Free Speech in Cyberspace by nishithpandya

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The First Amendment and the Computer Hacker The First Amendment and the Computer Hacker The First Amendment and the Computer Hacker Controversies of 1990 Controversies of 1990 Controversies of 1990



A Thesis submitted to the faculty of The University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Master of Arts in the School of Journalism and Mass Communication. Chapel Hill 1991

Approved by: Cathy L. Packer, Advisor Ruth Walden, Reader John Semonche, Reader

Copyright (c) 1991 by Robert R. Berry

Table of Contents

Chapter 1. New Questions for a New Medium..................1 Chapter 2. The Net........................................28 Chapter 3. Hackerphobia...................................52 Chapter 4. Operation Sun Devil............................79 Chapter 5. Conclusions...................................115 Bibliography.............................................128



New Questions for a New Medium New Questions for a New Medium New Questions for a New Medium Introduction Introduction In the spring of 1990, a 20-year-old student at the University of Missouri in Columbia was prosecuted in a federal court because of something he published. The Introduction

information he published was true, it was of public concern, and it had come to him through legal channels. Nonetheless,

the government charged that his publication was part of a conspiracy to commit fraud and that his informationgathering activities and publication amounted to interstate transportation of stolen property. Shouldn't the First Amendment have protected Craig Neidorf from prosecution? Unfortunately, the answer to that

question is unclear because of the technology he used to deliver his message. Neidorf's publication was electronic.

He created it as text on his computer and distributed it over a network to other computer users who read it on their video screens. It went from author to audience without ever And the information whose

existing in tangible form.

publication led to his prosecution -- a document describing a telephone system -- came to him through the same channels.

For the first time, a federal court confronted this question: How does the First Amendment apply to computerbased communication? Craig Neidorf's prosecution was only one part of a crackdown on computer crime that in 1990 aroused widespread

concern over civil liberties and computer use.

In another

case, Steve Jackson Games, a small publishing company in Austin, Texas, found itself nearly put out of business when the Secret Service raided its premises and confiscated its computers -- all because the agency suspected it might find contraband information on the computers.1 Was the government casting its net too broadly in its campaign against computer crime, infringing on free speech in the process? The events of 1990 demonstrated better than

any before the confused and uncertain state of the law as it applied to computer-based communication.

a New Medium

The Problems of a New Medium The Problems of a New Medium

The Problems of

Advances in computer technology over the past decade have made computers available to a vast number of people and irrevocably changed the way most work is done in this country. The United States Department of Commerce estimated

in 1988 that as many as 38 million personal computers would be installed by 1991, with 28 percent of all American households computer-equipped.2 But computers have proved to

be more than tools for word processing and math; increasingly, the computer is a communication tool.

1See, e.g., Costikyan, "Closing the Net," Reason, Jan. 1991, at 22; Kapor, "Civil Liberties in Cyberspace," Scientific American, Sept. 1991, at 116. 2National Technical Information Service, U.S. Dept. of Commerce, NTIA Information Services Report (1988), at 27. 2

Today, anyone with a computer and a modem3 -- and an estimated 19 million modems are currently installed4 -possesses the means to communicate with thousands of other computer users. Available services include hundreds of

commercial online information services such as CompuServe and Prodigy.5 These services provide electronic access to

major news services such as USA Today, Dow Jones and the Associated Press. They also provide their own news, advice

columns, movie and music reviews, and hundreds of other features online. Syndicated columns from writers such as

Dave Barry and Mike Royko are available by electronic subscription for users who have electronic mail addresses on any of the major national computer networks.6 And a

probably uncountable number of amateur newsletters and magazines produced by individuals are distributed electronically via computer networks to small lists of subscribers. Electronic bulletin boards7 number as many as

3A modem is a device used to translate digital computer data into electrical signals capable of transmission over telephone lines. 4NTIA Report, supra note 2, at 29. 5One directory lists 718 online informations services worldwide. Cuadra/Elsevier, Directory of Online Databases (vol. 12, nos. 1 and 2 (Jan. 1991)). 6Online advertisement from ClariNet, a service that distributes syndicated publications electronically (April

9, 1991). 7Bulletin boards are "computer systems that function as centralized information sources and message switching systems for a particular interest group. Users dial up the 3


Available to an increasing number of people at

constantly shrinking expense, the computer and modem may be the 1990s equivalent of the mimeographed handbill. Clearly, "the press" no longer requires ink or paper. Some of these publications9 are direct electronic analogues of magazines, newspapers, newsletters and pamphlets, while others are entirely new forms; but none need ever exist on paper. A new medium of mass communication, distinct from

print but sharing many of its essential characteristics, is spreading, and as computers become ever more accessible, its continued spread is inevitable. Because these forms of communication may be well on their way to becoming the dominant ones, it is important that the law be ready to accommodate them. But the existing models Today's system

of media law are inadequate to the task.

divides technologies of communication into essentially three tiers of First Amendment protection.10 Most protected are

traditional print media, newspapers and magazines, which bulletin board, review and leave messages for other users as well as communicate to other users attached to the system at the same time." Freedman, The Computer Glossary 80 (4th ed. 1989), at 80. 8L. Wood, D. Blankenhorn, "State of the BBS Nation," Byte, Jan. 1990, at 298. 9Although the technology is new, there can be no doubt that these activities are indeed publishing. Black's Law Dictionary defines publish as "[t]o make public; to

circulate; to make known to people in general. to put into circulation."

To issue;

10See, e.g,, De Sola Pool, infra note 18; Becker, infra note 73, at 829-30. 4

enjoy great, though not absolute, freedom from government control under the First Amendment.11 The middle ground is

occupied by the broadcast media, radio and television. Although the First Amendment still protects broadcast journalists from governmental interference with day-to-day editorial decision-making,12 broadcasters are nonetheless subject to government licensing and many other requirements dictated by the FCC and Congress.13 Least protected by the

First Amendment -- or most regulated -- are common carriers, telephone and other wire communication systems operated by companies such as AT&T. Common carriers operate under

strict guidelines governing access, rates, even content. Because common carriers have almost no control of how their facilities are used, however, they are generally immune from liability for misuse.14 None of these legal models can comfortably encompass computer-based communication. The content of such

communication -- written text -- is most analogous to print,

11See, e.g., Near v. Minnesota, 283 U.S. 697 (1931); New York Times Co. v. Sullivan, 376 U.S. 254 (1964), New York Times Co. v. United States, 403 U.S. 713 (1971), Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). 12See, e.g., CBS v. Democratic National Committee, 412 U.S. 94 (1973). 13See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

14The history of common-carrier regulations, rather than being derived from First Amendment law, is descended from the regulation of railroads in the nineteenth century. See De Sola Pool, infra note 18, at 75-107. 5

but because computer networks rely on telephone lines, its technological foundation is that of the common carrier. Perhaps even more problematic, though, is that this new technology just doesn't look like print, and policymakers may therefore be hesitant to afford it the same protection.15 Such problems may prevent a major new outlet for free expression from achieving its potential. be even more significant. But the danger may

If more traditional technologies

such as print are replaced by electronic delivery, the First Amendment will no longer protect "the press" as it does today.

Literature Review Literature Review

Literature Review

The difficulties associated with fitting a new communication technology such as computer-based communication into existing legal frameworks has not escaped legal commentators. "Electronic publishing," writes former

White House policymaker Richard Neustadt, "provides square pegs to fit into the round holes of old regulatory categories."16 And Kim Uyehara writes, "Lawmakers are

15See, e.g., De Sola Pool, infra note 18, at 197. 16R. Neustadt, G. Skall, M. Hammer, "The Regulation of Electronic Publishing," 33 Fed. Comm. L.J. 331, 332 (1981). 6

having a hard time keeping legislation current with the technical explosion."17 Most writers have taken either a broad approach -discussing very generally the legal and social problems of new communication technology -- or a very narrow one, asking and answering very specific legal questions. The most

significant entry in the former category is by Ithiel de Sola Pool, whose book Technologies of Freedom,18 cited frequently by other authors, seems to be the seminal work in the field. The book is slightly dated as far as the

technology goes -- 1983 is a long time ago in the world of computers -- but its discussion of the underlying issues is insightful. De Sola Pool's book is more descriptive than analytical, concentrating on elucidating the legal problems of new communication technology rather than solving them. with a warning: For five hundred years a struggle was fought, and in a few countries won, for the right of people to speak and print freely, unlicensed, uncensored, and uncontrolled. But new technologies of electronic communication may now relegate such old and freed media such as pamphlets, platforms, and periodicals to a corner of the public forum. Electronic modes of communication that enjoy lesser rights are moving to center stage. The new communication technologies have not inherited all the legal immunities that were won for the old.... And so, as speech increasingly flows over those electronic It opens

17K. Uyehara, "Computer Bulletin Boards: Let the Operator Beware," 14 Student Lawyer, April 1986, at 30. 18I. de Sola Pool, Technologies of Freedom (1983). 7

media, the five-century growth of an unabridged right of citizens to speak without controls may be endangered.19 De Sola Pool provides a history of communication technology, starting with the origins of print20 and covering the emergence of electronic media.21 He also

summarizes the history and current state of modern media law, dividing media into regulatory categories; one chapter each is devoted to print,22 common carriers,23 and broadcasting.24 Additional chapters address the newer

technologies of cable25 and -- most significantly for the purposes of this thesis -- electronic publishing.26 It is

here that de Sola Pool warns that regulations driven by technology may eventually undermine the First Amendment: If computers become the printing presses of the twenty-first century, will judges and legislators recognize them for what they are?... Practices are now being canonized in regard to cable television, computer networks, and satellites which may someday turn out to be directly relevant to publishing. People then may ask in puzzlement where protections of the free press have gone.27 19 Id. at 1. 20 Id. at 12-14. 21 Id. at 23-54. 22Id. at 55-74. 23Id. at 75-107. 24Id. at 108-150.

25Id. at 151-188. 26Id. at 189-225. 27Id. at 189. 8

De Sola Pool makes no specific policy recommendations for dealing with these new problems. Instead, having sounded

the alarm, he suggests general principles to guide policymakers. He suggests that the First Amendment applies

equally to all media, that all communication should be unfettered by government restriction, and that regulation -including common-carriage rules -- should be a last resort reserved only for cases of true physical monopoly.28 De Sola Pool's main message, though, seems to be that vigilance may be required to safeguard the First Amendment into the future. "Lack of technical grasp by policy makers

and their propensity to solve problems of conflict, privacy, intellectual property, and monopoly by accustomed bureaucratic routines are the main reasons for concern," he writes. "But as long as the First Amendment stands ... the

loss of liberty is not foreordained."29 A similarly broad -- and cautionary -- approach is taken by law professor M. Ethan Katsh.30 Katsh suggests that new

communication technologies not only present novel legal problems, but "are likely to affect both how we think about

28Id. at 246.

29Id. at 251. 30M.E. Katsh, "The First Amendment and Technological Change: The New Media Have a Message," 57 Geo. Wash. L. Rev. 1459 (1989). 9

information and what the relationship is between citizen and government."31 Katsh argues that electronic communication not only provides a new physical channel for speech, but changes the nature of the information itself: Electronic information is even more active and more easily manipulable, revisable, and changeable [than print]. It is changeable in ways that print is not and, by its very nature, moves much faster. One who looks at words on a computer screen or even at words on paper that have emerged from a "printer" may think that he or she is seeing print, but the static or fixed quality of print is gradually being lost as information is encoded in electronic form.32 Katsh is not optimistic about the future of First Amendment law. "[D]ifferences in treatment among media can "It is even possible

be expected to multiply," he writes.

that 'full' First Amendment protection, whatever that may mean in the future, will not be enjoyed by any medium other than, perhaps, the spoken word."33 But he argues that

despite greater legal restrictions, the power of new technologies will diminish the ability of the state to impede the flow of information.34 Prior restraint, for

example, may become virtually impossible as means of

31Id. at 2.

32Id. at 13. 33Id. at 17. 34Id. at 17. 10

publication proliferate.35

Katsh sees in the future a "new

communications environment," an environment characterized by a vigorous system of expression but an unstable and confused First Amendment framework.36 Apart from de Sola Pool and Katsh, few authors appear to have tackled the broad issues associated with computer communication. Most have concentrated instead on specific Almost

legal questions associated with specific media.

universally, the authors ask which model of media law can apply to these new technologies. But their analyses

generally concentrate on very narrow regulatory and liability issues rather than the larger First Amendment issues involved. The question of legal models is generally

answered only to the extent necessary to resolve the narrow questions they have tackled. Also, most of the existing literature is devoted to analysis of one specific form of computer communication, the electronic bulletin board system or BBS. The discussion of

BBSs is further limited to one particular legal question, the liability of the BBS's system operator, or sysop, for messages posted by users on the BBS.

35Id. at 21. 36Id. at 23. 11

Attorney Robert Charles examines the question of sysop liability for defamation posted on a BBS.37 Charles uses

the analogy technique used by virtually every other author writing on this subject. "This question may be answered by

looking to the standards of liability that have been applied to other communication technologies," he writes.38 He then

divides existing media into two categories based upon their legal status in defamation cases: print media, which are generally held accountable for defamation, and common carriers, which generally are not.39 The exception to that

common carrier rule is when a common carrier is a "knowing" participant in the defamation.40 Charles ultimately

recommends the formulation in explicit detail of a new, clear standard "tailored specifically to computer bulletin boards," incorporating the "knowing" test used for common carriers.41 Most writers tackling the sysop liability question discuss not defamation but messages related to criminal action, mainly computer hacking and other forms of computer

37R. Charles, "Computer Bulletin Boards and Defamation: Who Should Be Liable? Under What Standard?" 2 J. of Law and Technology, Winter 1987, at 121. 38Id. at 123.

39Id. at 132. 40Id. at 132-3. 41Id. at 147. 12


In particular, phreaking, the theft of long-

distance telephone service -- usually closely associated with hacking -- has been a popular subject of discussion. "While bulletin boards are usually not directly involved in any of these crimes, they are used to receive and distribute information by the computer enthusiasts who commit the illegal acts," writes attorney Eric Jensen, who also includes distribution of pornography and the formation of pedophilia rings among the potential abuses of BBSs.43 Jensen similarly asks whether earlier models of media law can accommodate BBSs. Dividing older media into the

categories of publishers, republishers, and common carriers -- and choosing republishers as the best analogy to BBSs -Jensen ultimately reaches a conclusion much like Charles', that sysop liability should be based upon the degree of the sysop's participation in the illegal actions.44 He cautions

that direct regulation of BBSs, because of their nature,

42The term hacker originally meant a person with great technical expertise with computers -- particularly with programming -- and for whom computing was an end in itself, even an art form. However, it has popularly come to mean a person who, through stealing passwords and otherwise exploiting security holes, gains unauthorized access to computer systems, either maliciously or mischievously. See Chapter 2, notes 36-38 and surrounding text.

43E. Jensen, "An Electronic Soapbox: Computer Bulletin Boards and the First Amendment," 39 Fed. Comm. L.J. 217, 224-226 (1987). 44Id. at 257. 13

would be unenforceable.

Hobbyists could easily "go

underground," concealing their activities from regulators.45 Jensen provides one original analogy, what he calls "the BBS as an association,"46 a place where "people from all across the country gather electronically and exchange views, recipes, or epithets, just as would the local Jaycees."47 Citing NAACP v. Alabama,48 he writes, "As an association engaged in speech, a bulletin board is entitled to constitutional protection."49 A slightly different approach to the sysop liability question is taken by Edward Di Cato,50 who discusses a more recent addition to the list of BBS hazards: the distribution of computer viruses.51 Di Cato reaches a familiar

conclusion -- that a sysop would be liable only for "recklessly" allowing a computer virus to spread through a

45 Id. at 232-3. 46Id. at 252. 47Id. 48357 U.S. 449 (1958). 49Id. 50E. Di Cato, "Operator Liability Associated With Maintaining a Computer Bulletin Board," 4 Software L.J. 147 (1990). 51A virus is a computer program that is designed to

replicate itself by attaching itself surreptitiously to other programs. Viruses may be fairly harmless, perhaps popping up a mischievous message on the screen, or destructive -- erasing files from a hard disk or perhaps scrambling the disk's data irretrievably. 14


He also suggests that sysops could protect

themselves by exercising tight control over their BBSs, verifying users' identities before giving them access.53 further suggests that a disclaimer clearly specifying the responsibilities of users and specifically repudiating sysop responsibility might further protect sysops from liability.54 The sysop liability question has also been tackled by John T. Soma, Paula J. Smith and Robert D. Sprague.55 Their He

article, however, consists mostly of an extensive survey of "computer crime" laws, engaging in little First Amendment analysis. One commentator reaches a conclusion quite different from most others on the subject of BBS regulation. Robert Beall

examines the liability of sysops for the posting of illegally obtained information by phone phreakers.56 In

asking which model of media law will apply, Beall forces a choice between the laws covering newspapers or the laws

52Di Cato, supra note 50, at 155. 53Id. at 156. 54Id. at 157. 55J. Soma, P. Smith, R. Sprague, "Legal Analysis of Electronic Bulletin Board Activities," 7 W. New Eng. L.

Rev. 571 (1985). 56R. Beall, "Developing a Coherent Approach to the Regulation of Computer Bulletin Boards," 7 Computer/Law Journal 499 (1987). 15

covering telephone service;57 he ends up choosing elements of each. He agrees with other commentators that a sysop may

not be liable without affirmative involvement in the illegal activity.58 While he seems to favor strong First Amendment

protection for BBSs, he is not satisfied with the resulting lack of protection against phreaking activity. He therefore

proposes a full-fledged system of licensing of BBSs by the FCC, with licensees required to adhere to certain rules in order to retain or renew their licenses.59 However, he

would rely upon the private sector for enforcement of these rules; telephone companies, for instance, would be expected to monitor BBSs for stolen credit card numbers.60 Besides the BBS, the only other related communication media that have received significant attention in the legal literature are the similar technologies of teletext and videotex. Teletext is a form of electronic text delivered

by television stations to subscribers' TV sets, either via broadcasting or cable hookups but as part of a conventional television signal. Teletext presents a series of pages, or

frames, of text, from which the subscriber may select using a special keypad.61 Videotex is a similar service,

57Id. at 509-10. 58Id. at 504-5.

