Professor Cox: Below is a paper that I did for another class that I'm taking thi semester. I thought you might like to have a copy since it addresses some of the issues that we have discussed in your class. *************************************************** *This document is the intellectual property of the author. Distribution * *is restricted to educational and general interest purposes only. * * *Author: William E. Benso * ************************************************** ---------------------------------------------------------------------- A "CHILD" IN SEARCH OF GUIDANCE For Professor Raymond U. Akwule, Ph.D COMM 544 (Telecommunication Policy and Regulation) George Mason University, Fairfax, Virginia By: William E. Benso Date: April 20, 1995 ABSTRACT The Internet is a "child". An undisciplined immature "child" that is trying to walk before it learns to crawl. The modern Internet was developed a little over 25 years ago and in the desir to achieve a decentralized design, fundamental legal issues such as privacy were either overlooked, not realized, or simply not taken into consideration Today, society is immersed in cyberspace and computer bulleti boards are everywhere. Yet these fundamental legal issues ar still being debated by both the private and public sectors. The government supports this new Information Age and insists on a degree of regulatory responsibility while certain individuals and organizations view government involvement simply as an infringemen upon individual rights. The boxing gloves must come off and the finger pointing needs to stop. For the cyberspace "child" to develop and flourish, the public and private sectors must establish a dialogue of cooperation and set the basic ground rules regarding fundamental civil rights as they apply to cyberspace. A "CHILD" IS BOR In August 1968, a request from the United States Department of Defense made its way to Frank Heart, a manager at Bolt Beranek and Newman, Inc. (a high technology consulting firm in Cambridge, Massachusetts). The request was for a proposal to design a computer network, based on packet switching, that would connec widely dispersed computers. Severo Ornstein, also employed at Bolt Beranek and Newman, Inc., was asked to comment on this proposal and responded: 'Sure we could build such a thing, but I don't see why anybody would want it' (Anthes 101). Given that this proposal evolved to eventually become the Internet, this proved to be quite an understatement. Today's Internet has grown from a 4-node ARPANET in 1969 to an estimated 992,000 hosts in September 1992 and the growth rate is over 1,000 hosts per day (Press 21). The Internet is actually a network of networks, and NSFNET, the U.S. backbone, grew from 164 domestic and 9 foreign networks in July 1988 to 4,112 domestic and 2,273 foreign networks in August 1992 (Press 22). Today the Internet connects the cyberspace computers of millions of people worldwide and the number of new users is showing no signs of slowing down. But in reality, the Internet is still a "child" that needs room to grow and also rules to live by. This "child" was initially designed to withstand a nuclear attack and allow military and other government agencies to continue to communicate and conduct research. To achieve this ability, the resulting product was designed to have no central command, no specific ownership and no apparent authority within cyberspace. Unfortunately, by achievin this technical goal, many legal and social issues have arisen that need resolved before the "child" can fully mature. It is best stated by Lotus founder Mitch Kapor: 'If you want to compare cyberspace to television, we haven't even got to 'The Honeymooners' and 'I Love Lucy' yet' (Goodell 8). One of the biggest legal dilemmas centers around the computer bulletin boards that exist in cyberspace. But before proceeding, two definitions are needed here. One is "cyberspace" and the other is "computer bulletin board". A computer bulletin board exists i cyberspace as a central computer whereby people (via their own computers and telephone lines) can exchange text messages, data, graphic files, etc.. The term "cyberspace" was originally coined by William Gibson in his 1984 novel Neuromancer. And one good, bu rather lengthy, definition of cyberspace comes from Michae Benedikt, chair of the Department of Architecture at the Universit of Texas at Austin. In his Collected Abstracts from the Firs Conference on Cyberspace, Benedikt described it as follows 'Cyberspace is a globally networked, computer-sustained, computer- accessed, and computer-generated, multi-dimensional, artificial, o 'virtual' reality. In this world, onto which every computer screen is a window, actual, geographical distance is irrelevant. Objects seen or heard are neither physical nor, necessarily, presentations of physical objects, but are rather - in form, character, and action - made up of data, of pure information. This information is derived in part from the operation of the natural, physical world, but is derived primarily from the immense traffic of symbolic information, images, sounds, and