Computers and Academic Freedom News Vol. 02, No. 03 [Week ending January 19th, 1992 ========================== KEY ================================ The words after the numbers are a short PARAPHRASES of the articles, NOT AN OBJECTIVE SUMMARY and not necessarily my opinion. =============================================================== Notes 1-2 concern the UC's court-ordered search of computer files. 1. Dean Pentcheff (dean2@garnet.berkeley.edu): This is a summary of the events surrounding "UC's court-ordered search of files on two of its Unix mainframe computers... [This summary is] based on my own understanding of what's going on. These are not "official" summaries, either from the University of California, or from the plaintiff in the case. I am not involved with the case in any capacity except as an interested observer." 2. There are some grave inconsistencies inherent in defining a user's files as 'university records'. <1992Jan14.032659.8519@m.cs.uiuc.edu> Notes 3-5 regard the rights of universities to restrict use of their facilities. 3. Universities have the authority to limit the uses to which their facilities are put, provided that those limitations are impartially applied. <1992Jan14.161057.27161@ux1.cso.uiuc.edu> 4. The owner of a computer system does not have the right to freely inspect private mail held on that system. The owner may make it clear to users that he or she reserves the right to inspect mail, but without the tacit or explicit consent of the user such a declaration is meaningless. <920115103016.21400522@DARWIN.NTU.EDU.AU> 5. The onus is on an institution to make users aware of its policies and intentions regarding private mail. Without such an explicit statement the user can assume that a reasonable expectation of privacy is warranted. <920115105919.21400522@DARWIN.NTU.EDU.AU> Note 6 states students' rights with regard the closure of computer accounts. 6. A university cannot cut off a student's computer access - or deny him or her the use of any other university facility - without due process. <1992Jan15.025831.29351@m.cs.uiuc.edu> Notes 7-8 are a response to Brian Peretti's paper "Computer Publications and the First Amendment". 7. Peretti gives a definition of computer publications, and offers a rationale for giving such publications the same protection afforded to the printed press, radio and television. <920116161057.2140105f@DARWIN.NTU.EDU.AU> 8. Peretti's claim that computer 'publication' is most nearly analogous to the public media has some problems with it. It does not address the issues of electronic mail, and is based on a prioritising of the channel of communication over the content. <920117103003.21401617@DARWIN.NTU.EDU.AU> Note 9 describes a trivial reason behind a request for an account closure. 9. CERT requested that a user's account be investigated after a complaint that the user had made 'offensive' netnews postings. The offensiveness turned out to consist of the relatively minor flaming of the complainant during a political discussion. <406@blue.cis.pitt.edu.UUCP> Note 10 describes the outcome of the recent Cubby vs. Compuserve case. 10. The effect of the Compuserve decisions has been to show that the more a computer-mediated forum is monitored, the greater the liability of the moderators/owners for what is said in that forum. If there is no censorship then liability rests entirely with the authors of individual posts. - Elizabeth] In this issue: Dean Pentcheff 213 UC computer searches: Summary #3. Carl M. Kadie 42 >hackers, crackers, privacy on KQED Steve Dorner 44 Speech & the University (<>Dorner vs. the lunatic fringe) Mark P Neely 89 >[uiuc.general] Re: Dorner vs. the lunatic fringe Mark P Neely 49 >[uiuc.general] Speech & t<>orner vs. the lunatic fringe) Carl M. Kadie 26 "kicking you out" (was Re: Dorner vs. the lunatic fringe) Mark P Neely 99 Computer Publications & the 1st Amendment Mark P Neely 59 Computer publications... Terry J. Wood 69 >There is No Such Thing (was: Pornography) Rachel McGregor 49 >Effect of the Compuserve decision Computers and Academic Freedom News Managing Editor: Carl M. Kadie (kadie@eff.org) Administration: William W. Arnold (caf-talk-request@eff.org, warnold@eff.org) Associate Editor: Elizabeth Reid (emr@ariel.ucs.unimelb.edu.au) Associate Editor: Paul Joslin (joslin@tso.uc.edu) To contribute to the list, send email to "caf-talk@eff.org". Your note will appear immediately on the caf-talk mailing list and in the alt.comp.acad-freedom.talk newsgroup. Back issues are available via anonymous ftp to eff.org. The directory is pub/academic/news. Abstracts of CAF-news are in file pub/academic/abstracts. The CAF archive is also available via email. For information, send email to archive-server@eff.org. Include the line: send acad-freedom README Disclaimer: This CAF-news was compiled by a guest editor or by me, Carl M. Kadie. It is not an EFF publication. The views I express and editorial decisions I make are my own. The addresses for the list are: comp-academic-freedom-talk@eff.org - for contributions to the list or caf-talk@eff.org listserv@eff.org - for automated additions/deletions (send email with the line "help" for details.) caf-talk-request@eff.org - for administrivia Also, if you read newsgroups, look for alt.comp.acad-freedom.talk and alt.comp.acad-freedom.news. ------------ From caf-talk Fri Jan 17 00:00:00 1992 Xref: eff comp.org.eff.talk:6023 alt.comp.acad-freedom.talk:2880 ba.politics:2473 uc.general:17 Path: eff!iWarp.intel.com|uunet!spool.mu.edu!agate!garnet.berkeley.edu!dean2 From: dean2@garnet.berkeley.edu (Dean Pentcheff) Newsgroups: comp.org.eff.talk,alt.comp.acad-freedom.talk,ba.politics,ucb.general,uc.general Subject: UC computer searches: Summary #3. Message-ID: Date: 18 Jan 92 00:14:42 GMT Article-I.D.: agate.knesbiINN8d1 Sender: Dean Pentcheff Reply-To: dean2@garnet.berkeley.edu (Dean Pentcheff) Followup-To: comp.org.eff.talk Organization: Department of Integrative Biology, UC Berkeley Lines: 212 NNTP-Posting-Host: garnet.berkeley.edu Friday Jan 17, 1992 UC computer search summary number 3. - Dean Pentcheff (dean2@garnet.berkeley.edu) ==================================================== This is the third (and probably final) in a short series of summaries I've provided regarding the UC's court-ordered search of files on two of its Unix mainframe computers. I will maintain the mailing list of interested parties, just in case something else comes up. If you have a continuing interest in these issues, please see the end of this summary for suggestions on where to find more information. **Please note** This summary (and the preceeding two) are based on my own understanding of what's going on. These are not "official" summaries, either from the University of California, or from the plaintiff in the case. I am not involved with the case in any capacity except as an interested observer. A brief summary of the case runs as follows (based primarily on a discussion with the University counsel involved). This repeats some information contained in earlier postings, but also corrects some misunderstandings. A UC student is alleged to have broken into a UC computer system. The University has initiated disciplinary proceedings against him. Based on due process requirements, the student's family has retained a lawyer and computer experts and gone to court to get court orders for certain University maintained records for the disciplinary hearing. NOTE: the only involvement of the court is to order (or not order, as the case may be) the University to divulge records. Contrary to my previous postings, the student's family is not suing the University. They are preparing a case for the University disciplinary hearing, and are using the court purely to require the University to provide evidence they feel is important to the hearing. There is no "discovery procedure" involved. The judge involved is not particularly familiar either with electronic communications law or computers. The strategy of the student's case seems to be to obfuscate and complicate the entire sequence of hearings as much as possible in an attempt to nullify the whole disciplinary action. Hence, they requested that the court order the University to produce all University maintained student records on the student in question. The key question here is the interpretation of "university maintained records." The simple interpretation of the California State Buckley Amendment is that a student is entitled access to conventional administrative or faculty records of their university progress. In this case, the student's lawyers chose to push an interpretation that made university maintained records encompass any record about the student that exists on university maintained systems. The student's lawyers informed the judge that it would be simple to just have the University search _all_ backups for the mainframes for anything relevant. The University lawyers figuratively coughed and sputtered, saying this was _most_ impractical. The judge, unwilling (and unable) to decide between the claims of the lawyers arguing in front of him, ordered them out into the hall to come up with a compromise. The lawyers bargained and came up with a deal: the University would search some specific backups and the online disks for files that contain the student's name. The University fought to search only for files that contained both the student's first and last name. The student's lawyers wanted files that contained the first or the last name. The judge, unwilling to accept the University's claim that the latter option would produce too much, ordered the University to do a search to determine how much text would actually be located by these searches. At this point, the University posted a message on the mainframes, telling all users that they intended to search the disks on two of the campus mainframes for any files "that may contain a particular individual's name..." At this point, also, the University lawyers became aware of the Electronic Communications Privacy Act of 1986. Considering that this case was too complicated already, realizing that they already accepted a court order to search, and feeling that the ECPA might not actually apply to this search, they chose not to mount a secondary effort to stop the search. The Electronic Frontier Foundation