EFF Networks & Policy
A Quarterly Publication of the Electronic Frontier Foundation
Volume 1, Issue 1 Spring 1993
_____________________________________________________________
In This Issue:
Open Platform Update
Congressional Review
From the Director
Available Documents
CPF (Communications Policy Forum)
FBI Proposal Blocked
Steve Jackson Games
EFF Calendar
_____________________________________________________________
Rep. Markey Endorses EFF's Open Platform Proposal
by Daniel J. Weitzner
The 103rd Congress and the Clinton Administration are
currently focusing major political attention on the modernization of
the nation's telecommunications infrastructure, and EFF's Open
Platform Proposal is at the center of this debate.
EFF's Open Platform Proposal suggests policies to make
voice, data and video services accessible to everyone, in the near
term, and at low cost. Without a deliberate effort by government,
business and individuals to build these requirements into the
communications infrastructure, the free speech protections
guaranteed by the Constitution will be in jeopardy. Representative
Edward Markey (D-Mass.), Chair of the House Telecommunications
and Finance Subcommittee, explained during hearings on January 19,
"I believe that [EFF's] proposal will help to empower and enrich
individuals in addition to helping bring the Information Age to small
businesses, schools, libraries and hospitals."
The Infrastructure Debate
The political dynamics of the telecommunications debate
have largely stalled real progress over the last ten years, as
entrenched commercial interests wrestle over who will control and
dominate markets such as information services, equipment
manufacturing and long distance service. Local Bell telephone
companies have suggested that Information Age services can only be
brought to the American public by a massive, sudden investment in
fiber optic cable to each home and office. Other commercial forces,
including long-distance telephone companies, newspaper publishers
and electronic publishers, oppose any public subsidy of
infrastructure that will be built by the Bell companies. And consumer
advocates are concerned that the rush to deploy "fiber-to-the-home"
will result in high costs to the average consumer with little
demonstrated benefit.
EFF believes it is time to refocus the debate by seeking
near-term solutions that encourage the rapid development of a
diverse information services market and help realize the democratic
potential of new information media. We fully agree that the nation
will need very high capacity infrastructure in the future, but there
are many transitional steps that we can take along the way to the
network (or networks) of the future. If we are to make progress in
the near term, we must identify short-term goals that are politically,
technologically and economically achievable.
Open Platform as a Guiding Communications Policy Concept
The telecommunications industry has a valuable lesson to learn
from the computer industry. The most important contribution of the
computer industry in the past generation was not a machine, but an
idea - the principle of open architecture. In the personal computer
market, one company creates the hardware "platform" on which a
variety of software programs can run. This platform includes an
openly-published set of specifications that other, often smaller,
independent firms can use to develop software products that run on
that platform. The software products fuel an interest in purchasing
the hardware; the hardware provides the platform on which the
software can run. In this way, the company that produced the
original platform takes advantage of the smaller companies'
ingenuity and creativity to create a market for its machine, and vice
versa.
To bring the benefits of the Information Age to the
American public in the 1990s, we need to build an open, ubiquitous,
digital communications platform for information services. After a
year of investigation and discussions with technical and marketing
experts, EFF believes that the components of such a platform are
already available in the public switched telephone network, in the
form of ISDN.
ISDN, or Integrated Services Digital Network, is a long-
planned, but dramatically under-utilized, service developed by the
telephone companies. If ISDN were widely deployed and affordably
priced, it could meet many of the near-term information needs of the
American public. It could enable all people, no matter what their
political view or socioeconomic background, to reap the benefits of
the Information Age. As Rep. Markey said in a recent speech, "This
ISDN proposal for digital service is consistent with the virtues of the
Communications Act of 1934 of universal service, diversity and
localism. As regulated common carriers, the telephone companies are
natural bearers of the aspirations of those who would like to
democratize the access to the Information Age regardless of what
social strata one may grow up in."