people, that constitute huma enterprise in science, art, business, and culture' (Uncapher 9). Today there are around 45,000 individual computer bulletin boards operating in the United States (Goodell 4) and the legal issues such as copyright, privacy, free speech and search and seizure continue to be debated in both the private and public sectors (or, in many cases, private versus the public sector). To obtain a good understanding of the issues involved, it is best to examine some of the numerous legal cases that involve cyberspace and computer bulletin boards. YOU CAN'T COPY THAT ... I THINK One of the most recent legal cases involved Massachusetts Institute of Technology (MIT) student David LaMacchia. LaMacchi was accused of using two of the university's workstations to distribute commercial software worth more than a million dollars b encouraging others to copy commercial software onto the servers an to make copies of software already stored there. Prosecutors argued that LaMacchia violated the 1952 federal wire fraud law, but the U.S. law did not explicitly ban what LaMacchia was accused of doing. Defense lawyers argued that the law on wire fraud, which was designed to prevent the use of telephone wires in interstate fraud schemes, did not apply. Defense lawyer David Duncan of Zalkind, Rodrigues, Lunt & Duncan argued that LaMacchia had not profited from his actions; which is a key element of copyright violation, and that other media are not subject to such strict standards. He stated: 'One example is a public library with Xerox machines. It doesn't take much to imagine users are violating copyright' (Hecht 7). Mr. Stern, the U.S. prosecuting attorney, stated that the government was not interested as to whether LaMacchia had profited from his actions, but was concerned with protecting intellectual-property rights. This government positio was applauded by the Software Publishers Association. It i estimated that software publishers lose an estimated 1.5 billion dollars a year (DeLoughry A32) due to illegal duplications of programs within companies. But it is impossible to estimate the losses attributed to bulletin board systems since, according to Kenneth Wasch, executive director of the Software Publisher Association, 'The exponential growth of the Internet allows exponentially more opportunities for illegal activity' (DeLoughry A32). Many Internet users were concerned that this case could lead law enforcement officials to prosecute bulletin board operators who may know nothing about pirated software or other illegal material posted on their systems. With regards to the issue of copyright and profit, Richard Stallman of the Free Software Foundation made the following interesting statement: 'It's not true that we all pay for software copying. Lost revenues are not a cost to publishers. They're just not as rich as they dream of being' (Carroll 18:1). The LaMacchia case was eventually dropped, but the question as to copyright within cyberspace and bulletin boards still remains. How does one 'own' electronic information (be it software or simply a message from an individual posted on a bulletin board) that is made up of bits and data instead of physical matter? Is the electronic record a copyrightable 'writing'? And if so, by an individual or a group? If someone wishes to extract portions and transmit to another person, would that constitute fair use or copyright misuse? NO ONE UNDER 17 ADMITTED WITHOUT PARENT Obscenity laws are also being applied to computer bulleti boards. Recently, Robert and Carleen Thomas were arrested and charged with eleven Federal obscenity violations. The Thomas' ra the Amateur Action Bulletin Board Services and members were able to download pornographic photographs, exchange discussion and orde explicit videotapes. The Thomas' were convicted, but the crucial point of this case was that the Thomas' lived in California yet th charges originated in Tennessee. This was the first time that a bulletin board operator was prosecuted where the obscene material was received instead of its point of origin. Defense lawyer Thomas Nolan indicated that he would file an appeal based on the 1973 Supreme Court ruling that defines obscenity by local community standards. Nolan argued that the prosecution had searched for a conservative city in which to indict them in order to increase the chances of a conviction. In Munroe Falls, Ohio, police confiscated the computer of Mark Lehrer charging that minors were able to access explicit material on Lehrer's bulletin board. Lehrer claimed that the explicit material had restricted access, but a filing error put the material in an unrestricted place. Lacking legal financial funds, Lehrer pleaded guilty to a misdemeanor charge of possessing a criminal tool - his computer. Critics have argued that confiscating the computer for misfiled material is akin to seizing a store for a misfiled copy of Playboy. These issues not only deal with obscenity, but raises the question of where are you when you are in cyberspace? Cyberspace does not seem to want to play by the same rules