[CyberLaw (tm) 3/93]

EFF:  PUBLIC ADVOCACY & CYBERSPACE

I.  THE LAW COMES TO CYBERSPACE

Three years ago, in April 1990, John Perry Barlow (previously best known as a song writer for the Grateful Dead) received a call from an FBI agent, asking if Barlow would meet with him to discuss an investigation.  As described by Barlow, the agent "had been sent to find out if I might be a member of the NuPrometheus League, a dread band of info-terrorists (or maybe just a disaffected former Apple employee) who had stolen and wantonly distributed source code normally used in the Macintosh ROMs."  Barlow posted an account of the FBI agent's visit on the WELL, a computer bulletin board on the Internet.  The following month, on May 8, 1990, the United States Secret Service executed coordinated raids in 14 cities, serving 27 search warrants, and boasted of confiscating 40 computers and seizing 23,000 disks.  In "Crime & Puzzlement," a manifesto written by Barlow shortly afterward, this was the day "[t]he law had come to Cyberspace.  When the day was over, transit through the wide open spaces of the Virtual World would be a lot trickier."  Barlow and Mitch Kapor (co-author of Lotus 1-2-3, and founder and former CEO of Lotus Development Corp.), who had also been contacted by the FBI in the course of its NuPrometheus investigation, decided the time had come for them to "speak up" and, as stated by Barlow, "to fund, conduct, and support legal efforts to demonstrate that the Secret Service has exercised prior restraint on publications, limited free speech, conducted improper seizure of equipment and data, used undue force, and generally conducted itself in a fashion which is arbitrary, oppressive, and unconstitutional."  The vehicle chosen by Barlow and Kapor was a non-profit organization to be named the Electronic Frontier Foundation ("EFF").  EFF has recently been in the news as the body that supported Steve Jackson in his successful lawsuit against the U.S. Secret Service, in which the trial court found that the Secret Service violated privacy laws in seizing an electronic bulletin board, electronic mail and computer records from Jackson's computer game company.

II.  THE BLUNDERING MACHINATIONS OF LAW ENFORCEMENT

The initial mission of EFF, as described by Barlow, was to "assur[e] the application of the U.S. Constitution to digital media."  Kapor, for one, had been "incensed" at the "blundering machinations of certain law enforcement agencies and large corporations" that had led to the near ruin of young people with whom Kapor identified.  

Craig Neidorf was one person with whom Kapor identified.  Neidorf had been left with $100,000 in legal bills after the government decided to drop a criminal case against him.  Neidorf, a co-editor of an electronic newsletter ("Phrack"), had been indicted on felony charges related to the fact that a document about administrative procedures used in 911 emergency response telephone systems had been published in "Phrack."  (A copy of this terribly mundane document is set out in B. Sterling, The Hacker Crackdown, 262-273 (1992).)  The phone company that created the document originally valued it at $74,449.  Neidorf's trial came to a screeching halt when it was revealed that the document was not a trade secret or confidential, and was freely available to the public for $13.

Steve Jackson, a role-playing games publisher, was another person with whom Kapor identified.  In early March 1990, Jackson's business had been raided by the U.S Secret Service in an effort to locate a copy of the same 911 document that was the basis for the charges against Neidorf.  Jackson's computer equipment was seized, which led to a layoff of nearly half his staff.  In a court action concluded nearly three years later, it was shown, as earlier perceived by Kapor, that "there was no good reason for this raid.  It should never have been permitted to occur in the first place."

Contrary to a popular misconception, EFF's purpose was not to operate as a form of hacker defense fund, defending the practice of breaking into computer systems.  Writing in 1991, Kapor confirmed that:

"The [EFF] has never condoned the unauthorized entry into computer systems for any reason.  There is absolutely no question that uninvited computer intrusions represent a major problem on the electronic frontier...."  (M. Kapor, "Why Defend Hackers," EFFector, September 1991, p.4.)

III.  EFF AS A PUBLIC INTEREST ORGANIZATION

Three years after its founding, EFF describes itself as "a public interest organization which seeks to develop and implement public policies that maximize freedom, civil liberty, and competitiveness in the new media environments being created by new computer and communications technologies."  The following are the four primary issues on which EFF will focus in 1993: Open Platforms, Common Carriage and Free Speech, Digital Privacy, and Access to Public Information.  EFF's Open Platform initiative and its opposition to the FBI's proposed Digital Telephony legislation illustrate the detailed and well-considered positions the organization has taken in its role as advocate.