And ISDN can be widely deployed and affordably priced
within the next few years. In a recent report entitled A Migration
Plan for Residential ISDN Deployment, Dr. Lee L. Selwyn of Economics
and Technology, Inc., concluded that ISDN can be made available at
less than $10 per month to individual subscribers. But the public
switched telephone network is only one player to consider. Other
media outside the public telephone network, such as the evolving
cable television infrastructure and wireless personal communications
networks, may also play an important role in providing digital access.
Wide-Spread Support
While consensus on long-term infrastructure goals remains
elusive, EFF's Open Platform Proposal has attracted support from
national policy makers and a wide variety of public and private
constituencies, including some groups that have long histories of
disagreeing with one another on these issues. In addition, EFF is
excited to see that the emerging consensus forming around the Open
Platform Proposal includes new participants in the
telecommunications policy debate - computer companies, which have
been traditionally skeptical and silent about infrastructure
improvements. EFF has secured support from key computer company
CEOS, who are now willing to testify about the need for near-term
infrastructure before Congress. Those at the helm of our nation's
computer companies recognize that their ability to provide
innovative products in the future depends on the availability of a
digital communications infrastructure that is widely available and
affordable.
Furthermore, many telephone companies have endorsed our
proposal. Irwin Dorros, Bellcore Executive Vice President for
Technical Services, said he was in "violent agreement" both with the
transitional Open Platform Proposal outlined by EFF and EFF's
assumption that ISDN is a necessary infrastructure step in the
development of future broadband capabilities. Bell Atlantic recently
released a commissioned paper by the National Economic Research
Associates (NERA), entitled ISDN and the Public Switched Network:
Building an "Open Platform," which states that EFF's proposal "should
be applauded as a sophisticated pro-consumer look at ISDN and for
refuting the claim frequently made by consumer groups and others
that household users want or need only 'plain old telephone service.'"
The Consumer Federation of America (CFA), one of the most
vociferous opponents of rapid fiber optic deployment, has also
offered strong, active support for the Open Platform Proposal. The
CFA agrees that access to affordable, end-to-end digital services
within the public switched telephone network has real value for
consumers. While the CFA is skeptical about the need for broadband
services, it is enthusiastic about the potential of narrowband ISDN for
meeting a wide range of consumer electronic information and
communications needs. Though narrowband ISDN is not without cost,
consumer advocates believe that the cost is reasonable, based on the
identifiable benefits of the service, unlike the cost of broadband
deployment.
The Road to an Open Platform
On January 19, 1993, EFF's Chairman of the Board Mitchell
Kapor testified before the House Telecommunications and Finance
Subcommittee. EFF called on Congress to promote our Open Platform
to facilitate the development of an affordable, widely accessible,
digital communications infrastructure. At those hearings, Rep.
Markey announced that "we have a choice of listening to the call for
action, of answering the plea for a national communications and
information infrastructure, or instead listening to the same
cacophony which has led to gridlock for so many years."
But convincing Congress is only one important step
necessary to ensure the deployment of an Open Platform for
communications. ISDN deployment requires the cooperation of
numerous public and private organizations and political
constituencies. While a national policy is needed to ensure that the
necessary accessibilty and interconnection of service providers is
achieved, state public utility commissions will be at the forefront of
establishing pricing policy for ISDN service. Private organizations and
individuals will need to convince their local public utility
commissions and telephone companies that there is a need for
affordable ISDN service now. EFF is currently developing a state
strategy to make sure that all obstacles to rapid development of a
national communications infrastructure are being confronted.
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Legislation May Affect Online Communications
by Shari Steele
Laws that can have great effect on our online rights are
constantly introduced and modified in the United States Congress and
local legislatures, and last year was no exception. While the 102nd
Congress is now history, here is a review of the legislation considered
over the past two years that could affect electronic communications.
Threats to Privacy
FBI's Wiretapping Proposal Thwarted
In a move that worried privacy experts, software manufacturers
and telephone companies, the FBI proposed legislation to make it
easier for the Bureau to perform electronic wiretapping. The
proposed legislation, entitled "Digital Telephony," would have
required communications service providers and hardware
manufacturers to make their systems "tappable" by providing "back
doors" through which law enforcement officers could intercept
communications. (See file digitele.txt in EFF Library.)