that govern physical boundaries. YOUR SECRET IS SAFE WITH ME ... AND THE ENTIRE CYBERSPACE COMMUNITY Privacy is one of the hottest topics being debated regarding cyberspace. Through credit, phone, cable and other electronic records most people exist in cyberspace whether they want to o not. And the biggest privacy issues seem centered around a individual's medical and financial records. Many of the healt care bills introduced in the last Congress advocated a nationa medical database which may have enabled law enforcement officers to access files without having to obtain a search warrant. Financial privacy within cyberspace is also of major concern. Following are a couple of examples of individual financial records being unknowingly compromised: (1). In July 1994, Senator John Glenn (D-OH) released Internal Revenue Service (IRS) papers indicating that IRS employees were using IRS computers to prowl through tax files of family, friends, celebrities, etc.. According to the IRS, since 1989, th agency has investigated more than 1,300 of its employees for unauthorized browsing and more than 400 have been disciplined (Ness 22). (2). Large corporations, such as Equifax Marketing Decision Systems, can provide marketers with precise profiles of potential buyers. One example is when Equifax teamed with Lotus Development Corporation to offer a product called Lotus Marketplace which wa a set of optical disks containing data on 80 million households and more than 120 million individuals (Branscomb 156). The data neede to compile such statistics is actually quite easy to obtain. Any time a credit card is used to make a purchase, that data can be used to determine a customer tastes and spending habits. Something to think about the next time you have your grocery card scanned. Privacy concerns also effect users of computer bulletin boards. Electronic messages are quite easy to intercept and automatically scan for key words or phrases. An individual expects a certain degree of privacy with regards to 'paper' mail sent through the U.S. mail system, but electronic messages may not be privy to the same type of handling. Cryptography is one method to ensure the privacy of electroni information and, as with the other legal issues present in cyberspace, has generated serious debate. The Clinton administration (especially Vice President Al Gore) has been a strong advocate regarding support for cyberspace development. One of the government's proposals to resolve the privacy concern was the Clipper chip. Clipper is a computer chip that scrambles a message using a classified mathematical function. Users would have numerical keys to encode and decode messages, but two agencies - the Treasury Department and the National Institute of Standards and Technology - would hold copies of the keys, allowing for governmen access as needed. Clipper was the response of law enforcement and national security officials who fear that powerful computers would make it easier for criminals and espionage agents to break the law. Many cryptographers were concerned that Clipper would not be secure and would not sufficiently protect privacy. Since Clipper was classified and developed by the National Security Agency (NSA), the keys for every Clipper chip would be available to only handful of people and if these people were corrupted, the whole system could become compromised. Given their involvement, the NS might also have built in unknown computer code which would allow i special access. The involvement of the NSA was even criticized by the Office of Technology Assessment concluding it was 'part of long-term control strategy intended to retard the general availability of unbreakable or hard-to-break cryptography within the United States' (Ness 26). Clipper has essentially bee abandoned for data encryption, but it represents the ongoing efforts by government authorities to protect their eavesdroppin rights. In May 1994, FBI Director Louis Freeh stated: 'If you think crime is bad now, just wait and see what happens if the FBI one day is no longer able to conduct court-approved electronic surveillance' (Ness 26). This warning was made soon after the reintroduction of the Digital Telephony bill. This bill, approve by Congress, requires telephone companies to help law-enforcement officers, with the appropriate court order, to eavesdrop on phone conversations and also makes transactional data (who's calling whom) more easily available to law enforcement officers. Private citizens have also been attempting to provide encryption technology to computer users. One of the most recent tools to protect electronic data is PGP (Pretty Good Privacy) released in 1991 by Phillip Zimmermann. Zimmermann was concerned for American's privacy rights in cyberspace and decided to release PGP freely because Congress was considering banning it, though no law was ever passed. Since its release, PGP and Zimmermann have been targets of law enforcement and intelligence officials. According to one U.S. intelligence official: 'The ability of just about anybody to encrypt their messages is rapidly outrunning our