59Id. at 513-15. 60Id. at 516. 61Freedman, supra note 7, at 689. 16

delivered to customers' TV sets via telephone lines.62 Neither service has been implemented on a large scale in the United States, but despite their obscurity, they have received much attention from legal commentators. Jeffrey Hurwitz devotes his attention to teletext, particularly broadcast teletext.63 He suggests that the

FCC's 1983 decision not to regulate teletext -- reasoning that it is an "ancillary service" not subject to the regulations applied to regular TV programming -- was incorrect.64 Teletext, like traditional broadcasting, he

felt should be content regulated -- subject to the Fairness Doctrine,65 the "equal opportunity" rule and the "reasonable access" rule.66 Exempting teletext from such content

regulations provides an easy avenue for circumventing the purpose of such regulations as applied to broadcasting, he writes.67 Perhaps most troubling, however, is his argument

that the FCC, more than anything else, has simply misconstrued the clear language of the statutes and

62Id. at 735. 63J. Hurwitz, "Teletext and the FCC: Turning the Content Regulatory Clock Backwards," 64 Boston Univ. L. Rev. 1057 (1984). 64Id. at 1057. 65The Fairness Doctrine, no longer FCC policy, was still

applied to broadcasters when Hurwitz wrote his article. 66Hurwitz, supra note 63, at 1083. 67Id. at 1098. 17

regulations in question.68

Hurwitz's arguments suggest that

the existing statutes could pose a threat to the freedom of computer communication. Another writer, Richard Hindman, has a markedly different view of teletext.69 "The first amendment," he writes,

"protects the right of every person to participate in the marketplace of ideas."70 Most of Hindman's article is

devoted to an analysis of a consent decree that currently bars telecommunications giant AT&T from entering the teletext business.71 However, Hindman's comments about the

First Amendment issues underlying teletext regulation are insightful: The history of broadcast and cable regulation suggests that as new communication technologies become available Congress and the courts will fail to fully comprehend how the first amendment limits government authority to regulate. In fact, at first, the courts will attempt to characterize users of the new medium as someone other than a speaker entitled to full first amendment protection or, as a speaker entitled to some lessor [sic] protected right.... [U]ntil a new technology becomes familiar in its own right, courts generally attempt to impute the regulatory baggage of an existing medium, leaving unresolved the difficult constitutional issues.72

68Id. at 1083-1094. 69R. Hindman, "The Diversity Principle and the MFJ Information Services Restriction: Applying Time-Worn First Amendment Assumptions to New Technologies," 38 Catholic Univ. L. Rev. 471 (1989).

70Id. at 471. 71U.S. v. AT&T, 552 F.Supp. 131 (D.C. Cir. 1982). 72Id. at 494-5. 18

Lynn Becker, in her survey of the confused state of the law regarding teletext and videotex, agrees that the technology of delivery should not be the decisive factor in deciding its regulatory status.73 "A preferable

alternative," she writes, "would be to view all electronic publishing as a single communications medium regardless of the method of transmission.... The basis for distinguishing between typeset and electronically transmitted communications is not viable in 1985. underpinnings are without merit."74 The regulatory Instead, she calls for

the design of a new legal framework designed to accommodate the new media and to recognize their true nature. "[T]he

new media must be viewed according to their function rather than through their methods of distribution.... When viewed in this manner, the regulatory mandate is clear: Congress shall make no laws abridging ... the freedom of the press."75 What conclusions emerge from this body of literature? It is clear that analogy to older media has been the method of choice for deciding the legal status of computer communication, whether BBS, teletext or videotex. Almost

every author divides existing media into regulatory

73L. Becker, "Electronic Publishing: First Amendment Issues in the Twenty-First Century," 13 Fordham Urban L.J. 801

(1985). 74Id. at 866. 75Id. at 868. 19

categories, generally classifying print media as most immune to regulation but most vulnerable in liability cases and common carriers as most regulated but generally immune to liability, with broadcasters in the middle. With only a

couple of exceptions -- Beall's scheme of licensing BBSs and Hurwitz's argument in favor of content regulation for teletext -- the authors are opposed to governmental regulation of electronic publishing. However, the authors

devote themselves to answering narrow questions, questions either of BBS sysop liability or of the regulatory status of two obscure technologies, teletext and videotex. In the literature there seems to be agreement on several specific questions. First, BBS sysops should be held liable

for messages on their boards only when they are in some way involved with or aware of the illegality. Second, a new

legal framework may be necessary to accommodate these media. And third, the First Amendment does apply to computer-based communication. Missing from most of the literature is recognition of a serious First Amendment threat or an attempt to discover the specific sources of that threat. With the exception of De

Sola Pool's forward-looking book and Katsh's philosophical article, most authors seem to perceive only technical legal difficulties. While most authors conclude, or even assume,

that the First Amendment applies to computer communication, they do not seem to see implications for the mainstream of First Amendment law. Computer-based communication is 20

portrayed either as something still far in the future or as a "niche" medium of interest only to computer hackers and scientists. It is depicted as only peripheral to the speech

the First Amendment is intended to protect. In fact, however, such electronic communication is in use today by a vast number of people with diverse interests, using inexpensive and readily available technology. It is

already a significant and important forum for speech on almost every conceivable topic. The way in which this

medium is used indicates that it is not peripheral to First Amendment "core speech." It should be considered in the If

mainstream of First Amendment-protected expression.

computer-based media are to become a dominant channel for information delivery in the future, it is vitally important that the decisions made today regarding the treatment of these media be the right ones.

Objectives Objectives


Perceptions of a threat to the First Amendment freedoms of computer-based communication have come not from codified policies -- of which there are few -- but from de facto policies emerging from an unsettled and chaotic area of law. These de facto policies are, in turn, the product of precedent-setting events such as the Craig Neidorf and Steve

Jackson cases and other controversies of 1990. Krasnow, Longley and Terry, in their book The Politics of Broadcast Regulation, begin their analysis with the idea 21

that "there is no such thing as 'government regulation'; there is only regulation by government officials."76 In

other words, particularly with a medium as new as this one, attention is best directed not toward codified regulations but rather toward the attitudes and agendas of the people who will create them -- people both in and out of the government. The legal treatment of any new technology will

ultimately be a product of political pressures, different players with different agendas pushing in different directions. The result will depend upon whose voice is

heard most strongly. The embryonic field of computer-communication law is characterized by several different facets of government and the private sector influencing policy formation. These

include Congress, which has responded primarily to economic pressures related to computer crime, but has passed statutes incidentally affecting computer communication; the courts, which only recently and at the lowest levels have been asked to recognize constitutional protection for computer communication; and law enforcement agencies, which have caused the most visible controversies by enforcing computer crime laws zealously and without evident regard for free speech. Other entities exerting an influence on the

policymaking process include the computer-user community,

76Krasnow, Longley, and Terry, The Politics of Broadcast Regulation 9 (citing Loevinger, The Sociology of Bureacracy, 24 Business Lawyer 9 (1968)) (3d ed. 1982). 22

particularly the "computer underground" and the hacker subculture, which have been the focus of the recent controversies; and the Electronic Frontier Foundation, a political action group founded to protect the civil liberties of computer communicators. This thesis will examine the political development of de facto policies affecting the First Amendment freedoms associated with computer-based communication, particularly during the important events of 1990. It will examine the

legislative history of the relevant federal statutes and the events surrounding the important cases, including those of Craig Neidorf and Steve Jackson, and the Secret Service's "Operation Sun Devil," and attempt to identify the roles of the major players in this process.

Research Questions and Methodology Questions and Methodology Research Questions and Methodology


The specific research questions addressed by this thesis are: 1) Does a threat to the freedom of computer-based 1) Does a threat to the freedom of computer-based 1) Does a threat to the freedom of computer-based communication represent a threat to the core meaning of the communication represent a threat to the core meaning of the communication represent a threat to the core meaning of the First Amendment? Amendment? First Amendment? First

In order to answer this question, this thesis will first explore the nature of computer-based communication as it is used today. After an overview of the technology that makes

such communication possible, it will examine the way in which this medium is used. It will demonstrate that

computer-based communication is a vital and important 23

medium, and that users of this medium are members of a community engaged in "core speech" deserving of the highest constitutional protection. 2) Who are the important players involved in the 2) Who are the important players involved in the 2) Who are the important players involved in the controversies of 1990 and the formation of computercontroversies of 1990 and the formation of computercontroversies of 1990 and the formation of computercommunication policy and what are their roles? communication policy and what are their roles? communication policy and what are their roles? The thesis will then examine in detail the important cases of 1990 and the events surrounding them in an attempt to discover the role of each major player involved. The

players themselves will be identified, and the contribution of each will be evaluated. This will include an exploration

of the legislative history of the statutes involved in these cases, as well as factual accounts from news media and other sources of the events surrounding the 1990 controversies. Source documents, including legislative debates, indictments, written court opinions, search warrant affidavits, briefs and policy statements will provide insight into the motives and objectives of each player. 3) Based upon the roles of the players involved, what is 3) Based upon the roles of the players involved, what is 3) Based upon the roles of the players involved, what is the general direction of the law? the general direction of the law? the general direction of the law?

From this analysis should emerge an overall picture of the regulatory atmosphere, the degree of the First Amendment threat and what the future may hold for these new media.

Organization Organization


Chapter Two will describe the technological foundation of today's computer-based communication media in order to 24

define terms and concepts important to this topic.

It will

briefly describe the way in which these media are used, in order to establish that a genuine outlet for First Amendment-protected speech is involved. It will also

introduce the culture of computer hackers, which plays an important part in events described later. Chapter Three will examine the legislative history of the computer crime laws that served as the authority for the hacker crackdown of the late 1980s and 1990. This chapter

will study the role of Congress as a regulatory player and will also reveal the early involvement of two other players that figure prominently in later events: computer hackers and law enforcement. Chapter Four will discuss in detail the major cases of 1990 and the surrounding events that have been the focus of the recent controversies over First Amendment freedoms and computer communication. These events demonstrate the

involvement of four important players in this regulatory process: computer hackers, law enforcement agencies, the courts and the Electronic Frontier Foundation. Chapter Five will summarize and discuss the preceding material and will attempt to identify the direction of the law based upon the roles of the involved players.

Limitations Limitations


Some legal aspects of this new communication technology, while important, will not be included in this thesis. 25

First, any examination of computers and civil liberties seems to include a discussion of privacy. Computers provide

new ways of collecting and retrieving information about individuals, and many civil libertarians see this use of computers as a threat to privacy. not be a part of this thesis. Second, the communication of data by electronic transmission introduces a host of new and difficult questions of copyright and patent. While these questions However, privacy law will

are intriguing, they could themselves be the basis of another thesis. While the law of intellectual property

plays a part in some of the cases involved in this area, extended discussion of copyright or patent law is beyond the scope of this thesis. Third, where this thesis discusses computer-crime laws, it will limit such discussion to the federal statutes involved in the hacker-crackdown controversies of 1990. Consequently, state computer-crime laws, of which there are many, will not be discussed.

A Note About Sources and Citations A Note About Sources and Citations A Note About Sources and Citations Because of the nature of this topic, a large number of the sources used in this thesis are themselves electronic

publications, or are source documents made available through electronic means. Citation of such documents is

problematic, as conventional citation forms are not readily adaptable to nonprinted sources. 26 In this thesis, citation

of an electronic document will provide complete identification of the publication and the source through which it was obtained. Because electronic publications do

not generally have page numbers, citation to a specific passage in an electronic document will give the line number in the file.



CHAPTER TWO: CHAPTER TWO: The Net The Net This chapter will explore the nature of today's computerbased media, both technological and cultural, in order to lay the foundation for the discussion that follows. The first section will describe the technological foundation of computer-based communication. In order to

understand many aspects of this topic, and to appreciate the culture of computer users, it is necessary first to understand the media through which communication takes place. Such an understanding requires a certain amount of However, the minute technical

technical explanation.

details of computer networking are less important than an appreciation of the vast variety and immense power of the technology. The second section will examine the way in which these media are used today. This will include general

descriptions and examples of the types of communication that take place via computer-based media. The final section will be a brief introduction to the culture of computer hackers, a group that has played a continuing and important role in the development of policy in this area.

The Technology The Technology1

The Technology

Several kinds of technological media exist through which computer-based communication takes place. These can

generally be grouped into three categories: the computer bulletin board system (BBS), the online information service and the computer network. There is considerable overlap

between these categories, and within each category there is much variation in implementation. Nonetheless, meaningful

distinctions can be made between these types of systems and the way in which they operate. Systems (BBSs) Bulletin Board Systems (BBSs) Bulletin Board Bulletin Board Systems (BBSs) At the low end of the technological and economic scale is the computer bulletin board system or BBS. Typically, a BBS

is operated on a single personal computer, often in a spare bedroom or corner of the home of the system operator (sysop). Such a BBS is usually operated strictly as a

hobby, and no fee is charged for access (though some BBSs may charge a small fee to help defray costs). The only

equipment required to operate a BBS is a computer, BBS software,2 a modem and a telephone line. In some cases the

1Much of the information in this section comes from the author's own experience. Where this information has been supplemented by external sources, or where such sources

might provide additional useful information, citations are given. 2BBS packages include TBBS (The Bread Board System), Wildcat! and Searchlight. Many BBS packages are shareware (see infra note 7), bringing the cost of operating a BBS even lower. 29

BBS will not even have its own telephone line but will share the sysop's home or business line (and consequently may be available only during certain hours). The idea of a computer system publicly available for posting messages goes back at least to 1973 when a project called Community Memory went online in San Francisco. project of a group of progressive computer enthusiasts, Community Memory was a system consisting of a mainframe3 computer connected to a dedicated teletype terminal placed in a record store (a second terminal was added later). The A

system functioned much like the message base of a modern BBS, allowing anyone who wanted to use it to leave a message that could be viewed by others.4 The first true BBS appeared in January of 1978 when two members of a Chicago computer club called CACHE (Chicago Area Computer Hobbyist Exchange) came up with the idea of using a computer to help the club members share information that had previously been posted on a real bulletin board. The system, called the CACHE Bulletin Board System/Chicago or CBBS/Chicago, was strictly a message board and ran on

3A mainframe is a large computer with abundant processing power. The term is usually used to distinguish such large computers from personal computers such as the IBM PC or the Apple Macintosh. Technically, before the advent of such

small computers in the late 1970s, all computers were mainframes. See Freedman, The Computer Glossary 434 (4th ed. 1989). 4S. Levy, Hackers 155-58, 167-80 (Paperback ed. 1984). 30

software the two men, Randy Seuss and Ward Christensen, designed over a weekend. The program was freely distributed

and widely adapted, and before long BBSs sprang up all over the country.5 Today, many different BBS software packages offer different features, but certain functions are common to virtually all BBSs. After logging on to the BBS by

providing a user name and a password,6 a caller is usually presented with a menu of BBS functions from which to choose. These generally include bulletins, electronic mail (e-mail), message areas, file downloads and perhaps other features such as online games. Bulletins, e-mail and the message areas are all forms of electronic communication between BBS users. Bulletins are

text files, usually prepared by the sysop and usually containing information about the operation of the BBS itself. They inform the user of BBS rules and regulations,

the history of the BBS, scheduled down time and other

5Petersen, "Whether for Gabbing or Gobbling Facts, Computer Bulletin Board Systems Have Taken Wing," Chicago Tribune, Mar. 16, 1989, at sec. 5, p. 2; Balz, "Signing On to the World of Computer Bulletin Boards," Chicago Tribune, May 30, 1986, at 53. 6The user name or user ID may be the caller's real name or a "handle." Systems that allow handles will usually also require the user to provide his real name so the sysop can

verify his identity, even though the handle may be all that other users will see. The password, chosen by the user, is the BBS's primary means of maintaining security. Users are usually advised to select a password that would not be easy to guess and not to write the password anywhere. 31

information of general interest.

Bulletins are often

displayed automatically to first-time callers, and some BBSs require that callers read certain bulletins before full access is granted. E-mail is a private form of communication between two users. An e-mail note will be addressed to a specific

person, using that person's user name, and will not be visible to anyone else (except perhaps the sysop). When the

user to whom the note is addressed logs on, he will usually be notified right away that he has mail waiting. He can

then read any e-mail notes waiting for him and reply if he chooses to. The heart of most BBSs is the "message base." Generally,

a BBS will have a number of message areas divided by topic. Unlike e-mail notes, these messages are visible to any caller. These message areas are public discussion forums

where any reader is free to jump in at any time. In addition to these forms of communication, information may also be published via the file download section. Ordinarily, a BBS's file collection consists mostly of public-domain and shareware7 software, but it may also

7Shareware is a method of software distribution in which copies of a software product may be freely distributed through BBSs and other means, allowing users to try the

software before deciding to buy it. If the user chooses to continue using the software beyond a certain trial period, he is expected to register it by sending a fee to the program's author. In exchange for registering, the user will typically receive printed documentation, upgrade 32

contain text files.

These files might be extracts from

threads8 in the message areas, instructional articles, electronic newsletters, fiction, poetry or virtually any other form of written material. Information Services Information Services Information Services

Similar in concept to the BBS, but very different in scale, is the online information service. Unlike most BBSs,

the information service is a commercial enterprise, operating on a subscription or membership basis and charging a fee for access, usually an hourly rate. Such a service is

much larger than a BBS, operating on a mainframe computer (or even an array of mainframe computers). Furthermore, the

information service supports hundreds or even thousands of simultaneous callers and is available nationally, or even internationally, through local telephone calls. Major online information services in the United States include CompuServe, Prodigy, GEnie, The Source and BIX. Of

these, the largest and most familiar is probably CompuServe, a subsidiary of H&R Block. CompuServe has over half a

notices, technical support and perhaps a more fully

functional version of the software. 8A thread is "a more or less continuous chain of postings on a single topic." Online Jargon File, version 2.9.6 (distributed via the Internet, Aug. 16, 1991), at line 15707. 33

million members9 who pay an hourly rate ($12.50 in 1991) to use the service. Like a BBS, CompuServe features e-mail,

file libraries and message areas organized by topic. However, these areas are so large and so numerous that books exist for the sole purpose of helping one navigate them. CompuServe also offers many special online services (some of which cost an additional surcharge); users can make airline reservations, search online databases, invest in the stock market and shop in an "electronic mall" while online.10 Other online information services offer similar assortments of services. Usenet The Internet and Usenet The Internet and Usenet The Internet and

In terms of the number of users and the volume of traffic, the largest component of the online community is probably the international network of mainframe computers generally referred to as the Internet. Originally called

ARPANet, this "network of networks" was originally developed in 1969 by the U.S. Defense Advanced Research Projects Agency (DARPA) to connect university computers to one another. The first national computer network, it was

intended as a means of sharing resources among academic researchers. During its first year the network had only

9CompuServe Inc., CompuServe Information Manager Users Guide 2 (1989). 10See Compuserve Inc., Compuserve Almanac (5th ed. 1989). 34

four nodes,11 a number that grew to 25 by 1973.