Cellular Scanners Prohibited
The wrong solution won out as Congress attempted to protect the
privacy of users of cellular telephones. Congress chose to ban
scanners as it amended the Communications Act of 1934 with the FCC
Authorization Act of 1991. The Authorization Act, among other
things, prohibits the U. S. manufacture and importation of scanning
receivers capable of: receiving cellular transmissions, being easily
altered to receive cellular transmissions, or being equipped with
decoders to convert digital cellular transmissions to analog voice
audio. While privacy protection is always important, EFF opposed the
bill, arguing that technical solutions, such as encryption, are the only
way to protect private communications carried over the airwaves.
Unable to stop the scanner ban, EFF worked with Representative
Edward Markey (D-Massachusetts) and Senator Ernest Hollings
(DSouth Carolina) to add an amendment to the legislation requiring
the FCC to study the impact of this law on privacy. Sometime in 1993,
the FCC must also conduct a public inquiry and issue a report on
alternative means for protecting cellular telephone conversations
with a focus on encryption.
Threats to Free Speech
Federal Agency to Study Hate Crimes on BBSs
Recognizing that electronic media have been used more and more
often to spread messages of hate and bigotry, Congress mandated the
National Telecommunications and Information Administration (NTIA)
to conduct a study on "the role of telecommunications in crimes of
hate and violent acts against ethnic, religious, and racial minorities."
Computer bulletin boards are specifically mentioned as one of the
targeted media to be studied under the Telecommunications
Authorization Act of 1992. Representative Markey, while supporting
the Act in the House, cautioned NTIA to be sensitive to privacy
concerns while conducting the study. A report on the results of the
study will be presented to the Senate before the end of June, 1993.
Congress Regulates Video Transmissions
Much has been written about the passage of the Cable Television
Consumer Protection and Competition Act of 1992, more commonly
known as the "Cable Act." While specifically designed to regulate
rates, establish customer service requirements and prevent unfair
competition for cable television providers, the Cable Act may have
broader implications for those of us communicating online. The
communications networks of the future will include video and data
transmission, as well as the voice transmission we are now used to
using over the telephone lines. The Cable Act is Congress's first
attempt to regulate the wire/cable transmissions that will make up
our networks of the future. EFF is currently studying the implications
of this legislation, specifically as it applies to free speech over the
network.
Threats to the Public's Right to Government Information
Fees Charged for Use of Government BBS
In a poorly thought-out move designed to raise federal revenues,
Congress passed a law permitting the Federal Maritime Commission
to charge user fees on its Automated Tariff Filing and Information
System (AFTI). The law requires shippers, freight forwarders, ocean
carriers and third-party information vendors to pay 46 cents for
every minute they are connected to the government-sponsored
electronic database.
EFF joined with many other groups, including library groups, the
Information Industry Association and The Journal of Commerce, in
opposing this legislation. EFF and the others fear that this precedent
of allowing the government to charge citizens more than the
government's cost for information could be applied to many other
federal databases and impinge on the public's access to government
data in electronic formats.
Federal Employees Denied Copyrights for Software
EFF joined with several other organizations to successfully stop
the Technology Transfer Improvements Act in a Senate committee
after it had passed in the House of Representatives. This Act would
have allowed the federal government to claim copyright in certain
computer software created by federal employees working with non-
federal parties. Because so much government information is stored
only in computerized formats, EFF and the others, including the
Software Publishers Association, American Library Association, and
Information Industry Association, were concerned that this
legislation would impinge on a citizen's right to obtain and use
government information that he or she has the right to obtain and
use.
Reproducing Copyrighted Software Now a Felony
Under the strong lobby of the Software Publishers Association,
Congress decided to stiffen penalties for individuals making illegal
reproductions of copyrighted software. The amended law makes
reproducing copyrighted software a felony if certain conditions are
met. According to the statute, any person who makes 1) at least ten
copies 2) of one or more copyrighted works 3) that have a retail
value of more than $2500, can be imprisoned for up to five years
and/or fined $250,000. In order for the infringement to be a criminal
violation, however, the copies must be made "willfully and for
purposes of commerical advantage or private financial gain." While
the term "willfully" is not defined in the statute, previous criminal
court cases on copyright law have held that the person making the
copies must have known that his or her behavior was illegal.
