Docstoc

Free Speech in Cyberspace

Document Sample
Free Speech in Cyberspace Powered By Docstoc
					Note: This file was created by printing Word for Windows
document files to an ASCII file, using a Generic/Plain Text
printer driver. Line breaks and some formatting
characteristics weren't preserved very well in this
conversion.

The author can be reached at the following email address:

                     rberry@vnet.ibm.com
                              FREE SPEECH IN CYBERSPACE
FREE SPEECH IN CYBERSPACE                              FREE SPEECH IN
CYBERSPACE


                      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




                                         by
by                                         by

                                   ROBERT R. BERRY
ROBERT R. BERRY                                   ROBERT R. BERRY




            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
                                           CHAPTER ONE:
CHAPTER ONE:                                           CHAPTER ONE:

                            New Questions for a New Medium
New Questions for a New Medium                            New Questions
for a New Medium

                 Introduction                  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

               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 information-

               gathering 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

               existing in tangible form.     And the information whose

               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 computer-

based 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.



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

                 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
100,000.8   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

of media law are inadequate to the task.    Today's system

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 issue;
to put into circulation."

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.    But the danger may

            be even more significant.   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.   It opens

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
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

be expected to multiply," he writes.    "It is even possible

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

legal questions associated with specific media.     Almost

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
crime.42   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
BBS.52   He also suggests that sysops could protect

themselves by exercising tight control over their BBSs,

verifying users' identities before giving them access.53     He

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

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.    The regulatory

underpinnings are without merit."74     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

             mainstream of First Amendment-protected expression.    If

             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
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                  Research
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?            First Amendment?             First
Amendment?
  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 computer-
controversies of 1990 and the formation of computer-
controversies of 1990 and the formation of computer-

            communication 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
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
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.    However, privacy law will

            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

            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.   In this thesis, citation


                              26
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.
27
                                          CHAPTER TWO:
CHAPTER TWO:                                          CHAPTER TWO:

                                             The Net
The Net                                             The Net

                 This chapter will explore the nature of today's computer-

               based 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

               technical explanation.   However, the minute technical

               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 Technology
The Technology1

                 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.

                 Bulletin Board Systems (BBSs)               Bulletin Board
Systems (BBSs)                 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.     A

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

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.

           The Internet and Usenet                The Internet and
Usenet           The Internet and Usenet

           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

           discussing dogs is called rec.pets.dogs.   There are also a

           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                 BBS Networks                 BBS
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

           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                 The 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.   But a

surprising amount is nontechnical in nature.   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 rec.music.country.western:

    From: uuwayne@venus.lerc.nasa.gov (Wayne Stopak)
    Newsgroups: rec.music.country.western
    Subject: Keith Whitley
    Date: 7 Nov 1991 12:44 EDT




   29The five most popular newsgroups as of October 1991
were alt.sex, rec.humor.funny, misc.jobs.offered, 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: warnock@nssdca.gsfc.nasa.gov (Archie Warnock)
    Newsgroups: rec.music.country.western
    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: enbal@tamu.edu (James L. Heilman)
    Subject: Pat Buchanan and David Duke
    Date: 18 Nov 91 21:42:06 GMT




   31Article posted to Usenet newsgroup
rec.music.country.western 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
rec.music.country.western 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: bard@cutter.ssd.loral.com (James Woodyatt)
Newsgroups: talk.politics.misc,alt.censorship
Subject: Re: Censorship of 'Doonesbury'
Date: 19 Nov 91 01:43:37 GMT

In article <1991Nov17.014025.527@desire.wright.edu>,
demon@desire.wright.edu (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.



                         42
    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 computer-

            industry 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
47
    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
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-Amendment-

protected 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:
CHAPTER THREE:                                      CHAPTER THREE:

                                          Hackerphobia
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 Notice

           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:




                              53
       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

going to choke on its fumes."4   In the case of computer

communication, the "pollution" that first drew the attention

of regulators was computer hacking.



  WarGames                 WarGames                WarGames

  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
III.5   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

computers was a new vulnerability.   Arizona prosecutor Gail

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 (D-

Kansas) 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 modern-
    day 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 computer-

crime 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?   Why did they feel that a

            new federal law was called for?   The basic idea seemed to be

            that computer criminals would somehow "fall through the

            cracks" between existing laws covering fraud, theft and

            embezzlement.22   Rep. Bill Nelson (D-Florida) summed up the

            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 high-
                technology 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

            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.    But I also think it's very easy

            to prevent that.   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 34-
            5 (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
break-in.    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 life-

threatening 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

that the problem is as yet widespread or pervasive.    As you




  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 Concerns

             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
considered.   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.   "And that is the

problem there, Senator."73



  Summary                 Summary               Summary

  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.
78
                                      CHAPTER FOUR:
CHAPTER FOUR:                                      CHAPTER FOUR:

                                   Operation Sun Devil
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.



  Crackdown                   Crackdown               Crackdown

  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   Ripco,

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 wide-

ranging topics.   It had a reputation as being a "legal and

above-board" BBS.13   In fact, Ripco had an explicit policy

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 1-800-
    555-1212 and punch in 123456 at the tone', the
    entire message was removed or in more cases re-
    edited especially if other parts were about non-
    related 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

Amendment come into play at all?" Esquibel asked.    "[W]hy

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 Neidorf

            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 role-

            playing 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
Headroom.38   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,

damaged filing cabinets and a ransacked warehouse.41    They

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

Cyberpunk had had nothing to do with the raid.   In fact, the

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

            is probably impossible to determine.   One member said that

            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.    "But

the media ate it up too.   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.   "We're just out to learn," Acid

Phreak explained.    "We transfer data about records that we

find in systems.    But we draw the line on how we use that

data.   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

            have a clear idea of exactly what the file was.    The Secret

            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 co-

sysop 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 icon-
    based 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

            technology to the agent.   "You know things have rather

            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

unconstitutional.   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.   And

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

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

be a defense in any case.   "[T]he law is clear," he wrote,

"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, slowly-

developing 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



  Summary               Summary                 Summary

  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.
114
                                        CHAPTER FIVE:
CHAPTER FIVE:                                        CHAPTER FIVE:

                                         Conclusions
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.



  Congress                 Congress                Congress

  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.    This may

explain why it was felt prosecutors needed new laws

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.




                              117
               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 white-

            collar 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

result of simple ignorance.   Familiarity with computers and

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 policy-

makers a clear understanding of the issues underlying free




                              119
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
  Hackers                 Hackers               Hackers

  From the very beginning, computer hackers, a group that

shuns attention, took on a central role in the controversy

over computer security.   At first, their role was mainly

that of catalyst.   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                  The Courts                 The
Courts

           Although courts will likely have a strong influence upon

         the formation of policy regarding the freedom of computer-

         based 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 Direction of the Law                 The Direction of
the Law            The Direction of the Law

            Concerns over the First Amendment rights of computer

          communicators are legitimate.   But the overall direction of

          the law leaves room for optimism.   The Secret Service's

          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 computer-

          based 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




                               126
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
                                        BIBLIOGRAPHY
BIBLIOGRAPHY                                           BIBLIOGRAPHY



               Books            Books            Books

               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).



          Cases            Cases            Cases

          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           Online 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.
130

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:6
posted:8/28/2012
language:English
pages:266
tayyab tariq tayyab tariq free software,games and many more. http://www.bestsoft32.com
About iam perfect person and no one can challege me.