EFF's Open Platform initiative calls for "an 'open platform' for innovation in telecommunications modeled on the success of the personal computer in the 1980s."  EFF has identified and seeks the implementation of steps that will provide "access to affordable, widely available digital information service platforms, over the existing copper wires."  To this end, EFF advocates the adoption and widespread development of the Integrated Services Digital Network ("ISDN") as a "mass market" service.  Although EFF acknowledges that ISDN does not offer all the services described by proponents of advanced telecommunication networks, EFF argues that ISDN could be widely available by 1994, and that its wide adoption "will create a fertile market that entrepreneurs will rush to seed with new applications."  EFF also suggests that "cost-effective means for delivering applications heretofore thought to be 'impossible' over ISDN will continue to be found."  Particularly noteworthy is EFF's claim that the adoption of ISDN will not impede the development of advanced (broadband) telecommunications networks.  According to EFF, ISDN will not lock out telephone companies from providing advanced networks.

In coalition with AT&T, IBM, Eastman Kodak, the Electronic Mail Association, Microsoft Corp. and Sun Microsystems, among others, EFF has worked "against over-broad law enforcement proposals whose aim is to require commercial digital technologies to be designed to meet law enforcement requirements."  In this regard, EFF opposes the FBI's now widely-criticized proposed "Digital Telephony" legislation.  The proposed legislation would, as described by EFF's Shari Steele, require communication and computer systems to be redesigned or altered to allow the FBI more easily to wiretap particular telephone conversations, by requiring "communication service providers and hardware manufacturers to make their systems 'tappable' by providing 'back doors' through which law enforcement officials could intercept communications."  In a report titled "An Analysis of the FBI Digital Telephony Proposal," EFF makes clear that "[e]xisting law requires all companies providing electronic communications services to cooperate with lawful requests from the FBI and other law enforcement officials -- and there is no history of any general failure to provide such cooperation."  Supported by a report by the General Accounting Office, EFF notes that the cost that would be imposed by the proposed legislation (to be passed on to consumers) have a "potentially disruptive impact on planning for new computer and communications technologies" and have not yet been fully assessed.  Among other problems, EFF notes that "in addition to creating uncertainty and imposing costs, the proposal would itself create new and serious security risks and undermine the privacy of electronic communications."  For example, mandatory "back doors" designed to allow and ensure FBI access to electronic communication services "may become known to and be exploited by criminals."  EFF and its partners urge Congress to "reject the FBI proposal and encourage continuing discussions that will lead to more specific identification of any problem and to concrete, cost-effective solutions."

In the past year, EFF also worked first to oppose and then help amend the FCC Authorization Act of 1991, which (in an effort to protect the privacy of users of cellular telephones) bans the U.S. manufacture and importation of certain scanning receivers.  The amendment requires the FCC to consider alternate means of protecting privacy, such as encryption.  Further, EFF worked with other organizations to successfully stop proposed legislation that would have allowed the federal government to claim copyright in certain computer software created by federal employees working with non-federal parties.  EFF and others were concerned that the legislation would restrict the public's access to government information, much of which is stored only in computerized formats.  Among other things, EFF also lobbied for an amendment to the National Science Foundation Act that would encourage an increase in permitted uses of the Internet, arguing that it would facilitate, not impede, access to the Internet.  

IV.  CHANGES AT EFF IN 1993

At the beginning of 1993, EFF announced a number of organizational changes.  EFF will be moving all of its staff functions to its office in Washington D.C.  Jerry Berman was appointed Executive Director, replacing Mitch Kapor who wanted to focus less on administration and more on EFF's strategic direction.  Kapor remains Chairman of the Board of EFF.  Other board members are John Perry Barlow, John Gilmore (a pioneer at Sun Microsystems and founder of Cygnus Support), Stewart Brand (creator of The Whole Earth Catalogue and the WELL, among other things), Esther Dyson (editor and publisher of RELEASE 1.0), Dave Farber (Professor of Computer Science at the University of Pennsylvania and founder of CISNet), and Jerry Berman (former Director of the ACLU's Information and Technology Project).  EFF has decided against forming local chapters, but will, instead, encourage the development of local organizations concerned with similar issues.  Those interested in obtaining further information may contact EFF on the Internet at eff@eff.org, or by phone at (202) 544-9237.