Software backups are not illegal (in fact, they are usually encouraged
by software providers), and therefore do not fall under the scope of
this statute.
EFF is concerned about the ramifications of this legislation. While
the statute itself provides safeguards that seem to place heavy
restrictions on how the law is applied, we are wary that improper
application of the law where it is construed too broadly could result
in extreme penalties for software users. We will be monitoring cases
brought under this statute and intervening if we see civil liberties
violations taking place. Network Access for All Commercial Users
Given Internet Access
Congress gave the National Science Foundation (NSF), the agency
overseeing the Internet, the authority to relax some of its access
rules governing certain types of information travelling over the
network, including commercial information. The Internet has been an
educational and research-oriented network since the 1980s. Over the
past few years, however, the Internet has become increasingly open
to non-educational and commercial uses. The National Science
Foundation Act was amended to encourage an increase in network
uses that will ultimately support research and education activities.
While the amendment was still being considered by the House
Science Subcommittee, chaired by Representative Richard Boucher
(D-Virginia), EFF's Chairman of the Board, Mitch Kapor, argued for
more flexible rules to spur diversity and innovation on the Internet.
Relying in part on Kapor's contentions, Representative Boucher
sponsored the amendment as it passed in the full House of
Representatives; Senator Albert Gore (D-Tennessee) championed it in
the Senate. EFF lobbied to convince potential congressional and
industry opponents that the legislation would facilitate, not impede,
wider access to the Internet.
EFF's Open Platform Proposal Introduced
This past Fall, Mitch Kapor testified before the House
Subcommittee on Telecommunications and Finance about the
perceived dangers of regional Bell telephone company entry into the
information services market. To combat the fear that the Bells would
engage in anticompetitive behavior, EFF introduced its Open Platform
Proposal. (See the separate article on EFF's Open Platform beginning
on page 1.) Kapor suggested that ISDN could make such a network
possible sooner rather than later and at little expense.
Legislation was circulated near the end of Congress which
included the Open Platform Proposal. The proposed legislation,
entitled the "Telecommunications Competition and Services Act of
1992," was sponsored by House Telecommunications and Finance
Subcommitee Chair Markey and would give government support to
anyone moving forward to provide digital telecommunications now
over existing copper wires. This, in turn, would pave the way for a
broadband network requiring telecommunications infrastructure
modernization in the future. This piece of legislation laid the
groundwork for a major debate in the next Congress, especially since
President Clinton and Vice-President Gore have committed
themselves to an infrastructure of information highways.
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FROM THE DIRECTOR
EFF Moves All Operations to the Nation's Capital
On January 12, 1993, the Electronic Frontier Foundation
announced that it was moving all of its operations to Washington, DC,
and that I was EFF's Executive Director. EFF opened the Washington
office last January and ever since has devoted an increasing amount
of staff and resources to shape the outcome of the policy battles over
our nation's telecommunications infrastructure in ways that are
consistent with and supportive of civil liberties and democratic
values. For example,
* Our ISDN Open Platform Proposal and our involvement in
the NREN are designed to empower a diversity of electronic voices to
share politics, commerce and culture with one another as we
transition to the broadband networks of the next century;
* EFF coordinates a broad coalition of organizations Ñ from
public interest groups like the ACLU and CPSR to companies
interested in the future of communications like AT&T, Microsoft,
Lotus and Sun Microsystems Ñ in opposition to the FBI's legislation to
"certify" technologies and networks only when they meet broad, ill-
defined wiretapping standards;
* EFF seeks to build grass roots support for lifting export and
other controls on encryption to guarantee the right of privacy and
security;
* EFF not only wants to litigate future "Steve Jackson Games"-
type cases, but we want to avoid the need to do so by establishing
new Secret Service and FBI investigative guidelines that keep law
enforcement officers from trampling on the First and Fourth
Amendment rights of computer users;
* EFF wants other groups to use Networks & Policy and other
EFF publications to communicate about their local, state and national
public policy and social initiatives; and
* EFF is interested in participating as an equal partner in a
possible federation of electronic frontier advocacy groups.
