EFFector Vol. 14, No. 27 Sep. 27, 2001 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 187th Issue of EFFector (now with over 29,200 subscribers!):
* ALERT: Hackers Could Get Life in Prison, No Parole, Under
"Anti-Terrorism" Bill
* Administrivia
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ALERT: Hackers Could Get Life in Prison, No Parole, Under "Anti-Terrorism" Bill
Act Today and Ask Your Legislators to Remove Dangerous Provisions
Electronic Frontier Foundation ACTION ALERT
(Issued: Wednesday, September 27, 2001 / Deadline: Friday, October 7, 2001,
unless extended)
Introduction:
San Francisco, California - The Electronic Frontier Foundation (EFF)
today condemned portions of the Anti-Terrorism Act (ATA) currently
under consideration in Congress which would treat all computer
trespass as terrorism (in addition to other provisions we oppose, such
as vast expansion of surveillance authority).
"Treating low-level computer crimes as terrorist acts is not an
appropriate response to recent events," said EFF Executive Director
Shari Steele. "A relatively harmless online prankster should not face
a potential life sentence in prison."
The ATA includes provisions that dramatically increase the penalties
for acts that have no apparent relationship to terrorism. For
instance, the bill would add low-level computer intrusion, already a
crime under other laws, to the list of "federal terrorism offenses,"
creating penalties of up to life imprisonment, adding broad
pre-conviction asset seizure powers and serious criminal threats to
those who "materially assist" or "harbor" individuals suspected of
causing minimal damage to networked computers.
Attorney General John Ashcroft asked Congress last week to pass the
ATA, formerly known as the Mobilization Against Terrorism Act (MATA),
with less than one week of consideration.
EFF believes the ATA would radically tip the United States system of
checks and balances, giving the government unprecedented authority to
surveil American citizens with little judicial or other oversight.
What YOU Can Do Now:
* Contact your own legislators about the ATA/MATA and related bills
AS SOON AS POSSIBLE. Call them, and fax and/or e-mail the EFF
letter below (or your own) today. Postal mail will be too slow on
this issue. Feel free to use this letter verbatim, or modify it as
you wish. Let them know that you do not believe liberty must be
sacrified for security. Please be polite and concise, but firm.
For information on how to contact your legislators and other
government officials, see EFF's "Contacting Congress and Other
Policymakers" guide at:
http://www.eff.org/congress.html
and see also the links below.
* Join EFF! For membership information see:
http://www.eff.org/support/
Sample Letter:
Use this sample letter to YOUR legislators or modify it, and send to
their Washington fax and e-mail, which you can get this from Project
Vote Smart:
http://www.vote-smart.org/vote-smart/data.phtml?dtype=C&style=
or the House:
http://www.house.gov/house/MemberWWW.html
and Senate:
http://www.senate.gov/senators/index.cfm
websites. You can also look up your Representative with this form:
Enter your Zip Code and State in the fields below and click on Submit.
ZIP _____ +4 ____(if required) State [Choose One..........] Submit
Dear Sen./Rep. [Surname]
I write as a constituent to express my gravest concern over aspects
of the Congressional response to the tragedies of September 11.
While I share your grief and anger in no uncertain terms, I do not
believe that sacrificing essential liberties in a vain hope of
improving security is good for America or the world. Security can
be improved without privacy invasion, and we cannot win an attack
on freedom by attacking that freedom ourselves.
I urge you to work to remove from anti-terrorism bills any
provisions that call for expanded wiretap powers or online
monitoring, warrantless pen register or trap and trace authority,
censorship, restrictions on encryption, warrantless "fishing
expeditions" in student or other records, or redefinition of minor
computer crimes as terrorism. While there is a need for a
Congressional response to terrorism, vast expansion of the powers
of law enforcement and intelligence agencies to invade privacy is
not an appropriate part of that response.
Presently these bills and draft bills include A-G Ashcroft's
Anti-Terrorism Act (ATA); Sen. Leahy's Uniting and Strengthening of
America Act (USAA); Rep. Smith's Public Safety and Cyber Security
Enhancement Act (PSCSEA, H.R. 2915); Sen. Hatch's Combating
Terrorism Act (CTA, amendment S.A. 1562 to bill H.R. 2500); and
Sen. Graham's Intelligence to Prevent Terrorism Act (IPTA, S.