ability to decode them' (Sussman: Bulletin Board). An investigation is currently being conducted by the U.S. Customs Service and the Justice Department as to whether to indict Zimmermann for violating a federal weapons export law. According to Zimmermann, PGP was initially given to friends and that it was only to be distributed in the United States. Even though PGP carriers disclaimers such as 'IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, DO NOT DOWNLOAD THIS FILE', PGP has crossed international boundaries and is now widely available outside the United States. For example, when the attempted coup took plac against Russian leader Boris Yeltsin, Zimmermann received this electronic message from Latvia: 'Phil I wish you to know: Let it never be, but if dictatorship takes over Russia, your PGP is widespread from the Baltic to Far East now and will help democratic people if necessary. Thanks' (Ness 27). The investigation is being led by Silicon Valley Assistant U.S. Attorney William P. Keane and, if convicted, Zimmermann could face a three to five year jail sentence and a one million dollar fine. This situation raises even more interesting questions regarding computer bulletin boards. First, Zimmermann didn't actually distribute PGP to foreign citizens, the Internet and computer bulletin boards did. And since PGP was released free o charge, there are no copyright violations. Lastly, since PGP is not illegal in the United States, how would charges be filed? SEARCH AND SEIZURE - CYBERSPACE STYLE Regarding search and seizure in cyberspace, the case of Steve Jackson Games is one example to explore. The Fourth Amendment of the U.S. Constitution protects individuals against unreasonable searches and seizures and states that a warrant must 'particularly (describe) the place to be searched, and the persons or things to be seized' (Uncapher 14). On March 1, 1990, Secret Service agents, armed with a search warrant, raided Steve Jackson Games and confiscated all material related to the soon to be published game "GURPS Cyberpunk, High Tech Low Life". The Secret Service charge that this game was basically a manual in computer crime. Stev Jackson Games filed a counter-suit against the Justice Department contending that the government seized an electronic bulletin board and read the private electronic messages of 300 people, none o whom was a target in the investigation. Other examples of this type of search and seizure are evident in the 'Operation Sundevil' raids that were conducted by the Secret Service on May 7-8, 1990. WHAT DO YOU MEAN I CAN'T SAY THAT? Copyright, obscenity, privacy and search and seizure are all critical legal issues that are being debated as they apply to cyberspace and computer bulletin boards. But the most pressing issue has to do with First Amendment rights of free speech. The three main on-line computer service companies in the United States, Prodigy, CompuServe and America On-Line, each have a different policy regarding free speech on their bulletin boards Prodigy stated that it has no First Amendment obligation to carr every message its subscribers wish and automatically screens an rejects messages with curse words and/or racial slurs. Prodigy rejects the common carrier stance which would require it to carry all messages just as a telephone company must transmit every call. CompuServe totally disavows any responsibility for the accuracy of any bulletin board information. America On-Line's approach is similar to Prodigy's in that it assumes no liability for inaccuracies. But America On-Line will terminate memberships of those subscribers who post inaccurate messages or chain letters. The Sausalito, California based THE WELL (the Whole Earth 'Lectronic Link) bulletin board, which imposes virtually no restriction on their users, summed up their position by statin that 'what people say is their responsibility, not our responsibility' (Moore 748). There are obviously different corporate policies regarding these bulletin boards and no definitive regulation. In October 1991, these electronic bulletin board operators won a key victory in Cubby versus CompuServe Information Service. Judge Peter K. Leisure of the U.S. District Court for the Southern District of New York ruled that CompuServe could not be held responsible fo alleged libelous material. Judge Leisure wrote: 'While CompuServe may decline to carry a given publication altogether, in reality once it does decide to carry a publication, it will impose little or no editorial control over the publication's contents' (Moore 749). But individual free speech rights in cyberspace are still being contested. In August 1993, Michael Elansky, who ran the Ware House bulletin board in West Hartford, Connecticut, was arrested when police found files on his bulletin board explaining in detail the construction of several explosive devices. The files wer written using constitutionally protected information ranging from chemistry textbooks to The Anarchist Cookbook One possible answer to the electronic freedom of speech debat may be the 1969 U.S. Supreme Court decision in Brandenburg