By the

1980s, however, the network had begun to grow exponentially, and as access became more widely available its usage broadened to include general-purpose communication.12 As of

July 1991, 535,000 nodes were connected to the Internet.13 Estimates suggest that the network serves as many as two million individual users.14 Connected to the Internet is another international network, the diverse and vital Usenet. Usenet is a

"volunteer" network in that it has no central authority or governing body. The only requirement for operating a Usenet

node is finding another node willing to provide a connection.15 Usenet began as the idea of two students at Duke University in 1979, and the first two Usenet sites were

11A node is "a computer system used as a junction or connection point in a communication network." Freedman, supra note 3, at 482. In simple terms, a node is simply one of the computers connected to a network. In the case of the Internet, however, an individual node may actually be a gateway to another entire network. See infra note 24. 12Hafner and Markoff, Cyberpunk: Outlaws and Hackers on the Computer Frontier 278-80 (1991). 13"ACM Forum," Communications of the ACM, Nov. 1991, at 21-22 (letter from Mark Lottor, SRI International, Network Information Systems Center).

14Hafner and Markoff, supra note 12, at 280. 15Cerf, "Networks," Scientific American, Sept. 1991, at 50. 35

called unc (at the University of North Carolina) and duke.16 As of October 1991 Usenet had an estimated 40,000 sites and served 1,902,000 active users.17 Usenet provides e-mail services as well as a set of public discussion forums called newsgroups. A newsgroup is

simply a series of messages, called articles, related to a particular topic. A user with access to Usenet can post an

article to a newsgroup, and that article will then be propagated to all other Usenet sites carrying that newsgroup. Although there is no authority mandating

adherence to any rules regarding newsgroup administration, a set of conventions has emerged regarding the creation of newsgroups and their arrangement within standard hierarchies. Any newsgroup created without adherence to

these conventions is unlikely to be carried by other sites.18 The standard newsgroup hierarchies include, among others, rec, for recreational topics; comp, for computer-related

16Each node on a network must have a unique name to identify it. This name is used as part of the network addressing used to route e-mail and other data to the node. Network convention is to give the name of a node in lower case.

17Usenet Readership Summary Report for October 91 (text file distributed via Usenet, Nov. 2, 1991). 18G. Spafford, What Is Usenet? (text file distributed via Usenet, Sept. 9, 1991), at line 243. 36

topics; and soc, for social topics.19

Hence a newsgroup for There are also a

discussing dogs is called rec.pets.dogs.

number of "alternative" newsgroup hierarchies that do not generally follow the standard rules, but are nonetheless carried by a large number of systems (though not universally).20 Other national or international mainframe networks include Bitnet, which connects educational institutions, and Milnet, which connects American military installations. BBS Networks Networks In addition to the nationwide (and worldwide) mainframe networks, the 1980s also saw the emergence of several networks connecting small BBS systems to one another. The BBS Networks BBS

oldest and largest is FidoNet, which began as a pair of BBSs in Baltimore that had the capability of exchanging messages. As other systems were added, it grew into a nationwide network.21 Today FidoNet has more than 11,000 nodes.22

A caller to a FidoNet BBS will usually find two different groups of message areas. One contains the local message

19G. Spafford, List of Active Newsgroups (text file distributed via Usenet, July 25, 1991). 20G. Spafford, Alternative Newsgroup Hierarchies, (text file distributed via Usenet, Sep. 9, 1991).

21Dvorak and Anis, Dvorak's Guide to PC Telecommunications 96-7 (1990). 22"FidoCon91 -- 408 Attend Biggest BBS Bash Ever," Boardwatch Magazine, Oct. 1991, at 13. 37

base, those messages available only to callers of the same BBS. The other area contains the FidoNet message areas, or

echoes, which are the messages shared through the FidoNet network. Generally, a FidoNet BBS will go offline once per

day, usually at night, and during that time will connect to neighboring FidoNet boards. The BBSs will exchange

messages, and in that way a message posted to a FidoNet echo will eventually be propagated to every FidoNet board. Other BBS networks include Alternet, Eggnet and PCBoard.23 Gateways Gateways Gateways

As systems become more interconnected, the distinctions between BBSs, information services and national networks become less important to the user. Today gateways24 exist

between virtually all of these networks and information services. A user with an account on any of these systems,

therefore, can send electronic mail through these gateways to a user on any of the others. A CompuServe subscriber,

for instance, can address an e-mail message in such a way that it will be transmitted through an Internet gateway to a FidoNet node.

23Dvorak and Anis, supra note 21, at 100.

24A gateway is "a computer that connects two different communication networks together. The gateway will perform the protocol conversions necessary to go from one network to the other." Freedman, supra note 3, at 307. 38

The effect of this is the creation of a single, vast network, connecting users from all walks of life and virtually every geographic location. Indeed, many users do

not distinguish between the Internet, Usenet and other networks; instead, the entire global complex of interconnected computer networks is often referred to simply as "The Net."25 A computer hobbyist with an account on a

FidoNet BBS or a privately-owned Usenet node can participate in an online community populated by scientists, college students, professionals, government employees and others across the globe. This virtual world,26 existing not in

physical space but in the electronic realm of computer networks, is sometimes called cyberspace.27

The Culture Culture

The Culture


Originally, mainframe networks such as the Internet were created to provide a means by which scientists could share technical information.28 Likewise, BBSs originally existed

to provide specialized groups of people with a medium through which they could exchange information. But the way

25E.g., Godwin, "The First on a New Frontier," The Quill, Sept. 1991, at 19. 26In computer science, virtual describes a "simulated or

conceptual environment and, as a result, may refer to 'virtually' anything." Freedman, supra note 3, at 735. 27Hafner and Markoff, supra note 12, at 9. 28Id. at 280. 39

in which these media are used today goes far beyond mere information sharing. Instead, computer networks and the

systems they comprise have become a means of association, a community not bound by geography. In this virtual

community, people from all over the world meet and associate with others who share their interests, all without ever seeing one another. Naturally, much of the discussion that takes place through these media is on the subject of computers. surprising amount is nontechnical in nature. But a

On Usenet, for

instance, none of the five most popular newsgroups are computer-related.29 Instead, Usenet newsgroups provide a

forum for discussing sex, Star Trek, movies, Indian culture, cooking, politics, law, country music, and any other topic of enough interest to inspire the creation of a newsgroup.30 A thread on a Usenet newsgroup might begin with an article like this one from From: (Wayne Stopak) Newsgroups: Subject: Keith Whitley Date: 7 Nov 1991 12:44 EDT

29The five most popular newsgroups as of October 1991 were, rec.humor.funny,, rec.humor and rec.arts.erotica. Top 40 Newsgroups In Order By Popularity, text file distributed via Usenet, November 2, 1991.

30As of July 25, 1991, there were 569 newsgroups in the standard hierarchies, as well as 655 in "alternative" hierarchies, for a total of 1,224. Spafford, supra notes 19 and 20. 40

I have only been listening to country music for a little while now on W.G.A.R. in Cleveland. They play some Keith Whitley that I like, namely, I'M NO STRANGER TO THE RAIN and DON'T CLOSE YOUR EYES. I know that he is no longer alive. Does anyone know when or how he died? How old was he?31 To which the following response might appear: From: (Archie Warnock) Newsgroups: Subject: Re: Keith Whitley Date: Fri, 8 Nov 1991 14:15:00 GMT <'scuse me, guys - I'll handle this...> Keith died of alcohol poisoning in May of 1989 at the age of 34. "Don't Close Your Eyes" was the song of the year for 1988, and just a glimmer of what we'd have gotten from him, had he lived.32 Of course, Usenet newsgroups are not limited to recreational topics. Many newsgroups are devoted to

political discussions,33 as shown by these examples from two threads in the newsgroup talk.politics.misc: From: (James L. Heilman) Subject: Pat Buchanan and David Duke Date: 18 Nov 91 21:42:06 GMT

31Article posted to Usenet newsgroup on November 7, 1991. Newsgroup articles have been edited slightly for cosmetic reasons, but errors in grammar and spelling -- arguably part of the unique flavor of Usenet -- have been left intact. 32Article posted to Usenet newsgroup on Nov. 8, 1991.

33These include talk.politics.drugs, talk.politics.mideast, talk.politics.soviet, talk.politics.theory, soc.politics, alt.politics.homosexuality, and others. 41

Newsgroups: talk.politics.misc Given the fact that Pat Buchanan and David Duke will likely run for president, a columnist recently wrote that for George Bush to get elected, he must run to the right of Buchanan and to the left of Duke. Sounds like a Bozo sandwich to me. As to the remarkably high voter turnout in Louisiana, George Will stated on This Week With David Brinkley that the way to increase voter turnout in the U.S. is to run a crook against a Nazi. From: (James Woodyatt) Newsgroups: talk.politics.misc,alt.censorship Subject: Re: Censorship of 'Doonesbury' Date: 19 Nov 91 01:43:37 GMT In article <>, (Enemy of Totalitarianism) writes: > Great, if you want to play word games, then we'll play along: > Newspapers have every right to censor their publication. > Newspapers are exercising their right to censor their > publication. Newspapers ARE NOT CENRSORING Mr. Trudeau. > In the context of the censorship of Mr. Trudeau, there is no > censorship. He can continue to spout his views, he can talk to > people in the street, pass out leaflets, get published in > sympathetic newspapers, but freedom of speech does not garauntee > access to any and all printed material. It protects individuals > and organizations from being prevented from airing their > views in a public forum, which is not happening to Mr. Trudeau. > He can not force people to listen to him, or to print his views.

> Let him start his own newspaper if he wants to repeat lies. Oh, if only it were so bloody simple. It's not.


The San Jose Metro wanted to print the strips that the San Jose Mercury News wouldn't run, so they went to United Press Syndicate and told them what they wanted to do. UPS said it was fine with them as long as the Merc, which has exclusive rights to print Doonesbury in the South Bay Area here, signed a waiver allowing the Metro to print the strips that the Merc wouldn't. The Merc refused saying that their intention was to prevent the strip from being read in the South Bay. Tell me with a straight face that is not censorship. It is not illegal. It can be argued that it is not even immoral on its face. But it is certainly censorship. > But they do not send people around to the sources saying "don't > try to publish anywhere else, either". That's why this form of > "censorship" is more commonly known as "editing". The S.J. Mercury News effectively "edited" the strips out of all the papers in the South Bay area.34 The decentralized and uncontrolled nature of Usenet permits disagreements between participants to become quite heated. This is probably exacerbated by the fact that

posters may forget social niceties when communication is not face to face. A personal attack on another poster is called

a flame, and flaming is one of the hazards of life on the network.

34Articles posted to Usenet newsgroup talk.politics.misc on Nov. 18 and 19, 1991. In a reply to another article, net convention is to place the ">" symbol to the left of quoted passages from the article being replied to. 43

Electronic Magazines Electronic Magazines

Electronic Magazines

BBS message areas and Usenet newsgroups are propagated to many people and are themselves a form of publishing. But

even closer analogies exist to conventional, printed media such as newsletters and magazines. Numerous electronic

magazines and newsletters are published regularly and distributed to subscribers via computer. Bitnet, the mainframe network connecting educational institutions, features a number of electronic journals and magazines. These include academic journals covering topics

such as computers, psychology, medicine and education; they also include magazines of fiction, music reviews and environmental issues.35 BBSs also feature a number of online publications. Boardwatch, a magazine devoted to news related to BBSs and online services, is published monthly in both printed and online formats; it can be found both on newsstands and on BBSs that subscribe to it. Another magazine, Info-Mat, is

published only electronically and covers general computerindustry news. FidoNet BBSs carry Fido News, a newsletter

covering FidoNet and BBS topics.

35Bitnet Servers (text file distributed via Bitnet); see also E. Parker, "Computer Conferencing Offers Boundless Geography, Time," Journalism Educator, Winter 1991, at 49. 44

The Hacker Culture The Hacker Culture

The Hacker Culture

An important subset of the culture of "the Net" is what has been called the computer underground, particularly the "hacker" subculture. Chiefly because of its prominent

involvement in cases and controversies that have contributed to the development of policies affecting free speech, this part of the online community warrants special consideration. To discuss computer hackers, it is necessary first to explain what is meant by the term. The word hacker has many

different meanings and is used differently by different groups. The online Jargon File, an extensive lexicon of

hacker slang distributed via computer networks, defines the word hacker thus: [originally, someone who makes furniture with an axe] n. 1. A person who enjoys exploring the details of programmable systems and how to stretch their capabilities, as opposed to most users, who prefer to learn only the minimum necessary. 2. One who programs enthusiastically (even obsessively) or who enjoys programming rather than just theorizing about programming. 3. A person capable of appreciating {hack value}. 4. A person who is good at programming quickly. 5. An expert at a particular program, or one who frequently does work using it or on it; as in 'a UNIX hacker'. (Definitions 1 through 5 are correlated, and people who fit them congregate.) 6. An expert or enthusiast of any kind. One might be an astronomy hacker, for example. 7. One who enjoys the intellectual challenge of creatively overcoming or circumventing limitations. 8. [deprecated] A malicious meddler who tries to discover sensitive information by poking around. Hence 'password hacker', 'network hacker'.36

36Jargon File, supra note 8, at line 8397. 45

The word hacker originated in the early computer labs at MIT in the late 1950s. Originally, it did not even

necessarily involve computers but referred generally to a person who derived pleasure from mastering complex technological systems (such as the telephone network or even a subway system). Soon, however, the word came to mean a

person who compulsively programmed a computer, usually ingeniously, and did so for its own sake rather than to achieve any goal (other than the program itself).37 More recently, however, the word has most commonly been understood to mean a person who gains unauthorized access to computer systems. This has been the preferred usage in the

mainstream media, although in computer-enthusiast circles this meaning is often frowned upon. The word cracker,

according to the Jargon File, was coined in the mid-1980s to take this meaning in an attempt to stave off the distortion of hacker brought about by the popular press.38 Cracker is

not widely understood outside hacker circles but is used within that culture. To some degree, the ambiguity of the word hacker is unavoidable. The two senses are not mutually exclusive: An

"unsavory" hacker (a cracker) is also a hacker in the classic sense, a person who enjoys exploring and mastering

37See generally Levy, supra note 4. 38Jargon File, supra note 8, at line 4725. 46

the complex systems of computers and telecommunications. Therefore, while all hackers might not break into computer systems, it is not generally inaccurate to apply the word hacker to someone who does. Despite the potential ambiguity, this thesis will use the word hacker mainly in its popular sense: a person who, using stolen passwords or other security breaches, gains unauthorized access to a computer system. Most available

sources use the word in this sense, and continual shifting of terminology would not be useful. However, it is

necessary first to discuss the elements of hacker culture that are common to all hackers, crackers and "classic" hackers alike. In this context, where such distinctions are

necessary, the word cracker will be used to specify a hacker who breaks into computer systems. That computer hackers have a culture all their own seems beyond question. The introduction to the Jargon File

explains the justification for a lexicon of hacker terminology: The 'hacker culture' is actually a loosely networked collection of subcultures that is nevertheless conscious of some important shared experiences, shared roots, and shared values. It has its own myths, heroes, villains, folk epics, in-jokes, taboos, and dreams. Because hackers as a group are particularly creative people who define themselves partly by rejection of 'normal' values and working habits, it has unusually rich


and conscious traditions for an intentional culture less than 35 years old.39 The history and evolution of this culture was traced by Steven Levy in his book Hackers: Heroes of the Computer Revolution (1984). The beliefs and values of the hacker

culture Levy summed up in what he called the "Hacker Ethic": Access to computers -- and anything which might teach you something about the way the world works -- should be unlimited and total.... All information should be free.... Mistrust Authority -- Promote Decentralization....40 Ideas such as these help to explain the motivations of modern crackers as they break in to computer systems "just to look around" and attempt to wrest control of large systems away from their owners. More recently Gordon Meyer, a sociology student at Northern Illinois University, examined the social organization of the computer underground.41 Meyer defines

the computer underground as including not only hackers (crackers) but also phone phreaks, people who obtain and use unauthorized information about the telephone system, and pirates, people who collect and trade illegitimate copies of

39Id. at line 55.

40Levy, supra note 4, at 40-41. 41G. Meyer, The Social Organization of the Computer Underground, unpublished master's thesis, Northern Illinois University, Aug. 1989. 48

commercial software.42

These groups are related and,

especially in the case of phone phreaks and hackers, overlapping.43 While the ethics of hackers and phreakers might be questioned, their attitudes seem clearly descended from Levy's "Hacker Ethic" and motivated not by malice, but by a desire for knowledge: The phone system is the most interesting, fascinating thing that I know of. There is so much to know.... Phreaking involves having the dedication to commit yourself to learning as much about the phone system/network as possible. Since most of this information is not made public, phreaks have to resort to legally questionable means to obtain the knowledge they want.44 Meyer's study demonstrates that the computer underground exhibits characteristics of a loosely organized social group, including association, sharing of information and socialization, all through the media of BBSs and computer networks.45 This degree of contact between individuals,

together with the existence of specialized language and conduct, indicate clearly that the computer underground is

42Id. at 25.

43Id. at 28. 44Phreaker quoted by Meyer, id. at 29. 45Id. at 63. 49

truly a culture.46

But this culture is dependent upon

computer-based communication for its existence.

Conclusions Conclusions


It is beyond question that this medium falls squarely within the Supreme Court's definition of "the press": "The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion."47 Rather than a "niche" medium of interest only to scientists, or a medium of only potential value to society at large, computer-based communication is used today by countless thousands of people to engage in speech at the very heart of that protected by the First Amendment. Furthermore, the ready availability of the technology means that anyone with a few hundred dollards and the desire to do so can become a "publisher" with a potential audience of vast size. "The new computer-based forums for debate and

information exchange," writes attorney Mike Godwin, "are perhaps the greatest exercise of First Amendment freedoms this country has ever seen."48 Unencumbered by the

governmental regulation and financial barriers associated

46Id. at 76. 47Lovell v. City of Griffin, 303 U.S. 444, 452 (1938). 48Godwin, supra note 25, at 18. 50

with other media -- few people can afford to own a newspaper or broadcast station -computer-based communication

represents the epitome of a "robust and wide-open" debate.49 It is also a medium that has spawned its own unique culture, and it is that culture's primary means of First-Amendmentprotected communication and association.