became interested in the case, but discovered that they had been contacted by the plaintiff last year and had given him some help. This provides a potential conflict of interest, so they have been carefully investigating their options. At this point, the University has proceeded with the search, as ordered by the court (though I'm not sure whether it's the first and last name search or the first or last name search). The files that are located by this procedure will be inspected. Any that are not relevant to the disciplinary proceeding will not be divulged. If, for example, someones mailbox file with 50 letters in it is a "hit", only the individual letters that are relevant to the case will be extracted and printed. All interaction with the court is complete. The disciplinary hearing itself will occur in a few weeks. What's the upshot? Files (including electronic mail files) on two mainframes at UC Berkeley have been electronically searched (under court order) for a particular character string. The University resisted the search, not on grounds of protection of privacy, but simply on the grounds of undue burden. The next few paragraphs summarize my own reactions to the incident, and are no longer "news" summaries. The clearest lesson of this incident is the exposure of lack of knowledge of information privacy issues. This applies both to the the court and to the University counsel's office. Apparently the judge involved (who is nearing retirement), asked the lawyers to send him a letter, once he's retired, explaining what was _really_ being argued in front of him, since it clearly had little to do with a simple minded request for student records. The "moral" of the story is that the EFF, the Association for Computing Machinery, and other organizations definitely have an important job ahead of them. We need clear policies and leadership on issues of electronic privacy. We definitely need to educate the legal profession, legislators, and the general public on these issues. Actual damage to users' privacy? Pretty minimal (in my opinion). The University computer center has done its best to be as nonintrusive as possible while still complying with the court order. Theoretical damage to users' privacy? Perhaps not so minimal. As students, faculty, or staff using the University's mainframes, what expectation of privacy do we have? Technically, it is trivial for anyone with systems privilege to go on a fishing expedition for any character string. Under what circumstances, though, is this permissible? The issues in this case (users' privacy vs. right of access to records) are not clear cut. What constitutes a university record of a student? What legal protection's do computer user's files have? I don't know. Nor does the University legal staff, the local courts, or the University computer administration. I find that disturbing. ======================================================================== Further sources of information on issues of electronic privacy and freedom of information. ************************************************************ THE ELECTRONIC FRONTIER FOUNDATION "The Electronic Frontier Foundation has been established to civilize the electronic frontier; to make it useful and beneficial not just to a technical elite, but to everyone; and to do this in keeping with our society's highest traditions of the free and open flow of information and communication." You can request to be added to the EFF mailing list by sending a note to "eff-request@eff.org". Alternatively, you can subscribe to the moderated Usenet newsgroup "comp.org.eff.news" (which carries everything sent out on the mailing list). You are also welcome to participate in the unmoderated Usenet news group "comp.org.eff.talk". You can get more information about the EFF via anonymous FTP from the site "eff.org" (Internet number 192.88.144.3). Send electronic mail to "ftphelp@eff.org" if you have questions or are unable to use FTP. EFF ADDRESS: The Electronic Frontier Foundation, Inc. 155 Second Street Cambridge, MA 02142 +1 617 864 0665 +1 617 864 0866 FAX THE EFF STAFF: Mitchell Kapor, President and Co-founder (mkapor@eff.org); John Perry Barlow, Co-founder (barlow@eff.org); Michael Godwin, General Counsel (mnemonic@eff.org); Gerard Van der Leun, Director of Communications (van@eff.org); Christopher Davis, System Administrator (ckd@eff.org); Helen Rose, System Administrator (hrose@eff.org); Rita Rouvalis, Administrator (rita@eff.org) THE EFF BOARD OF DIRECTORS: Jerry Berman, John Perry Barlow, Stewart Brand, Esther Dyson, John Gilmore, Mitchell Kapor, Steve Wozniak. ************************************************************ USENET NEWSGROUPS If you subscribe to Usenet news, there are several newsgroups that may be of interest to you: comp.risks A long running, well respected, moderated group that deals with the risks of computers in society. comp.org.eff.talk Discussions of privacy and freedom of information in the computer age. comp.org.eff.news Moderated group of the Electronic Frontier Foundation. alt.comp.acad-freedom.talk alt.comp.acad-freedom.news Two other newsgroups dealing with issues of academic