EFF is a unique organization, operating at a critical moment.
Major policy decisions affecting free speech and privacy will be made
over the next several years. Combining technical, legislative and
legal expertise, EFF is committed to engaging in vigorous advocacy
for our vision of the electronic future, which we hope you share. We
hope that you will join EFF and work with us to make this vision a
reality.
Jerry Berman
EFF Executive Director
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Available Documents...
The following documents are available free of charge from the
Electronic Frontier Foundation:
"Open Platform Proposal" - EFF's proposal for a national
telecommunications infrastructure. 12 pages, July, 1992.
"An Analysis of the FBI Digital Telephony Proposal" - Response of
EFF-organized coalition to the FBI's digital telephony proposal of Fall,
1992. 8 pages, September, 1992.
"Building the Open Road: The NREN and the National Public Network"
- A discussion of the National Research and Education Network as a
prototype for a National Public Network. 20 pages. May, 1992.
"Innovative Services Delivered Now: ISDN Applications at Home,
School, the Workplace and Beyond" - Compilation of ISDN
applications currently in use. 29 pages. January, 1993.
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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 "harmful" or "indecent" material, and liability has been
assigned. No such framework exists for the Internet. Moreover, the
very strengths of the Internet - its decentralized, unhierarchical, and
essentially uncontrolled flow of traffic - offer distinct challenges to
those who would seek to control it in the interest of protecting
children. Finally, the tools available in other media - safe harbors,
lockboxes, or subscription schemes - 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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EFF Organizes Coalition to Oppose Wiretap Proposal
by Shari Steele
This year, the Federal Bureau of Investigation (FBI) is expected
to renew its effort to get the Congress to pass legislation that would
require providers of electronic communications services to design
their systems to facilitate authorized wiretapping. The proposal
covered more than telephone companies. Computer networks and
BBSs would be affected, as well. EFF pulled together a broad coaltion
of telephone companies, computer companies and civil libertarians to
oppose this proposal last year. The EFF-led coalition is gearing up to
oppose similar proposals in the new Congress. Wiretaps Defined
Law enforcement agencies are specifically permitted to perform
electronic wiretaps under federal law, once they have obtained a
warrant from a judge. In order to obtain a warrant to perform a
wiretap, an officer needs to prove all of the following:
* There is probable cause that a suspected person has committed or
will commit a crime specified in the wiretapping statute.
* There is probable cause that a communication involving the
particular crime being investigated will be obtained.
* Normal investigative procedures have failed, or will fail, or are
dangerous.
* There is probable cause that the facilities to be tapped will be used
in connection with the investigated crime, or they are commonly
used by the person being investigated.
Probable cause is defined as a reasonable ground for believing
that a criminal charge is well-founded. While an officer does not
have to prove unquestionably that a telephone communication is
being used for illegal activity, s/he must show a judge that there are
valid reasons to believe that the telephone communication is
probably being used for illegal purposes.
The FBI's Proposal
The FBI's Digital Telephony proposal was offered this past July as
a result of an FBI fear that it will no longer be able to perform
wiretaps as part of its legally-permitted efforts to investigate crimes.
As the FBI points out, telecommunications technology has developed
to a point where wiretaps can no longer be performed in the same
manner as they once were.
Until recently (the past ten years or so), telephone calls were
routed through a network made up of trillions of copper wires. A
particular call could be isolated by locating the wires through which
it passed. Once the proper wires were identified, law enforcement
officials could "tap into" the conversation contained on that wire by
physically attaching clips and a headset to one of the wires through
which the conversation passed. The telephone companies were
required by law to assist the FBI in locating and isolating the proper
transmission.
Today, however, much of the telephone network is made up of
fiber optic cables. Fiber optics are a more advanced technology, in
that thousands of telephone calls can be transmitted simultaneously
through a single cable. Finding the fiber optic transmission that
corresponds to one particular telephone call is much more difficult.