49"[W]e consider this case against the background of a profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254 (1964), at 270. 51

CHAPTER THREE: Hackerphobia

CHAPTER THREE: CHAPTER THREE: Hackerphobia Hackerphobia Recent controversies involving computers and the First

Amendment have been the culmination of a conflict that has been building since at least the early 1980s. It was then

that the activities of computer hackers first came to the attention of Congress, leading eventually to the passage of laws addressing the perceived problem and opening the door to the kind of zealous prosecution that came later. The important computer crime legislation passed by Congress during the 1980s consisted of the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, later amended by the Computer Fraud and Abuse Act of 1986.1 The 1984 act, part of an omnibus crime bill, was aimed primarily at credit card fraud, but also established new computer crime offenses. It created several new offenses

for unauthorized access to a "federal interest computer"2 resulting in at least $5,000 or more in illegal gains, unauthorized access to classified government data, or unauthorized access to confidential financial data. The

1986 act made some technical adjustments to the wording of

118 U.S.C. S1029, 1030 (1988). 2A federal interest computer is defined in the act as a computer used by the government or a federally insured financial institution or a computer used in committing an offense involving computers in more than one state. 18 U.S.C. S1030(e)(2) (1988).

these offenses and added two new ones: one for "malicious damage" involving access to a federal interest computer, and one proscribing trafficking in stolen passwords. These laws only incidentally affected free speech by providing law enforcement agencies with broad new authority to prosecute computer crime. In order to understand whether

that authority has been abused, it is necessary first to identify Congress's intentions. By examining the committee hearings held throughout the 1980s on the subject of computer crime, this chapter will identify the attitudes and concerns that contributed to these computer crime laws. It will examine the roles not

only of the legislators themselves, but also of witnesses from the industry, law enforcement community and hacker culture.


Government Takes Notice Government Takes Notice

Government Takes

The number and variety of information services and other forms of computer-based communication available in this country suggest a vigorous and almost totally free medium of expression. But this freedom has been the freedom of a

frontier -- only fairly recently have government regulators begun to notice what goes on in the virtual world. Writer

John Perry Barlow (a cofounder of the Electronic Frontier

Foundation) has drawn comparisons between the "electronic frontier" of cyberspace and the Old West:


Cyberspace, in its present condition, has a lot in common with the 19th Century West. It is vast, unmapped, culturally and legally ambiguous, verbally terse (unless you happen to be a court stenographer), hard to get around in, and up for grabs. Large institutions already claim to own the place, but most of the actual natives are solitary and independent, sometimes to the point of sociopathy. It is, of course, a perfect breeding ground for both outlaws and new ideas about liberty.3 It was only a matter of time before government at some level became interested in the activities associated with computer communication. In the words of policy analyst Eli

Noam, "The problems involving the increased computerization of society are somewhat analogous to those that occurred with the advent of the automobile. The car was a wonderful

thing until we discovered that it produced something called pollution. Then we had to do something about it, or we were In the case of computer

going to choke on its fumes."4

communication, the "pollution" that first drew the attention of regulators was computer hacking.




Widespread public awareness of computer hacking can be traced to 1983 and the release of the movie WarGames, which tells the story of David Lightman, a high-school student who breaks into a military computer and nearly starts World War

3Barlow, "Crime and Puzzlement," Whole Earth Review, Fall 1990, at 45. 4Daly, "Group Tries Taming 'Electronic Frontier,'" Computerworld, Mar. 25, 1991, at 77. 54


Lightman, trying to reach a game company's system,

accesses a fictitious Defense Department computer called the WOPR (War Operations Planned Response, pronounced "whopper"), which has just been given direct control of the nation's nuclear missiles. Playing what he thinks is a

game, Lightman initiates a program that brings the world to the brink of nuclear war. The movie, while entertaining, depicts events ranging from highly unlikely to utterly impossible -- in the words of one expert, "nothing more than very interesting fantasy."6 Despite its implausibility, however, the movie

contributed to a heightened awareness of computer security issues.7 Only months after the release of WarGames, the FBI, with much publicity, arrested a group of young computer hackers from Minneapolis who called themselves the 414s (after their telephone area code). Over the course of several months,

they had broken into numerous computer systems ranging from military computers at the Los Alamos National Laboratory to

5MGM/UA 1983. 6Computer and Communications Security and Privacy: Hearings Before the Subcommittee on Transportation, Aviation and Materials of the Committee on Science and Technology, House of Representatives, 98th Cong., 1st Sess. (1983) (statement of Stephen Walker, president, Trusted Information

Systems, Inc.) 7See, e.g., McLellan, "The Hacker's Bane," Inc., Dec. 1983, at 55; Heins, "Foiling the Computer Snoops," Forbes, Nov. 21, 1983, at 58. 55

a medical records system at the Memorial Sloan-Kettering cancer research hospital.8 The hackers had apparently been

inspired at least partly by WarGames, although their activities had begun prior to the film's release.9 They had

done no damage to most of the systems they had infiltrated, though files were erased on a few. Certainly no real danger

of the sort depicted in WarGames ever existed.10 Nonetheless, the arrests seemed to confirm the fears that movie had created. The cumulative effect of WarGames and the arrests of the 414s was to catapult hacking into the public eye. It seemed

that hacking -- which had, in one form or another, been around for decades -- was no longer as harmless as it may once have been. Society's increasing dependence on Arizona prosecutor Gail

computers was a new vulnerability.

Thackeray, a key player in the later Operation Sun Devil, returned to the Old West analogy to describe this feeling: Out here in the Wild West, when it was just a few settlers on the land, frontier justice had its place.... You could rustle up wild horses, have Saturday night shoot-'em-ups, do whatever you wanted. But as the West became more settled, there were still a few guys who wanted to go out

8See, e.g., Markoff, "Teen Hackers' Antics Prompt House Hearing," InfoWorld, Nov. 7, 1983, at 26; DeWitt, "The 414 Gang Strikes Again," Time, Aug. 29, 1983, at 75.

9Gillard and Smith, "Computer Crime: A Growing Threat," Byte, Oct. 1983, at 398. 10See, e.g., Alpern and Lord, "Preventing WarGames," Newsweek, Sep. 5, 1983, at 48. 56

and have shoot-'em-ups on Saturday night. But now they also wanted to shoot at the telegraph poles. And as the shooters began to attack things the community valued, the community acted to protect its rights.11 It was not long before Congress responded to this sudden awareness of the threats of hacking in a computer-dependent society. Several committees in the House of Representatives

and the Senate began holding hearings on computer crime.12 All shared a recognition of the pervasiveness of computers in American society and the drawbacks associated with that pervasiveness, as illustrated by Rep. Dan Glickman's (DKansas) remarks at one of the earliest hearings, in the fall of 1983: We are in an era where we cannot live without computers. Now, of course, we must learn to live with them. But have we lost control? Have we created a monster? Are we, in effect, the modernday Dr. Frankenstein? Do we have a technical problem or is there an ethical problem? And I suspect the answer is probably both.13

11Bromberg, "In Defense of Hackers," The New York Times Magazine, April 21, 1991, at 45. 12These included the Subcommittee on Civil and Constitutional Rights and the Subcommittee on Crime of the House Judiciary Committee, the Subcommittee on Transportation, Aviation and Matterials of the House Committee on Science and Technology, the Subcommittee on Health and the Environment of the House Energy and Commerce

Committee, and the Subcommittee on Oversight of Government Management of the Senate Governmental Affairs Committee. 13Computer and Communications Security and Privacy, supra note 6, at 2. 57

To illustrate the danger, the subcommittee then proceeded to watch an excerpt from WarGames.14 When that subcommittee issued its report a few months later, among its findings were that computers were pervasive in American society; that they represented "assets of incalculable value"; and that their vulnerability presented "a problem of national significance."15 But its

recommendations were not drastic: It suggested that Congress charter a national commission to gather more information on the subject and to ultimately recommend a policy framework.16 And seemingly recognizing that more was at

stake than just computer crime, the report said that the commission should consider not only the vulnerabilities of "critical national systems," but should also take into account "the implications of technological innovation on government, society and the individual."17 The Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee held a hearing in late 1983 to explore the question of whether a federal law would be an

14Id. at 13. 15Computer and Communications Security and Privacy: Report Prepared by the Subcommittee on Transportation, Aviation and Materials, Transmitted to the Committee on Science and Technology, House of Representatives, 98th

Cong., 2d Sess. (1984), at 1. 16Id. 17Id. 58

appropriate remedy to this potential epidemic of computer crime.18 Rep. Glickman advised the committee members that

the subject was more complicated than they thought, though he stopped short of suggesting a First Amendment problem: [This subject] goes far beyond the issue of whether there ought to be a Federal crime against accessing illegally a computer of somebody else's system. It involves privacy issues, it involves management questions both in the private sector and in the Federal Government.... I would tell you that with technology changing so dramatically, electronic mail, a variety of things, I would just urge you to be somewhat cautious in how you proceed in this area.19 The onward march of technology was at the heart of the problem: It was evident that the government was ill-equipped to deal with a technology it didn't understand. Rep. Dan

Mica (D-Florida) reported that the committee's legislative drafting service was having difficulty drafting a computercrime bill because it didn't have any attorneys knowledgeable about computers.20 "We have to grope and we

have to patch and paste from [existing law], and there isn't much," he said. "It is all new ground."21

18Computer Crime: Hearing Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 98th Cong., 1st Sess. (1983).

19Id. at 3. 20Id. at 10. 21Id. 59

"Falling Through The Cracks" "Falling Through The Cracks" "Falling Through The Cracks" What were the objectives of legislators as they approached this new form of crime? new federal law was called for? Why did they feel that a

The basic idea seemed to be

that computer criminals would somehow "fall through the cracks" between existing laws covering fraud, theft and embezzlement.22 concern: [T]here is [a] new kind of criminal that is lurking in the shadows of criminal activity. He is a highly sophisticated criminal. He is a hightechnology criminal, and he is one who, when faced by the Nation's prosecutors, often find they do not have the adequate tools to prosecute.23 Support for this statement, however, seemed lacking. Prosecutors at several hearings testified about their experience with computer crime, and universally, they had succeeded in prosecuting every case they had pursued. An Rep. Bill Nelson (D-Florida) summed up the

FBI witness listed crimes committed by computer in terms of the existing statutes under which they were already being prosecuted: wire fraud, interstate transportation of stolen property, bank fraud and embezzlement, destruction of government property, and theft of government property.24

22Computer Crime, supra note 18, at 3-5.

23130 CONG. REC. H7632 (daily ed. July 24, 1984) (statement of Rep. Nelson). 24Id. at 24 (statement of Floyd I. Clarke, Deputy Assistant Director, Criminal Investigative Division, Federal Bureau of Investigation). 60

"We in the FBI have not had, to date, any significant problems in prosecution of computer related crime under already existing statutes over which we have jurisdiction, such as the Fraud by Wire Statute."25 Indeed, although

prosecutors expressed fears about the difficulty of prosecuting computer crime under existing laws, there were many examples provided at the hearings of computer crimes that had been successfully prosecuted.26 Nonetheless, the FBI and other law-enforcement witnesses went on record as supporting new laws to prevent potential future problems. One prosecutor who had been involved in

successful computer-crime prosecutions summed up this attitude: "It is my view that any additional tool that can assist the prosecutor, albeit one that has not so far been needed, is not something that I would turn down."27 Victoria Toensing, a federal deputy assistant attorney general, explained in more detail: I am quite certain that sooner or later, we are going to run into some factual situations where we cannot slip the step-sister's foot into

25Ibid. 26See, e.g., Computer Crime, supra note 18, at 15-17 (statement of Rep. Coughlin) (youths who stole $100,000 in merchandise by computer and were successfully prosecuted); at 18-19 (statement of John Keeney, Deputy Assistant Attorney General, Criminal Division, Department of Justice)

(two "difficult" cases nonetheless prosecuted under existing law). 27Id. at 25 (statement of William Block, Assistant U.S. Attorney for the District of Columbia). 61

Cinderella's slipper, and we will need a statute that really covers computer fraud.... I stress that this is a potential problem because so far at least we have been able to prosecute computer fraud cases under existing statutes.28

The "Hacker Threat" The "Hacker Threat"

The "Hacker Threat"

The hearings also revealed that, despite the excitement caused by WarGames and the 414s, the hacker threat was not great. Several witnesses, including 414 hacker Neal

Patrick,29 testified that the most rudimentary of security precautions would have prevented their break-ins. Asked if

it was possible for hackers to do extensive damage, Patrick responded, "I think it is. to prevent that. But I also think it's very easy

There is no need for million-dollar

security measures, but just commonsense ideas and attitudes would prevent most of this, if not all of this, from happening."30 Robert Morris, a prominent computer security

expert who had worked with the National Security Agency, agreed: The notion that we are raising a generation of children so technically sophisticated that they can outwit the best efforts of the security

28Computer Fraud Legislation: Hearing Before the Subcommittee on Criminal Law of the Committee on the Judiciary, U.S. Senate, 99th Cong., 1st Sess. (1985), at 345 (statement of Victoria Toensing, Deputy Assistant Attorney

General, Criminal Division, Department of Justice). 29Computer and Communications Security and Privacy, supra note 6, at 17. 30Id. at 19. 62

specialists of America's largest corporations and of the military is utter nonsense. I wish it were true. That would bode well for the technological future of the country.... These kids appear to be having fun and, in most cases, the techniques involved, the techniques required have almost no sophistication whatever. They are the moral equivalent of stealing a car for joy riding purposes when the keys have been left in the ignition.31 By and large, most legislators seemed to understand this -- that the success of hackers such as the 414s was due almost entirely to poor password control and other lax security procedures.32 And they were reassured by

government witnesses that rigorous security measures made sensitive national-security data such as that at Los Alamos impervious to access by outsiders.33 Nonetheless, many

seemed to favor a "brute force" approach to solving the immediate problem: I have learned that this problem is largely the result of poor and/or lax computer security. However, until computer security is improved and installed I believe we owe it to our citizenry to protect those records and the vital information which is so stored. This protection can best be afforded with a federal statute ...34

31Computer and Communications Security and Privacy, supra note 6, at 507 (statement of Robert Morris). 32See, e.g., Computer Crime, supra note 18, at 7 (statement of Rep. Glickman). 33Computer and Communications Security and Privacy, supra note 6, at 34 (statement of Jimmy McClary, Division Leader

for Operation Security and Safeguards Division, Los Alamos National Laboratory). 34Computer Crime, supra note 18, at 17 (statement of Rep. Coughlin (R-Pennsylvania)). 63

Others continued to believe that hackers were a serious threat to American businesses and to national security. Legislators spoke of the "underground culture of people known as computer hackers who continuously try to defeat the security measures programmed into modern computers."35 But

attempts to uncover a hacker conspiracy capable of bringing down the entire national infrastructure were unsuccessful. Rep. William Carney (R-New York) asked hacker Neal Patrick if he was aware of any "professional groups" of hackers who worked to break into computers for personal gain. When

Patrick said no, Carney reminded him of TAP, which he described as "an organization [with] bulletins, letters, and communications back and forth."36 In fact, TAP was not an

organization at all, but a four-page newsletter (Technological Assistance Program) providing technical information of interest to hackers.37 Rep. Glickman asked

witness Donn Parker, who described himself as a hacker (but not of what he called the "unsavory" variety), if there was a "hackers organization,"38 to which Parker said no. Parker

went on to say that he had been approached by military

35Computer and Communications Security and Privacy, supra note 6, at 2. 36Id. at 21.

37Hafner and Markoff, Cyberbunk: Outlaws and Hackers on the Computer Frontier 20-21 (1991). 38Computer and Communications Security and Privacy, supra note 6, at 81. 64

officials who were also concerned about organized hacker conspiracies: I was paid a visit by some of the Office of Special Investigations of the Air Force on this exact concern of theirs.... [I]n the future what they were concerned about was sort of a type of an electronic Messiah, a charismatic figure being able to rally the unsavory hacker forces together, and in effect direct them towards the penetration -- organized penetration -- of computer systems.39 The potential danger from such an "electronic Messiah" -or in Rep. Glickman's words, "a 21st century Adolf Hitler"40 -- was evidently perceived as great. One study cited by

Parker had tackled the question of whether computer crime could bring about "national collapse" in the United States. While the study's conclusion was negative, it said that great damage could still be done; and Parker added that many experts disagreed with the conclusion and felt that the nation had already reached "a critical stage of vulnerability."41 Despite these fears, it became clear as the hearings progressed that hackers generally were merely mischievous rather than malicious. As one witness cautioned, "You don't

want to lock up some kid who is just fooling with his computer and all of a sudden he is guilty of a felony and

39Id. 40Id. 41Id. at 77. 65

you have an obligation to go after him, like in that movie we saw."42 Most legislators seemed ultimately to conclude that the real threat was not from hackers at all, but from a less spectacular source: employees and others who already had authorized access and misused it.43

Exaggerated Fears: The "WarGames Scenario" Exaggerated Fears: The "WarGames Scenario" Exaggerated Fears: The "WarGames Scenario" There remained those, however, whose fear of computers and of mysterious, shadowy hackers -- perhaps reinforced, or even caused, by WarGames -- led to a tendency to exaggerate the danger of hackers. Legislators couldn't resist the

temptation to compare real-life hacking incidents to WarGames, despite assurances that the events in the film were impossible. While certainly there may have been a real

computer-crime problem, that problem -- fraud perpetrated by insiders -- was in reality less spectacular and exciting. And legislators tended to see grave problems where there were, at best, only potential problems. This tendency is perhaps best illustrated by the hearings and debates surrounding one of the post-WarGames computer-

42Computer Crime, supra note 18, at 28 (statement of Mr.

Edwards). 43See, e.g., Computer Crime, supra note 18, at 49-50 (statement of James F. Falco, Assistant State Attorney, Consumer Fraud and Economic Crime Division, Eleventh Judicial Circuit of Florida); Computer and Communications Security and Privacy, supra note 15, at 4. 66

crime bills.