freedom. If you don't know what Usenet news is, but are reading this message via electronic mail, there's a good chance that your system supports the Usenet news, but you just don't know about it. Check for information about the "rn" command, or ask your systems administrator how you can subscribe to Usenet news. -- Dean Pentcheff (Internet: dean2@garnet.berkeley.edu) Department of Integrative Biology, University of California, Berkeley CA 94720 Work Phone: (510) 643-9048 Home Phone: (510) 839-1790 Fax: (510) 643-6264 -- Dean Pentcheff (Internet: dean2@garnet.berkeley.edu) Department of Integrative Biology, University of California, Berkeley CA 94720 Work Phone: (510) 643-9048 Home Phone: (510) 839-1790 Fax: (510) 643-6264 From cafnews Fri Dec 13 16:15:02 1991 From: kadie@m.cs.uiuc.edu (Carl M. Kadie) Subject: Re: hackers, crackers, privacy on KQED Message-ID: <1992Jan14.032659.8519@m.cs.uiuc.edu> Date: 14 Jan 92 03:26:59 GMT References: <1992Jan11.083311.25336@odin.corp.sgi.com> <1992Jan13.235159.3451@eff.org> <1992Jan14.014608.5742@odin.corp.sgi.com> lear@oni.sgi.com (Eliot Lear) writes: [...] >A communication becomes a record once it is delivered to the final >addressees. One could argue that only *official* communications are >covered, but it's a red herring. Not for students, like me, who are not employees of the University. > After all, if I, in my capacity as >system administrator at Podunk U. mail my boss alerting him to a >break-in and student X's account that was broken into/did the breaking >in, is that not an official record? [...] Maybe. But email between student A and student B about student X (archived in the home directories of A and B), should not be considered a University maintained record about X. If it is 1) The A&B's email could not be disclosed to any nonuniversity personnel without X's consent. In other words, A&B could not read their own email archive. 2) X could see A&B's email 3) X could demand a hearing to challenge and possibly amend inaccurate information in A&B's email. 4) The University must make a "reasonble effort" to notify students mentioned in the email before releasing the email under a subpoena. Timely notice is to allow the students mentioned the opportunity to contest the validity of the subpoena on their own behalf. 5) All requests for disclosure would need to be logged. The log becomes part of X's record (and A's and B's) (Based on _Your Right To Privacy_, 2nd edition, by Even Hendricks, et al) - Carl -- Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign From cafnews Fri Dec 13 16:15:02 1991 From: dorner@pequod.cso.uiuc.edu (Steve Dorner) Subject: Speech & the University (was Re: Dorner vs. the lunatic fringe) Message-ID: <1992Jan14.161057.27161@ux1.cso.uiuc.edu> Date: Tue, 14 Jan 1992 16:10:57 GMT bfrg9732@uxa.cso.uiuc.edu (Brian F. Redman) writes: >Is the university a sort of "East Berlin" >in which one leaves their rights as a citizen at "Checkpoint Charley" This is unnecessarily alarmist and slanted (cf. Lee Iacocca). >The area of constitutional rights on university campuses seems fuzzy to me. That's quite true. I would certainly support the exercise of student (and faculty and staff) rights without sanctions from the University. However, I also support the idea that the University has the authority to limit the use of University-owned facilities. I should be able to write a letter to the editor of the News Gazette that says "Vote Libertarian". This should not result in disciplinary action >from the University. However, I do NOT support the "right" to "exercise free speech" by having the same letter published by the University Press and delivered to everyone via campus mail, at University expense. Were I to do this and charge it to CSO, the University would be quite right to take disciplinary action. Therefore, I do not agree with what seems to be Carl Kadie's position; that any restriction on the content of network traffic (above the usual things like fraud and slander) is impermissible. I think that the University foots the bill, and so can exercise control without infringing on anyone's rights. On the other hand, I think it would be an abuse of power for the University to deny the mailing of a "Vote Libertarian" letter, but permit the mailing of a "Vote Tsongas" letter. The University ought to be fair in the application of its restrictions. Please note that I am expressing *my opinion* of how things *ought* to be. I am not enough of a University policy or legal scholar to say whether or not my opinions agree with University policy (of which I have yet to see a formal statement) or current legal thought. -- Steve Dorner, U of Illinois Computing Services Office Internet: s-dorner@uiuc.edu UUCP: uunet!uiucuxc!uiuc.edu!s-dorner "What is Truth?"