CyberLaw (tm) is published solely as an educational service.  The author may be contacted at jrsnr@well.sf.ca.us; cyberlaw@aol.com; questions and comments may be posted on America Online (go to keyword "CYBERLAW").  Copyright (c) 1993 Jonathan Rosenoer; All Rights Reserved.  CyberLaw is a trademark of Jonathan Rosenoer. 

CyberLex (tm) [3/93]

Notable legal developments reported in March 1993 include the following:

#	A federal court in Austin, Texas, ruled that the United States Secret Service violated the Privacy Protection Act of 1980 and the Electronic Communications Privacy Act of 1986 in its raid against Steve Jackson Games, a role-playing games publisher, by seizing an electronic bulletin board, electronic mail and computer records, and by reading, disclosing and erasing messages on the bulletin board it seized.  The court ordered the Secret Service to pay the company $50,000, and noted that there never was any basis for suspecting that the company or its owner, Steve Jackson, had broken any laws.  The raid on Steve Jackson Games was part of a nation-wide crackdown on computer hackers, and nearly put the company out of business, but no-one at Steve Jackson Games was ever arrested or accused of a crime, and no charges were filed.  (Wall Street Journal, March 16, 1993, A10, March 18, 1993, B1; San Jose Mercury News, March 16, 1993, 4E.)

#	The chairman and chief executive officer of Symantec Corp., Gordon E. Eubanks, Jr., and a vice president who resigned from Borland International Inc. to go to Symantec, Eugene Wang, have been indicted for alleged theft of trade secrets from Borland.  Both men have stated they are innocent and have pled not guilty.  (San Jose Mercury News, March 5, 1993, 1A, and March 6, 1993, 9D; Wall Street Journal, March 5, 1993, B4.)

#	Two computer hackers, Paul Stira (known as "Scorpion") and Elias Ladoupoulos (known as "Acid Phreak"), both 23 years old, pled guilty to breaking into computer systems operated by telephone companies and credit-reporting agencies.  They face maximum prison terms of 5 years and fines of $250,000.  According to prosecutors, their case marked the first one in which court-authorized wiretaps had been used to obtain conversations and data transmissions of computer hackers.  (New York Times, March 19, 1993, C16.)

#	An FBI official has stated that the agency will not back off its effort to obtain legislation that would force computerized telephone and communication systems to be vulnerable to wiretaps, and said that the agency expects a proposal to be introduced in Congress by the summer.  (San Jose Mercury News, March 12, 1993, 3G.)

#	A subscriber to the Prodigy information service, Peter DeNigris, has been sued by a small New Jersey company, Medphone, which alleges that comments by DeNigris posted on Prodigy helped cause a 60% decline on Medphone's stock.  Among other things, DeNigris's posting allegedly stated his opinion that the company was having a "difficult time" and would probably "cease operations soon."  (San Jose Mercury News, March 20, 1993, 10E.)

#	The Clinton administration has called for a program to require applicants for new radio frequency allocations to outbid competing applicants.  (San Jose Mercury News, March 18, 1993, 1F.)

#	Teleport Communications Group of Staten Island has complained to the Federal Communications Commission that local carriers are seeking to impede competition in local telephone service by charging exorbitant connection rates.  Last year, the FCC voted to encourage competition in local telephone service by allowing smaller communications companies to connect directly to the nation's local phone network and thereby cut their costs.  (New York Times, March 19, 1993, C2.)

#	The chief executives of AT&T, MCI Communications, Sprint, each of the seven regional Bell companies and major independent local telephone companies released a statement calling on President Clinton to let private companies build and manage most of the proposed national high speed fiber-optic network.  (New York Times, March 24, 1993, C2.)

#	California authorities have ordered the state Department of Motor Vehicles to take immediate steps to improve equipment and working conditions for individuals who use video display terminals.  The order comes after the California Occupational Safety and Health Division found an extraordinary number of disabling injuries among DMV employees.  (San Jose Mercury News, March 24, 1993, 3B.)

#	Law enforcement officials served 31 search warrants in 15 states in the course of an investigation into child pornography.  The officials seized equipment allegedly used to transmit Danish-generated porn on computer bulletin boards.  (San Jose Mercury News, March 5, 1993, 1A.)

CyberLex (tm) is published solely as an educational service.  Copyright (c) 1993 Jonathan Rosenoer; All Rights Reserved.  CyberLex is a trademark of Jonathan Rosenoer.