1448), and Sen. Gregg's draft anti-encryption legislation.
The United States should not take steps toward becoming a police
state, or otherwise undermine our own freedom in the name of
defending that freedom from terrorist attack, or the terrorists
have already won. I also object to provisions being passed in
response to terrorism but which have nothing to do with terrorism,
such as "emergency" wiretaps against simple computer crime
incidents and the abuse of grand juries as tools for intelligence
agencies, and undermining of the very encryption that helps secure
our communications infrastructure from further attack. This is a
time for careful consideration, not for passing legislation without
debate or careful consideration of the consequences.
Sincerely,
[Your name & address]
(Be sure to correct the salutation - use EITHER Sen. or Rep., and use
the correct name. If you are writing to a committee member [and he/she
is not your legislator], remove "as a constituent" from first
sentence.)
Non-US Activists
Non-US readers can probably have little impact on the US Congress's
votes on these matters, and could even affect them negatively. Your
best course of action is to contact your own
legislators/parliamentarians and urge them to avoid similar policies
in your own country.
Privacy Campaign:
This drive to contact your legislators about unprecedented wiretap
power expansion is part of a larger campaign to highlight how
extensively companies and governmental agencies subject us to
surveillance and share and use personal information online & offline,
and what you can do about it.
Check the EFF Privacy Now! Campaign website regularly for additional
alerts and news:
http://www.eff.org/privnow/
Background:
EFF again urges Congress to act with deliberation and approve only
measures that are effective in preventing terrorism while protecting
the freedoms of Americans.
"The theme of freedom in the face of terrorist attacks should include
a focus on measures that preserve rather than diminish our civil
liberties," said EFF Exec. Dir. Shari Steele.
The DOJ's own analysis of another particularly egregious provision of
the ATA points out that "United States prosecutors may use against
American citizens information collected by a foreign government even
if the collection would have violated the Fourth Amendment."
"Operating from abroad, foreign governments could do the dirty work of
spying on the communications of Americans worldwide. US protections
against unreasonable search and seizure won't matter," commented EFF
Senior Staff Attorney Lee Tien.
Additional provisions of the proposed Anti-Terrorism Act include the
following measures:
* make it possible to obtain e-mail message header information,
Internet user web browsing patterns, and "stored" voicemail without a
wiretap order;
* eviscerate controls on Title III roving wiretaps;
* permit law enforcement to disclose information obtained through
wiretaps to any employee of the Executive branch;
* reduce restrictions on domestic investigations under the Foreign
Intelligence Surveillance Act (FISA);
* permit grand juries to provide information to the US intelligence
community;
* permit the President to designate any "foreign-directed individual,
group, or entity," including any United States citizen or
organization, as a target for FISA surveillance;
* prevent people from providing "expert advice" to terrorists;
* extends federal DNA database to every person convicted of a federal
terrorism offense which includes low-level computer intrusions;
* other provisions, whether or not related to online civil liberties.
The scope of the Computer Fraud and Abuse Act's Sect. 1030(a)(5)(A) is
especially broad, dangerously so even before the ATA would attempt to
redefine violations of this section as "terrorism". It criminalizes
the following:
(5)(A) [one who] knowingly causes the transmission of a program,
information, code, or command, and as a result of such conduct,
intentionally causes damage without authorization, to a protected
computer [is in violation of the statute];
Several civil cases have construed this language. For example, in Shaw
v. Toshiba America Information Systems, Inc., 91 F.Supp.2d 926
(E.D.Tex.,1999.), defendant knowingly distributed laptop computers
containing disk drives with faulty microcode that allowed unwanted
corruption/deletion of data. The court squarely held that
manufacturers of computer equipment could be reached by Sect.
1030(a)(5)(A) -- "transmission" includes the design, manufacture,
creation, distribution, sale, and marketing of floppy-disk controllers
allegedly made faulty by defective microcode.