v. Ohio. The court ruled 'that no speech should be subject to prior restraint or criminal prosecution unless it is intended to incite and is likely to cause imminent lawless action' (Kapor 164). WHO'S IN CHARGE HERE? Copyright violations, privacy issues, obscenity laws, illegal search and seizure concerns, first amendment rights to freedom of speech. Quite a number of social and legal concerns are present regarding computer bulletin boards and cyberspace. With all these legal issues, who is responsible for enforcing the law? Given the secretive nature of intelligence and national security matters, it is difficult to determine who exactly has jurisdiction. The Secret Service clearly plays a role in the policing of cyberspace (examples are Steve Jackson Games and Operatio Sundevil). The Secret Service basis its authority on Title 18 USC 1029 1030 (Access Device Fraud). This title was part of the 1984 Comprehensive Crime Control Act which allows the Secret Service t investigate any misuse of financial networks. The laws goal was to deter credit card and computer fraud. But the Secret Service interpreted this law to mean not just an internal computer network in a particular financial institution but anything on any computer network that might be construed as having a financial interest. The National Security Agency also has a role in the policing of cyberspace (recall their involvement in the development of the Clipper chip). In 1984, President Reagan signed the National Security Decision Directive (NSDD) 145 which put the NSA 'in charg of computer security' (Uncapher 12). In 1987 Congress passed the Computer Security Act which transferred the responsibility for federal computers to the National Institute for Standards and Technology. But in 1990, President Bush issued the classified revised NSDD-145 which reassigned computer security oversight responsibility back to the National Security Agency. The legal future of cyberspace bulletin boards is unknown, but one pending congressional initiative is worthy of discussion - the Communications Decency Act of 1995 (Senate 314 & House of Representatives 1004). This proposal, introduced by Senators Exon (D-Nebraska) and Gorton (R-Washington), is intended to place substantial criminal liability on telecommunications carriers including traditional telephone networks, Internet service providers, commercial on-line bulletin board services and independent bulletin board operators whenever their networks ar used to transmit material deemed harassing or indecent. In effect this legislation would amend Section 223 of the Communications Act and restrict freedom of speech, halt the free flow of information on the Internet, and require all telecommunications carriers to screen public and private communications. The proposal is currently pending before the Senate Commerce Committee chaired by Senator Pressler (R-South Dakota) and may be included in the Senate telecommunications reform legislation. This proposal really examines the fundamental question as to what extent the government has regarding the control of content on communication networks. Organizations such as the American Civil Liberties Union and the Electronic Frontier Foundation have already voiced their objection to these initiatives and have conducted a wide spread campaign urging citizens to make their objections known to Congress. The future of this proposal is uncertain. According to Michael Godwin of the Electronic Frontier Foundation: 'Nobody wants to pass the Exon Amendment' because it is unworkable and probably unconstitutional. 'But if it goes to a vote, they'll pass it' to avoid appearing in favor of pornography (Wallich 43). Even though most cyberspace organizations oppose the Exon Amendment, the debate over government regulation continues. Severo Ornstein, the same individual quoted earlier wondering why anyone would want a computer system like the Internet, recently stated: 'The government is clearly going to have to step in in some regulatory fashion. If it's timid regulation, as in television, it's not going to be very effective. If the government addresses it more as it does telephone communications, then it can be more in the public interest. If not the Federal Communications Commission, some equivalent kind of organization could help impose some order in the public interest, rather than turning it into a free-for-all in the open market' (Anthes 105). On the other hand, some individuals are concerned that government regulation would be hindrance. Ben Barker, designer of ARPANET hardware interfaces i 1969 stated: 'The absence of regulation has been a key reason fo the creative energy and rapid advancement which has characterized the Internet. If the government moves in to regulate it i response to the competitive environment brought on by the success of the Internet, this dynamic energy will be lost' (Anthes 105). THE "CHILD" MUST LEARN TO CRAWL BEFORE IT CAN WALK The United States Constitution was written approxiamately two hundred years ago and we, as American citizens, have come to expec certain privileges such as