featuring Laura Murphy, Executive Director of ACLU's national office in Washington, D.C. Contact: +1 816 756 3113 Email: bbarrish@falcon.cc.ukans.edu May 3 + Symposium: "The Law of Information Superhighways and Multimedia," sponsored by the Eurpoean Lawyers Union, Monaco. URL: http://www.iway.mc/groupecx/uae May 6- 8 - IEEE/IACR Security & Privacy Symposium; Oakland, Calif. Deadline for submissions: Nov. 6, 1995. Contact: +1 503 725 5842 (voice), +1 503 725 3211 (fax) Email: sp96@cs.pdx.edu URL: http://www.cs.pdx.edu/SP96/ FTP: ftp.cs.pdx.edu, /pub/SP96/ May 9 - HotWired Electronic Frontiers Forum; online event, 7pm PST "speak"ers will include Jerod Pore of Scamizdat. Users can participate via either WWW (http://www.hotwired.com/club/) or telnet (chat.wired.com2428). URL: http://www.hotwired.com/club/ May 9- 11 + Visions of Privacy for the 21st Century: A Search for Solutions; Victoria, BC, Canada. Contact: http://www.cafe.net./gvc.foi May 10 - Workshop on Medical Records Privacy, sponsored by the Consumer Project on Technology, Washington, D.C. Contact: Manon Ress, +1 202 387 8030 Email mress@essential.org URL: http://www.essential.org/cpt May 16 - HotWired Electronic Frontiers Forum; online event, 7pm PST "speak"ers will include Sameer Parekh of Community Connection. Users can participate via either WWW (http://www.hotwired.com/club/) or telnet (chat.wired.com2428). URL: http://www.hotwired.com/club/ May 20- 21 ! Internet Privacy and Security Workshop, sponsored by the Privacy and Security Working Group of he Federal Networking Council and the Research Program on Communications Policy Center for Technology, Policy, and Industrial Development at Massachusetts Institute of Technology; Haystack Observatory, Boston, MA. Deadline for abstracts: April 14. Contact: Internet Security and Privacy Workshop c/o Joseph Reagle, Research Program on Communications Policy, MIT, One Amherst St. (E40-218), Cambridge, MA 02139 Voice: +1 617 253 4138 Fax: +1 617 253 7326 Email: papers@rpcp.mit.edu May 23 - HotWired Electronic Frontiers Forum; online event, 7pm PST "speak"ers will include Gary Chapman. Users can participate via either WWW (http://www.hotwired.com/club/) or telnet (chat.wired.com2428). URL: http://www.hotwired.com/club/ May 28- 31 - Harvard Conference on the Internet and Society, Harvard University, Cambridge, MA. Contact: +1 617 432 1NET Email: harvnet@harvard.edu URL: http://www.harvnet.harvard.edu ------------------------------ Subject: Quote of the Day ------------------------- "It shouldn't be too much of a surprise that the Internet has evolved into a force strong enough to reflect the greatest hopes and fears of those who use it. After all, it was designed to withstand nuclear war, not just the puny huffs and puffs of politicians and religious fanatics." - Denise Caruso (digital commerce columnist, _New_York_Times_, EFF boardmember emeritus) 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? Alarmed by commercial and religious organizations abusing the judicial and legislative processes to stifle satire, dissent and criticism? 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, letting them know that such abuses of public trust will not be tolerated, that legislators who vote against your free speech rights will be voted against by you in the next elections. Join in the Blue Ribbon Campaign - see http://www.eff.org/blueribbon.html PARTICIPATE IN BLUE RIBBON ACTIVISM EFFORTS: http://www.eff.org/blueribbon/activism.html Support the EFF Cyberspace Legal Defense Fund: http://www.eff.org/pub/Alerts/cyberlegal_fund_eff.announce 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 (e.g. WWW), send your request for information to ask@eff.org. * New Crypto-Privacy Legislation Urge your Senators and Representatives to call for hearings! Not much else needs to be done on this right this moment, but expect this issue to heat up rapidly. Pointers to Congress contact info are below. Action is expected NEXT WEEK. Keep an eye on http://www.eff.org/pub/Activism/index.html#crypto * 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. We are aware of no major action on this threat at present, but keep your eyes peeled. It will be back. * Anti-Terrorism Bills Several bills threatening your privacy and free speech have been introduced recently. 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, which threaten freedom of association, free press, free speech, and privacy. One such bill passed last week, stripped of most of the more onerous provisions. Keep it up. Write to your legislators: No secret trials and deportations, no expansion of wiretapping scope or authority, no national or "smart-card" ID systems! For more information on some of this legislation, see http://www.eff.org/pub/Privacy/Terrorism_militias/ * 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 Congress. 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. * Medical Privacy Legislation Several bills relating to medical privacy issues are floating in Congress right now. Urge your legislators to support only proposals that *truly* enhance the medical privacy of citizens. More information on this legislation will be available at http://www.eff.org/pub/Privacy/Medical/ soon. Bug mech@eff.org to make it appear there faster. :) * 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, or consult the free ZIPPER service that matches Zip Codes to Congressional districts with about 85% accuracy at: http://www.stardot.com/~lukeseem/zip.html Computer Currents Interactive has provided Congress contact info, sorted by who voted for and against the Communcations Decency Act: http://www.currents.net/congress.html * 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 Activist, Webmaster (mech@eff.org) Assoc. Editors: Ryan Thornburg, Communications Intern (rmt@eff.org) Dennis Derryberry, Administrative Asst. (dennis@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. 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