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EFFector Online Volume 5 No. 4 3/19/1993 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
389 lines
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In this issue:
Victory in the Steve Jackson Games Case
EFF Pioneer Award Winners for 1993
Issues for K-12 Access to the Internet
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STEVE JACKSON GAMES WINS LAWSUIT
AGAINST U.S. SECRET SERVICE
A games publisher has won a lawsuit against the U.S. Secret Service
and the federal government in a ground-breaking case involving
computer publications and electronic mail privacy.
In a decision announced in Austin, Texas, on March 12, Judge Sam
Sparks of the federal district court for the Western District of Texas
announced that the case of Steve Jackson Games et al. versus the U.S.
Secret Service and the United States Government has been decided
for the plaintiffs.
The plaintiffs, which include Steve Jackson, the company he founded,
and three users of the company's bulletin board system (BBS), sued
the government on claims that their statutory rights to electronic
mail privacy had been violated when the BBS and other computers,
disks and printouts were seized by the Secret Service as part of a
computer crime investigation. These rights are protected under the
Electronic Communications Privacy Act (ECPA), which extended most
of the protections of the federal Wiretap Act ("Title III") to electronic
mail.
Jackson and his company also claimed violations of the Privacy
Protection Act of 1980, a federal law designed to limit searches of
publishers in order to protect their First Amendment rights.
Mitch Kapor, founder and chairman of the board for the Electronic
Frontier Foundation, the public interest/civil liberties organization
that has underwritten and supported the case since it was filed in
1991, said he is pleased with the decision. "This decision vindicates
our position that users of computer bulletin board systems are
engaging in Constitutionally protected speech," Kapor said.
"This decision shows that perseverance pays off," he added. "We've
been at this for almost three years now, and we still don't know if it's
over -- the Justice Department might appeal it." Nevertheless, Kapor
said he is optimistic about the case's ultimate outcome.
Judge Sparks awarded more than $50,000 in damages to Steve
Jackson Games, citing lost profits and violations of the Privacy
Protection Act of 1980. In addition, the judge awarded each plaintiff
$1,000 under the Electronic Communications Privacy Act for the
Secret Service seizure of their stored electronic mail. The judge also
stated that plaintiffs would be reimbursed for their attorneys's fees.
The judge did not find that Secret Service agents had "intercepted"
the electronic communications that were captured when agents
seized the Illuminati BBS in an early morning raid in the spring of
1990 as part of a computer crime investigation. The judge did find,
however, that the ECPA had been violated by the agents's seizure of
stored electronic communications on the system.
The case was tried in Austin, Texas, by the Austin-based media law
firm George, Donaldson & Ford, with case assistance provided by the
Boston, Massachusetts, law firm of Silverglate & Good.
Pete Kennedy, the lawyer from George, Donaldson & Ford who
litigated the case, calls the decision "a solid first step toward
recognizing that computer communications should be as well-
protected as telephone communications." Kennedy also said he
believes the case has particular significance for those who use
computers to prepare and distribute publications. "There is a strong
indication from the judge's decision that the medium of publication is
irrelevant," he said, adding that "electronic publishers have the same
protections against law enforcement intrusions as traditional
publishers like newspapers and magazines. All publishers that use
computers should be heartened by this decision. It indicates that the
works-in-progress of all types of publications are protected under
the Privacy Protection Act.
"The case also demonstrates that there are limits on the kinds of
defenses law enforcement agents can use, Kennedy said, noting that
"the judge made it very clear that it is no excuse that the seizure of
draft material for publication held on a computer was incidental or
accidental."
Mike Godwin, an attorney for the Electronic Frontier Foundation who
has worked on the case since 1990, said he is pleased with the scope
of the decision. "This case is a major step forward in protecting the
rights of those who use computers to send private mail to each other
or who use computers to create and disseminate publications."
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SECOND ANNUAL EFF PIONEER AWARDS
On March 10, at the Computers, Freedom and Privacy Conference in
Burlingame, California, the Electronic Frontier Foundation presented
its Second Annual Pioneer Awards to five recipients who were
judged to have made significant and influential contributions to the
field of computer-based communications. The 1993 Pioneer Award
recipients were Paul Baran, Vinton Cerf, Ward Christensen, Dave
Hughes and the USENET software developers, represented by the
software's originators Tom Truscott and Jim Ellis.