One court has found that placing a cookie on a user's computer to
monitor websurfing habits could violate Sect. 1030(a)(5)(A). In re
Intuit Privacy Litigation, 138 F.Supp. 2d 1272 (C.D.Cal. 2001).
Defendant operated a website that used cookies to track its users, and
were sued for privacy violations on several theories, including Sect.
1030. On motion to dismiss, the court found that this conduct fell
within Sect. 1030(a)(5)(A). (Because the class-action plaintiffs had
not alleged economic damages, the motion to dismiss was granted, but
without prejudice, to allow the plaintiffs to make the proper
allegations.)
It is clear that any number of activities not initially on the minds
of legislators when they passed Sect. 1030(a)(5)(a) could eventually
be held to fall under this statute anyway. No one can predict at this
early stage what will or will not be considered a violation of this
provision. Yet the ATA would redefine all present and future
violations as acts of terrorism, with violators subject to terrible
penalities, up to and including life in prison without possibility of
parole.
Additionally, these changes to the law would remove statutes of
limitations and become retroactive. This means that any US-based
computer security professional who, like many in this field, once upon
a time began as a system cracker or other "black hat" hacker,
potentially faces criminal prosecution under the ATA.
If the Department of Justice needs extra laws relating to supposed
"cyberterrorism", it can seek narrowly-tailored legislation. Simply
importing virtually all computer crime into the definition of
terrorism is far too broad and heavy-handed.
Senator Patrick Leahy has attempted to moderate the ATA through
introduction of the "Uniting and Strengthening of America Act" (USAA).
While EFF believes USAA would unnecessarily increase law enforcement
surveillance powers, it is nowhere near as harmful to civil liberties
as the Bush administration's proposal.
For example, the USAA does not increase penalties for low-level
computer intrusion. The USAA would retain existing restrictions on
wiretaps, including requiring court orders to obtain voicemail
messages. However, both the ATA and the USAA would expand FISA to
include roving wiretaps. The USAA would also permit disclosure of
Title III wiretaps to intelligence officers, whereas the ATA would
permit disclosure to any federal employee. The USAA also would require
a court order for grand juries to provide information to the US
intelligence community, unlike ATA. Provisions of the ATA permitting
the President to designate targets for FISA surveillance, preventing
people from providing "expert advice" to terrorists, and collecting
foreign intelligence on American citizens are not included in the
USAA.
EFF's Steele emphasized, "While it is obviously of vital national
importance to respond effectively to terrorism, these bills recall the
McCarthy era in the power they would give the government to scrutinize
the private lives of American citizens."
The ATA and USAA bills come in the wake of the Senate's hasty passage
of the "Combating Terrorism Act" (CTA, amendment S.A. 1562 to
House-passed bill H.R. 2500) on the evening of September 13 with less
than 30 minutes of consideration on the Senate floor.
Another similar bill, called the Public Safety and Cyber Security
Enhancement Act (PSCSEA), has been drafted for introduction in the
House, and appears to be a "backup plan" for S.A. 1562; if it does not
pass as part of H.R. 2500, it can be reintroduced separately in
slightly different form as a new bill. Sen. Graham's new Intelligence
to Prevent Terrorism Act (IPTA, S. 1448) raises related issues. Sen.
Judd Gregg is drafting anti-encryption legislation, as well.
For bill texts and analyses, see the EFF Surveillance Archive:
http://www.eff.org/Privacy/Surveillance/
Why "backdoor" encryption requirements reduce security [PDF]:
http://www.crypto.com/papers/escrowrisks98.pdf
About EFF:
The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded
in 1990, EFF actively encourages and challenges industry and
government to support free expression, privacy, and openness in the
information society. EFF is a member-supported organization and
maintains one of the most linked-to Web sites in the world:
http://www.eff.org
Contact:
Lee Tien, EFF Senior First Amendment Attorney
tien@eff.org
+1 415-436-9333 x102
Will Doherty, EFF Online Activist / Media Relations
wild@eff.org
+1 415-436-9333 x111
- end -
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Administrivia
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Editors:
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Stanton McCandlish, EFF Technical Director/Webmaster
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