--Pontius Pilate. From cafnews Fri Dec 13 16:15:02 1991 From: NEELY_MP@DARWIN.NTU.EDU.AU (Mark P. Neely, Northern Territory University) Subject: RE: [uiuc.general] Re: Dorner vs. the lunatic fringe Message-ID: <920115103016.21400522@DARWIN.NTU.EDU.AU> Sender: warnold Date: 15 Jan 92 10:30:16 GMT >Date: Tue, 14 Jan 92 14:31:00 -0600 ~From: "Carl M. Kadie" >davis@kahane.cogsci.uiuc.edu (Gordon Davis) writes: > >>carey@m.cs.uiuc.edu (John Carey) writes: > >[...] >>>I wonder how many of these managers would feel >>>about going through their employees' U. S. Mail mailboxes? > >>Now, wait a minute here. Do I understand that you do not see a difference >>between the U.S. mail and sending/receiving electronic mail via an >>employer-owned machine using an employer-owned account. >[...] >This is a good point. No it isn't...I think this is an area in which people will have to agree to disagree! Until there is clear legislation on point, no-one will be able to say conclusively what is right/wrong. IMHO, (and yes this has been debated for ever) the simple fact that someone _owns_ the computer system does not ipso facto (by that fact) give them the right to inspect _private_ email. They may _reserve_ for themselves the right to do so, by posting appropriate notices and ensuring that it comes to _every_ users' attention. The ability to reserve this right is said to come from their owning the system. But let me draw an analogy: In many supermarkets there are signs saying that Management reserves the right to inspect baggage etc of people who enter their store. These signs are displayed prominantly at the entrance of the shop and (usually) at the registers. The argument goes that it is a term of the contract entered into between shopper and store management that if they agree to enter the shop, then they must submit themselves to baggage inspection. Actually, this is false! There is _NO_ right on the behalf of store management to request/require that shoppers submit to baggage inspection. The signs at the entrance and at registers are of no effect! I am unclear on the basis of this assertion (but I think it has something to do with the store attempting to enforce a unilaterally imposed term in the alleged contract). Any attempt of store security personel to inspect you bags will constitute a trespass to property (unless you give tacit approval to the act), so too, any attempt to detain you whilst the search is carried out will amount to false imprisonment (in the civil sense). The above is from common (case) law, and may (but I doubt it) have been altered in the US by statute. My point: You are on the Stores' property (as you are on someone elses' system). They attempt to reserve rights of inspection (or monitoring of email on a computer). They have at law, NO RIGHT to do so! I would argue that it is all a bluff. There is no firm legal precedent (I haven't yet heard the decision in the Epson/Nissan cases...perhaps someone could fill me in) on the area, so it is just words/rhetoric at the moment. >I believe that the university has a right to look through US mail >that they pay for. Nope...would disagree with that also...there is still a privacy element which must be satisfied/met before this occurs. The Uni. may be able to open it _with your permission_, and they must first have good reason for doing so (I exclude here the search/seizure type openings). >If I put a stamp on a letter and put it >in the outgoing mailbox, then it is a federal crime for the >university to look at it. If I put a letter in the >"mail needing postage" box, then the university can look >at it. I think this is university policy. So you say that 30 cents makes all the difference? Note - Uni. policy (just as store policy) is _not_ law. >John Holm >jgholm@crhc.uiuc.edu Mark N. ___ Mark Neely neely_mp@darwin.ntu.edu.au Research Student Northern Territory University Law School From cafnews Fri Dec 13 16:15:02 1991 From: NEELY_MP@DARWIN.NTU.EDU.AU (Mark P. Neely, Northern Territory University) Subject: RE: [uiuc.general] Speech & the University (was Re: Dorner vs. the lunatic fringe) Message-ID: <920115105919.21400522@DARWIN.NTU.EDU.AU> Sender: warnold Date: 15 Jan 92 10:59:19 GMT >bfrg9732@uxa.cso.uiuc.edu (Brian F. Redman) writes: >I would certainly support the exercise of student (and faculty and staff) >rights without sanctions from the University. However, I also support the >idea that the University has the authority to limit the use of >University-owned facilities. > [stuff deleted] > >Therefore, I do not agree with what seems to be Carl Kadie's position; >that any restriction on the content of network traffic (above the usual >things like fraud and slander) is impermissible. I think that the >University foots the bill, and so can exercise control without infringing >on anyone's rights. As long as the Univ. doesn't _pretend_ to be a forum for free speech then! Now if the Univ. wants to impose a restriction on network traffic, then that it it's prerogative. BUT...I would argue that the onus is on the Univ. to make it absolutely clear to the USERS what it's policies and intentions are! How many do so? If this Univ. were to pull out a piece of my mail and then tell me that it disagreed with its content, I would be onto them in a flash! This site has never intimated any intent to restrict content of postings, nor notified users that they intended to monitor e-mail/postings (I am not saying they do, just giving an example). As such, and until I am told otherwise, I would submit that I had a reasonable expectation of privacy over what I do/say etc. If it were brought to my attention that the Univ. intended to monitor/filter, then I would have no such reasonable expectation, and hence (probably) no recourse (unless I could establish mala fides or something along those lines). The fact that I work on Univ.'s machines is of little consequence in my mind. The basic right to privacy pervades even private property (can K-Mart film users of it's toilets??) until the opposite is brought to the user's attention. >-- >Steve Dorner, U of Illinois Computing Services Office >Internet: s-dorner@uiuc.edu UUCP: uunet!uiucuxc!uiuc.edu!s-dorner > "What is Truth?"