Furthermore, conventional wiretap techniques (i.e., wire clips and a
headset) do not work with this new digital technology, because
optical transmissions cannot be overheard.
The FBI claims that, while one of the telecommunications
industry's major goals is to provide end-to-end digital connectivity
for its subscribers, no capability currently exists to intercept these
transmissions. "Therefore," the FBI proposal states, "the emergence
of digital telecommunications technology will preclude the FBI and
all of law enforcement from being able to intercept electronic
communications, thus all but eliminating a statutorily sanctioned,
court authorized and extraordinarily successful investigative
technique."
To compensate for the alleged difficulties in wiretapping digital
messages, the FBI's Digital Telephony proposal would require any
service provider that enables its users to send or receive wire, oral
or electronic communications to "provide such assistance as
necessary to ensure the ability of government agencies to implement
lawful orders or authorizations to intercept communications."
Requiring all service providers to provide this type of assistance to
the FBI would be a major change in the law. Currently, only the
telephone companies are required to provide network access to the
FBI during legal wiretaps. The FBI proposal, however, would require
ALL service providers, anywhere along the path of a telephone call
transmission, to provide access capability. This means that computer
networks, private company telephone networks and electronic
bulletin board systems, as well as computer software manufacturers
and designers, will probably all be required to provide a means for
the FBI to perform wiretaps.
Service providers would be required to update their existing
equipment and technology to provide for wiretapping within 180
days of enactment of the proposal or be prohibited completely from
using their equipment. The use of unauthorized equipment or
technology would result in a $10,000 per day fine being levied
against the violator. The proposal would authorize the Department of
Justice to issue regulations stating exactly what communications
providers would be required to do for wiretapping to be effective,
based on advice received from the Attorney General.
The FBI proposal anticipates that the costs of making these
changes to existing equipment and systems, as well as the costs of
design changes, would be borne by the companies producing the
equipment and those supplying the systems. The proposal says
nothing about how non-utilities could recoup their losses, but the FBI
predicts that the costs to the telephone companies, in turn, would be
passed on to consumers through higher telephone service rates.
Coalition Concerns
This increase in basic telephone service rates concerns many
groups, who have joined a coalition to oppose the FBI's proposal.
These organizations fear that this proposal is potentially unfair to
consumers, who, in effect, will be required to fund FBI wiretaps
when they pay for basic telephone service. This will ultimately
cause the cost of basic telephone service to go up. Coalition members
are also concerned because there is no limit to the cost to companies
and consumers cited in the proposal.
Computer software manufacturers, such as IBM, Lotus and Sun
Microsystems, are also concerned about the FBI proposal. Security of
business communications has become extremely important to many
companies in recent years. Companies spend thousands of dollars
obtaining and maintaining communications systems - for both voice
and data - that are secure from threats of industrial espionage or
other criminal activities. The FBI's proposal would require
telecommunications software providers to leave a "back door" in
their programs, through which law enforcement officials could gain
access to ongoing communications in order to monitor them.
However, these back doors could also become known to criminals and
others without proper legal authorization interested in tapping in.
Furthermore, the proposal could ultimately shift the balance of
trade in the telecommunications industry by encouraging foreign
businesses to buy their programs from foreign software suppliers,
who would not be required to provide these back doors. Many
software manufacturers believe that the FBI proposal is premature
and want to see an FBI analysis of the relative benefits of its
proposal versus the negative impact it will have on industrial
security before it is implemented as law.
Privacy advocates, such as the EFF and the American Civil
Liberties Union (ACLU), have further concerns about the FBI's
proposal. The security of business information is not merely an issue
of guarding company proprietary information. These days, when so
much information about individuals is kept in computer databanks, it
is also a matter of guarding private information about millions of
Americans. Businesses today store a tremendous array of
information about individuals on their computers; information such
as: where they shop, what they buy, what they earn, how much they
have in the bank, and who they call, as well as medical histories,
military records, credit reports and ratings, and other very personal
information. If the national public telephone network is required to
be designed so that it is easily monitored by government, privacy
would be jeopardized. Networks would also be vulnerable to threats
from those who would seek to alter or destroy the information for
personal gain or extortion, or merely to create havoc.