Nominations for the Pioneer Awards were carried out over national
and international computer-communication systems from November
1992 to February 1993. A panel of four judges selected the winners
from these nominations.
The Pioneer Award Recipients
Paul Baran was the original inventor of the notion of packet
switching, a technology of fundamental importance to data networks.
Packet switching makes possible the efficient and simultaneous
transmission of many messages from many sources to many
destinations over the same circuit. Mr. Baran's innovations in other
and related technologies have led him to co-found a number of
companies in Silicon Valley including Telebit, Packet Technologies (a
portion of which later became StrataCom), Equatorial
Communications, Metricom, InterFax and his current venture, Com21.
Dr. Vinton Cerf led the research project which developed the TCP/IP
protocol suite, the open system interconnection protocol which is
used today by schools, government, corporations and an increasing
number of individuals to communicate with each other over the
Internet. Dr. Cerf also participated in the development of the
ARPANET host protocols and managed the Internet, Packet
Communications and Networked Security programs for DARPA.
While working at MCI, he led the engineering effort to develop MCI
Mail. He is now vice president of the Corporation for National
Research Initiatives where he is responsible for projects involving
the Internet, electronic mail, and Knowledge Robot research.
Ward Christensen wrote the original software program,
"MODEM.ASM", which came to be called "Xmodem" or the
"Christensen protocol". For untold numbers of early-to-present day
computer communications users, Xmodem has made it possible to
transfer files, error-free, over phone lines from one computer to
another. Xmodem file transfer has been the major means of
information exchange for computer hobbyists and small business
users through the first decade of the personal computer revolution.
Mr. Christensen also programmed the first microcomputer dial-in
system which he named a "BBS" - bulletin board system. His original
BBS, CBBS/Chicago, is still in operation. He is in his 25th year at IBM.
Dave Hughes has been an outspoken and effective grassroots
evangelist and spokesperson for popular computer networking and
electronic democracy for over a decade. He fashioned his own
computer system at Old Colorado City Communications in1985, and
soon brought the municipal elected government of Colorado Springs
online. He helped design and implement a personal computer
network connecting one-room rural schoolhouses in Montana to
worldwide information resources. He continually brings network
connections and new applications to new populations here and
abroad. Perhaps most importantly, he is a tireless and enthusiastic
communicator, offering his experience, his inspiration and his vision
to any and all on the Net.
USENET is a distributed bulletin board system with approximately
two million readers worldwide. It came into being in late1979
through the inspiration of Tom Truscott and Jim Ellis combined with
the design and programming efforts of Steve Bellovin, Stephen
Daniel, and Dennis Rockwell. Following USENET's introduction in
1980, the resulting and ever-expanding collection of "newsgroups"
began to be carried and circulated by a growing number of
networked sites. The ongoing work of numerous individuals has
allowed Usenet to survive its increasing popularity. The daily traffic
is now approximately 20,000 articles, totaling 50 megabytes, posted
to 2000 different newsgroups.
Tom Truscott is currently a distributed computing professional at
IBM in the Research Triangle Park, North Carolina. He has authored a
number of UNIX-related articles, and is a member of ACM, IEEE, and
Sigma Xi.
James Ellis is currently the Manager of Technical Development at the
Computer Emergency Response Team, which is the team created to
assist Internet sites with computer security incidents. At CERT, he is
responsible for analyzing UNIX system vulnerabilities and for
developing tools to assist in the handling of security incidents.
Judges
This year's judges for the Pioneer Awards were: Jim Warren, Pioneer
Award recipient from 1992 who coordinated the judging process,
Steve Cisler of Apple Computer, Esther Dyson, editor of Release 1.0,
and Bob Metcalfe, Editor of Infoworld.