The Medical Computer Crime Act of 198444 was a

response to the 414s' computer break-in at the Memorial Sloan-Kettering cancer research center45 and was designed to provide medical institutions specific legal recourse to help protect their computerized medical records. This break-in

was a popular example of the "hacker problem," and it was frequently cited as having been a "life-threatening" incident.46 At a hearing in April 1984,47 the Subcommittee on Health and the Environment of the Committee of Energy and Commerce of the House of Representatives explored the supposedly pervasive problem of illegal access to medical records. Despite this supposed pervasiveness, however, witness Robert Coburn -- whose company provided computer services to hospitals -- could cite only two examples of illegal access to hospital computers. One was the 414s' Sloan-Kettering

44H.R. 4954, 98th Cong. (1984). 45132 CONG. REC. H9262 (daily ed. Oct. 6, 1986) (statement of Rep. Wyden). 46See, e.g., Computer Crime, supra note 18, at 12 (statement of Rep. Mica).

47Health and the Environment Miscellaneous -- Part 4: Hearings Before the Subcommittee on Health and the Environment of the Committee of Energy and Commerce, House of Representatives, 98th Cong. (1984). 67


The other was in an episode of the television

show St. Elsewhere.48 Furthermore, while the St. Elsewhere break-in did result in a patient's death, the Sloan-Kettering incident was decidedly less exciting. "This situation demonstrated the

potential for a War Games scenario to occur, albeit on a less dramatic scale in the hospital setting," Coburn testified. "We understand that the data base that was

accessed and tampered with at Sloan Kettering was actually billing data, and therefore probably did not pose a lifethreatening situation."49 When asked if he was aware of any other such break-ins, Coburn's answer was probably not what the committee wanted to hear: In discussions with various hospitals around the country, we have not been able to find evidence of other similar instances of medical computer crime. We have noted that as hospitals are becoming more technologically sophisticated, they are recognizing the need to safeguard their data from this possibility by instituting ... more sophisticated security measures on the computer systems themselves.50 Several witnesses, while favoring the bill, spoke only of a potential problem. Coburn explained, "We are not aware As you

that the problem is as yet widespread or pervasive.

48Id. at 350 (statement of Robert W. Coburn, President,

Commons Management Group). 49Id. 50Id. 68

have indicated, however, it is a potentially disastrous situation...."51 Another witness predicted that

"[p]otential problems will become real problems. Unauthorized tampering with medical records will result in incorrect -- and possibly life threatening -- changes in treatment."52 But none cited any incidents where this had

already happened. Indeed, witness Meryl Bloomrosen of the American Medical Record Association testified that "[i]t is unlikely that unauthorized access and tampering with information such as that used for billing would result in interference with the patient's treatment."53 The consensus seemed to be that only the potential for a problem existed, and the Sloan-Kettering break-in appeared to be the only case anyone knew about of an actual illegal access to a hospital computer. Furthermore, it became clear

that even the Sloan-Kettering break-in did not threaten lives. A report from the hospital submitted for another

hearing explained that [i]n no way did any of the tampering affect the treatment of patients receiving radiation therapy.

51Id. at 355 (emphasis added).

52Id. at 423 (statement of Robert B. Conaty, on behalf of American Hospital Association). 53Id. at 427 (statement of Meryl Bloomrosen, on behalf of American Medical Record Association). 69

Only the accounting information -- billing records to [hospitals using the system] -- was affected.54 Hacker Neal Patrick of the 414s, testifying at that same hearing, agreed that only "doctor's bills, where ... doctors would be billed for services or would be billed for the time that he used" on the computer system had been accessed.55 Despite all this, however, the bill's sponsor, Rep. Ron Wyden (D-Oregon), reported back to the full House that "last summer, with just a few taps of a computer keyboard, a group of adolescents put at risk the health of thousands of cancer patients at Memorial Sloan-Kettering Cancer Center in New York." He said that the 414s had "gained access to the

radiation treatment records for 6,000 past and present patients and had at their fingertips the ability to control the radiation levels that every patient received.... Luckily, no one was hurt -- this time."56 Rep. Henry Waxman (D-California) contributed to the excitement, speaking of "the large and growing problem of outsiders gaining access to hospital records"57 -- a problem none of the expert witnesses had been able to see.

54Computer and Communications Security and Privacy, supra note 6, at 546 (statement submitted for the record by the Memorial Sloan-Kettering Cancer Center). 55Id. at 27 (statement of Neal Patrick).

56130 CONG. REC. H9637 (daily ed. Sept. 17, 1984) (statement of Rep. Wyden). 57Ibid. (statement of Rep. Waxman). 70

Perhaps not surprisingly, the bill was passed.

Though it

never became law independently, it contributed to the Computer Fraud and Abuse Act of 1986, the law under which Craig Neidorf would be indicted in 1990.

Mistrust of Computers Mistrust of Computers

Mistrust of Computers

A recurring theme throughout new proposals like the Medical Computer Crime Act was a tendency to focus on the tool of the crime -- the computer -- rather than on the crime itself. The computer was seen as super-powerful and a

crime committed by computer as somehow worse than the same crime committed by more conventional means. "[C]omputer

embezzlement is to traditional embezzlement as a nuclear bomb is to a slingshot," one witness said. "They are both

weapons in the latter and they are both offenses in the former, but other than that they have nothing in common."58 It appeared that to some, the crime itself was less important than the tool used to commit it. According to

Rep. Don Edwards (D-California), "It might be easier to convict somebody for stealing money from a bank by charging the person with computer crime, rather than the crime of

58Computer Crime, supra note 18, at 35 (statement of James Falco, Assistant State Attorney, Consumer Fraud and Economic Crime Division, Eleventh Judicial Circuit of Florida). 71

embezzlement or stealing money from it."59

This sort of

emphasis on the computer rather than the theft was evidently already practiced under existing state computer crime laws; a Florida woman, for instance, was convicted of stealing more than $100,000 from her employer, an insurance company. For insurance fraud and grand theft, she was sentenced to five years, but for computer fraud, she was sentenced to seven years.60 Some legislators commented on this evident misdirection of their attention, pointing out that the computer was merely a tool like a gun or a forger's pen61 and therefore capable of being misused. Rep. Bill Nelson pointed out that

even the terminology used was misleading: Computer-assisted crime is the way we should refer to this particular type of wrongdoing. But I doubt that the simpler, less accurate term 'computer-crime' will disappear from popular reports of the problem. Nevertheless, what we are talking about is not crimes committed by computers, but crimes committed by people with the assistance of computers.62

59Computer Crime, supra note 18, at 27 (statement of Mr. Edwards). 60Conputer Crime, supra note 18, at 35. 61Computer Crime, supra note 18, at 27 (statement of Mr.

Clarke); Computer Communications Security and Privacy, supra note 15, at 20. 62132 CONG. REC. H3277 (daily ed. June 3, 1986) (statement of Rep. Nelson). 72

There was some recognition that the tool used to commit these crimes was not the real issue at all. Though no one

spoke of cyberspace or the Hacker Ethic, some legislators and witnesses did recognize that what was new was an attitude about information. Indeed, at one of the earliest

hearings, Rep. Dan Glickman cautioned his colleagues: We need to respond to a very real problem, but the real issue is abuse of information. The bills tend to focus on the device or instrumentation of the crime. Perhaps we should be looking at more all-encompassing ways to address the violation, the misuse of information.63 Others also advocated a comprehensive approach: [W]e need to shift attention in our statutes from concepts such as "tangible property" and credit and debt instruments to concepts of "information" and "access to information."64 Others also spoke of the intricacies and difficulties of adapting property law to an information-based society. We also need better legal definitions for our electronic information society. Such terms as "property," "property rights," "theft of property," "malicious access," and "manipulation of contents" need to be defined with our current and future electronic information society in mind.65

63Computer Crime, supra note 18, at 8. 64Counterfeit Access Device and Computer Fraud and Abuse Act: Hearings Before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, 98th

Cong., 1st and 2d Sess. (1983-84), at 1. 65Id. at 299 (statement of George Minot, Senior Vice President, CompuServe); see also Computer Crime, supra note 18, at 25 (statement of William Block). 73

One witness spoke of "crimes of information" and the need to "properly value, assess, and protect information as an asset."66 It would be just such an assessment that would

lead to the prosecution of Craig Neidorf.

Financial Impact Financial Impact

Financial Impact

Ultimately, the financial impact of computer crime seems to have been Congress's primary motive for moving ahead with computer crime legislation. Though the issue of computer

crime was originally brought to its attention by the spectacular exploits of hackers such as the 414s and David Lightman in WarGames, it became clear that the largest threat came not from hackers (whose motives, it seemed, were rarely avaricious), but from "insiders" -- employees and others with authorized access who committed fraud by computer.67 The danger to national security -- the

possibility of a "WarGames scenario" -- turned out to be very slight, but less-exciting computer crime did exist. Such crime, according to an American Bar Association survey

66Id. at 256 (statement of Henry Dreifus, President, Corpra Research). 67Computer and Communications Security and Privacy, supra note 15, at 4. 74

cited at several hearings, cost American businesses $730 million in one year.68 Rep. Peter Rodino summed up the economic approach by arguing that attacking white-collar crime such as computer crime would be more productive, economically, to this country than the more publicized emphasis on violent crime. The prosecution of this type of crime, which silently robs millions of dollars from all of the taxpayers, a few dollars at a time, we believe, must remain a high priority for Federal law enforcement.69 In the end, then, it seems that the computer-crime laws that were passed in the wake of the hacker fears of 1983 were intended not so much to deter hacking as to provide law-enforcement officials with tools to prosecute thieves. The economic intent of these laws is perhaps illustrated by the fact that in the new laws Congress gave primary authority to the Secret Service -- an arm of the Treasury Department -- to investigate computer crime.


First Amendment Concerns First Amendment Concerns

First Amendment

It is evident that for the most part, Congress did not perceive any First Amendment implications in the bills it

68See, e.g., The Computer Fraud and Abuse Act of 1986: Hearing Before the Committee on the Judiciary, U.S. Senate, 99th Cong., 2d Sess. (1986), at 1. 69130 CONG. REC. H7634 (daily ed. July 24, 1984) (statement of Rep. Rodino). 75


Indeed, only one computer-crime bill of the

mid-1980s appears to have turned Congress's attention to the First Amendment. In July 1985, the Judiciary Committee's

Subcommittee on Security and Terrorism held a hearing to consider the reported problem of computer networking by pedophiles.70 The bill under consideration would have

explicitly proscribed obscene interstate computer transmissions, as well as transmissions "whose purpose is to facilitate the sexual abuse or sexually explicit depiction of a child."71 Deputy Assistant Attorney General Victoria Toensing of the Department of Justice's criminal division evaluated the bill in constitutional terms: It is abundantly clear that neither obscene material nor child pornography is protected by the first amendment. It is also clear that indecent material which is not obscene, but which is in and of itself offensive, may be regulated civilly if not banned. The extent to which legislation may go beyond this point to ban material which is merely communicative in nature and not per se obscene or indecent is somewhat more problematic. As a general rule, the first amendment prohibits the Government from interfering in communication of purely factual information even where the material communicated is of a commercial nature. Thus, in our view, legislation which seeks to ban the transmission of only descriptive or factual information about juveniles with

70The Use of Computers to Transmit Material Inciting

Crime: Hearing Before the Subcommittee on Security and Terrorism of the Committee on the Judiciary, United States Senate, 99th Cong., 1st Sess. (1985). 71Id. at 12. 76

nothing more, without a specific intent, would raise serious constitutional problems.... Of course we are all repulsed by the fact that people are using information like this. However, we do not have a Supreme Court case that allows us to do that yet.72 This statement indicates -- albeit indirectly -- that if nothing else, the Justice Department does (or did in 1985) recognize computer-based communication as deserving of First Amendment rights. Furthermore, the model Toensing applied

seemed closer to that of print than that of broadcast: "The written word has not been considered exempt from first amendment protection," she testified. problem there, Senator."73 "And that is the




The release of the movie WarGames, followed closely by the highly visible arrests of the 414s, initiated the early phase of the regulatory process regarding computer communication. This early phase saw the involvement of

three important players: Congress, which set the stage for later controversy with its computer crime legislation; computer hackers, who sparked the whole controversy; and law enforcement agencies, which encouraged Congress to pass laws covering crimes that might otherwise "fall through the cracks." The latter two would continue to play an important

72Id. at 27-34. 73Id. at 34. 77

part in the ongoing controversy of freedom of speech and computer communications.


CHAPTER FOUR: Operation Sun Devil

CHAPTER FOUR: CHAPTER FOUR: Operation Sun Devil Operation Sun Devil

The late 1980s and early 1990s saw the emergence of several major players in the controversy over computer-based communication. During the early 1980s, when Congress was

considering and passing the Computer Fraud and Abuse Acts of 1984 and 1986, law enforcement agencies, though interested, remained largely on the sidelines. They made it clear to

legislators that they would not turn down new laws to help them fight computer crimes but otherwise kept a low profile. During the late 1980s and especially 1990, however, law enforcers -- particularly the Secret Service, which was given primary authority to enforce computer crime laws under the 1984 and 1986 statutes -- took their duties to lengths some thought excessive. While the passage of computer crime

laws had not caused much controversy, the way in which the laws were executed caused many to fear for the future of the First Amendment.1 Other major players who emerged prominently during this time include the hacker community, which suddenly found itself at the middle of a constitutional controversy; a new political action group, the Electronic Frontier Foundation, which championed the cause of freedom in cyberspace; and

1See, e.g., Costikyan, "Closing the Net," Reason, Jan. 1991, at 22; Kapor, "Civil Liberties in Cyberspace," Scientific American, Sept. 1991, at 116; Barlow, "Crime and Puzzlement," Whole Earth Review, Fall 1990, at 45.

federal courts, which for the first time had the opportunity to rule on the First Amendment questions associated with computer-based communication. This chapter will examine the contributions of these players in the hacker crackdown controversy that exploded during 1990. After a survey of the events surrounding the

crackdown and the two major cases that emerged from it, this chapter will identify the positions and agendas of these players, based upon policy statements, legal documents, news stories and other material.




On May 9, 1990, the United States Department of Justice announced the culmination of Operation Sun Devil, a two-year investigation into computer hacking.2 The operation had

involved "sophisticated investigative techniques" and targeted "computer hackers who were alleged to have trafficked in and abuse [sic] stolen credit card numbers, unauthorized long distance dialing codes, and who conduct unauthorized access and damage to computers."3 On the two days immediately before the announcement, the Secret Service, under the authority bestowed upon it by the Counterfeit Access Device and Computer Fraud and Abuse Act

2U.S. Department of Justice, United States Attorney, District of Arizona, Press Release (May 9, 1990). 3Id. 80

of 1984,4 had executed 27 search warrants in cities across the United States.5 Forty computers and 23,000 computer

disks were seized by federal agents and local law enforcement officials.6 No arrests were immediately made

and no charges filed; the searches and seizures were part of the ongoing investigation of Operation Sun Devil. The

operation was the latest development in a crackdown that had been going on at least since 1987.7 Communications on BBSs from the time show that the Secret Service's enforcement efforts were having an effect on the hacker community. The feeling in the computer underground

during the late 1980s and 1990 was one of siege: We can now expect a crackdown.... I just hope that I can pull through this one and that my friends can also. This is the time to watch yourself. No matter what you are into.... Apparently the government has seen the last straw in their point of view.... I think they are going after all the 'teachers' [of hacking techniques] ... and so that is where their energies will be put: to stop all hackers, and stop people before they can become threats.8

418 U.S.C. S1030 (1988). 5Press release, supra note 2. 6"Probe Focuses on Entry, Theft by Computers," Chicago Tribune, May 10, 1990, at sec. 1, p. 6. 7See, e.g., Betts, "Hackers Under the Gun: Secret Service Sweep Yields Arrests Nationwide," Computerworld, Aug. 17,

1987, at 2. 8Posting from a computer BBS, quoted in E. Goldstein, "An Overview," 2600 Magazine, Spring 1990 (as reproduced in Computer Underground Digest, Issue 1.10, at lines 87-92). 81

One of the sysops of a BBS called the Phoenix Project, concerned about his users' privacy, posted the following announcement in the spring of 1990, months before the announcement of Operation Sun Devil: I will be adding a secure encryption routine9 into the e-mail in the next 2 weeks -- I haven't decided exactly how to implement it, but it'll let two people exchange mail encrypted by a password only known to the two of them.... Anyway, I do not think I am due to be busted.... I don't do anything but run a board. Still, there is that possibility. I assume that my lines are all tapped until proven otherwise. There is some question to the wisdom of leaving the board up at all, but I have personally phoned several government investigators and invited them to join us here on the board. If I begin to feel that the board is putting me in any kind of danger, I'll pull it down with no notice -- I hope everyone understands. It looks like it's sweeps-time again for the feds. Let's hope all of us are still around in 6 months to talk about it.10 The Phoenix Project BBS was shut down within a few days as part of the Steve Jackson Games raid.11 Another Sun Devil target was the Ripco BBS, operated in Chicago by Bruce Esquibel ("Dr. Ripco"), who was not a

9Encryption is "the encoding of data for security purposes by converting the standard data code into a proprietary code before transmission over a network. The encrypted data must be decoded at the receiving station." Essentially, encryption renders computer data unintelligible until it is decrypted using the correct mathematical key.

A. Freedman, The Computer Glossary 259 (4th ed. 1989). 10Quoted in Goldstein, supra note 8, at lines 224-235. 11Id. See infra notes 54-61 and surrounding text. 82

hacker and claimed no interest in hacking.12


however, was a popular "hangout" in the computer underground, largely because of its extensive collection of text files, and was a popular "chat" BBS covering wideranging topics. It had a reputation as being a "legal and In fact, Ripco had an explicit policy

above-board" BBS.13

forbidding the posting of stolen credit card numbers or specific instructions on how to "phreak" a phone call, as sysop Esquibel explained later: It is no secret that many of the posts of board 5 (fone phun) either solicited for the need of or said they had and would share such information. I never considered this wrongful for a number of reasons. The primary one would be most people on there were blowing smoke as far as really knowing anything either fraudulent or important.... Many people who wish to raise their status will often come up with outlandish claims in an attempt to convince others he or she is an expert on one matter or another. Any attempt to suppress this act I felt would of [sic] damaged Ripco's open door policy since people do have to start somewhere and eventually learn their peers will catch on fast if someone is pulling a bluff. Thus this type of activity was tolerated but the line was crossed if anyone attempted to really do it. For example if a message contained something like 'just dial 1-800555-1212 and punch in 123456 at the tone', the entire message was removed or in more cases reedited especially if other parts were about nonrelated matters.14

12Sulski, "Crackdown on Crime Is Raising Question of Computer Rights," Chicago Tribune, Nov. 18, 1990, at 17.