freedom of speech and safeguards against illegal search and seizure. Now a new age has emerged that has been called by many names such as the Information Superhighway, the Internet, the Information Age, the Electronic Frontier, etc.. I is composed of data bits of information that don't seem to want to play by the same rules that were widely accepted prior to the 196 ARPANET project. The Clinton Administration (especially Vic President Al Gore) has a strong interest in promoting the Information Age, but a high federal debt has led the administration to favor allowing the private sector to lead the way in developing this Information Superhighway. This suits well with those individuals that see any type of government regulation as handicap, but clearly law enforcement and intelligence agencies have a legitimate role regarding cyberspace and computer bulleti boards. And the private sector also sees the benefits of certain government involvement that would establish basic guidelines. So where do we go from here? The first step must be to define th fundamental legal issues, such as freedom of speech, as they apply to the electronic age of cyberspace. Until that is done, other initiatives either by both the public or private sector are merely sideshows that bypass the big picture. Unfortunately, this is easier said than done. Technology is advancing so quickly and most people are simply not aware of the pressing legal issues that seem to have been overlooked. There are about 800,000 lawyers in the United States (Frum 56) and according to Mikki Barry (attorney a InterCon Systems Corporation and one of the founders of the Internet Business Association): 'Judges and juries have no clue what's going on - they still think the information superhighway is about 500-channel cable TV systems' (Wallich 44). Society must not bury it's head in the sand and hope that these fundamental issues will work themselves out. The cyberspac "child" was born through the efforts of both the private and public sectors. And now these sectors must cooperate to raise this "child" by resolving not only technical and national security matters; but more importantly, the fundamental legal issues that define our society WORKS CITED Anthes, Gary H. "The History of the Future." Computerworl (October 3, 1994): 101-105. Branscomb, Anne W. "Common Law for the Electronic Frontier." Scientific American (September 1991): 154-158. Carroll, John. "Hard Line on Software." Boston Globe (January 9, 1995): 18:1. DeLoughry, Thomas J. "2 Students are Arrested for Software Privacy." Chronicle of Higher Education (April 20, 1994): A32. Frum, David. "Lawyers in cyberspace." Forbes (October 25, 1993): 56. Goodell, Jeffrey. "Civilizing Cyberspace." Rolling Stone (June 10, 1993): SS3-SS11. Hecht, Jeff: "Internet 'Pirate' Charged in US." New Scientis (April 23, 1994): 7. Kapor, Mitchell. "Civil Liberties in Cyberspace." Scientific American (September 1991): 158-164. Moore, John. "Taming Cyberspace." National Journal (March 1992) 745-749 Ness, Erik. "BigBrother@cyberspace." Progressive (December 1994) 22-27. Press, Larry. "The Net: Progress and Opportunity." Communications of the ACM (December 1992): 21-25. Sussman, Vic. "Lost in Kafka Territory." U.S. News & World Report (April 3, 1995): Bulletin Board. Uncapher, Willard. "Trouble in Cyberspace." Humanist (September 1991): 5-14. Wallich, Paul. "Watch Your Electronic Mouth." Scientific American (December 1994): 43-44 OTHER SOURCES Associated Press. "Jail for Couple Over Computer Pornography." New York Times (December 3, 1994): A, 9:3 Barringer, Felicity. "Electronic Bulletin Boards Need Editing. N They Don't." New York Times (March 11, 1990): 4. 4:1. Burstyn, Harold L. "Computer Whiz Guilty." ABA Journal (April 1990): 20. Charney, Scott. "What's wrong with the computer crime statute?" Computerworld (February 1992): 33. Daly, James. "Update fraud law, G-man says." Computerworld (November 1992): 15 Giese, William. "Dumber & Dumber." Kiplinger's Personal Finance Magazine (March 1995): 88-92. Guidoboni, Thomas A. "What's wrong with the computer crime statute?" Computerworld (February 1992): 33. Jenkins, Jolyon: "Hacked to Pieces." New Statesman & Society (February 1990): 27. Nobile, Robert J. "Keeping Posted on Bulletin Boards." Personnel (June 1990): 12-14. Schwartz, John. "Chipping In to Curb Computer Crime." The Washington Post (February 19, 1995): A-1, A-10, A-11. Spears, Gregory. "Cops and Robbers on the Net." Kiplinger's Personal Finance Magazine (February 1995): 56-61 Srodes, James: "Business Class in Cyberspace." Financial World (October 25, 1994): 16. Voters Telecommunications Watch. "Coalition forms to oppose Exon "decency" bill." Computer bulletin board (March 3, 1995) Wilke, John R. "Protecting Privacy in Computer Media." Wall Street Journal (November 9, 1990): B, 1:1. ************************************************** *This document is the intellectual property of the author. Distribution * *is restricted to educational and general interest purposes only. * * *Author: William E. Benso * ***************************************************