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COMMUNICATIONS POLICY FORUM
CPF Airs Issues for K-12 Access to the Internet
by Andrew Blau
The Communications Policy Forum (CPF), a non-partisan project
of the EFF that brings stakeholders together to discuss
communications policy issues, recently convened a roundtable to
explore some of the legal questions that arise when K-12 schools
provide Internet access to their students. Approximately 15 people,
representing carriers who provide connections to the Internet,
schools or school systems who are connected to the Internet, and
legal experts with expertise in this and related areas, met to discuss
issues of legal liability as this new medium enters an educational
setting for minors.
A key concern is that students may be exposed to material that
parents or teachers find inappropriate for children. In other
electronic media, such as broadcast television, cable TV, and
audiotext, legal restrictions have been imposed to protect children
from ÒharmfulÓ or ÒindecentÓ material, and liability has been
assigned. No such framework exists for the Internet. Moreover, the
very strengths of the Internet Ð its decentralized, unhierarchical, and
essentially uncontrolled flow of traffic Ð offer distinct challenges to
those who would seek to control it in the interest of protecting
children. Finally, the tools available in other media Ð safe harbors,
lockboxes, or subscription schemes Ð don't fit in this environment.
Issues and Suggestions
Following a brief summary of the Internet and how it operates
and a review of how it is being used by a handful of K-12
institutions, participants identified specific problems and policy
issues and considered existing statutes and case law for guidance.
The group also considered the potential effects of "harmful to
minors" or "obscene as to minors" statutes, which are on the books in
41 states. Although they are often vague or broad, the Supreme
Court has agreed that it is constitutional to have such laws which
prohibit the dissemination to minors of material that is protected by
the First Amendment and would be constitutional for adults, to
minors.
Discussion then turned to various practical measures that carriers
and schools might take in light of what had been described. One
suggestion was that carriers work with school systems to provide a
recommended set of features or services. In order to protect
themselves, carriers could ensure that the school put in place a set of
policies, identify for students their responsibilities, and place a
teacher or other adult in control of what students access through the
school's connection.
It was also suggested that carriers could develop a contract that
only connects schools that agree to indemnify the provider.
Moreover, the carrier could require assurance that when access is
provided to minors, the school will use some formal agreement with
the minor's parent that includes provisions that hold the network
provider harmless from liability.
As an alternative, it was suggested that carriers could offer a
simple warning to schools that alerts them that Internet access may
enable access to materials inappropriate for minors, and that local
discretion is advised. Schools could also offer disclaimers to parents
modelled on those that parents are given before a field trip.
A handful of technical solutions were suggested throughout the
course of the meeting, and many elicited substantial interest. For
example, various participants suggested using encryption, programs
that flag key words or phrases and route them for human
intervention, and mandatory password protection for all purveyors
of certain kinds of information.
Many participants seemed intrigued by a proposal to develop an
addressing standard under which someone who gets access by virtue
of his/her status as a K-12 student could get an address tag that
identifies the student as such for various purposes. One example
would be to press for the creation of an additional domain of ".stu"
for K-12 students. The appearance of the ".stu" tag would function
like any other identification stamp for access to certain materials.
Statutory immunity for carriers was also seen by almost all
participants as highly desirable and worth pursuing. Developing a
legislative strategy may also highlight how these issues in the K-12
setting are linked to and can be addressed in partnership with other
issues and other sectors of the communications field.
It was also noted that all those interested in K-12 networking
need to educate the new Administration as it considers "information
highways," a new Federal Communications Commission, the
implementation of the NREN, and other programs. According to this
approach, a critical first step is to educate as many new players as
possible, including Congressional staff and the new administration,
that addressing these liability issues is part of the package of
building the networks of tomorrow.
Conclusion
By the end of the session, most participants agreed that there are
no easy answers to the issues raised.
Yet participants also agreed that if the community of interested
educators, carriers, and public interest groups could establish
workable models and promote a positive agenda with lawmakers,
instead of waiting for problems to arise, the resulting legislative and
regulatory framework would be far more likely to cultivate
educational access, as well as to provide a model for broadband
policy as a whole.
The value of the Internet as an educational resource is clear. As
one educator pointed out, our schools lose both students and teachers
because of inadequate access to resources; the Internet can enrich
the resources available to both teachers and students and is not
something that only universities should enjoy. The challenge is to
articulate a policy framework that can enable that potential to be
realized and then to work to see that framework constructed.
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