13"Update on Ripco BBS and Dr. Ripco," Computer Underground Digest, Issue 1.26, at lines 574-607. 14Esquibel, "Dr. Ripco Speaks Out," Computer Underground Digest Issue 1.27, at lines 342-370. 83

On May 8, 1990, Secret Service awakened Esquibel and seized his BBS.15 In addition to the BBS computer, they

also confiscated several other computers that had no connection to the BBS but were physically close to it. Esquibel was not charged with a crime, but during the agents' questioning, they told him they had printouts of stolen credit card numbers and long-distance access codes that had apparently been posted to the BBS without Esquibel's knowledge. They also commented on files that

contained instructions on constructing bombs, telling him that making such information available was "wrong."16 Those affected by Operation Sun Devil seemed keenly aware of the implications of such shutdowns. "Does the First "[W]hy

Amendment come into play at all?" Esquibel asked.

isn't a newspaper's printing press taken when a reporter refuses to name his sources about a sensitive story?"17 "Raiding Ripco seems to be throwing the baby out with the bath water by intimidating sysops willing to allow provocative discussions," wrote the editors of one online newsletter. "In our view, this is no long a computer

15E.g., Sulski, supra note 12, at 17. 16Esquibel, supra note 14, at lines 328, 388. 17Id. at line 520. 84

underground issue, but one of First Amendment protections."18 Closing down BBSs, however, did not seem to attract very much attention, perhaps because the First Amendment's applicability to the medium remained untested. The most

visible and controversial "busts" resulting from the Secret Service's hacker crackdown were the related cases of Craig Neidorf, a Missouri college student, and Steve Jackson Games, a small publishing company in Austin, Texas -- cases in which the First Amendment issues seemed clearer than ever before.19


The Case of Craig Neidorf The Case of Craig Neidorf

The Case of Craig

The legal troubles of Craig Neidorf centered around a computer text file that originated at the Atlanta offices of the Bell South telephone company. The E911 (Enhanced 911)

file, as it was called, contained "a description of the purposes, operation, installation, and maintenance of the emergency 911 telephone service operated by Bell South [and] a glossary of the terminology needed to understand the

18"Moderators' Corner," Computer Underground Digest Issue 1.09 (May 16, 1990), at lines 108-117.

19See, e.g., "Group to Defend Civil Rights of Hackers Founded by Computer Industry Pioneer," Wall Street Journal, July 11, 1990, at B4, col. 1; "Enforcement Questions Raised After Hacker Case Dismissed," Washington Post, Aug. 2, 1990, at C13, col.1. 85

operation of the 911 system."20

Sometime around December of

1988, Robert Riggs, a member of a hacker group called the Legion of Doom,21 gained unauthorized access to Bell South's Atlanta computer system, from which he downloaded22 a copy of the E911 file to his home computer in Decatur, Georgia. He then transferred the file to a public BBS in Lockport, Illinois. Neidorf downloaded the file from the Illinois BBS

to his home computer in Missouri, edited it and published its contents in Issue 24 of his electronic magazine Phrack, which was distributed to subscribers and BBSs via computer networks.23 On February 7, 1990, Riggs and Neidorf were indicted by an Illinois grand jury on charges of wire fraud,24 violation of the Computer Fraud and Abuse Act of 198625 and interstate transportation of stolen property.26 The indictment alleged

20 Memorandum of Law of Amicus Electronic Frontier Foundation at 2, U.S. v. Riggs, 743 F.Supp. 556 (N.D. Ill. 1990). 21Costikyan, supra note 1, at 23. 22To download is "to transmit data from a central computer to a remote computer." Freedman, supra note 9, at 232. 23Costikyan, supra note 1. at 2-3. 2418 U.S.C.A. S1343 (1990).

2518 U.S.C.A. S1030 (1990). 2618 U.S.C.A. S2314 (1990). Riggs/Neidorf indictment reproduced in Computer Underground Digest, Issue 1.00 (Mar. 1990). 86

that the E911 file was proprietary27 and confidential, that it was worth $79,449 to Bell South, and that it contained information hackers could use to disrupt the operation of the 911 system.28 Four months later the grand jury revised

that indictment, relying now only upon charges of wire fraud and interstate transportation of stolen property.29 The charges against Neidorf fell generally into three categories: those alleging a broad conspiracy to commit wire fraud; those connected with the transfer of the E911 file from Georgia, through Illinois, to Missouri; and those connected with the publication of Phrack -- not only the issue containing the E911 file, but also two previous issues that allegedly advocated hacking activity.30 One of these issues had contained an article titled "The Phoenix Project."31 This project, according to the

government, was "a plan to solidify the hacker community by publishing hacking tutorials and disseminating other items

27"Belonging to ownership; belonging or pertaining to a proprietor; relating to a certain owner or proprietor. Made and marketed by a person or persons having the exclusive right to manufacture and sell such; as a proprietary article, medicine, or food." Black's Law Dictionary 637 (Abridged 5th ed. 1983). 28Indictment, supra note 26. 29U.S. v. Riggs superseding indictment reproduced in

Computer Underground Digest Issue 1.15 (June 16, 1990). 30U.S. v. Riggs, 743 F.Supp. 556, 559 (N.D. Ill. 1990). 31Costikyan, supra note 1, at 26. 87

of interest to hackers, such as information on how to prevent law enforcement authorities from discovering hacking activity."32 Another charge related to a later issue of

Phrack that allegedly contained such tutorials.33 Shortly after Neidorf's trial began in July 1990, the prosecution's case began to come apart. A Bell South

employee testified that the supposedly confidential document -- which Bell South had originally valued at $79,449, though it later reduced that figure to $20,000 -- was, in fact, available for $13 to anyone calling an 800 number.34 Prosecutors dropped the charges against Neidorf on July 27. Robert Riggs had already pleaded guilty.35 The Steve Jackson Games Case The Steve Jackson Games Case The Steve Jackson Games Case Steve Jackson Games (SJG), a small, privately owned company in Austin, Texas, designs and manufactures roleplaying adventure games of the type played with dice and elaborate rule books. Many of these games have been part of

GURPS, the Generic Universal Role Playing System, a series that includes such titles as GURPS Witch World, GURPS Conan and GURPS Riverworld. The company also operates a BBS called Illuminati, which SJG uses to facilitate communication

32743 F.Supp. 556, 558.

33Id. 34Costikyan, supra note 1, at 26. 35Markoff, "U.S. Drops Computer Case Against Student," The New York Times, July 28, 1990, at 9, col. 3. 88

between its customers and game authors.

In the spring of

1990, SJG was preparing to publish a new game, GURPS Cyberpunk, a game in the tradition of William Gibson's award-winning science fiction novel Neuromancer and other fiction of the "cyberpunk" genre.36 The introduction to

GURPS Cyberpunk describes this genre: "Cyberpunk" is the term applied to a science fiction literary "movement" of the 1980s. Although there are several authors from the 1960s and 1970s whose work appears cyberpunk in retrospect, the term wasn't coined until the publication in 1984 of William Gibson's novel Neuromancer.... Neuromancer presented a view of the future that was different. Gone were the glass-domed cities and utopias of Golden Age science fiction. The domes are still there in cyberpunk, but they're occupied by the rich and guarded by security forces that shoot first and don't bother to ask questions.... The cyberpunk future is vibrant -- pulsating with life, from the streets to the high-rises.... Cyberpunk is a style defined by two elements. The first is the interaction of man with technology. Computers are as common as dishwashers in the cyberpunk future, and the dividing line between man and machine is sometimes blurred.... The second element found in most cyberpunk work is that of struggle. The world is divided into two groups -- the haves and the have-nots -- with a vast chasm between them.37 More familiar examples of cyberpunk include the movie Blade Runner and the short-lived television series Max

36Sterling, "Gurps' Labor Lost: The Cyberpunk Bust," Effector (newsletter of the Electronic Frontier Foundation), Vol. 1 Number 2, at 1-2. 37L. Blankenship, GURPS Cyberpunk 4 (1990). 89


It is easy to understand why the genre, with

its pervasive themes of technology and fighting against centralized authorities, is popular among computer hackers. Hacking, in fact, is itself a component of the genre. On March 1, 1990, agents of the Secret Service, search warrant in hand, raided the offices of Steve Jackson Games. The authorities seized from the company three computers, two laser printers and all of the drafts of GURPS Cyberpunk, both on computer disk and on paper. The computers included

not only the ones used in the drafting of GURPS Cyberpunk, but also the system that ran the Illuminati BBS.39 A total

of about $10,000 worth of computer hardware and software was confiscated.40 The officers left behind broken locks, They

damaged filing cabinets and a ransacked warehouse.41 refused to say what they were looking for.42

When Steve Jackson visited the local Secret Service office in an attempt to recover some of his equipment, he was told by the agents that GURPS Cyberpunk was "a handbook

38Hafner and Markoff, Cyberpunk: Outlaws and Hackers on the Computer Frontier 9 (1991). 39Electronic Frontier Foundation, Legal Case Summary, July 10, 1990; Lewis, "The Executive Computer: Can Invaders Be Stopped But Civil Liberties Upheld?" The New York Times, Sept. 9, 1990, at F12. 40J. Wilson, "It CAN Happen Here," Computer Gaming World,

June 1990, at 8. 41Costikyan, supra note 1, at 23. 42Lewis, supra note 39. 90

for computer crime."

When he explained that it was science

fiction, they insisted, "This is real."43 The confiscation of the company's computers and all the existing drafts of GURPS Cyberpunk nearly put Steve Jackson Games out of business. Callers to the company's Illuminati

BBS saw only the following message: Before the start of work on March 1, Steve Jackson Games was visited by agents of the United States Secret Service. They searched the building thoroughly, tore open several boxes in the warehouse, broke a few locks, and damaged a couple of filing cabinets (which we would gladly have let them examine, had they let us into the building), answered the phone discourteously at best, and confiscated some computer equipment, including the computer that the BBS was running on at the time. So far we have not received a clear explanation of what the Secret Service was looking for, what they expected to find, or much of anything else. We are fairly certain that Steve Jackson Games is not the target of whatever investigation is being conducted; in any case, we have done nothing illegal and have nothing whatsoever to hide. However, the equipment that was seized is apparently considered to be evidence in whatever they're investigating, so we aren't likely to get it back any time soon. It could be a month, it could be never. To minimize the possibility that this system will be confiscated as well, we have set it up to display this bulletin, and that's all. There is no message base at present. We apologize for the inconvenience, and we wish we dared to do more than this.44 Forced to miss the publication deadline for GURPS Cyberpunk, Jackson had to lay off half of his staff, and for

43L. Blankenship, GURPS Cyberpunk (1990), at 5 (introduction by Steve Jackson). 44E. Goldstein, supra note 8, at lines 253-275. 91

a while SJG operated on a precarious financial basis.45 Eventually, using some old backups of their computer data and some fragments of early drafts that had been distributed to testers -- as well as reconstructing much from memory -Jackson and his staff were able to complete and publish GURPS Cyberpunk.46 But Jackson estimated that the raid and

the delays it caused cost his small company more than $125,000.47 The Secret Service returned most of Steve Jackson Games' property in June of 1990.48 Some of the equipment was

irreparably damaged,49 and the Secret Service retained the drafts of GURPS Cyberpunk.50 Furthermore, the Secret

Service's affidavit and application for the search warrant remained sealed, leaving it a mystery what the Secret Service had been looking for.51 There was no evidence, nor

any formal accusation, that Steve Jackson Games had ever been involved in any kind of illegal activity.

45 Legal Case Summary, supra note 39; Costikyan, supra note 1, at 24. 46Barlow, supra note 1, at 52. 47Costikyan, supra note 1, at 24. 48Sterling, supra note 36, at 3.

49Costikyan, supra note 1, at 24. 50Legal Case Summary, supra note 39. 51Id. 92

When the warrant was finally unsealed several months later, it confirmed that Steve Jackson Games was never suspected of anything illegal.52 Furthermore, GURPS In fact, the

Cyberpunk had had nothing to do with the raid.

object of the search had been none other than the E911 file published by Craig Neidorf in Phrack.53 The link between the E911 file and Steve Jackson Games was an employee of the company named Loyd Blankenship and his association with a shadowy hacker group called the Legion of Doom, a group that was targeted by the Secret Service's crackdown. Blankenship, known also as The Mentor,

was a former hacker and the author of GURPS Cyberpunk.54 During the time he was working on GURPS Cyberpunk, he had been in contact with some members of the Legion of Doom for the purpose of verifying the game's faithfulness to its genre.55 (In fact, the title page of the published book

credits the Legion of Doom as "Hacking Consultants."56) From his home, Blankenship operated a BBS called The Phoenix Project, which took its name from the "Phoenix

52Kapor, supra note 1, at 116. 53Sterling, supra note 36, at 3. 54Id. at 2.

55From commentary by SJG employee Walter Milliken posted to the Usenet newsgroup comp.risks. 56Blankenship, supra note 43, at 1. 93

Project" announced in Phrack #19.57

Blankenship's BBS, like

many others, had on it a copy of Phrack #24, the issue containing the edited E911 file. The file was identified

and reported to the Secret Service by Henry Kluepfel, a Bell security manager who was working with investigators.58 Furthermore, the affidavit alleged, e-mail messages posted on the Phoenix Project BBS indicated that Blankenship and Legion of Doom member Chris Goggans (Erik Bloodaxe) had "established a password decryption service"59 for hackers attacking computer systems, a service to be provided through The Phoenix Project BBS.60 Based on these facts, the Secret Service alleged interstate transportation of stolen property and computer fraud.61 On this basis it raided both the home and

workplace of Loyd Blankenship, shutting down Steve Jackson Games in the process.

57Costikyan, supra note 1, at 24. 58Application and affidavit for search warrant for Steve Jackson Games (case #A-90-54m), Feb. 28, 1990, at 11. 59On most multiuser computer systems, users' logon passwords are stored in an encrypted file for security reasons. Decryption of passwords stored in this file would reveal the passwords of all users, allowing the person possessing the decrypted passwords to freely access any

account on the system. 60Id. at 7. 61Id. at 17. 94

The Hunt for the Legion of Doom The Hunt for the Legion of Doom The Hunt for the Legion of Doom The troubles of Craig Neidorf and Steve Jackson resulted from what was apparently one of the central objectives of the Secret Service's hacker crackdown: the eradication of the hacker group the Legion of Doom (LOD).62 The government

perceived the Legion of Doom as "a closely knit group of hackers" engaged in disruption of telephone services, credit card fraud and theft of proprietary information.63 These

descriptions of a highly organized and malevolent group of hackers echo the fears expressed at Congressional hearings during the 1980s of hacker conspiracies and "professional" hacker groups.64 The reality, however, is that the Legion of Doom was far less dangerous and far less organized than the government apparently believed. The membership of the Legion of Doom One member said that

is probably impossible to determine.

the group never had more than 15 to 20 members and that "it's almost like if you say you're in, you are."65 And as

is the custom in hacking circles, members generally used

62Markoff, "Drive to Counter Computer Crime Aims At Invaders," The New York Times, June 3, 1990, at 30. 63E.g., Riggs/Neidorf indictment, infra note 26; Riggs/Neidorf superseding indictment, infra note 29; SJG

search affidavit, infra note 58. 64See Chapter 3, notes 35-41 and surrounding text. 65Schatz, "The Terminal Men," The Washington Post, June 24, 1990, at H6. 95

pseudonyms, though the true identities of some were revealed when they became ensnared in the crackdown. A list of

Legion of Doom members might include Robert Riggs (The Prophet), Loyd Blankenship (The Mentor), Chris Goggans (Erik Bloodaxe) and Len Rose (Terminus), as well as such mysterious figures as Acid Phreak, Phiber Optik and Lex Luthor. The group's foreboding name was taken from a group of comic-book villains that frequently clashed with Superman. "You wouldn't want a fairy kind of thing like Legion of Flower Pickers or something," one member explained. the media ate it up too. "But

Probing the Legion of Doom like it

was a gang or something, when really it was just a bunch of geeks behind terminals."66 The Legion of Doom was not a "closely knit group,"67 and its agenda was not nearly so malevolent as the Sun Devil investigators alleged. Phreak explained. find in systems. data. "We're just out to learn," Acid

"We transfer data about records that we But we draw the line on how we use that

We use it to play around, not abuse it."68

66Barlow, supra note 1, at 49. 67Goldstein, supra note 8, at line 214. 68Schatz, supra note 65, at H1. 96

Exaggerated Fears Exaggerated Fears

Exaggerated Fears

The government's belief that the Legion of Doom was actively engaged in theft and fraud and disruption of telephone services may help to explain why the E911 file was seen as so dangerous. Prosecutors, however, seemed not to The Secret

have a clear idea of exactly what the file was.

Service, in the affidavit and application for the Steve Jackson Games search warrant, refers to the E911 file variously as a "document," as "source code" and as a "program."69 Similarly, the press release issued by the

Department of Justice upon the indictment of Riggs and Neidorf said that the two "stole a copy of Bell South's highly proprietary and closely held computer program that controlled and maintained the E911 system."70 The

government further claimed that Neidorf published the file "so that [other hackers] could unlawfully access the E911 system and potentially disrupt or halt ... 911 service in the United States."71 William Cook, the assistant United

States attorney who led the prosecution of Neidorf, described the E911 file to the jury as a "road map" to the emergency telephone system. He explained that the file

69Affidavit, supra note 58.

70Indictment, supra note 26 (emphasis added). 71U.S. Dept. of Justice, Press Release, Feb. 6, 1990 (reproduced in Computer Underground Digest, Issue 1.00, Mar. 1990). 97

"described in vivid detail each of the locations along the E911 path to an emergency call."72 In fact, the E911 file, titled "Control Office Administration Of Enhanced 911 Services For Special Services And Major Account Centers," is an administrative document containing little technical information. The document

describes the 911 system very generally and defines some of the terms used in administration of the system -- terms like PSAP (Public Safety Answering Point), "an agency or facility which is authorized by a municipality to receive and respond to police, fire and/or ambulance services."73 It defines

the responsibilities of the various entities involved in the 911 system with regard to maintenance, testing and problem reporting. The document is dry reading, filled with

acronyms and other bureaucratic jargon: The MMOC should notify the appropriate SSC/MAC when the Host, Node, or all Node circuits are down so that the SSC/MAC can reply to customer reports that may be called in by the PSAPs. This will eliminate duplicate reporting of troubles. On complete outages the MMOC will follow escalation procedures for a Node after two (2) hours and for a PSAP after four (4) hours. Additionally the MMOC will notify the appropriate SSC/MAC when the Host, Node, or all Node circuits are down.74

72Transcript of William Cook's opening statement at trial of Craig Neidorf, reproduced in Computer Underground Digest Issue 3.41 (Nov. 16, 1991), at lines 108, 482.