--Pontius Pilate. Mark N. ___ Mark Neely neely_mp@darwin.ntu.edu.au Research Student Northern Territory University Law School From cafnews Fri Dec 13 16:15:02 1991 From: kadie@m.cs.uiuc.edu (Carl M. Kadie) Subject: "kicking you out" (was Re: Dorner vs. the lunatic fringe) Message-ID: <1992Jan15.025831.29351@m.cs.uiuc.edu> Date: 15 Jan 92 02:58:31 GMT References: <1991Dec31.144936.19661@ux1.cso.uiuc.edu> <1992Jan13.220006.6737@ux1.cso.uiuc.edu> <1992Jan14.125650.2487@ux1.cso.uiuc.edu> <1992Jan14.143031.11603@ux1.cso.uiuc.edu> brownfld@mrcnext.cso.uiuc.edu (Kenneth R Brownfield) writes: > A more accurate version would be "If the U lets me sit in the quad for >free, can they kick me out, too?" The answer would be yes dorner@pequod.cso.uiuc.edu (Steve Dorner) writes: >Ken's got it wrong. The University can revoke an account; that's the >parallel to "kicking you out" of the quad. [...] Instructors at U of I used to able to expel a student from their classes arbitrarily. Under current rules, however, a student can't be expelled from class without due process. Due process basically means that if the student wants a hearing, he or she can have one. As far as I know, the University can't ban a student from the Quad without due process. Also, I assume that the University can't expel a student from, say, their free student computers accounts, without due process. - Carl -- Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign From cafnews Fri Dec 13 16:15:02 1991 From: NEELY_MP@DARWIN.NTU.EDU.AU (Mark P. Neely, Northern Territory University) Subject: Computer Publications & the 1st Amendment Message-ID: <920116161057.2140105f@DARWIN.NTU.EDU.AU> Sender: NEELY_MP@DARWIN.NTU.EDU.AU Date: 16 Jan 92 16:10:57 GMT I'd like to express a few thoughts and concerns that arose as a result of reading a paper entitled "Computer Publications and the First Amendment", by Brian J. Peretti (to be published in _Computers and the Law_, by Ronald Polanski) Peretti begins by expressing one of the main truisms in the interpretation of any constitutional document - that the US Constitution was expressed in broad language so as to enable it to change and expand (with the help of a progressive Supreme Court) over time, in order to adjust with an ever changing society. Peretti states that although the Founding Fathers did have an idea of what the 'press' was in their day, the concept has since been expanded to cover television and radio. In line with this, he argues that it should also be interepreted so as to encompass the new media of computer publications. What constitutes a "computer publication" is denoted by a fairly strict set of criteria. Peretti stipulates that the material comprising the publication must have been created/gathered on/with a computer (i.e written in final form on a computer) and should not have been printed in hard copy after the initial information was entered into the computer. Secondly, the publications' production (spell-checking, formatting etc) must occur _exclusively_ on the computer (which, he notes, would even include the letterhead/coverpage). Finaly, the distribution of the publication must occur via electronic (non-print) medium. Once a publication falls within this new catagory, it should, Peretti argues, be accorded similar privilleges/protections to those granted to printed press, radio and television. In support of this, he cites _Lovell v. City of Griffin_ Ga 303 US 444, 452 (1938), where the court held: The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets....The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion". Such protection has been extended to motion pictures and even to computer bulletin board services (BBS): Legi-Tech v. Keiper 766 F.2d 728, 734-35 (2d. Cir 1985). Under the Lovell doctrine, publications such as Craig Neidorf's _Phrack_ magazine, and the Legion of Doom's Technical journals would surely constitute protected speech, and as such would not be subject to prior restraint. Peretti does note, however, that publication of information in furtherance of a crime or ciminal activity may not receive protection. One exception to the Lovell doctrine is the decision of _Brandenburg v. Ohio (1969), where the court ruled that no speech should be subject to prior restraint or criminal prosection unless it is intended to incite - and is likely to cause - imminent lawless action. As was recently noted by Mitch Kapor (co-founder of the Electronic Frontier Foundation), there is little speech or publications which would fall outside