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. ************************************************************************ 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. ************************************************************************ 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 ************************************************************************ 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. ************************************************************************ 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. ************************************************************************ 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.