73E911 file as reproduced in Phrack Issue 24, at line 1071. 74Id. at lines 1270-1276. 98

It also includes a glossary of terms used to describe the E911 system -- terms such as PSAP, selective routing and night service.75 Nothing in the file appears to provide any

technical information that could be used to actually interfere with the operation of the system. Rather than a tool for sabotage, the republished E911 file was more likely seen as a kind of trophy, an interesting glimpse at part of the complex telephone system with which hackers were fascinated. In response to

Neidorf's arrest, hacker Chris Goggans, known as Erik Bloodaxe, said, "No member of LOD has ever (to my knowledge) broken into another system and used any information gained from it for personal gain of any kind ... with the exception of maybe a big boost in his reputation around the underground.... The information [in the E911 file] is hardly something anyone could possibly gain anything from except knowledge about how a certain aspect of the telephone company works."76 Like its descriptions of the E911 file, the government's charges of conspiracy against Craig Neidorf similarly reflected an exaggerated threat. The indictment against

Neidorf prominently mentions an article in Phrack #19 titled "The Phoenix Project," described by the government as "a

75Id. beginning at line 1438. 76Goldstein, supra note 8, at lines 185-192. 99

plan to solidify the hacker community by publishing hacking tutorials and disseminating other items of interest to hackers, such as information on how to prevent law enforcement authorities from discovering hacking activity."77 In fact, the "project" announced in Phrack #19

seemed more likely intended to boost morale in the besieged hacker community than anything else. It was mostly devoted

to announcing an upcoming convention for hackers, as well as the new Phoenix Project BBS: SummerCon '88 is a celebration of a new beginning. Preparations are currently underway to make this year's convention twice as fun as last year's and the greater the turnout the greater the convention shall be. No one is directly excluded from the festivities and the practice of passing illegal information is not a part of this convention.... Any security consultants or members of law enforcement agencies that wish to attend should contact the organizing committee as soon as possible to obtain an invitation to the actual convention itself.... The first step in what is called The Phoenix Project, which is a re-birth of the hack/phreak community is underway. This first step is a public education bulletin board system dedicated to teaching the public about telecommunications and computer systems. The board is called The Phoenix Project, and the number is (XXX)XXX-XXXX. No illegal information is to be posted on this system. Our SysOp is The Mentor. Thank you, and call if you're interested.78

77743 F.Supp. 556, 558. 78Knight Lightning (Craig Neidorf), "Phrack World News," Phrack, Issue 19 (no date given), at lines 1531-1651 (telephone number removed). 100

In addition to the E911 file, the Secret Service also expected to find at Steve Jackson Games a program providing a "password decryption service" established by Loyd Blankenship and Chris Goggans.79 But the evidence presented

in the agency's own affidavit suggests that this service was, in fact, little more than idle chatter; it was neither "established" nor operational in any way. It was merely an

apparently half-serious suggestion made on the BBS by cosysop Chris Goggans (under the pseudonym Erik Bloodaxe): 13/58 things... Name: Erik Bloodaxe #2 Date: Tue Jan 23 22:57:29 1990 I think it's time for your friend at the Legion of Doom to start a new service...(with great help from friends) Decryption service! On any unix or Prime, send the etc/passwd file, or the UAF file to the sysop directory, and you will be mailed back the encrypted passwords...(on UNIX( any pw that the deszip could bust) The Prime UAF must be in binary, so kermit it from the site, and xmodem it here. In return, we will not distribute any information gained from your site, but we will probably look around it anyway...but it will remain between you and us. What do you people think? Bad idea? Good idea? Hell...It is just another attempt by me to piss everyone off. ->ME80

79Affidavit, supra note 58. 80Messages from The Phoenix Project BBS, attached to search affidavit and reproduced in Computer Underground Digest 2.11, Nov. 13, 1990. 101

Even if this "service" had been operational, Loyd Blankenship's connection to it was tenuous. The Secret

Service's conclusion that he was involved in trafficking in stolen passwords was apparently based entirely on a Blankenship's answer to another user's question about what "Kermit," mentioned in Goggan's message, was:81 23/47: kermit Name: The Mentor #1 Date: Fri Jan 26 10:11:23 1990 Kermit is a 7-bit transfer protocol that is used to transfer files to/from machines. It is mostly found on mainframes (it's a standard command on VAX, for instance). Kermit has the added advantage of being able to work through an outdial (because it is 7-bit). Mentor82 Kermit is a commonly used file transfer protocol83 and is certainly not limited to use in stealing passwords. But

based upon this straightforward technical explanation, the Secret Service alleged that Loyd Blankenship was involved in Chris Goggan's proposed password decryption scheme.

81Indictment as quoted in Computer Underground Digest Issue 2.11, Nov. 13, 1990. 82Id. 83A file transfer protocol is a set of standards regarding the transmission of data from one computer to another and how errors in transmission should be handled.

The Kermit protocol is noted for its ability to complete file transfers over even noisy telephone connections and its ability to communicate between personal computers and large mainframes that may have different data formats. See Freedman, supra note 9, at 385. 102

This tendency toward exaggeration was also demonstrated by the agents who raided Steve Jackson Games. When he

attempted to recover some of his equipment, agents insisted to Steve Jackson that GURPS Cyberpunk was a "handbook for computer crime" and that the techniques it described were real. While the technology described in the book is

extrapolated from that of today, no specific real-world techniques, only game rules, are described. A roll of the

dice, for instance, determines whether a player has successfully broken into a computer system.84 And much of

the technology is fantastically futuristic, such as this description of the "Icon Interface": This interface is very similar to the iconbased operating systems used on personal computers in the 1980s and early 1990s. A two-dimensional "screen" is projected directly onto the character's optic nerve. When he wishes to execute a program or examine a database, he mentally "selects" the appropriate icon. To connect to another computer, for instance, he selects a telephone; to disconnect from a system, he selects a door.... Installation requires a major surgical facility and a minimum of 10 days.85 About the only realistic hacking technique the book describes is searching through trash to find useful data (the success of which is still dependent upon a roll of the dice).86

84Blankenship, supra note 43, at 69. 85Id. at 73. 86Id. at 86-87. 103

The Electronic Frontier Foundation The Electronic Frontier Foundation The Electronic Frontier Foundation Another major player to emerge during 1990 -- as a direct result of the government's hacker crackdown -- was the Electronic Frontier Foundation, founded by Mitch Kapor, author of the popular spreadsheet program 1-2-3 and former CEO of the software company Lotus, and writer John Perry Barlow. The EFF was founded shortly after Barlow was

visited by an FBI agent investigating another (possibly mythical) hacker group called the NuPrometheus League. The

mysterious group had stolen some Macintosh source code87 from the Apple computer company and distributed it widely to members of the computer industry and the press, and was the subject of an FBI investigation in 1989 and 1990.88 According to Barlow, an FBI agent who visited him at his home in Wyoming -- evidently suspecting that Barlow might be part of the NuPrometheus League -- knew almost nothing about computers. Barlow found himself explaining computer "You know things have rather

technology to the agent.

jumped the groove when potential suspects must explain to law enforcers the nature of their alleged perpetrations,"

87Source code is "the language a program is written in by

the programmer." Freedman, supra note 9, at 641. Because source code reveals the inner workings of a program, and because it can be easily modified and adapted by other programmers, it is generally considered highly confidential and proprietary by its owner. 88Markoff, supra note 62, at 30. 104

Barlow later wrote.

Much of the agent's visit was devoted

to Barlow's explanation to the agent of exactly what had been stolen.89 The FBI agent's visit demonstrated to Barlow one of the fundamental problems of the recent hacker crackdown: the lack of technical expertise among law enforcement officials. I realized in the course of this interview that I was seeing, in microcosm, the entire law enforcement structure of the United States. Agent Baxter was hardly alone in his puzzlement about the legal, technical, and metaphorical nature of datacrime. I also found in his struggles a framework for understanding [the] series of recent Secret Service raids on some young hackers.... And it occurred to me that this might be the beginning of a great paroxysm of governmental confusion during which everyone's liberties would become at risk.90 Mitch Kapor had received one of the copies of the NuPrometheus League's stolen Macintosh code and was also paid a visit by an FBI agent. After hearing about Barlow's

similar experience, Kapor began to see a larger problem: I suddenly realized I wasn't alone, that I had some direct connection to this, that NuPrometheus was connected to all the other arrests of computer hackers at the time, and I began to see how great an injustice could be taking place within such a huge investigation as Sun Devil.91

89Barlow, supra note 1, at 53-4.

90Barlow, "A Man From the FBI: The Origins of the Electronic Frontier Foundation," Effector, March 1991, at 1. 91Bromberg, "In Defense of Hackers," The New York Times Magazine, April 21, 1991, at 47. 105

These concerns led Barlow and Kapor to found the Electronic Frontier Foundation. The EFF's mission statement

recognized the "new world" of cyberspace and the difficulty of applying old laws to a new medium such as computer-based communication. The EFF, the statement said, would "help

civilize the electronic frontier," both through educational activities to increase understanding of the new media, and through supporting litigation to preserve First Amendment rights in the realm of computer-based communication.92 But

the EFF's founders resisted the suggestion that the EFF was a "hacker defense fund": I regard unauthorized entry into computer systems as wrong and deserving of punishment. People who break into computer systems and cause harm should be held accountable for their actions. We need to make appropriate distinctions in the legal code among various forms of computer crime, based on such factors as intent and the degree of actual damage.... As I began to find out the real story behind government raids and indictments last summer, I became incensed at the fact that innocent individuals were getting caught up in the blundering machinations of certain law enforcement agencies....93 The EFF immediately became involved in the case of Steve Jackson Games.94 Its attorneys helped Jackson obtain the

92Electronic Frontier Foundation, Mission Statement, July 10, 1990.

93Kapor, "Why Defend Hackers?", Effector, March 1991, at 1, 3. 94Electronic Frontier Foundation, supra note 39. 106

return of his confiscated equipment95 and successfully sought to have the SJG search affidavit unsealed.96 The EFF's most prominent early role, however, was probably its involvement in the defense of Craig Neidorf. With the aid of the EFF's attorneys, Neidorf moved to have the charges against him dropped on First Amendment grounds. In support of this motion the EFF filed an amicus brief in which it explained the importance of the issues in the case: The indictment in this case has raised a significant concern among BBS operators and users as to the liability that they might face for the communication of information that may turn out to have originally been obtained without authorization. . . . [M]any of these bulletin board systems have ongoing discussions, or conferences, about a wide variety of subjects, and often, in the spirit of free and open communication, individuals put postings on the bulletin boards which could be construed as advocating or supporting illegal activity. While the operators of these BBSs do not support such activity, they would like to maintain a free, open and robust interchange of ideas, and are concerned about the liability they may face.97 In challenging these charges stemming from Neidorf's publication of the E911 file, EFF's brief emphasized that Neidorf had been uninvolved in the illegal removal of the E911 file from the Bell South computer. Neidorf, it said,

acted as publisher, "much as the publisher of the Chicago

95Sterling, supra note 36, at 3.

96Bromberg, supra note 91, at 49. 97Motion of the Electronic Frontier Foundation for Leave to Appear as Amicus Curiae at 3-4, U.S. v. Riggs, 743 F.Supp. 556 (N.D. Ill. 1990). 107

Tribune does when printing and distributing that newspaper."98 Therefore, the EFF maintained, Neidorf

should be accorded the full protection of the First Amendment. This protection, the EFF argued, extended not

only to the actual publication of Phrack, but also to the transfer of the E911 file from Illinois to Missouri, because that transfer was incidental to publication. "If ... the

publication of the E911 text was protected by the First Amendment, the transmittal of the information to and from a bulletin board prior to publication triggers First Amendment protections."99 The EFF then argued that any statute criminalizing publication of information must serve an overriding governmental interest, must be narrowly tailored to serve that interest and bears a heavy presumption against constitutionality. The interest in protecting confidential

business information, it argued, was not an overriding governmental interest, and thus the government interest did not outweigh Neidorf's First Amendment rights to receive and republish the E911 file, which was of "public significance."100

98Memorandum, supra note 20, at 4. 99Id. at 4. 100Id. at 4-9. 108

In support of its argument, the EFF cited Smith v. Daily Mail Publishing Co.101 In that case, a newspaper had been

prosecuted for violating a state law prohibiting publication of the name of a juvenile defendant without prior approval of a judge. The Supreme Court struck down the law as Chief Justice Burger wrote that state


action to punish publication of truthful information must serve a state interest "of the highest order."102 The

interest here -- protecting the anonymity of juvenile offenders -- was recognized by the Court as legitimate, but not sufficiently compelling to outweigh First Amendment rights. The EFF also cited similar decisions in Worrell

Newspapers of Indiana, Inc. v. Westhafer,103 which declared unconstitutional a law prohibiting publication of a suspect's name before an arrest had been made, and Landmark Communications Inc. v. Virginia,104 which struck down a newspaper's indictment for publishing the name of a judge who was under investigation. Surely, the EFF argued in its brief, the interests involved in these cases -- protecting the anonymity of juvenile offenders in Smith, for instance, and apprehending

101443 U.S. 97 (1979).

102Id. at 103. 103739 F.2d 1219 (7th Cir. 1984). 104435 U.S. 829 (1978). 109

criminals in Worrell -- were more compelling than the governmental interest in protecting confidential business information such as that supposedly contained in the E911 file. Yet even those higher state interests had failed to

outweigh the First Amendment's protection for the publisher.105 The information published by Neidorf related

to a matter of public significance -- relating, as it did, to the availability of emergency service to the public -- so the First Amendment interest in publication outweighed the interest advanced by the government,106 the EFF argued. far narrower means of protecting that interest are available, such as imposing liability upon the person who actually stole the information rather than upon the republisher.107 To punish Neidorf for publishing And

information he knew to be stolen, the EFF argued, would be analogous to prosecuting The New York Times for publishing the Pentagon Papers, "which it may have known or had reason to know had been stolen by Daniel Ellsberg."108

105Memorandum, supra note 20, at 6. 106Id. at 8. 107Id. at 9. 108Id. at 13. The EFF also cited Pearson v. Dodd, 410

F.2d 701 (D.C. Cir. 1969), and Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971), to support a "distinction between publishing information one has stolen [as in Dietemann] and publishing information stolen by others [as in Pearson]." Memorandum, supra note 20, at 12. 110

Some of the charges against Neidorf related not to the publication of the E911 file but to two issues of Phrack that supposedly advocated hacking activity, one announcing "The Phoenix Project" and the other allegedly containing hacker tutorials. Neidorf and the EFF challenged these

counts of the indictment on First Amendment grounds as well. Since the charges centered around advocacy of illegal conduct, the brief argued, they had to meet the incitement standard established by Brandenburg v. Ohio.109 The Supreme

Court's per curiam opinion in Brandenburg enunciated that test as follows: "[T]he constitutional guarantee of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."110

The Court Responds The Court Responds

The Court Responds

The United States District Court for the Northern District of Illinois, where the case went to trial, recognized that with the Neidorf case it was plotting "a course on uncharted waters."111 In his decision ruling on

109395 U.S. 444 (1969). 110395 U.S. 444, 447. 111U.S. v. Riggs, 739 F.Supp. 414, 419 (N.D. Ill. 1990). 111

the first of two motions by the defendants to have the charges dismissed,112 Judge Nicholas Bua wrote: Over the course of the past decade, advances in technology and growing respect and acceptance for the powers of computers have created a true explosion in the computer industry. Quite naturally, the growth of computer availability and application has spawned a host of new legal issues. This case requires the court to wrestle with some of these novel legal issues which are a product of the marriage between law and computers.113 In responding to the EFF's arguments, however, the court stayed within familiar territory, avoiding the more difficult questions of First Amendment applicability to a new medium. The First Amendment, Judge Bua ruled, would not "[T]he law is clear," he wrote,

be a defense in any case.

"that where an individual violates an otherwise valid criminal statute, the First Amendment does not act as a shield to preclude the prosecution of that individual simply because his criminal conduct involves speech."114 Chief

support for this position came from United States v. Rowlee,115 a Second Circuit case that upheld the defendant's conviction for mail fraud based upon his activities in a society devoted to promoting tax evasion. Rowlee's conduct,

112The first motion to dismiss was not on constitutional grounds, but rather alleged insufficiency of the indictment under the statutes involved.

113739 F.Supp. 414, 416. 114Id. at 559-560. 115899 F.2d 1275 (2d Cir. 1990). 112

the circuit court had written, "was not protected by the First Amendment merely because, in part, it may have involved the use of language."116 If Neidorf had indeed

participated in the scheme to defraud as alleged, Bua wrote, "then he is criminally responsible for his conduct in furtherance of the scheme, and the First Amendment does not shield him from that responsibility."117 According to

Rowlee, Bua wrote, "the Brandenburg test cannot be reasonably applied to violations of the mail fraud or wire fraud statutes, which usually 'involve long-term, slowlydeveloping wrongs, not "imminent lawless action."'"118 With the EFF's motions all denied by the court, Neidorf's trial began on July 23, 1990. Within four days, testimony

had revealed the E911 file to be largely in the public domain, and the charges against Neidorf were dropped.119




The explosive controversies of 1990, resulting from the Secret Service's crackdown on computer hackers, revealed the changing roles of some of the players in the regulatory process and the emergence of an entirely new player.

116Id. at 1278. 117743 F.Supp. 556, 562.

118Id. (quoting U.S. v. Rowlee, 899 F.2d 1275, 1280 (2d Cir. 1990)). 119Markoff, supra note 35. 113

Where it had previously remained quietly on the sidelines, law enforcement agencies, particularly the Secret Service, initiated the controversies over free speech and computers in the process of executing computer crime laws. The hacker community continued to act chiefly as catalyst, but by necessity found itself taking a more active role in the debate. And in response to the evident disregard by law

enforcement of the civil liberties of those it was investigating, the Electronic Frontier Foundation appeared to raise awareness of the civil-liberties issues that law enforcers appeared to be missing.