this protection, as most people are able to reflect before acting on written or spoken suggestion[1]. Whilst the author is unsure if that is the approach taken to this situation by American courts, it is certainly a factor that should be noted prior to effecting a prior restraint. Types of Restrictions? However, it must be conceded that computer publications should, and no doubt will be, subject to some forms of restriction. But in what manner will these restrictions be expressed? Peretti notes that there are two types to First Amendment protection: that which attaches to newspapers; and that which applies to radio and television. Newspaper publishers have fewer restrictions than do radio and television broadcasters (who are subject to licensing and content regulations). Peretti views computer publications as similar to newspapers, and as such should be subjected to only minimal limitations. However, the scope of protection accorded to computer publications is unclear to say the least. That this is so is evidenced by the attemted Neidorf prosecution. That the editor of a magazine which provided information to a group of computer enthusiasts sharing similar interests was brought to trial is a sorry indictment (no pun intended) on the civil liberties record of the United States. However, until time, energy and resources are engaged in an effort to clear the murkied waters surrounding the application of existing laws and civil liberties in Cyberspace, one wonders how many other computer publishers might suffer a similar fate? Mark Neely 1992. 1. M. Kapor, Civil Liberties in Cyberspace, _Scientific American_ (Sept. 1991) 116. From caf-talk Fri Jan 17 00:00:00 1992 From: NEELY_MP@DARWIN.NTU.EDU.AU (Mark P. Neely, Northern Territory University) Subject: Computer publications... Message-ID: <920117103003.21401617@DARWIN.NTU.EDU.AU> Sender: NEELY_MP@DARWIN.NTU.EDU.AU Newsgroups: alt.comp.acad-freedom.talk Organization: EFF mail-news gateway Date: 17 Jan 92 10:30:03 GMT Approved: usenet@eff.org Lines: 59 This is a reply to my original posting entitled "Computer Publications and the First Amendment" to the ethics-l mailing list. I thought CAF readers would be interested in some of the points raised by it. Mark N. >Reply-To: Discussion of Ethics in Computing >From: Jim Porter > >Just to further muddy already murky waters ... The >Peretti article suggests that electronic publications >are subject to the set of laws covering public media like >printed press, radio, and television. It's not at all clear to >me that electronic publications belong in any of these categories ... >though maybe they do given Peretti's restrictive definition of "computer >publication." > >The definition still leaves a lot unanswered: e.g., is any e-mail >posting a "computer publication"? It strikes me that individual >e-mail postings might be more appropriately treated as telephone >conversations rather than as public media. What happens when an >individual posting is entered into an electronic journal >(like often happens with Computers & Composition Digest)? > >We're into the question of which analogy--and hence, which >body of law--best fits electronic text: public media, whether >broadcast or print; telephone conversation (which I imagine >affords a greater protection for privacy); or something >else (private speech, general print)? I'm not sure that >cozying up to public media is the best tactic for >advocates of electronic publication--but I'd like to hear >more discussion of the issue. > >Other thought: One way (the Peretti way) to look at electronic >publication is to regard the communication channel as the >significant factor in determining its legal status: from that >point of view, electronic material looks like a public medium >that needs controlling. Another view (the one I'm favoring >at the moment) looks not at the communication channel so >much as the individual node (the posting, which we might >call a "text"?). From that angle, electronic text looks >more a private statement ... though maybe the law will >not permit us to overlook its method of wide distribution. >(Question: what status does the letter to the editor of >a newspaper have? Could an individual e-mail post have >similar status?) > >Thanks to Mark Neely for posting his thoughts about the >Peretti article. > >Jim Porter >Purdue University >ooi@mace.cc.purdue.edu ___ Mark Neely neely_mp@darwin.ntu.edu.au Research Student Northern Territory University Law School From cafnews Fri Dec 13 16:15:02 1991 From: tjw+@cis.pitt.edu (Terry J. Wood) Subject: Re: There is No Such Thing (was: Pornography) Message-ID: <406@blue.cis.pitt.edu.UUCP> Date: 16 Jan 92 18:35:52 GMT In article <1992Jan15.231155.26434barry@netcom.COM> barry@netcom.COM (Kenn Barry) writes: >In article <62391@netnews.upenn.edu> jmoore@tucker.cis.upenn.edu (Joseph Moore) writes: >>But the line needs to >>be drawn, and why not start with the material that in the majority of >>people's mind's is way across it. > No lines needed, Joe, nor is there any "majority of people" >standing behind you to cheer your line-drawing fetish on. Most of the >time, when the censors try to snuff a new