In order for a proposal to become law, it must first be sponsored
by a member of Congress, who introduces it into either the House of
Representatives or the Senate. The FBI's Digital Telephony proposal,
while supported by the Bush administration and widely distributed
throughout the last Congress, was squelched before being introduced;
the FBI never found a sponsor. A broad coalition of telephone
companies, computer companies and civil libertarians, brought
together by the EFF, opposed the proposal and circulated an analysis
of the proposal that offered numerous criticisms. The FBI will
undoubtedly recirculate its Digital Telephony proposal in this new
Congress. EFF and the coalition are ready to fight the next generation
of the FBI's Digital Telephony proposal.
************************************************************************
EFF Awaits Decision on Steve Jackson Games Trial
by Shari Steele
On January 26, 1993, U.S. District Court Sam Sparks heard the case
of Steve Jackson Games et al. v. United States Secret Service in
Austin, Texas. The decision in this trial may have critical civil
liberties implications for newly emerging means of communications.
Steve Jackson Games was a fantasy books and games producer.
Until the end of March, 1990, owner Steve Jackson employed 18
people in his Austin, Texas, office. In the early morning of March 1,
1990, the United States Secret Service entered the Steve Jackson
Games offices and seized 3 computers, 5 hard disks and more than
300 floppies. They were looking for a document that they claimed
compromised the emergency 911 system.
Sometime in September of 1988, a computer intruder logged onto
a BellSouth computer and made a copy of a telephone company
document describing how BellSouth's emergency 911 system worked.
Telephone company personnel became aware of the existence of the
unauthorized copy of this proprietary document and called the
United States Secret Service to help find the person who had
penetrated their computer. The Secret Service agents were
concerned that the integrity of the emergency 911 system would be
in jeopardy if computer intruders knew how to use the 911 lines,
leaving emergency callers with no access to the system when they
needed it.
In reality, the document that was copied off the BellSouth
computer, commonly known as the E911 document, did not contain
passwords or any other access descriptions. The document was,
rather, a technically written narrative containing information that
was readily published and available for sale from Bellcore and other
telephone companies.
The Secret Service, however, proceeded as if the information
contained within the E911 document was critical to national security.
With the help of telephone company personnel, Secret Service agents
attempted to trace the location (or locations, as was the case) of the
document. Sometime in February of 1989, the young man who had
copied the E911 document from BellSouth's computer submitted it
for publication to an underground online newsletter named Phrack.
Phrack's editors cut the document down to about half of its original
size, taking out all references to telephone company employees,
telephone numbers and sensitive information about the system. The
E911 document was then published in Phrack issue 24, which was
electronically distributed for its usual no charge, to various computer
users throughout the country - to about 150 sites in all. Phrack
issue 24 was distributed on February 25, 1989.
The Secret Service attempted to follow the trail of all distributed
issues of Phrack #24. On March 1, 1990, the Secret Service raided
Steve Jackson Games looking for the document. The Secret Service
didn't actually know whether someone at Steve Jackson Games had
received a copy of issue 24 of Phrack. The Service simply knew that
one of the employees there had received a copy of the newsletter on
his home electronic bulletin board system (BBS), and may have been
associated with the young man who had originally intruded into
BellSouth's computer. When the employee's home BBS was no longer
accessible to telephone company personnel attempting to log in, a
theory apparently arose that the employee's BBS was now being run
out of Steve Jackson Games. And, in fact, Steve Jackson Games did
run a BBS, called the Illuminati.
The Secret Service, as it would learn later, was wrong. There was
no E911 document on Illuminati, no issues of Phrack, and no BBS
from the employee's home. The Illuminati BBS had been around for
years and was set up to be a place for those who enjoyed fantasy
games to congregate. The board was set up like most other boards -
with bulletin boards, conference areas and e-mail. But the Secret
Service physically removed the computer running the BBS and two
other computers from Steve Jackson Games on March 1, 1990, and
did not return the equipment until sometime in the end of June of
that year.