CHAPTER FIVE: Conclusions

CHAPTER FIVE: CHAPTER FIVE: Conclusions Conclusions The events of 1983-1990, beginning with the release of

the movie WarGames and culminating in Operation Sun Devil and the legal controversies surrounding Craig Neidorf and Steve Jackson, reveal a chaotic interplay of political forces, some of them new to the scene. With a new and still

largely unfamiliar technology, such chaos is understandable, and it is possible that expressions of fear for the future of the First Amendment have been overstated. Computer-based communication is, however, a troubled medium, and it is by no means certain that it will receive the First Amendment protection it deserves. That it

deserves First Amendment protection should not be doubted. The broad availability of the technology and the freedom and diversity of the content make computer-based communication possibly the purest expression of the First Amendment in existence today. If, as A.J. Liebling said, freedom of the

press belongs to those who own one, then thanks to computers and networking, today anyone with a few hundred dollars can own one and can have access to a broader audience than any mimeographed newsletter or handbill could ever reach. A

threat to the freedom of computer-based communication does

indeed represent a threat to the very heart of the First Amendment. Threats to the medium's freedom have resulted not from affirmative governmental desires to censor so much as from

governmental failure to fully consider and recognize the nature of the medium. An examination of the contribution of

each of the important players considered in this thesis reveals a need to raise awareness of First Amendment issues and educate the uneducated about the powers (and limitations) of computer technology.




By and large, Congress did not intend the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984 and the Computer Fraud and Abuse Act of 1986 laws to be aimed primarily at hackers. Although deterrence and "sending a

message" were part of their purpose, Congress realized that hackers were a minor threat at best to well-maintained computer systems. Furthermore, witnesses and legislators

seemed quite cautious about targeting only truly malicious criminals -- those who intended damage or sought financial gain -- rather than the merely mischievous. The primary thrust of this legislation was economic; it was to provide prosecutors the means to pursue white-collar criminals, usually insiders, whose crimes were strictly financial in nature. These laws ultimately had little to do

with the hacker subculture and certainly did not call for a wholesale persecution of hackers.

Nonetheless, the hearings did demonstrate a fear of computers and of hackers. The "hacker problem" was often

exaggerated, and legislators tended to focus more upon the 116

mysterious technology rather than the act itself. explain why it was felt prosecutors needed new laws

This may

explicitly covering computer crime despite the fact that they had evidently not had great difficulty prosecuting computer criminals under the old laws. Perhaps because the 1984 and 1986 laws were narrowly tailored to apply to computer criminals, Congress apparently did not perceive a First Amendment concern connected with computer communication. There did appear to be a

recognition among some legislators and experts that the field was complicated, and that the question of placing monetary value upon information was a tricky one. But the

First Amendment did not itself appear to be implicated. That Congress failed to consider the First Amendment may have contributed to subsequent problems, because prosecutors and courts were left with no clear idea of legislative intent in that area. Furthermore, although Congress was

concerned with computer crime rather than speech, its emphasis upon the technology of an act (the computer) rather than upon the act itself may be symptomatic of the same conceptual problems facing computer communication. By

singling out computers for special legal treatment, even though the crime may be the same as one committed with a pen and paper, Congress has set a precedent that could deny

computer-based communication the constitutional protection other media receive.


Law Enforcement Law Enforcement

Law Enforcement

The early role of law enforcement agencies was largely to tell Congress what it wanted to hear: that it would be happy to have a new weapon to use in the fight against whitecollar crime. But enforcers were chiefly concerned with

financial crimes such as embezzlement and fraud, crimes committed almost universally by "insiders" rather than hackers. It is also significant that despite their

willingness to add another statute to their arsenal, enforcers generally reported universal success in prosecuting computer crime under existing laws. Armed with the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984 and the Computer Fraud and Abuse Act of 1986, however, law enforcement agencies in the United States -- particularly the Secret Service -- apparently interpreted these laws as a mandate to eradicate computer hackers of every stripe. The sweeping crackdown of

Operation Sun Devil and particularly the cases of Craig Neidorf and Steve Jackson Games suggest that in their zeal to root out the Legion of Doom, enforcers may have taken their authority beyond what Congress intended or the Constitution should allow. The actions of law enforcers during the events of 1990 again reveal a basic fear and misunderstanding of computers

and computer hackers.

This fear is almost certainly a Familiarity with computers and

result of simple ignorance.

network technology reveals material such as the E911 file, 118

GURPS Cyberpunk or Loyd Blankenship's comments about the Kermit protocol to be harmless. Yet the Secret Service

evidently believed each of these to be dangerous -- and in the case of the E911 file and Blankenship's Kermit comments, these beliefs led the agency to take disruptive action that deprived Craig Neidorf and Steve Jackson of their rights. However, despite the sinister images painted by some in the computer underground, law enforcement agencies such as the Secret Service have acted not out of any desire to abridge First Amendment rights, but out of ignorance. The

errors made by the agents who raided Steve Jackson Games, like the confusion of the FBI agent who visited John Perry Barlow, are indeed "in microcosm, the entire law enforcement structure of the United States" -- they are struggling to enforce laws regarding a technology that is, by and large, alien to them. Where they have overreacted with

exaggeration and fear, it is ultimately because they do not understand.

Electronic Frontier Foundation Electronic Frontier Foundation Electronic Frontier Foundation The Electronic Frontier Foundation, then, appears to be on the right track with its stated goals to "engage in and support educational activities that increase popular understanding of the opportunities and challenges posed by

computing and telecommunications" and "develop among policymakers a clear understanding of the issues underlying free


and open telecommunications."1

While coming to the legal

defense of people like Craig Neidorf and Steve Jackson is a worthy goal -- and probably necessary if formal legal safeguards are to be put in place -- such legal struggles cannot alone solve the underlying problem. Indeed, the EFF's most important role in 1990 may have been that of educator and consciousness-raiser rather than litigator, as some of its legal arguments in the Neidorf case left something to desired. For instance, its amicus

brief asserted without support that information-gathering activity (such as Neidorf's receipt of the E911 file) enjoys the same First Amendment status as publication, a suggestion that would make a sweeping change in First Amendment law. A

long list of cases (chiefly Branzburg v. Hayes2 and Zemel v. Rusk3) shows that information gathering has never received

1"Goals of the Electronic Frontier Foundation," Effector, Sept. 1991, at 4. 2"It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability." 408 U.S. 665, 682 (1971) (opinion of Justice White). 3"There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion

of the way the country is being run but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information." 381 U.S. 1, 16-17 (1964). 120

the First Amendment protection given to publication. Equally questionable is the EFF's reliance on Smith v. Daily Mail and Landmark Communications v. Virginia to support the requirement of an overriding governmental interest. These

cases provide shaky support in a case such as Neidorf's, where the legality of the information gathering is in dispute, because both cases are explicitly limited to publication of information obtained legally.4 Although Neidorf was vindicated, the outcome of his case was not the victory sought by the EFF. Neidorf did not win

his case by virtue of First Amendment protection, nor did he win it by virtue of innocence; the prosecution dropped the case primarily because it had received incorrect information from Bell South about the availability of the E911 file.5 The case raised questions to which it provided no answers. Could publication of confidential information really be transporting stolen goods? What liability was faced by the

republisher of information that had been obtained illegally by someone else?

4"If the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here." Smith v. Daily Mail, 443 U.S. 97 (1979) (emphasis added); "We are not here concerned with the possible applicability of the statute to one who secures the

information by illegal means and thereafter divulges it." Landmark Communications v. Virginia, 435 U.S. 829 (1978). 5"Enforcement Questions Raised After Hacker Case Dismissed," Washington Post, Aug. 2, 1990, at C13, col. 1. 121




From the very beginning, computer hackers, a group that shuns attention, took on a central role in the controversy over computer security. that of catalyst. At first, their role was mainly

The exploits of fictional hacker David

Lightman in WarGames, given an air of authenticity by the subsequent arrests of the 414s, called public attention to the problems of computer security and the vulnerability of a computer-dependent society. A few hackers, such as Neal

Patrick of the 414s, did play a direct role in the early policymaking process by testifying before Congressional committees. But such testimony -- which attempted to calm

the hysteria by downplaying the danger and mystery of hacking -- had less of an effect on Congressional attitudes than did the perceived threat of an "electronic Messiah" or a "WarGames scenario." Later, it became clear that hackers, like the other players in this process, do have an agenda. Actions such as

Craig Neidorf's redistribution of the E911 file are not mindless vandalism, but are part of the hacker quest for a sort of ultimate "freedom of information," part of Levy's "Hacker Ethic." Neidorf did not stand to gain anything

personally -- except perhaps an enhanced reputation among

hackers -- from his actions.

He sought merely to further

the goals of decentralization and shared information. Whether or not these goals are wise, their advocacy is a 122

position entitled to the opportunity to compete in the marketplace of ideas. Neidorf's alleged advocacy of hacking

in Phrack was not in furtherance of any scheme to defraud, as the government alleged; it was in pursuit of political, social and economic change, based on the belief that all information should be free. Brandenburg v. Ohio explicitly

affirmed that the First Amendment does not permit government to forbid advocacy even of violence to effect social change.6 Can the government forbid advocacy of unauthorized

access to computers in pursuit of such goals?

The Courts Courts

The Courts


Although courts will likely have a strong influence upon the formation of policy regarding the freedom of computerbased communication -- as they have for other media -- the events of 1990 do not provide an adequate sample by which to judge what this influence will be. The only judicial

opinion addressing the First Amendment issues connected to the Secret Service's hacker crackdown was that of Judge Bua in the Neidorf case, an opinion in which the First Amendment questions were sidestepped. Because a trial court's opinion

carries no precedential weight and the subsequent dropping of the charges against Neidorf left no opportunity for

6395 U.S. 444, 447-448 (1969). 123

appeal, the courts have yet to speak decisively in this matter.

Recent Developments Recent Developments

Recent Developments

Two recent events may have significant implications for the future of computer-communication law. On May 1, 1991,

Steve Jackson Games and the Electronic Frontier Foundation filed a lawsuit against the United States Secret Service, citing, among other offenses, violations of the First and Fourth Amendments to the Constitution.7 The First Amendment

charges were based upon the prior restraint that resulted from the confiscation of the GURPS Cyberpunk materials and from the seizure of SJG's BBS system. Among many other

charges, the lawsuit alleges that the Secret Service's affidavit was invalid because it swept within its scope numerous forms of First-Amendment-protected expression. Perhaps most significantly, the lawsuit specifically includes in that category "a BBS that was a forum for speech and association protected by the First Amendment."8 The lawsuit, filed in the U.S. District Court for the western district of Texas, was hailed by EFF attorney Mike Godwin as "the most important case brought to date to

7Electronic Frontier Foundation, Press Release, May 1, 1991. 8Complaint and Demand for Jury Trial, Steve Jackson Games Inc. et al. v. U.S. Secret Service et al., U.S. District Court, Western District of Texas, Austin Division. 124

vindicate the Constitutional rights of the users of computer-based communication technology."9 The SJG lawsuit

may succeed where the Neidorf trial failed: It may provide the watershed case in which a court could define the First Amendment's applicability to computer-based communication. In an unrelated case, on October 29, 1991, the U.S. District Court for the Southern District of New York handed down a ruling that may prove to be a significant development in the law regarding computer communication. In Cubby v.

CompuServe, Inc.,10 Judge Peter K. Leisure dismissed a libel suit against the CompuServe information service regarding allegedly defamatory statements posted in one of its many forums, tackling the sticky question of sysop liability: The requirement that a distributor must have knowledge of the contents of a publication before liability can be imposed for distributing that publication is deeply rooted in the First Amendment.... While CompuServe may decline to carry a given publication altogether, in reality, once it does decide to carry a publication, it will have little or no editorial control over that publication's contents.... CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.11

9Press Release, supra note 7.

101991 U.S. Dist. LEXIS 15545 (unreported as of November 1991, retrieved from the LEXIS online database). 11Id. at 9-11. 125

Judge Leisure's reliance upon the First Amendment seems a clearer affirmation than ever that the First Amendment applies unequivocally to computer-based media (though it remains unclear which existing model, if any, is the best fit). The decision seems to adopt the "knowing" test for

sysop liability: that the sysop can only be held responsible if he is aware, or could reasonably be expected to be aware, of the defamatory material.

the Law

The Direction of the Law The Direction of the Law

The Direction of

Concerns over the First Amendment rights of computer communicators are legitimate. But the overall direction of The Secret Service's

the law leaves room for optimism.

crackdown on hackers in 1990 served to bring the questions of free speech and computer media into the public eye, and it was directly responsible for the creation of the Electronic Frontier Foundation. Although individuals such

as Steve Jackson and Craig Neidorf may have been injured by the persecution they endured, their cases demonstrated the need for greater understanding of computers and computerbased communication. The controversies of 1990 have

ensured that the formation of policy regarding computer communication will receive the attention it deserves from not only special-interest groups like the Electronic

Frontier Foundation, but from the mainstream legal community as well. Noted constitutional scholar Laurence Tribe has


gone so far as to propose a constitutional amendment explicitly protecting computer communication: If my own life as a lawyer and legal scholar could leave just one legacy, I'd like it to be the recognition that the Constitution as a whole "protects people, not places." If that is to come about, the Constitution as a whole must be read through a technologically transparent lens. That is, we must embrace, as a rule of construction or interpretation, a principle one might call the "cyberspace corollary." It would make a suitable Twenty-seventh Amendment to the Constitution, one befitting the 200th anniversary of the Bill of Rights.... The Twenty-seventh Amendment, to be proposed for at least serious debate in 1991, would read simply: "This Constitution's protections for the freedoms of speech, press, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivation of life, liberty, or property without due process of law, shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled."12 Such a proposal, along with recent events such as Cubby v. CompuServe and the potential of Steve Jackson Games v. United States Secret Service, show that some of the strongest regulatory players may be on the side of freedom in cyberspace.

12L. Tribe, "The Constitution in Cyberspace," prepared remarks, keynote address at the First Conference on Computer, Freedom and Privacy, Mar. 26, 1991. 127





De Sola Pool, Technologies of Freedom (1983) Krasnow, Longley, and Terry, The Politics of Broadcast Regulation (3d. ed. 1982). Levy, Hackers (Paperback ed. 1984). Freedman, The Computer Glossary (4th ed. 1989) Hafner and Markoff, Cyberpunk: Outlaws and Hackers on the Computer Frontier (1991). Dvorak and Anis, Dvorak's Guide to PC Telecommunications (1990).

Magazine Articles Magazine Articles

Magazine Articles

Costikyan, "Closing the Net," Reason, Jan. 1991, at 22. Kapor, "Civil Liberties in Cyberspace," Scientific American, Sept. 1991, at 116. Barlow, "Crime and Puzzlement," Whole Earth Review, Fall 1990, at 45.

Law Review Articles Law Review Articles

Law Review Articles

R. Neustadt, G. Skall, M. Hammer, "The Regulation of Electronic Publishing," 33 Fed. Comm. L.J. 331 (1981). K. Uyehara, "Computer Bulletin Boards: Let the Operator Beware," 14 Student Lawyer, April 1986, at 30. M. E. Katsh, "The First Amendment and Technological Change: The New Media Have a Message," 57 Geo. Wash. L. Rev. 1459

(1989). R. Charles, "Computer Bulletin Boards and Defamation: Who Should Be Liable? Under What Standard?" 2 J. of Law and Technology, Winter 1987, at 121. E. Jensen, "An Electronic Soapbox: Computer Bulletin Boards and the First Amendment," 39 Fed. Comm. L.J. 217 (1987).

E. Di Cato, "Operator Liability Associated With Maintaining a Computer Bulletin Board," 4 Software L.J. 147 (1990). J. Soma, P. Smith, R. Sprague, "Legal Analysis of Electronic Bulletin Board Activities," 7 W. New Eng. L. Rev. 571 (1985). R. Beall, "Developing a Coherent Approach to the Regulation of Computer Bulletin Boards," 7 Computer/Law Journal 499 (1987). J. Hurwitz, "Teletext and the FCC: Turning the Content Regulatory Clock Backwards," 64 Boston Univ. L. Rev. 1057 (1984). R. Hindman, "The Diversity Principle and the MFJ Information Services Restriction: Applying Time-Worn First Amendment Assumptions to New Technologies," 38 Catholic Univ. L. Rev. 471 (1989). L. Becker, "Electronic Publishing: First Amendment Issues in the Twenty-First Century," 13 Fordham Urban L.J. 801 (1985).

Congressional Hearings and Reports Congressional Hearings and Reports Congressional Hearings and Reports Computer and Communications Security and Privacy: Hearings Before the Subcommittee on Transportation, Aviation and Materials of the Committee on Science and Technology, House of Representatives, 98th Cong., 1st Sess. (1983). Computer and Communications Security and Privacy: Report Prepared by the Subcommittee on Transportation, Aviation and Materials, Transmitted to the Committee on Science and Technology, House of Representatives, 98th Cong., 2d Sess. (1984). Computer Crime: Hearing Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 98th Cong., 1st Sess. (1983). Computer Fraud Legislation: Hearing Before the Subcommittee on Criminal Law of the Committee on the Judiciary, U.S. Senate, 99th Cong., 1st Sess. (1985). Health and the Environment Miscellaneous -- Part 4: Hearings

Before the Subcommittee on Health and the Environment of the Committee of Energy and Commerce, House of Representatives, 98th Cong. (1984). Counterfeit Access Device and Computer Fraud and Abuse Act: Hearings Before the Subcommittee on Crime of the 129

Committee on the Judiciary, House of Representatives, 98th Cong., 1st and 2d Sess. (1983-84). Computer Fraud and Abuse Act of 1986: Hearing Before the Committee on the Judiciary, U.S. Senate, 99th Cong., 2d Sess. (1986). Use of Computers to Transmit Material Inciting Crime: Hearing Before the Subcommittee on Security and Terrorism of the Committee on the Judiciary, United States Senate, 99th Cong., 1st Sess. (1985).




U.S. v. Riggs, 739 F.Supp. 414 (N.D. Ill. 1990). U.S. v. Riggs, 743 F.Supp. 556 (N.D. Ill. 1990).

Online Sources Sources

Online Sources


Jargon File version 2.9.6 (Aug. 16, 1991), distributed via the Internet. G. Spafford, What Is Usenet? (Sept. 9, 1991), distributed via Usenet. Computer Underground Digest, published every two to three weeks via Usenet.


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