target, juries just say no, >thank goodness. You'd be amazed (or maybe not) at where some people would like to draw the line. I get requests (demands) to revoke people's accounts here at the Univ of Pgh at regular intervals. [When this new news-server machine becomes available to the Pitt public, I'm sure I'm going to see even more requests]. CERT (the Computer Emergency Response Team) asked me to investigate an account here at Pitt (PUBLIC@vms.cis.pitt.edu) because someone at Penn State was offended by what PUBLIC posted in a French speaking mailing list. They would not tell me who the person was at PSU, nor could they tell me what was so offensive, since the posting in question was in French. I translated the posting and found it to be a discussion about whether French or English should be the primary language of Quebec. I guessed the offensive part of the message was "people like you should be sat in front of a cannon and I'll piss on your grave..." (or at least that's how I think it translated). In any case, I could not see what the problem was. CERT informed me that the reader WAS OFFENDED!!! My reply: "So what? It's his/her god given right to be offended. Show me something that's obscene or breaks a law (makes a threat to do bodily harm)". In other words it appeared to be the usual type of political discussion with the obvious flames that come with them. I believe that such discussion is in keeping with the purpose of mailing lists. Now if this had been posted to rec.cooking or sci.aquaria, I could see where they users of the group would have a beef. Similarly, if someone is trying to shut a newsgroup/mailing-list down via other forms of harassment, I think it's appropriate to revoke an account. But honest debate is no reason to shut down an account. Especially when the loser of the debate is making the demand! ;-) I did pull the account PUBLIC, but for the reason that the account had been forged! (I found some BITNET hackers had gotten an FAIS adminstrator's password and authorized the account). [Hacker's take note: If you have too high of a profile, you'll get caught. Theft of services is a crime in PA, whether you check into a hotel and don't pay, or take Cable TV and don't pay, or create a computer account and don't pay]. But if I PERSONALLY were to draw these "lines", I guess I'd start with most of USENET. People who don't respect the First Amendment OFFEND ME! Off with their heads! Terry -- INTERNET: tjw+@pitt.edu BITNET: TJW@PITTVMS "Laugh while you can, Monkey Boy!" - Various characters from Buckaroo Banzai "I've been dead before" - Mr. Spock From caf-talk Sun Jan 19 00:00:00 1992 From: rogue@cellar.org (Rachel McGregor) Newsgroups: comp.org.eff.talk Subject: Re: Effect of the Compuserve decision Message-ID: Date: 18 Jan 92 18:54:35 GMT Harry.Lee@p0.f10.n396.z1.FIDONET.ORG (Harry Lee) writes: > I wasn't clear. Consider the following two situations: let's say I get > what you call rec.funny (?) or what we would call Humor. Let's assume that > in the main, these conferences don't violate prevailing community standards. > However, perhaps 1% of the traffic is questionable. You seem to be saying > that if I post-screen, my liability is small. But in the other case, if I > pre-screen, and I let something through that does violate prevailing > community standards, would my liability be greater? > > I hope I don't seem pedantic here. And I hope I don't blow Mike's argument. I believe what Mike is saying (colored by my own interpretation, natch) is that a censor bears some liability for the material he or she approves. If you run your system with a policy of no censorship, or at least one in which you remove offensive or illegal messages only after a complaint has been made to you, your liability is less than if you held messages in a pre-screening area before you released them to the bbs. There are four ways to censor messages on a system. With each policy, your liability increases with they level of the censor's activism. Least activist: No censorship 2: Evaluation and/or removal of offensive messages after a user has complained to you about them. 3: Your decision, based on your interpretation of the board's community standards, to remove a message you've seen after a user posted it, regardless of how long it's been visible to the user community. Most activist: Messages must be pre-screened by you or another user before they will be released into the public message bases. After a user posts a message, it is held for your next login and approval based on your interpretation of community standards. Censorship in the most activist case above carries the implication that if an offensive message is posted, it reached the public because of the agreement or negligence of the censor. Therefore, the censor can be held responsible for the message and the effects of its release. (In no case does it absolve the original author, though, if there is a criminal intent behind the message.) (Just to remind you: I'm not a lawyer, just another bitch with an opinion.) ---- Rachel McGregor | "Once in a wile an idea comes along that is so wonderful rogue@cellar.org | that you forget it immediately."