No criminal charges were ever brought against Steve Jackson
Games. Yet, when the computer equipment was returned more than
three months after the raid, it appeared that someone inspecting the
disks had read and deleted all of the 162 electronic mail messages
contained on the BBS at the time of the raid. Not one of the users of
the BBS was even under investigation from the Secret Service.
Steve Jackson was angry. During the three months his systems
were under Secret Service investigation, he had to lay off nearly half
of his work force. Publication of several of his games books was
delayed, resulting in loss of revenues to the company. He was
written up in Business Week magazine as being a computer criminal.
Steve Jackson decided to fight back. On May 1, 1991, Steve Jackson,
Steve Jackson Games and three users of the Illuminati BBS, with the
help of the Electronic Frontier Foundation, filed a civil suit against
the United States Secret Service, alleging that the search warrant
used during the raid was insufficient, since Steve Jackson Games was
a publisher, and that the privacy protections of the Electronic
Communications Privacy Act (ECPA) had been violated with regard to
the electronic mail on the system.
The federal Privacy Protection Act (PPA) requires that law
enforcement officers requesting a search warrant notify the judge
that the party to be searched is a publisher. The judge then ensures
that the warrant is written very specifically to protect the First
Amendment freedoms involved. The Secret Service agents in the
Steve Jackson Games case did not tell the judge that Steve Jackson
Games was a publisher, so no special procedures to protect First
Amendment rights were followed in this case.
ECPA consists of a series of amendments to the federal wiretap
act. It prohibits law enforcement officers from intentionally
intercepting, using and/or disclosing the contents of private
electronic communications without a warrant. The statute offers the
same privacy protection for communications that are stored
"incidental to the electronic transmission thereof." The users of the
Illuminati board claimed that their unread e-mail was still in transit,
and therefore required a warrant specifically describing the
messages to be searched. The Secret Service claimed that the mail
was no longer in transit, and therefore no special warrant was
required under ECPA.
After years of preparation, the Steve Jackson Games trial finally
began on Tuesday, January 26, 1993, at a little after 1:00 p.m. By
the third day of the trial, while the judge had not decided the final
outcome of the case, he had determined that the raid and the
subsequent investigation and non-return of equipment had been
inappropriate. While Special Agent Thomas Foley of the Secret
Service sat there simply replying, "Yes, sir," the judge reprimanded
Foley and the United States Secret Service for fifteen minutes
straight. The government lawyers were visibly shaken by this
interrogation - so much so that they decided not to call any of the
other witnesses who had waited for two days to tell their stories. In
the closing arguments, the judge repeatedly asked the lawyers what
his award of damages should be, since apparently he believed that
Steve Jackson Games had, in fact, been damaged.
Unfortunately, this story does not yet have an ending. The judge
is still writing his final decision on the case. But the results will
clearly have important civil liberties consequences as more and more
of our communications are done with the help of computers. The
Electronic Frontier Foundation will continue to help fight for the
rights of users of new telecommunications technologies.
************************************************************************
EFF Calendar
March
9 EFF Board Meeting, Burlingame, CA.
9-12 The Third Conference on Computers, Freedom and Privacy,
Burlingame, CA.
15 Telecommunications Hearing of the Utilities and Commerce
Committee of the California Assembly, Sacramento, CA.
16 Freedom of Information Day, Libraries Lecture, MIT,
Cambridge, MA.
22-23 Building Electronic Communities, Honolulu, HI.
April
5 New Hampshire Telecommunications Forum
19 American University, Washington, DC.
27-29 High Tech Criminal Investigators Association Conference,
Folsom, CA.
28-30 Nineteenth Annual Asilomar Microcomputer Workshop,
Asilomar, CA.
May
3-5 Protecting Your Networked Computing Resources: A Balanced
Approach, Baltimore, MD.
4-5 Information Exchange: Telecommunications as Part of the
National Information Infrastructure, Arlington, VA.
19 EFF Board Meeting, Washington, DC.
